MAZHAR ALAM KHAN MIANKHEL, J. This appeal with leave of the Court is directed against the judgment dated 10th September, 2002 whereby Civil Revision No.507/1992, filed by Mst. Noor Bibi (now deceased), mother of the appellants, was dismissed and judgments and decrees of the Courts below (decreeing the suit of plaintiffs/ respondents Nos.1 to 7) were upheld.
2. The facts necessary for adjudication of this matter are that one Alia (in revenue record, recorded as Ali Bakhsh), who was the common ancestor of the parties, was owner of 218 kanals 05 marlas of agricultural land situated in Chak No.491/GB, Tehsil Samundri. Upon his death, his three sons namely Imam Din, Karim Bakhsh and Rahim Bakhsh inherited his aforesaid property in equal shares. Imam Din died in the year 1922. Having no male issue, his widow namely Mst. Amina Bibi, succeeded him as a limited owner under the customary law prevailing at that time, for her lifetime or until her remarriage. She got re-married somewhere in 1935/36. Her re-marriage resulted into termination of her limited interest in the property. Mst. Noor Bibi (now deceased), defendant No. 1, daughter of Imam Din and mother of the present appellants (Mst. Noor Bibi), replaced her mother with similar terms as a limited owner of the said property until her marriage. She got married in the year 1944-45 which legally terminated her limited interest in the property but no changes in the revenue record were made in this regard. The claim of the plaintiffs (L.Rs. of Karim Bakhsh) through plaint was that after the marriage of Mst. Noor Bibi, the limited owner, the property left by the last full owner (Imam Din) would revert back to his actual legal heirs, the real brothers Karim Bakhsh and Rahim Bakhsh, (the predecessors of plaintiffs and defendants Nos.2 to 6 respectively). It is in this backdrop, Dilawar Hussain etc. respondents herein, the plaintiffs of the main suit ("plaintiffs"), filed a suit for declaration that they, being legal heirs of Karim Bakh, along with legal heirs of Rahim Bakhsh (the defendants Nos. 2 to 6 in the main suit) (defendants), may be declared as owners in possession of the, said property by updating/correcting entries of the revenue record in this regard.
Since Mst. Noor Bibi married with Faiz Muhammad (one of the son of Rahim Bakhsh), the legal heirs of Rahim Bakhsh did not join the plaintiffs, Dilawar Hussain etc. in the suit, therefore, they were impleaded as defendants. The suit of the plaintiffs was decreed by the learned Civil Judge, Samundri vide Judgment and Decree dated 28th November, 1987 appeal where against filed by Mst. Noor Bibi, defendants Nos.2 and 4 to 6 (the son and the daughters of Rahim Bakhsh), was dismissed by the learned Additional District Judge, Faisalabad vide Judgment and Decree dated 23rd February, 1992 and concurred with the findings of trial Court. The civil revision, filed by Mst.
Noor Bibi alone by making her other co-appellants as respondents, was also dismissed by the High Court vide impugned judgment dated 10th September, 2002. Hence the instant appeal with leave of the Court granted on 29th January, 2003 which reads as under:- "Leave to appeal is granted to consider entitlement of Mst. Amina Bibi as widow of Imam Din to the extent of 1/8th share under the Islamic law of whom Petitioners are the heirs.
