ABDUL HAKEEM KHAN, J.---By this judgment we propose to dispose of this appeal as well as Appeals Nos. 378 and 379 of 1965 as all the three appeals have been lodged against the same judgment. As a matter of fact, the learned counsel for Mst. Allah Rakhi concedes that the second appeal lodged by her viz. No. 379 of 1969, is a superfluity and duplication.
2. The admitted facts of the case that will help appreciating the points involved in these appeals are that one Malak Sultan was the owner of the suit property. Which comprises agricultural land and residential houses in Peshawar City. He died on 7th January 1910, and was survived by three sons, namely, Mien Mohammad, Abdul Qayum and Agha Jan, and a daughter namely, Mst. Allah Rakhi. So far as the agricultural property is con--cerned, Mutation No. 594 was attested in favour of the three sons on 9th June 1910, without making any allocation for Mst. Allah Rakhi. However, when one of the sons, namely, Agha Jan, died in 1940, and the mutation was attested, Mst. Allah Rakhi was also given a share in the former's estate along with the surviving two brothers. This mutation is No. 718 and was attested or. 9th March 1946.
3. It may be mentioned that Mian Mohammad and Abdul Qayum brought a suit on 24th June 1955, with the prayer that they be declared .Owners of 14/30 shares in Khasra No. 699 of village Shah Dhand the share of Mat. Allah Rakhi being 1/30. And that the gift deed dated 18th October 1954, by them in her favour was void, as it had been procured by fraud. This is also admitted, that this suit was eventually decreed with costs on 22nd April 1957.
4. It seems that the success of Mian Mohammad and Abdul Qayum Khan in that suit pre-empted Mst. Allah Rakhi to bring the present suit on 30th May 1960, wherein she has prayed for possession of 30 kanals of agricultural land in the Khasra numbers given in the plaint, including of course, Khasra No. 699, the decree in the earlier case notwithstanding. As a matter of fact, she claimed 1/5th share out of the agricultural land, measuring 166 kanals and 11 marlas equal to 24 kanals and 21 marlas on account of her share in the estate of her father, and 5 kanals and 19 marlas because of the gift from Mian Mohammad and Abdul Qayum. In addition to the prayer for possession as respects the agricultural land as aforesaid, she claimed 1/5th share in the four houses situated in Kotla Rashid Khan, of Peshawar City. The under mentioned pleas settled by the learned trial Court will give a picture of the contest between the parties:--
(1) Whether the suit is within tune?
(2) Whether the suit is properly valued for the purposes of court-fee and jurisdiction?
(3) Whether plaintiff' is estopped by her conduct from suing the defendants?
(4) Whether the suit is barred as res judicata?
(5) Whether the suit is barred by Order 11, rule 2, C. P. C?
(6) Whether Sultan Mohammad deceased. Was the owner of the suit property?
(7) Whether plaintiff is entitled to 1/5th share in the suit pro--perty as heir of Sultan Muhammad and Agha Muhammad under the Muhammadan Law?
(8) Whether defendant No 2 have validly gifted 5 kanals 19 marlas of land to the plaintiff by virtue of mutation No. 1099 attested on 18-3-1955?
(9) Whether the gift is forged and fictitious and without consideration?
(10) Whether the four houses in dispute have been exclusively constructed by defendants 1 and 2 with their own funds?
(11) Whether defendants 1 and 2 have been in adverse pos--session of the four houses in dispute for over 12 years
(12) Relief.
5. Issue 4, which relates to res judicata was answered partly in favour of the plaintiff, Mst. Allah Rakhi. The learned trial Judge observed, that the principles of res judicata cannot be extended to any other property in dispute, excepting Khasra No. 699, which happened to be subject-matter of the previous litigation. About the title of Sultan Muhammad propositus tire learned trial Judge observed, that he owned half share ire the agricultural land, and that as far as the houses are concerned, those belonged to him entirely. As regards the entitlement of the plaintiff, the learned trial Judge was clear in his mind, that she was entitled to 1/5th share in all that was left by Sultan Muhammad, excepting, of course, Khasra No. 699, in which her share was reduced to 1/30, because of the earlier decision, which operated as res-judicata. It may here be mentioned, that the learned trial Judge, while allocating 1/5th share to the plaintiff held that Malak Sultan was the resident of Peshawar City, and that he was governed by Shariat. It was further held, that Mst. Allah Rakhi has not been able to prove the gift of Khasra No. 699 in her favour, and that in any case in the absence of delivery of possession, the gift stood revoked. The defence con--tention that the same was forged, fictitious and without consideration was upheld. However, taking into account the fact, that improvements had been made in the houses by reconstruction, the learned trial Judge directed that the plaintiff should pay Rs. 2,08? By way of compensation to her two brothers in lieu thereof. On the question of limitation, the trial Judge was of the view that there was no evidence to show, that the defendants have prescribed title by adverse possession for more than 12 years.
