The respondents filed a suit for declaration and perpetual injunction with consequential relief claiming that Nemat Ali and Ahmad Ali are real brothers and were the owners of land measuring 100-K 1-M detailed in the plaint; Ahmed Ali married with Mst. Hajran Bibi, who happened to be the sister of defendants/petitioners; Ahmad Ali after 6 months of his marriage died issueless and his land/property was evolved upon his widow Mst.Hajran Bibi as limited owner and Mutation No. 108 was attested on 3.6.1945 in her favour; the respondent claims that he and his brother are Shia by faith and according to Fiqa Jafria, widow was not entitled to inherit the estate of deceased Ahmad Ali; Mst. Hajran Bibi contracted second marriage with Abdul Hameed and after the repeal of customary law, the property of Ahmad Ali deceased was reverted back to Ahmad Ali, the last male owner and, as such, Mutation No. 9 attested on 3.7.1964 is against law and is void; Mst. Hajran Bibi died in the 1979 and her property devolved upon defendants No. 2 to 4 and Mutation No. 309 to this effect was attested on 24.6.1985. The legality of these two mutations has been assailed through the suit.
2. The defendants appeared and controverted the assertions of plaint. The learned trial Court out of the divergent pleadings of the parties, framed the following issues:-- "ISSUES: (1)Whether the suit is time-barred? OPD (2)Whether the suit is not correctly valued for the purpose of Court fee and jurisdiction? OPD (3)Whether the suit is not maintainable in its present form? OPD (4)Whether the plaintiff has no locus standi and cause of action?
(5)Whether the plaintiff is estopped to file the suit by his own act and conduct? OPD (6)Whether the plaintiff filed this suit only to harass the defendants and after dismissal of this suit whether the defendants are entitled to special cost under Section 35-A CPC? OPD (7)Whether Mutation No. 9 dated 23.07.1964 and Mutation No. 309 dated 24.6.1985, are void, based on misrepresentation, collusive and ineffective against the rights of the plaintiff and are liable to be set aside? OPP (8)Whether the Defendant No. 1, Sardar Muhammad is a man of sound mind? OPP (9)Relief'
3. Both the parties adduced their respective evidence both oral as well as documentary and the learned trial Court vide judgment and decree dated 31.7.1991 dismissed the suit. The respondents assailed the said judgment and decree through an appeal which was allowed vide judgment and decree dated 15.11.1993. Hence the present revision petition.
4. Learned counsel for the petitioners submits that all Muslims residing in undivided Indo-Pak sub- continent are presumed to be Sunni Hanfi Muslims under Mahomedan Law. He relies upon Mahomedan Law by D.F.Mulla's revised by Zafar Hussain Chaudhry and specifically Section 28 of Mohammadan Law. Further submits that Mutation No. 9 (Ex.P.5) was attested on 3.7.1964 in the presence of Nemat Ali, hence the suit was barred by time; learned counsel specifically attacks on finding of appellate Court to the affect that suit of the plaintiffs was hopelessly barred by time and the learned appellate Court was not justified to reverse the finding of learned trial Court on this issue.
5. Learned counsel for respondents supports the impugned judgment and submits that it has been proved on record that deceased Ahmad Ali was Shia Muslim and after his death his issueless widow is not entitled to his estate. The respondents are admittedly the legal heirs of deceased Ahmad Ali and as such they are entitled to inherit the estate of deceased.
6. Heard and record perused.
7. The main dispute between the parties is, the respondents are claiming that Ahmad Ali was Shia Muslim, he died issueless and as such his wife was not entitled to inherit his estate.
8. It is an admitted fact on record that Mutation No. 9 was attested in favour of Mst. Haj ran Bibi as limited owner being issueless. Under the Shia Law, the inheritance of childless widow as per Shia Scholars is regulated as under- "the issueless Shia widow does not take any share from immovable property of her husband but she is entitled to her proper share in the value of household effects, trees, buildings and movable property including debts due to the deceased. The exact meaning of expression 'childless widow' is in doubt. Does it mean a woman who has had no children, or does it merely imply that the widow has no children living at the time of death of her husband? This question has not yet been finally settled".
9. Syed Ameer Ali, in his book "Muhammadan Law", Volume-II discussed this preposition as under: - - "The husband takes a share in all kinds of property left by his deceased wife, and so does the widow when she has a child "born of her womb", or child's child. But when she has no child, or when a child was born to her, but died before death of her husband, then she is entitled to fourth share in the personal estate only, including household effects, trees, buildings, etc. She takes no interest in the landed property."
10.N.J. COULSON in his book on "Succession in the Muslim Family" opines as under:-- -Childless' here means, according to the texts, that the surviving widow is without a child, alive or in embryo and subsequently born alive, at the time succession to the estate opens. A wife, therefore, suffers from this disability if she has had children by the prepositus who have died before the succession opens or if her only children are those of another marriage. The rule is clearly aimed at ensuring, to a larger degree, that lands remain within the husband's family. A widow succeeds to a share in her husband's lands only when that share, or the greater part of it, will in the normal course of events be transmitted to the husband's issue upon her deceased.