2. Status quo as on date to be maintained by the parties."
3. We have heard the learned counsel for the parties and have gone through the available record.
4. The record shows that the legal heirs, of Karim Bakhsh, the plaintiffs (respondents Nos.1 to 7 herein) filed, a suit for declaration by impleading Mst. Noor .Bibi as defendant No. 1 and legal heirs of Rahim Bakhsh as defendants Nos.2 to 6 (respondents Nos.8 to 12 herein) and alleged and claimed the suit property to be their exclusive ownership along with legal heirs of Rahim Bakh, defendants Nos.2 to 6, in equal shares (as sharers) by excluding Mst. Noor Bibi as being not entitled after termination of her limited interest. Mst. Noor Bibi (now the appellant) through her legal heirs, denied the allegations made in the plaint and claimed herself to be the exclusive owner of the entire property, inherited from her father. Their suit was decreed in their favour by Civil Judge, Samundari, Faisalabad vide judgment and decree dated 28.11.1987 by holding the plaintiffs and defendants Nos.2 to 6 to be the owners to the extent of their respective shares on termination of limited interest and by operation of law automatically and attestation of any mutation in this regard is not necessary. Besides the above, there was no specific finding regarding the entitlement of Mst. Noor Bibi (predecessor of appellants) and decided issues Nos.9 and 10 in favour of plaintiffs and defendants Nos.2 to 6 (all respondents herein). Similarly issue No.2 regarding limitation was also decided in their favour.
5. The appeal against the judgment and decree dated 28.11.1987 of the Civil Judge, Samundari, Faisalabad filed by Mst. Noor Bibi, defendant No.2 Faiz Muhammad, her husband, and the three daughters of Rahim Bakhsh was dismissed by the learned Additional District Judge, Faisalabad vide his judgment and decree dated 23.02.1992. However, the question of limitation was concurrently decided in favour of the parties.
The civil revision was filed by Mst. Noor Bibi alone. The learned Judge-in-Chambers upheld the concurrent findings of the two Courts below including the question of limitation. Perusal of the findings of all the three Courts below would reflect that the plaintiffs (legal heirs of Karim Bakhsh) and defendants Nos.2 to 6 (legal heirs of Rahim Bakhsh) (both of them now respondents) have been declared to inherit as residuaries/collaterals after termination of the limited interest of defendant No.1 (predecessor of appellants) but nothing specifically has been said regarding the entitlement of Mst. Noor Bibi.
6. The controversy between the parties revolves around the inheritance of one Imam Din son of Alia (Ali Bakhsh) who died in the year 1922 (as appears from the inheritance mutation in the name of his widow Mst. Amina Bibi) when the customary law of inheritance was prevailing, in the area. After his death, her widow Mst. Amina Bibi succeeded him as a limited owner as he had no male issue and when she got remarried (somewhere in the year 1934/35), the limited interest in the property left by Imam Din was transferred to Mst. Noor Bibi his daughter and mother of present appellants.
When Mst. Noor Bibi got married probably in the year 1944/45 (the evidence and the record confirm so and are also not disputed by anyone else) her limited interest in the property was legally terminated but no such entries were made in the revenue record and her name appears now as a full owner in the existing revenue record. The dispute between the parties starts from here.
7. The law on the subject is very much clear that in the event of death or marriage of a Muslim female, having limited interest in the property under the customary law, the succession would be deemed to open on such termination in favour of all the persons who would have inherited the last full owner at the time of his death, had the Punjab Muslim Personal Law (Shariat) been applicable at the time of his death. Even in case of death of any legal heir before termination of the limited interest, as stated above, succession would also devolve on his legal heirs to the extent of share of deceased legal heir. The law had also protected the shares of females who retained limited interest in the property will also get their sharai shares as if the Muslim Personal Law (Shariat) was applicable at the time of death of last full owner. Section 3 of The West Punjab Muslim Personal Law (Shariat) Application Act, 1948 ("Act-IX of 1948") which deals with the situation is reproduced for ready reference:- "3. In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner, had the Muslim Personal Law (Shariat) been applicable at the, time of such death, and in the event of the death of any of such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors, existing at the time of the termination of the limited interest of the female, as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat): Provided that the share which the female limited owner would have inherited, had the Muslim Personal Law (Shariat) been applicable at the time of the death of last full owner, shall devolve on her, if she loses her limited interest in the property, on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death.