6. Two appeals were lodged before the District Judge against the judgment and decree of the trial Judge. One was by Mst. Allah Rakhi and the other was by Mian Muhammad and Abdul Qayum defendants. The latter appeal being time barred was, however, treated as cross objections, and was disposed of accor--dingly by Mr. (now Mr. Justice) Shaft-ur-Rahman, then District Judge, Peshwar, vide his judgment and decree, dated 20-2-1965.
7. It may be recalled that the grievance of Kist. Allah Rakhi in the first appeal was that she should not have been burdened with the costs of improvements, and that the gifted property, i.e. 5 kanals and 19 marlas, out of Khasra No. 699, ought to have been allowed to her on the basis of the gift deed. The points raised in the appeal of Mian Muhammad and Abdul Qayum were
(1) the suit was barred by limitation;
(2) the costs of improvements were not adequate; and
(3) Mst. Allah Rakhi could not succeed Malak Sultan.
The learned District Judge, it will be seen, by an elaborate judgment repelled the contention raised on behalf of Mian Muhammad and Abdul Qayum on the points of title and limita--tion, but was of the view that compensation should not be at the investment value, rather, it should be assessed at rate, as early as possible, at the time of eviction. Tie, accordingly, assessed the compensation at Rs.
4,086. He also decided against Mst. Allah Rakhi that she got 5 kanals and 19 marlas of land by gift. It comes to this that the judgment of the learned trial Judge was modified to the extent that Mst.
Allah Rakhi was to pay Rs. 4,036 as costs of improvements, and that in other respects, the judgment and decree of the learned lower Court was maintained.
8. At the very outset, we will like to observe, that the learn--ed counsel for Mian Muhammad and Abdul Qayum appellants conceded, and we think rightly, that Malak Sultan was the resident of Peshawar City and that he was governed by Shariat. The only point on which he laid stress is that of limitation, arid in support of that the learned counsel invited our attention to an unpublished judgment of the Supreme Court in Civil Petition for Special Leave to Appeal No. 37-P of 1969 (Mst.
Maqbool Jan alias Mst. Manzara v. Fair Muhammad and others) decided on 22 November 1969.
The learned counsel added that his case was quite identical with the case before the Supreme Court, and the fact that in Mutation No. 594 attested on 9th June 1910, the name of Mst. Allah Rakhi was omitted clearly proves that she has been ousted from the agricultural land from that date.
9. The pronouncement of the Supreme Court cited at the Bar would have no doubt scaled the fate of Mst. Allah Rakhi, but for that which follows: While it is true, that there exists similarity of facts in this case and the case before the Supreme Court, in so far as the names of the persons claiming to be co-sharers in both the case, do not find mention in the respective mutations, but the dis-- tinguishing feature, however, is that in the case before their Lord--ships of the Supreme Court, as it was found by the High Court in most emphatic terms, the mutation was attested when custom was the rule of law, and further under that law, the petitioner could not succeed. It will be seen, that in paragraph 11 of the judgment, their Lordships of the High Court observed:- "We, are, therefore, of the opinion that Rahim Gul was governed by custom and that on his death in 1932, his property was inherited by his son Faqir Muhammad under custom as a sole owner to the exclusion of the other Muhammadan Law heirs of Rahim Gul."
In the instant case, however, as said before, on the crucial date of the death of the propositus, the rule of law governing succession was Shariat, and according to the same, Mst. Allah Rakhi had a share in the property left. So to speak, if not actually, she was very much there notionally, and this, to our mind, will make all the difference. It is true, that, in the paragraph preceding the penultimate paragraph of the judgment of the Supreme Court, their Lordships have also observed, that ouster would have been there, even if the inheritance was to be governed by Shariat, but this, it appears to us, is not the last pronouncement of the Supreme Court on the subject. Mst. Omai and others v.
