' MUNIB AKHTAR, J.--- The present application has been filed by Mr. Sarfraz Ali, learned counsel who appears for the defendants identified above, seeking rejection of the plaint under Order VII, Rule 11, C.P.C. The sole ground taken is that the suit is barred by limitation under Article 127 of the Schedule to the Limitation Act 1908. That Article applies to a suit filed "by a person excluded from joint family property to enforce a right to share therein", and prescribes a period of 12 years within which the suit must be brought time to run from "when the exclusion becomes known to the plaintiff". Mr. Arif Khan, learned counsel for the plaintiffs, contests and opposes the application.
2. The relevant facts and submissions by learned counsel can be stated with brevity. The suit has been filed for the administration of the estates of the late Haji Rehmatullah, who passed away on 17-2-1982, and his wife Mst Fatima-un-Nisa who passed away on 8-11-1978. The parties are the legal heirs of the deceased couple, either directly or derivatively. The relief sought is by way of declaration, junction and rendition of accounts, but these are all related to the claim put forward by the plaintiffs that they are entitled to their respective shares in the estates of the deceased. Mr. Sarfraz Ali, learned counsel, referred to the foregoing dates and paras 9 of the plaint, wherein it is stated that the cause of action first accrued on those dates, and contended that since the suit was filed on 27-10-2008, it was clearly barred by limitation, being well beyond the period of limitation prescribed by Article 127. In support of his case, learned counsel relied on certain decisions of this Court, being Saran v. Abdul Rashid and others PLD 1950 Sind 131 (DB), Jeevanbai Nadishaw Golwalla (through legal heirs) v. Darab Burjorji Golwalla and others 1981 CLC 503 (SB) and Kaleem Hyder Shah v. Mehmooda Begum and others 2006 YLR 599 (SB). Learned counsel also relied on M.
Khurram Muggo v. Perveen Hameed Muggo PLD 2007 Lahore 518 (DB) and Mahmoodur Rehman Faisal v. Government of Pakistan 1992 M LD 2321, a decision of the Federal Shariat Court. He prayed that the plaint be rejected. In reply, Mr. Arif Khan, learned counsel, relied on Muhammad Qasim Khan and others v. Mehbooba and others 1991 SCM R 515 and the well-settled principles applicable to the consideration of applications under Order VII, Rule 11, C.P.C. Learned counsel submitted that Article 127 did not apply in relation to a suit for the administration of an estate and a claim by legal heirs for their shares therein, and prayed that the instant application, being without merit, ought to be dismissed.
3. I have heard learned counsel as above, examined the plaint and considered the case-law relied upon. The ground taken for the rejection of the plaint is specific and particularized. In my view, the crucial question is whether Article 127 is applicable to Muslims in the particular context of a situation where the legal heirs of a deceased Muslim are claiming their shares in the estate left behind by the latter. This question has been considered, and settled, a long time ago by the High Courts of pre-Partition India. The entire matter has been clearly set out in a well-known commentary on the Limitation Act, AIR Commentaries on the Limitation Act by Chitaley and Appu Rao (4th ed., 1964), and reference can conveniently be made to the same. In relation to Article 110 of the (Indian) Limitation Act, 1963 (which corresponds to Article 127), the learned authors state as follows (Vol. II, pp1673-4, internal citations omitted):--- "In cases which arose under clause (13) of section 1 of the Act of 1859, it was held by the Calcutta High Court that the words "joint family property" were not limited to property belonging to joint Hindu families, but included even property belonging to Muhammadan families. This view was adopted in the early decisions of the Bombay and Allahabad High Courts also. In the case of Amnze Raham v Zia Ahmed [(1889-90) 13 All 2821, a Full Bench of the Allahabad High Court held that the words "joint-family property" meant the property of a joint family, that the sense in which the term "joint family" was to be understood was the technical sense known to the Hindu law, and therefore the Article did not apply to a suit by members of a Muhammadan family for recovery of shares in immovable property of a deceased Muhammadan ancestor in the possession of the defendant [this emphasis supplied]. Sir John Edge, CJ., observed as follows:--- "Now those words may possibly be construed in two different ways. They might be construed as 'the joint property of the family' or as the property of the joint family'. I think in this country we would be misconstruing those words 'joint family property' to hold that they apply to a case where property was joint but the family was not .... In my humble judgment, joint family property' means in Article 127 the property of a joint family and that would be strictly speaking 'joint family property' ."
' The view of the Allahabad High Court expressed in the above Full Bench decision has now been adopted by all the High Courts including the High Courts of Calcutta and Bombay."
