' AMIN-UD-DIN KHAN, J.---Through this civil revision petitioners have challenged the judgment and decree dated 23-9-2003 passed by learned Additional District Judge, Khushab whereby appeal filed by the respondents was accepted and the judgment and decree dated 1-11-2001 passed by learned Civil Judge, Khushab dismissing the suit, was set aside.
2. Brief facts of the case are that plaintiffs-respondents on 8-11-1993 filed a suit for declaration that they be declared entitled to inherit Habib Ullah son of Khushhal and against their rights attestations of all the mutations are nullity in the eye of law, therefore, challenged the same. Written statement was filed. Suit was contested. Learned trial court framed the issues, invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence.
After closure of the trial vide judgment and decree dated 1-11-2001 learned trial court dismissed the suit. Appeal was preferred. The learned first appellate court vide judgment and decree dated 23-9- 2003 decreed the suit. Hence, This it revision by the defendants.
3. Case of the plaintiffs is that last male owner was Mondu. He was owner of the property mentioned in the head-note of the plaint. On his death through Mutation No, 501 attested on 9-3- 1926 his son Lal and Habib Ullah (son of his pre-deceased son) inherited the property in equal shares. On the death of Lal, his three sons inherited the property and on the death of Habib Ullah, as he was issueless, his widow inherited the property through Mutation No, 1536 attested on 16-9-1941 under the custom. Claim of plaintiff No, 1 is that she is the real sister of Habib Ullah, therefore, she was also entitled to inherit half share from the property left by him. It is further pleaded that Mst.
Allah Jawai widow of Habib Ullah contracted second marriage after the death of Habib Ullah with Sultan. On her second marriage Mutation No, 1574 was attested on 29-1-1942 and the property was reverted to sons of Lal. Claim of plaintiff No, 1 is that she is entitled to inherit 1/4th from whole of the property whereas plaintiffs Nos. 2 to 6 claim that they are to inherit Mst. Allah Jawai.
4. Learned counsel for the petitioners argues that at the time of death of Mondu the only legal heir to inherit him was Lal as the other son namely Khushhal was his predeceased son and Habib Ullah was son of pre-deceased son of propositus, therefore, under the custom half of the property was transferred in favour of Habib Ullah as under the Shariah he could not inherit. Further that Mst. Sat Bhirai was not the real sister of Habib Ullah. She was daughter of Tayyab Jasra as widow of Khushhal Mst. Jindu contracted second marriage with Tayyab Jasra and from that marriage Mst.
Sat Bhirai was born and further that as half of the property left by Mondu was transferred in the name of Habib Ullah under the custom, therefore, there was no right of the widow of Habib Ullah to inherit him under the Shariah as the property was to revert to the legal heirs of Mondu the last male owner and on the marriage of Mst. Allah Jawai the property was rightly reverted to the legal heirs of Lal. States that the learned trial court has rightly dismissed the suit and learned first appellate court fell in error while reversing the well-reasoned findings recorded by the learned trial court. Further that even in accordance with the documentary evidence as well as oral evidence plaintiff No, 1 born after 10 years of the death of Khushhal, therefore, it is proved on the record that she is not real sister of Habib Ullah nor the daughter of Khushhal and is daughter of Tayyab Jasra with whom the widow of Khushhal Mst. Jindo contracted second marriage. Prays for acceptance of this civil revision and dismissal of the suit filed by the plaintiffs-respondents.
5. On the other hand, learned counsel for the respondents states that Exh.P.1 is just to prove the parentage of plaintiff No, 1 and the age mentioned therein cannot be taken as correct. States that with regard to age of plaintiff No, 1 findings recorded by the learned first appellate court are in accordance with the custom prevailing, as the tentative age is mentioned in such like documents, therefore, prays for dismissal of the civil revision.
6. I have heard learned counsel for the parties at full length and have gone through the record with their able assistance.