Hakim Khan and others (1971 SCMR 499) which being a subsequent reported ruling, will. Prevail over the earlier unreported decision. In the subsequent ruling, their Lordships of the Supreme Court have observed as follows:- It has been rightly pointed out by the High Court that it is well settled that possession of one co-heir is in law the posses--sion of all the co-heirs. Mere non-participation in the profit and exclusive possession by the others will not be sufficient to constitute adverse possession. The petitionersnd have failed to show, that there was ouster of Hakeem Khan from the property in dispute and that they were in hostile possession of the property in dispute.
It may be mentioned, that fn this case also, the name of respondent Hakeem Khan had not been mentioned in the muta--tion and that the inheritance had opened on death of his father as far back as 1912. This pronouncement of the Supreme Court is also in line with the Privy Council authority as in (Thakur) Nirman Singh and others v. Thakur Lal Pudra PartaS Narefin Singh and others (AIR 1926 P C 100). In this connection, reference with advantage can also be made to Mst.
Wazir Begum and others v. Mst. Nur Jehan Begum and others (PLD 1961 Kar. 165). It will follow, that the argument of the learned counsel for Mst. Allah Rakhi on the basis of the authorities in Muhammad Akbar Shah v. Muhammad Yousaf Shah and others (PLD 1964 SC 329) and Lal and others v. Mian Dad and another (1968 SCMR 842 (2)) that mutation proceedings do not create title, and therefore, will constitute evidence of hostile title, must prevail. That which does not create title cannot be evidence of hostile. A zero multiplied by zero is zero.
10. The next contention raised on behalf of Mst. Allah Rakhi appellant is, that her brothers are not entitled to any com--pensation, whatsoever, for making constructions over and impro--vements in the disputed house. In support of the contention, the learned counsel appearing for her has cited Jantapram Subbidh and others v. Gundalapudi Venkatarnmayya (AIR 1923 Mad. 358), Shiam Lal v.
Radha Ballabh and others (AIR 1925 All. 770) and Solaiman Mossaji Asmal and others v. Jatindra Nath Mondal and others (AIR 1929 Cal. 553). For the contrary view, the learned counsel for Mian Muhammad and Abdul Qayum appel--lants has placed reliance on Jokhu v. Mt. Saraswati (AIR 1925 Oudh 45).
11. It may at once be stated, that all the three rulings cited by the learned counsel for Mst. Allah Rakhi are from Division Benches, and their Lordships in each case have referred to the decided cases. In two of them, reliance has also been placed on an American author, namely, Freeman. On the other hand, the ruling cited by the learned counsel for Mian Muhammad and Abdul Qayum appellants is from a Single Bench, and further it is not supported by references.
12. In Jantapuram Subbiah and others v. Gundalapudi Venkata--ramayya, the plaintiff left his unascertained share to the defendants, and a decree for partition was granted. Improvements were pleaded and compensation therefore was claimed by the defen--dants. There was no evidence to show, that improvements were on the portion of which the plaintiff was entitled to delivery. The following observations of their Lordships are, however, pertinent t "But in any case we cannot see how one tenant in common, who makes improvements on the property of the co-tenancy can ordinarily be entitled to compensation for doing so.
The three rulings which were relied upon by their Lordships are Swan v. Swan ((1820) 8 Price 578), Jones Forrington v. Forrestor ((1893) 2 Ch. 461) and Leigh v. Dickson ((1885) 15 Q B D 60). It may be of interest to note, that in Swan v. Swan, account was taken of that expenditure which was un-- avoidable or with the concurrence of the other co-tenants. The ratio of Leigh v. Dickson is that there should be either proof of the necessity for repairs or improvements, or alternatively, the concurrence, whether express or implied, of the co-tenants, to the execution of such repairs or improvements. It will be seen, that their Lordships of the High Court declined to give compensation for improvements; for in that case and same is the case here as well, there was no evidence to show that improvements were made with the concurrence, express or implied, of the co-heirs-
13. In Allahabad case Shiam Lal v. Radha Ballagh and others, the ratio decidendi is that only such amount shall be payable which a co-tenant spends to restore the property which is in ruin to a state in which it is of use and can bring in some profit. It has further been observed, that if improvements have been made with a view to embarrass a co-sharer at the time of partition, such improvements ought not be allowed. The follow--ing question from Freeman on co-tenancy and Partition was cited with approval:- The fact that a co-tenant has located upon a particular portion of the lands of the co-tenancy and has enhanced its value by making improvements or by reducing it from a wild state to one fit for profitable cultivation, is a circumstance always deemed worthy of the attention of a Court charged with the duty of making a partition... The law declines to compel one co-tenant to pay for improvements without his authorization; but it will not, if it can avoid so inequitable a result, enable a co-tenant to take advantage of the improvements for which he has contributed nothing. When the common lands come to be divided, an opportunity is offered to give the co-tenant who has enhanced the value of a parcel of the premises the fruits of his expenditure and industry, by allotting to him the parcel so enhanced in value, car as such thereof as represents his share of the whole tract. It is the duty of equity to cause these improvements to be assigned to their respective owners (whose labour and money have been thus inseparably fixed on the land) so far as can be done, consistently with an equitable partition.
