SADAQAT ALI KHAN, J. Unnecessary facts apart, Fazal died in the year 1938 leaving behind his widow Fazal Begum and daughter Afsar Jan respondents / defendants ("respondents"), his land/estate (detail of which is mentioned in the plaint) was transferred to his widow (Fazal Begum) being limited owner vide mutation No. 1057 dated 10.04.1939 (Exh.P-2) excluding his daughter (Afsar Jan). Fazal was sonless, Fazal Begum sold out some portion of suit land i.e. 6-Kanals 7-Marlas to Bagh Ali through registered sale deed dated 02.10.1948 which was challenged by Jam Anwar Hussain son of Muhammad Alam (predecessor-in-interest of the petitioners) by' filing suit for declaration before the learned Civil Court which was decreed vide judgement and decree dated 07.11.1949 (Exh.P-7) by observing as under:- "I therefore pass a decree in favour of the plaintiff against the defendants declaring that the alienation is in question would not effect his reversidnary rights after the termination of the interst of the widow. Subject to the provisions of the Shariat Act, the reversioners heirs shall be entitled to get the land on payment of Rs. 900/- to the vendee. No order as to costs."
It is important to note here that before substitution of Section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, limited estates of Muslim female limited owners were to be terminated under customary law on the occasion of their death or remarriage and the same were to be reverted to the legal heirs of last male owners while in this case Mst. Fazal Begum being a limited female owner at that time, neither had died nor contracted second marriage, rather remained limited owner of the suit property till termination of her limited estate by operation of law vide Section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. On 27.05.1978, Fazal Begum had gifted 167-Kanals 14-Marlas out of suit property to her maternal grand-daughter Khursheed Begum (daughter of Afsar Jan) through registered gift deed on the basis of which Mutation No.439 was sanctioned on 22.04.1981 (Exh.P-12) and also sold some portion of suit property to Anwar Hussain son of Muhammad Alam (predecessor-in-interest of the petitioners) vide mutation No.355 in the year 1974 (Exh.P-11) (detail of which is mentioned in the plaint).
2. Petitioners being plaintiffs filed suit for declaration on 18.02.1986 with the assertions that Fazal Begum (widow of Fazal, last male owner of the suit property) being limited owner could not alienate suit property excessive to her sharai share (1/8) and remaining share i.e. 7/8 of the suit property was reverted to the reversionaries including petitioners being collaterals and Afsar Jan daughter of Fazal (last male owner of suit property) by virtue of Section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and her limited estate had been terminated in the year 1963 (Section 3 substituted on 21.11.1963 vide Ordinance XXXIX of 1963). All the transactions qua alienation of suit property by Fazal Begum excessive to her sharai share (1/8)
(detail of which is mentioned in the plaint) are ineffective upon the rights of the petitioners and are liable to be cancelled. On the other hand, respondents filed written statement controverting the assertions made in the plaint. Learned trial Court, out of divergent pleadings of the parties, framed issues whereafter both the parties adduced their respective evidence i.e. oral and documentary. At the end, learned trial Court after hearing learned counsel for the parties, decreed the suit of the petitioners vide judgment and decree dated 01.03.1989. Appeal filed by the respondents was accepted by learned lower Appellate Court vide judgment and decree dated 15.05.2006 dismissing the suit of the petitioners only on the issue of limitation and affirming the findings of the learned trial Court on other issues (not challenged by the respondents by filing cross objections), hence instant civil revision.
3. Learned counsel for the petitioners while arguing the case has also reiterated the grounds taken in the instant revision. On the other hand, learned counsel for the respondents have vehemently opposed this civil revision. With the able assistance of learned counsel for the parties the record has been perused.
4. Petitioners have produced pedigree table (Exh.P-16) for the years 1955-1956 to prove themselves as collaterals of Fazal (last male owner) wherein Anwar Hussain son of Muhammad Alam (predecessor-in-interest of the petitioners) is mentioned as collateral of Fazal (deceased). Exh.P-7 is judgement and decree dated 07.11.1949 of the learned Civil Court regarding suit filed by Anwar Hussain (predecessor-in-interest of petitioners) who had challenged the sale of some portion of suit property by Fazal Begum, widow of Fazal (last male owner) wherein it has been held (issue No.1) that Anwar Hussain (predecessor-in-interest of petitioners) is collateral and suit was decreed in his favour observing therein that alienation by Fazal Begum would not effect reversionary rights after termination of interest of the widow reproduced above. Ameer Qabil (attorney of respondents) while appearing as DW-1 also admitted in his cross-examination that Fazal Begum (widow of Fazal) had sold out land measuring 6-Kanals 7-Marlas out of suit property in the year 1948 and Anwar Hussain (predecessor-in-interest of the petitioners) had filed suit challenging the said sale. Ameer Qabil (DW-1) made evasive denial (amounting to admission) in cross- examination stating therein that he does not know whether petitioners are collaterals of Fazal (deceased) or not. In these circumstances, both the learned Courts below have rightly declared that petitioners are collaterals of Fazal (deceased).