8. Since there were different laws in force in the different provinces of West Pakistan, a consolidated law known as West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (the "Act V of 1962") was promulgated on 31st December, 1962, section 2 whereof is the reproduction of section 2 of the Act of 1948. However, under section 3 of the same, the limited estates held by Muslim females under the Customary Law were terminated and section 5 thereof prescribed the procedure for the devolution of property on the termination of such estate more or less in the same manner as was provided under section 3 of the Act of 1948. The Act of 1962, while repealing all the previous laws and removing the ambiguities in the previous laws, prescribed the following procedure in section 5 supra for the devolution of property on the termination of limited interest in the property: "5. Devolution of property on the termination of life estate and certain wills.---The life estate terminated under section 3 or the property in respect of which the further operation of a will has ceased under section 4 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner or the testator as though he had died intestate; and if any such heir has died in the meantime, his share shall devolve in accordance with Shariat on such persons as would have succeeded him if he had died immediately after the termination of the life estate or the death of the said legatee: Provided that the share to which a Muslim female holding limited estate under Customary law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her".
'Besides the above, Act V of 1962 has also given the retrospective effect to the provisions of sections 3, 4 and 5 which even covers the questions and ambiguities of law of limitation in such like matters which will be discussed in detail hereinafter. A similar provision, rather in more clear words, is provided in section 4 of the Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 ("Act VI of 1935").
9. A look at the above quoted provisions of law would simplify the question/controversy, the parties of this /is are facing. There is no dispute between the parties, regarding their inter se relationship and similarly the termination of limited interest of Mst. Noor. Bibi, as evident from the record and the same is not disputed between the parties that after the death of last full owner, Imam Din in the year 1922, his property devolved twice as a limited estate, initially upon his widow Mst. Amina Bibi and after her re-marriage, upon his daughter Mst. Noor Bibi till her marriage. Mutation of widow Mst. Amina Bibi is available at page-94 of the paperbook and entries in its last column reflect that the widow at the time of death of her husband was pregnant which means the daughter (Mst. Noor Bibi) of Imam Din was born after the death of her father. This very mutation was attested by Karim Bakhsh, as Number dar of the village). Mst. Noor Bibi, as per mutation entries of 1934 at pages-92 and 93 of the paper book, succeeded to get limited interest in the property left by her father till her marriage. Again, it has undisputedly come on the record that she got married in the year 1944/45.
Her marriage resulted into termination of her limited interest in the property. This termination, no doubt, was by operation of law. Here a big question mark would be as to whether further non- compliance of said termination by the concerned (the revenue authorities) would adversely affect the rights of all those who have suffered due to said non-compliance. The answer to this question would be, a big "No". This would also get further explanation hereinafter.
10. The other important and legal aspect which requires consideration is that both the learned counsel for the parties, during arguments, agreed to the proposition that the provisions of section 2-A of the Act V of 1962 are not applicable in the facts and circumstances of the case. In this case, the widow of the last full owner Imam Din succeeded her late husband as a limited owner till her death or re-marriage and similarly the daughter of the Imam Din acquired the same limited interest in the property on similar terms from her mother Mst. Amina Bibi. When Mst. Noor Bibi got married in the year 1944/45 (as per available record and not disputed by anyone) her limited interest in the landed property was terminated and as per law the property has to revert back to actual legal heirs (lineal and collaterals) but such termination, as per record, was not incorporated in the relevant record and till filing of the suit she remained recorded as full owner (in the course of time her limited status was changed to full owner but no explanation in this regard is available on the record) which even otherwise is against the law. According to the above quoted provisions, on the termination of the limited interest of Mst. Noor Bibi, the property is to be considered as the ownership of the last full owner Imam Din and should have to devolve upon his Shari heirs alive at the time of his death and if anyone of such heirs has died prior to the termination of the limited estate his heirs shall also get the share to which their predecessor would have been entitled if alive.
Accordingly, the limited owners were also held entitled to their Shari share whether alive or dead.
Reference in this regard may be made to SUBA through his L.Rs. v. Mst. Fatima Bibi (1992 SCMR 1721). Thus, Mst. Noor Bibi is entitled only to the extent of 1/2 share as legal heir of her father (the last full owner) and a share from her mother probably that would also be 1/2 from her 1/8 share. As such termination completed in the year 1944/45 prior to the Act IX of 1948 and the succession as per Muslim Personal Law stood completed under section 3 of the Act IX of 1948. Thereafter, nothing left to be implemented. So, the provision of section 2-A and other provision of Act V of 1962 are not applicable to the facts and circumstances of this case.