7. Questioned mutations in the suit are Mutation No, 1534 attested on 16-9-1941 and Mutation No, 1574 attested on 29-1-1942 whereas the suit has been filed on 8-11-1993. The matter of limitation is also important in this case. Plaintiff No, 1 if proves that she is the legal heir of Habib Ullah being his real sister and plaintiffs Nos. 2 to 6 prove that the property was transferred in the name of Mst. Allah Jawai under Shariah then they are entitled to inherit her. In that eventually this case will be of matter of inheritance and the matter of limitation of filing of suit can be liberally taken, as under the law an heir automatically becomes co-sharer with others at the time of death of the propositus and no formal attestation of mutation is required and if the plaintiffs failed to prove that they are legal heirs of deceased or they have to inherit under the Shariah, in that eventuality they will be required to prove that their suit is within limitation prescribed under the law. There is no question that at the time of death of Mondu through Mutation No, 501 attested on 9-3-1926 as admitted by the parties half of his property was inherited by Lal, his son and half gone to Habib Ullah his pre- deceased son's son. It is evident that Habib Ullah was not entitled to inherit Mondu under the Shariah, therefore, certainly he has inherited Mondu under the customs and his property was to revert back at the time of death of Habib Ullah to the legal heirs of Mondu i.e, Lal. Widow of Habib Ullah or the sister of Habib Ullah were not entitled to inherit him as he was not the full owner, therefore, at the time of his death the property in the name of Habib Ullah was transferred in the name of his widow as limited owner till her death or the second marriage through Mutation No, 1536 attested on 16-9-1941, this fact is mentioned in the mutation also. When Mst. Allah Jawai contracted second marriage with Sultan, Mutation No, 1574 was attested in the name of three sons of Lal as the property reverted back.
8. There were two points to be proved by the plaintiffs; one was that plaintiffs were to prove that the property in the name of Habib Ullah was transferred as full owner under the Shariah and he was entitled to inherit Mondu under the Shariah and also in the name of his widow as full owner and that she (Mst. Allah Jawai widow of Habib Ullah) was entitled to inherit whole of the property of Habib Ullah and further plaintiff No, 1 to prove that she is real sister of Habib Ullah. As I have noted above that property of Mondu could not be transferred under Shariah in favour of his pre- deceased son's son namely Habib Ullah, therefore, under the custom he inherited the same, certainly that was a limited ownership, therefore, further transfer on the death of Habib Ullah in favour of Mst. Allah Jawai was also under the custom which is clearly mentioned in the impugned mutation that same is transferred under the custom till her death or her second marriage, when she contracted second marriage Mutation No, 1574 was validly attested on 29-1-1942 in favour of sons of Lal as Lal died in the meanwhile. These mutations are absolutely in accordance with law, therefore, case of the plaintiffs Nos. 2 to 6 is absolutely wrong. Even if they are real brothers of Mst.
Allah Jawai they cannot inherit her as she herself was a limited owner and the property was rightly reverted back.
9. So far as plaintiff No, 1 is concerned, the documentary evidence and the oral evidence produced by the defendants clearly prove that she born at least 10 years after the death of Khushhal, therefore, she cannot be the real sister of Habib Ullah. It seems that she is daughter of Tayyab Jasra with whom the widow of Khushhal namely Mst. Jindo contracted second marriage. In this way it is proved that plaintiff No, 1 was not the real sister of Habib Ullah.
10. As I have noted above even if plaintiff No, 1 was able to prove that she is real sister of Habib Ullah even then she was not entitled to inherit Habib Ullah as he himself was a limited owner and property was transferred under the Custom. In this view of the matter, findings recorded by the learned first appellate court are absolutely against the law as well as facts, of the case. When it is the position plaintiffs were also bound to show that their suit is within limitation. When plaintiffs failed to make out case that they are entitled to inherit Habib Ullah as they have claimed, therefore, their suit filed after about 52 years of attestation of the impugned mutation, therefore, same was certainly time barred.
11. For what has been discussed above, this civil revision is allowed. Judgment and decree passed by the learned first appellate Court are set aside.