' As is clear from the portion emphasized, the judicial consensus is clear: Article 127 has no application at all to Muslims in the sort of situation presently at hand. Although the learned authors do note the Division Bench decision cited by Mr. Sarfraz Ali, i,e,, Saran v: Abdul Rashid and others PLD 1950 Sind 131 (which was also reported at AIR 1948 Sind 127), they appear to regard it as an indication that the view of the Sind Chief Court diverged from the rule generally accepted. In my view, any such conclusion would be erroneous. The reason is that the parties in the cited decision were Kutchi Memons, and it was expressly noted by the learned Division Bench (see PLD (sic) at pg.
134) as follows: "It is true that the parties to the suit are Kutchi Memons governed in matters of succession and inheritance by Hindu Law..." Thus, in the cited decision, the matter was not as such regulated by Islamic law but by the peculiar usages and customs of a particular community in pre-partition India. Whatever may then have been the position and validity of Kutchi Memons so applying Hindu law, the cited case cannot at all be regarded as laying down a general principle applicable to Muslims at large in present day Pakistan. This decision does not therefore, with respect, advance the case put forward by learned counsel for rejection of the plaint. It must be regarded as being limited to its own facts, community and time.
4. The other decisions relied upon also do not assist the case put forward by Mr. Sarfraz Ali. The parties in Jeevenbai Nadishaw Golwalla (through legal heirs) v. Darab Burjorji Golwalla and others 1981 CLC 503 were Parsis, and for the reasons just given, the application of Article 127 in their case is of no relevance for the case at hand. In Kaleem Hyde Shah v. Mehmooda Begum and others 2006 YLR 599, which was a suit decided on the original side of this Court, one of the issues was whether the suit was barred by limitation under Article 91 of the Limitation Act. This issue was decided against the plaintiff on the basis that Article 120 was applicable. A reference was made to Article 127, but it was observed that it did not apply to the facts of the case. This decision cannot therefore be regarded as an authority for the proposition put forward by learned counsel. The reference to Article 127 was, with respect, obiter. In the decision of the Lahore High Court, it was held that the suit was barred by limitation because Article 120 was applicable. Article 127 was referred to but found inapplicable. Again, with respect, this authority provides no assistance to learned counsel. The decision of the Federal Shariat Court simply deals generally with the Limitation Act and section 3 thereof and, with respect, sheds no light as would be germane for present purposes. In my view, the correct position with regard to Article 127 is as held by the Full Bench of the Allahabad High Court and accepted by the High Courts in pre-partition India, as noted in the extract reproduced above.
5. The question presently at hand may also be approached from another perspective. Article 127 applies to "joint family property". Now it is well-settled that the estate of the deceased Muslim devolves on the legal heirs at the moment of death as per their respective shares according to Islamic law, and that they hold it on a basis akin to (though not exactly the same as) tenants-in- common. Thus, although the legal heirs are co-owners of the estate, holding it as per their respective shares, they are not joint owners. The interest of each legal heir in the estate is separate and held by him in his own right. In other words, the estate is not "joint" property. This point was in fact made by Mahmood J., in the aforementioned decision of the Full Bench of the Allahabad High Court. (I may note that the Court was there considering Article 127 of the predecessor legislation, the Limitation Act, 1877, which was in the same terms as the present provision.) The learned Judge observed as follows (pg. 286): "...It seems to me that the Legislature never intended to apply to Muhammadans in the Provinces within the jurisdiction of this Court, a rule unknown to the land, unknown to the Muhammadan law, unknown to the people, by saying that upon the death of an ancestor or propositus his property does not descend to the heirs in definite separate shares, but acquires the nature of the joint property of the Hindu jurisprudence. On the contrary, the Muhammadan law presumes that each share is separate and that each sharer is the separate owner of his separate share, and if such sharers wish to live together they may do so, but their separate ownership and relations are not changed."
' Furthermore, the rules of inheritance under Islamic law are such that in many cases, the legal heirs may not even be regarded as "family", except in the most diffuse and general sense. For example, if the legal heirs fall in the category known as "distant kindred", (i,e,, are neither Quranic sharers nor residuaries) then they could hardly be regarded as "family" within the meaning of Article 127. On the other hand, many persons who would, in terms of other legal systems, be regarded as "family" (e.g., brothers in a Hindu undivided family) may well not be legal heirs at all under the rules of Islamic law. These examples (by no means exceptional) demonstrate that the scope of Article 127 cannot B extend to Muslims in the context of legal heirs holding shares in the estate of a deceased and disputes arising in relation thereto.
6. For all of the foregoing reasons, I conclude that the suit is not barred in terms of Article 127 of the Limitation Act. Accordingly, the I application for rejection of plaint fails and is hereby dismissed.