11. Moreover, the marriage of Mst. Noor Bibi, resulted into termination of the limited interest in the property held by her and as per the provisions of section 3 of the Act of 1948, the matter reverted back to the year 1922, the year when the last full owner Imam Din died. All the persons entitled to succeed the last full owner (the sharers, residuaris, distant, kindred etc.) would succeed, as per their respective share, as if the last full owner died during the application of Muslim Personal Law "Shariat". The proviso to section 3 also clearly speaks of the females retaining the property with limited interest. They would also be entitled to get as per their ordained shares in the sharia. The application of above provisions of law would paint a picture showing Mst. Amina Bibi, the widow of Imam Din to get 1/8 share, Mst. Noor Bibi, the daughter, defendant No.1, was entitled to get 4/8 (1/2)
(as she was the only daughter) and the remainder 3/8 would go to the brothers Karim Bakh (predecessor of plaintiffs) and Rahim Bakhsh (predecessor of defendants Nos.2 to 6) as residuaries. Besides the above, the defendant No.1 (mother of appellants) would also inherit her mother Mst. Amina Bibi as a sharer.
12. Now comes the question of limitation which was very forcefully argued by the appellants. The acquisition of a limited interest and then its termination makes the actual legal heirs to inherit under the Muslim Personal Law and provision of section 3 of the Act IX of 1948 gives inbuilt/implied retrospective effect for such inheritance. All the persons entitled to inherit the predecessor (who were alive at the time of death of the predecessor) become the owners to the extent of their respective shares from the date of his death as discussed above. It is also the established law that inheritance under Muslim Personal Law/ Muhammadan Law opens just after the death of a Muslim.
All the legal heirs, lineal and collaterals inherit/acquire to the extent of their respective shares just after the death of a Muslim. They all by such c inheritance/acquisition become co-sharer/co- owner in the estate left by the deceased Muslim under sharia. The shares of each heir/residuary are fixed and determined in sharia. Our law so far developed in the country is that every co- sharer/co-owner is presumed to be in possession of every inch of the joint property unless the same is partitioned. Reference may be made to the cases of Shabla v. Ms. Jahan Afroz Khilat (2020 SCMR 352), Ghulam Sarwar (Deceased) v. Ghulam. Sakina (2019 SCMR 567), Ahmad Khan v. Abdur Rehman (2009 SCMR 191), Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah (2007 SCMR 1884) and Mst. Reshman Bibi v. Amir (2004 SCMR 392). The law of the land further goes to the extent that no limitation runs against a co-sharer/co-owner. Reference here may also be made to the cases Khan Muhammad v. Mst. Khatoon Bibi (2017 SCMR 1476), Mahmood Shah v. Syed Khalid Hussain Shah and others (2015 SCMR 869), Muhammad Anwar and 2 others v. Khuda Yar and 25 others (2008 SCMR 905), Mst. Suban v. Allah Ditta and others (2007 SCMR 635), Riaz Ahmad and 2 others v. Additional District Judge and 2 others (1999 SCMR 1328) and Ghulam Ali and 2 others v. Mst. Ghulam Samar Naqvi (PLD 1990 SC 1). Whenever the rights of a co-sharer are infringed, by way of wrong entries or by any other means, he can seek the redressal by way of a suit for declaration under section 42 of the Specific Relief Act, 1877. When no limitation runs against a co-sharer/co-owner and the attestation of a mutation also established law of the land, is just for updating the revenue record and for the fiscal purposes creating no title nor is considered as a document of title then no question of limitation arises against co-sharers.