11.The above said definition of issueless widow shows that Justice Ameer Ali's definition is acceptable to the Shia Muslim as he is the eminent/Shia Muslim Scholar.
12.There is no dispute between the parties in the present case that Mst. Hajran Bibi was the wife of Ahmad All and Ahmad Ali died issueless. After death of Ahmad Ali, immovable property of deceased Ahmad All was mutated in favour of Mst.Hajran Bibi as limited owner. PW-1 appeared in witness-box and confirmed that Ahmad Ali was Shia Muslim by faith; Ahmad Ali was his disciple; Ahmad Ali got married with Mst. Hajran Bibi in 1943; Ahmad Ali died in 1944; Nemat Ali and Ahmad Ali, both brothers are professing Fiqqa Jafaria. He performed his funeral prayer; both the brothers were participating in Moharram procession; Nemat Ali completed the burrial ceremony of the deceased Ahmad Ali. This witness is the only witness who is known to both the parties i.e Ahmad Ali and Nemat Ali. It is not disputed by the petitioners that Nemat Ali was not the disciple of PW-1. The other witnesses may be called the interested witnesses but PW-1 has no interest in the affairs of the family of the parties. Both the parties accepted him as their spiritual leader and both the parties are his disciples. Statement of PW-1 is more reliable as he completed the funeral ceremony of deceased Ahmad Ali and performed his funeral prayer and as such it is proved on record that Ahmad Ali was Shia by faith.
13.Ahmad Ali was Shia by faith as discussed above and as such under the Shia Law of inheritance, Mst. Hajran Bibi, her wife being issueless was not entitled to inherit any share in the immovable property of deceased Ahmad Ali. Learned counsel for the petitioner argued that Nemat All was present at the time of attestation of mutation in favour of Mst. Hajran Bibi and as such he is estopped from raising the question of inheritance of Ahmad Ali. It is an admitted fact on record that Mst. Hajran Bibi inherited the property as limited owner under the Customary Law and even if it is assumed that Ahmad Ali was Suni Muslim by faith after repeal of Customary Law, Mst. Hajran Bibi will only be the owner of her share under the Islamic Law. The dispute between the parties is that Mutation No. 9, is not the mutation under Customary Law and in case of the second marriage of Mst. Hajran Bibi has to return the property to the last mail owner. It is proved on record that Mst.
Hajran Bibi contracted second marriage and as such on this score, the legal heirs of Mst. Haj ran Bibi are not entitled to her entire estate. As the land inherited in her name has to be reverted back to the last male owner less her share according to Hanfi faith. But in this case, it has been proved that Ahmad All was Shia by faith and as such Mst. Haj ran Bibi was not entitled to any share in the estate of deceased Ahmad Ali. It is also admitted on record that Nemat Ali, the respondent is real brother of Ahmad Ali, as such he is entitled to the estate of deceased Ahmad Ali. The learned appellate Court has rightly held that Mst. Hajran Bibi being Shia Muslim was not entitled to the estate of Ahmad Ali.
14.As far as arguments of learned counsel for the petitioner that the suit was barred by time has no force, it is an admitted fact that legal heirs of deceased become the owner of share in the estate of deceased, the moment succession opens and there is no need of any declaration from any Court of law, as the respondents become the shareholder in the estate of deceased Ahmad Ali, so no question of any limitation arose.
15.Learned counsel for the petitioner has argued with vehemence that the suit was not maintainable, however, this argument again has no force as it is established on record that Ahmad Ali was Shia by faith, and was issueless and as such, the respondents become the legal heirs/legal representatives of Ahmad Ali. It is also proved on record that land subject-matter of suit remained in possession of respondents since the death of Ahmad Ali. The arguments of learned counsel for the petitioner that the respondents have earlier filed a suit challenging the mutation in favour of Mst. Hajran Bibi and the same was withdrawn, again has no force as the respondents have withdrew the suit with the permission to file afresh.
16.The arguments of learned counsel for the petitioner that Nemat Ali was present when the mutation in favour of Mst. Hajran Bibi was attested, has not been proved on record. The witnesses of the said mutation have not been examined even the Revenue Officer who attested the mutation has not been produced and as such in the absence of any evidence, the petitioner could not claim that mutation in dispute was with the consent and knowledge of Nemat Ali.
17.The upshot of above said discussion is that it is proved that Ahmad All deceased was Shia Muslim by faith, he died issueless and as such Mst. Hajran Bibi was not entitled of any estate according to Shia. Law and as such any transfer or alienation on the part of Mst. Hajran Bibi is against the rights of respondents. The learned appellate Court has rightly accepted the appeal.
18. This civil revision fails and is dismissed accordingly.