This judgment will dispose of Writ Petition No.377-R of 1982 and Writ Petition No.299-R of 1982, as they concern the same dispute.
2. A small pedigree-table will be helpful for understanding the case: Nabi Bakhsh Rasool Bakhsh Noor Bakhsh (Died issueless)
Abdul Latif Mst. Umri (Widow)
Mst. Majeedan (Widow)
Karam' Bak hsh (Brother of Mst. Majeedan)
Abdul' Hameed Mat. Basitiran Nabi Bakhsh gifted his land measuring 74 Kanals 3 Manias in lieu of dower in favour of his wife Mst.
Umri through a registered sale-deed dated 14-2-1923, for which mutation No.191 was entered into on 4-7-1923. However, before it could be sanctioned, Noor Bakhsh died on 12-11-1923. On the mutation, it was stated that since the donee is his legal heir, therefore, mutation of Noor Bakhsh is sanctioned in favour of Mst. Umri, his widow. This is vide order dated 21-1-1924. Mst. Umri died on 1- 11-1942.' Land was mutated in favour of Mst. Majeedan widow of Abdul Latif. It may be noted that Mst. Majeedan had inherited another 74 Kanals 3 Marlas from her husband Abdul Latif. She migrated to Pakistan and land was allotted to her in lieu of the land left behind in village Kot Bhano, Tehsil and District Gujranwala. Mst. Majeedan died on 14-9-1953. Mutation No.126 was sanctioned on 5-9-1957 in favour of her own heirs to the extent of 1/8th and 7/8th was mutated in favour of Muhammad Rafique and Mst. Khatoon as reversioners of Abdul Latif son of Rasool Bakhsh son of Nabi Bakhsh. Mst. Majeedan's own heirs Karam Bakhsh etc. Filed an appeal which was allowed by the Deputy Settlement Commissioner, who gave 1th to her heirs and 3/4th to the reversioners, vide order dated 14-3-1961. Her heirs filed a revision which was accepted on 21-5-1962. The reversioners filed a civil suit which was dismissed for lack of jurisdiction on 29-7-1967 and appeal was dismissed for the same reason on 2-10-1967. On the promulgation of Ordinance IX" of 1972 on 12-4-1972, the reversioners put in an application under section 2 of the aforesaid Ordinance, on 30-1-1974. This application was dismissed by the Settlement Commissioner on 22-7-1976. The reversioners filed Writ Petition No.1816/R of 1976 which was allowed and the case was remanded vide order dated 10- 3-1980. In pursuance of this order, the Settlement Commissioner holding Mst. Majeedan as an holder of life estate allowed 1/8th share to her heirs and 7/8th to the reversioners Muhammad Rafique and Mst. Khatoon etc., vide order dated 10-8-1982. This is challenged by the vendees from the heirs of Mst. Majeedan in the first petition Writ Petition No.337/R of 1982 and by their vendors i.e. The heirs of Mst. Majeedan through Writ Petition No.399/R of 1982.
3. The contention of the learned counsel for the petitioners is that Noor Bakhsh had gifted 73 Kanals 3 Marlas in lieu of the dower in favour of his wife Mst. Umri and from her, the mutation was sanctioned in favour of Mst. Majeedan. Therefore, the latter became full owner of this property. As regards the estate inherited by Mst. Majeedan from her husband Abdul Latif, that too she inherited as a full owner and, therefore, the entire estate vesting in Mst. Majeedan should have been mutated in favour of her own heirs, the petitioners in the second petition, and the land-purchased from them by the vendees in the first petition, the vendees should be held entitled to retain the same.
4. Learned counsel appearing for the reversioners Muhammad Rafique and Mst. Khatoon and their vendees has submitted that the entire estate was in the name of Mst.
Majeedan widow of Abdul Latif, for which Fard Haqiat was issued and she holding the land as a widow would only be entitled to Ith share in the estate and no more.