The question of limitation in the matters of inheritance, with respect, is being misunderstood for quite some time. When a legal heir becomes owner and at the same time a co-sharer in the property left by a deceased Muslim and attestation of mutation in this regard is also immaterial and is meant for very limited purposes and besides the above, possession of a co-sharer is considered as a possession on behalf of all other co-sharers then it is, at least, beyond our consumption and understanding of law of inheritance and the law of limitation as to how the law of limitation can be made applicable for disinheritance of a legally entitled 'person who becomes owner/co-sharer by operation of law. As per Para 7.1.(v) of the Land Record Manual, recording/entering of a mutation of inheritance is the job of local revenue officials but with the passage of time it has been left to the legal heirs and the parties concerned. Any delay for asking for correction of entries in the record of rights is then attributed to the parties which is not appropriate and against the law. For convenience, the same is reproduced as under:-
(v) It shall not be difficult for a Patwari (resident official) to learn in normal course of the occurrence of death of land-owner in his small circle. Mutations of inheritance in such case can, therefore, be entered by the Patwari suo motu on the basis of his personal knowledge without waiting for any formal intimation from any quarter. In further failure to enter a mutation of inheritance on the death of a resident landowner shall be construed to reflect adversely on the vigilance and awareness of Patwari and shall be taken due notice of.
13. In the facts and circumstances of the present case, the predecessor of plaintiffs and the defendants Nos.2 to 6 (now all respondents) became owners and co-sharers being residuaries to the last full owner just after the termination of the limited estate held by the predecessor of the appellants, Mst. Noor Bibi, in the year 1944/45 and this termination took the matter back to the year 1922 (the year of death of predecessor Imam Din) as per section 3 of the Act of 1948, as discussed above in detail, which made them co-sharers/co-owners since 1922. Whether non-attestation of mutation in their favour by the local revenue officials would make them to lose their legal and sh arai right when they were also in possession of their property. As per un-rebutted evidence on the record that after termination of limited estate, they, by operation of law, became owners in possession of the property. After termination of limited estate, noted above, they lived upto 1967 and 1968 with the impression that they after such termination became owners (this has been alleged in pleadings as well as in evidence) but the revenue record was not updated by the revenue officials and the wrong entries of the revenue record continued in the name of Mst. Noor Bibi showing her to be owner beyond her legal and sh arai entitlement (now she is recorded as full owner to the extent of 1/3 share, held by her father). Whether such wrong entries would legitimize her excessive land beyond her entitlement? We can have a look from just another angle. All the parties are co-sharers since the demise of their proposita's and are in actual physical possession of their joint property as per the latest entries of record of rights available on the record. One co- sharer is the protector of possession of all the others, as per established law of the land then how the question of limitation would come into play against the 6o-sharers. The law of the land, developed so far, is that every wrong entry, in the record of rights gives fresh cause of action if the parties are in possession. Here in this case, all the co-sharers are in physical possession from day one what to talk of their symbolic possession. A co-sharer with symbolic possession even can safeguard his rights. Reliance in this regard can well be placed on the cases of Faqir Ali and others v. Sakina Bibi and others (PLD 2022 SC 85), Khan Muhammad through L.Rs. and others v. Mst.
Khatoon Bibi and others (2017 SCMR 1476) and Mst. Gohar Khanum and others v. Mst. Jamila Jan and others (2014 SCMR 801). So, we are of the view that all the three Courts below have rightly decided the question of limitation in favour of the plaintiff/ respondents. Since the question of limitation was argued with great vehemence, so, an attempt to explain the same in detail has been made. The most of the judgments of this Court through which clog of limitation on inheritance matters has been imposed and the law of limitation have been made applicable are not regarding simple claim of inheritance. We have attempted to go through many of such judgments on this issue which, in our opinion, are distinguishable. The main distinction that requires to be kept in mind is that the case in hand revolves around the question of inheritance alone and for that matter a lengthy discussion has been made above but the judgments being referred to and distinguished almost involve the issues of transfer of lands by way of sale, gift etc. by the predecessors themselves in their lifetimes and not challenged or questioned by them. The heirs, feeling themselves aggrieved, challenged the same by claiming their right of inheritance after a considerable delay and such cases were dismissed on the question of limitation for want of proof and justifying the delay. Yes, in such like cases, we can agree with the ratio laid down in the case of Mst. Grana through legal heirs and others v. Sahib Kamal Bibi (PLD 2014 SC 167) that law of limitation involving matter of inheritance cannot be ignored altogether but the narrow line of distinction is that where the predecessor/propositus has transferred his property by way of sale, gift etc. in his lifetime and after his death, the legal heirs claiming right of inheritance regarding said property after lapse of considerable time by questioning such transfer cannot be ignored lightly. For convenience, the observations made in the above mentioned case is as under:- "6. It appears that in a suit which involves some element of inheritance the Courts are generally quick to declare that the law of limitation would not be attracted. It is not in all cases of inheritance that the question of limitation becomes irrelevant. Even in Ghulam Ali's case the Court recognized that there could be exceptional circumstances wherein a suit based on inheritance issue of limitation may become relevant..."