To supplement this conclusion, it will be seen, the learned author relies on an American report which also was reproduced by their Lordships of the Allahabad High Court. That which follows is from a judgment of the Supreme Court of New York; Where one tenant in common lays out money in improve--ments on the estate, although the money so paid does not in strictness constitute a lien on the estate, yet a Court of equity will not grant a partition without first directing an account and a suitable compensation. To entitle the tenant in common to an allowance on a partition in equity for the improvements made on the premises it does not appear to be necessary for him to the assent of his co-tenants to such improvements, or a promise on their part, to contribute their share of the expense; nor is it necessary for them to show a previous request to join in the improvements and their refusal. The only good faith required in such improvements is that they should be made honestly and not for embarrassing his co-tenants or encumbering their estate or hindering partition. But if one joint tenant or tenant in common covers the whole of the estate with valuable improve--ments so that it is impossible for his co-tenant to obtain his share of the estate without including a part of the improvements so made the tenant making the improvements would not be entitled to compensation therefore notwithstanding they, may have added greatly to the value of the land because it would be the improver's own, folly to extend his own improvements over the whole estate and because it would be unjust to permit a co-tenant at his pleasure to charge another co- tenant with improvements he may not have desired. In such a case the improve stands as a mere volunteer and cannot without the con--sent of his co-tenant lay the foundation for charging him with improvements.
In the instant case also, it may be mentioned here, there is no evidence to show, that the property was in ruin, and that improvements were not made with a view to burden Mst. Allah Rakhi to the extent which she may not be able to afford.
14. In the Calcutta case Solaiman Moosaji Asmal and others v. Jatindra Nath Mondal and others apart from several authorities, the quotation of the New York Supreme Court ruling reproduced above relied upon by Freeman in his co-tenancy and Partition, was cited with approval, and it was observed, that where improvements have been made by a co-owner of his own will, even though not improper, all that the Court was to do for him was to hand over that he had improved, and to ensure, that he will get every penny to himself of the advantage which his money has created.
15. On a full and careful consideration of the authorities cited by the learned counsel for Mst. Allah Rakhi, we find our--selves in respectful agreement with the view taken by the Madras, Allahabad and Calcutta High Courts, and hold, that though a co-owner can make improvements over the joint property, he will not be entitled to re-imbursement of the costs thereof, unless such improvements have been made with the consent, express or impli--ed, of the co-owner against whom the amount is claimed, or there Is evidence to show, that the expenditure incurred was imperative, and had it not been made, the utility or value of the property would have diminished. In any case, a co-owner is not entitled to any compensation for such improvements as are made with a view to embarrass a co-owner at the time of partition. We should, however, not be taken to have laid down, that an owner should not be allocated at the time of partition such part of the property as he has improved, if he can be helped without jeopar--dizing the legitimate claim or another co-owner.
16. The upshot of the whole discussion is that the appeal of Mian Muhammad and Abdul Qayum is dismissed, and that of Mst. Allah Rakhi is allowed. Tine decree of the lower Court is maintained with this modification, that if it can be helped without jeopardizing the interest of Mst. Allah Rakhi, she should not be given such portions of the houses as have been built upon or improved by Mian Muhammad and Abdul Qayum and are within the limits of what can be allocated to them in their own rights. However, in view of the peculiar circumstances of the case, we direct that the parties should bear their own costs throughout.