5. It is an admitted fact that Fazal (deceased) had left Fazal Begum (widow) and Afsar Jan (daughter) with no male issue (son).
6. It is also admitted by Ameer Qabil (DW-1) during cross-examination that Fazal (last male owner) had been governed by customary law and suit land was transferred to his widow Fazal Begum under Customary Law being limited owner. Relevant portion of his cross-examination is hereby reproduced:- In view of above, it is concluded that Fazal Begum was limited owner of the suit property.
7. Section 3 (substituted on 21.11.1963 vide Ordinance XXXIX of 1963) of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 has terminated the limited estates in respect of immoveable property held by Muslim females under the customary law Which is hereby reproduced for reference:- "3. Termination of limited estates under customary law. ---The limited estates in respect of immoveable property held by Muslim females under the Customary Law are hereby terminated: Provided that nothing herein contained shall apply to any such estate saved by any enactment, repealed by this Act, and the estates so excepted shall continue to be governed by that enactment, notwithstanding its repeal by this Act."
8. Section 5 of the Act ibid is also hereby reproduced for reference:- "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."
In view of the above, the rights of Fazal Begum qua the suit property being limited owner had been terminated in the year 1963 by operation of law whereafter she was only owner of 1/8th share of the suit property under Sharai law being widow of Fazal (deceased), remaining property was devolved upon his reversionaries i.e. petitioners being collaterals and Afsar Jan being his daughter according to their Sharai shares and have become co-sharers in the suit property, Fazal Begum being not owner of whole suit property in the year 1978, was not competent to alienate it through registered sale and gift deeds and mutations mentioned in the plaint, which are cancelled being void, to the extent of the transactions excessive to her Sharai share (1/8). It is made clear that suit property means property mentioned in mutation No.1057 dated 10.04.1939 (Exh. P-2).
9. The observations of the learned lower appellate Court that suit of petitioners filed on 18.02.1986, challenging transactions of alienation of suit property is time-barred have no substance as petitioners being collaterals had become owners according to their Sharai share out of suit property by operation of law on termination of limited estate of limited owner Fazal Begum in view of section 3 (substituted on 21.11.1963) of the West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962 irrespective of disputed transactions by Fazal Begum who was not competent to alienate the share of the petitioners, being collaterals of Fazal, the last male owner of the suit property. The petitioners suit was based upon right, created by the statutory provisions i.e. section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 whereby limited estates of Muslim females under the customary law were terminated and under section 5 of the Act, such female owners (limited owners) were only entitled under Muslim Personal Law (Shariat) according to their Sharai shares being legal heirs of the last male owner. It is, therefore, clear that new rights were created by operation of law in favour of petitioners in respect of the estate of Fazal (deceased). It is sufficient to state that a legal fiction has been created by the combined effect of Sections 3 and 5 of Act of 1962. Although the last male owner may have died long back in the past, yet he is deemed to have died on the date of enforcement of the Act (The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962) and succession would be deemed to have opened to his estate on such date. It is recognized principle of Muslim Law that immediately upon the death of a Muslim proprietor, his estate devolves on his legal heirs irrespective of any mutation of inheritance. It may also be observed that a rightful owner of the property cannot be deprived of his share unless precluded to claim the same due to conscious abandonment or relinquishment, Fazal Begum (limited owner) after termination of limited estate discussed above had become co-sharer in the suit property to the extent of her Sharai share and being co-sharer in the suit property could not deprive the petitioners of their share by alienating the property falling in their share. So far as the limitation is concerned, no question of limitation could arise as the limitation could not run against such a co-sharer in such an eventuality. Reliance is placed in this context to the cases reported as "Mst. Jannat Bibi v. Sher Muhammad and others" 1988 SCMR 1696, "Muhammad Shamim through Legal Heirs v. Mst. Nisar Fatima through Legal Heirs and others" 2010 SCMR 18, "Mahmood Shah v. Syed Khalid Hussain Shah and others" 2015 SCMR 869.
10. In view of the above, this Civil Revision is allowed, impugned judgement and decree of learned lower Appellate Court dated 15.05.2006 are hereby set aside being suffered from mis-reading, non- reading of evidence as well as being non-application of relevant law, consequently the judgment and decree of learned trial Court dated 01.03.1989 are hereby restored.