14. Perusal of this case too would reflect that certain transfers through registered sale' deed and mutation were challenged after a lapse of considerable delay and right of inheritance was claimed. Similar is the case of Mst. Phaphan through Legal Heirs v. Muhammad Bakhsh and others (2005 SCMR 1278). Facts and circumstances of the case as reflected in the judgment justify the application of Article 120 of the Limitation Act, 1908. The case of Lal Khan through Legal Heirs v.
Muhammad Yousaf through Legal Heirs (PLD 2011 SC 657) is also distinguishable. The case of Atta Muhammad v. Maula Bakhsh and others (2007 SCMR 1446) also cannot be made basis for invoking the provisions of Limitation Act in the case in hand. The facts narrated in the judgment rendered in the case of Muhammad Rustam v. Mst. Makhan Jan (2013 SCMR 299) would justify the question of limitation but cannot be compared with the facts and circumstances of the present case. So, in our view, looking each and every case involving the question of inheritance with a yardstick of limitation, simply for the reason of delay, would not be appropriate as vested rights of people cannot be tackled so lightly. Each and every case requires to be dealt with according to its own facts and circumstances.
15. This would also not be out of context to discuss that an order of this Court dated 14.11.2017 would also reflect that an attempt by the learned counsel for the appellants was made to confuse the things by arguing that the controversy in hand, in fact, relates to matters which falls within the purview of the Colonization of Government Lands (Punjab) Act, 1912 ("the Act of 1912") and as such the Civil Court lacks jurisdiction to entertain and adjudicate the present /is. It has been noted with great concerns that this was no body's case from day one. So, making altogether a new case that too, at this stage, is not permissible under the law. This is a simple case of inheritance of private land of the parties who being the owners of the same from day one; thus, the Civil Court has had the jurisdiction in the matter in hand. Moreover, neither was it a government land nor' was any question of tenancy or lease involved in the matter. So the provisions of sections 21(b) and 36 of the Act of 1912 are not applicable in this case, as argued by the learned senior counsel for the appellants.
16. For what has been discussed above, the appeal in hand is partially allowed and the judgments and decrees of the learned Courts below are modified accordingly. The mother of appellants namely Mst. Noor Bibi becomes entitled to inherit her 1/2 share from her father Imam Din (the last full owner) plus share from her mother (as discussed above) whereas the respondents (both plaintiffs and defendants Nos.2 to 6) would be entitled to inherit their predecessors Karim Bakhsh and Rahim Bakhsh to the extent of 3/8 shares equally from Imam Din (the last full owner). Decree be drawn up accordingly.
17. Before parting with the judgment, it has been observed with a great concern that the copies of the record annexed with the petitions do not reflect the exhibit marks, as if attached or brought on the record for the first time. The law is very much clear in this regard that fresh record and new documents cannot be attached/brought on the record except in accordance with the procedure prescribed under Rule 4 of Order XXXIII of the Supreme Court Rules, 1980. Sin& none of the parties disputed the authenticity of these documents, so we looked into and considered the same. The office however should be vigilant in future and should not accept such like record.