5. I have heard the learned counsel for the parties at length and perused the record with their assistance. In the previous litigation between the parties on the motion of the reversioners Muhammad Rafique and Mst. Khatoon in Writ Petition No. 1816/R of 1976, the learned Judge held that "the admitted facts found on the record are that the land was originally held by Rasool Bakhsh and Noor Bakhsh sons of Nabi Bakhsh. Noor Bakhsh died issueless and by gift-deed he transferred the land in favour of his widow Mst. Umri and it was given effect to in the year 1924. But Mst. Umri on her death in the year 1942 left no heir with the result that according to the custom followed by the family of male owners the land reverted to the donor and from him it went to Rasool Bakhsh then to Abdul Latif son of Rasool Bakhsh who died issueless and then to Mst. Majeedan widow of Abdul Latif but as limited estate being surviving widow in the family of male owners. She was not related in any degree to Mst. Umri and there was no question of inheriting the land by Mst. Majeedan from Mst. Umri in any other manner. Mst. Majeedan also held the land on behalf of his deceased husband Abdul Latif who died issuless as limited estate under custom. She filed the claim in respect of the land originally owned by Rasool Bakhsh and Noor Bakhsh. The claim was verified and the land was allotted to her against the claim................ Thus, the custom followed by the family of the male owners and the capacity of Mst. Majeedan as widow of Abdul Latif are admitted facts and she was held entitled to 1th share only in the estate of Abdul Latif son of Rasool Bakhsh. Why not the share criterion was followed in respect of the estate of Noor Bakhsh when Mst.
Majeedan was not related to Mst. Umri in any degree on whose death the land had reverted to the donor Noor Bakhsh and had come down to Mst. Majeedan as widow survived in the family of male owners. Neither she had offered any explanation whatsoever before her death in the year 1953 nor the respondents could explain away her right to obtain the entire land held by Mst. Umri. In the absence of any explanation to claim the inheritance of Mst. Umri by Mst. Majeedan as heir, the respondents could not be given the share more than that to which a widow would have been entitled".
6. From the above observations, it is quite clear that notwithstanding the gift of land measuring 73 Kanals 3 Marlas by Noor Bakhsh in favour of his wife Mst. Umri in lieu of the dower, when on the death of. Mst. Umri the land was mutated in favour of Mst. Majeedan, it was held to have come to the latter i.e. Mst. Majeedan under the custom. Further, that she inherited land from. Her husband Abdul Latif under custom. The learned Judge found that Mst. Majeedan inherited the, land under custom and could not be given more than that to which a widow would have been entitled.
Learned counsel for the petitioners submitted that since the case was remanded, these findings are not binding on the petitioners. Not only that these were the findings of fact on which the case was to proceed on remand and these had not been challenged in appeal or otherwise, the fact of the matter is that the entire land vesting in Mst. Majeedan has been verified in her name as a widow of Abdul Latif vide the Fard Haqiat issued by the Central Record Office. Under Para. 29 of the Rehabilitation Settlement Scheme it is provided that "Rights under the Rehabilitation Settlement Scheme should be given to a claimant in accordance with the entries in the special jamabandis received from the prescribed area of India", on the basis of which Fard Haqiats are issued. Under para. 40-A of the aforesaid Act it is provided as under:- "In respect of agricultural 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 Shariat Law 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 Shariat Law.
Provided that the share which the female limited owner would have inherited had the Shariat Law been applicable at the time of the death of the 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 if her limited interest terminates because of death."
It is well established law by now, the basic judgment being Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others P L b 1971 SC 791 that a female recorded in special jamabandi as limited owner under custom migrating to Pakistan and filing claim under Act V of 1949 and land allotted to her in lieu of such claim, the same would devolve on her demise on the heirs of the A last male owner of the property and not on her own heirs. She will only get the share as a Muslim heir in her capacity of being the widow of the deceased. Thus, the land allotted to Mst. Majeedan, on her demise would devolve on her heirs to the extent of ith as she was childless and the rest of 3/4th would go to the reversioners. This is conceded to by the learned counsel appearing for the reversioners and their vendees and further that the sanction of mutation in favour of the heirs of Mst. Majeedan to the extent of 1/8th under the impugned order of the Additional Commissioner (Cons), Lahore Division, Lahore/ Settlement Commissioner (Lands), dated 10-8-1982 is incorrect and her heirs were entitled to 1th.
7. In view of what has been stated above, it is quite clear tha the heirs of Mst. Majeedan widow of Abdul Latif in whose favour of Fard Fard Haqiat was verified will be entitled to 1/2th of the entire estate which was 148 Kanals 6 Marlas and, therefore, the second petition by her heirs is allowed to this extent. The vendees to the extent of th entitlement of the heirs of Mst. Majeedan, in the first petition will be entitled to retain the land sold to them by the heirs of Mst. Majeedan to the extent of the aforesaid 1th share of Mst. Majeedan in the aforementioned estate. Rest of the 3/4th land will go to the reversioners and their vendees to the extent of the sale in their favour by the reversioners.
The petitions are, therefore, partly allowed but, in the circumstances, the parties are left to befit their own costs.