JUDGMENT'
INAYAT ELAHI KHAN, J.--This appeal in directed against the judgment of the learned Acquisition Judge dated 28-2-1981 whereby the objection petition of Mst. Shamroz Begum and others (appellants) under section 18/30 of the Land Acquisition Act, 1894 was dismissed. The facts of the case, briefly, stated, are that the land in dispute, which was included in the award given by the Collector Land Acquisition, was originally owned by Alam Khan son of Ghulam Khan who had died before the enforcement of Muslim Personal Law (Shariat) Application Act; 1935 (Act VI of 1935) hereinafter called as Shariat Act. His inheritance Mutation No.1246 was attested on 29-5-1929 in favour of his widow Mst. Attar Noor as a limited owner who remained in possession till her .Death in the year 1938. ,After the death of Mst. Attar Noor the inheritance Mutation No.1276 was attested on 12-2-1940 in favour of Sultan Muhammad Khan, Abdullah Khan and Muhammad Khan sons of Khanizaman (prededessors-in-interest of respondents 1 to 9 and 162) who were collaterals of Alam Khan the last full owner. Mst. Shamroz Begum and Amir Jan (appellants) are the daughters of Alam Khan from his first. Wife who predeceased him. Mst. Mubarak Jan (appellant) and Mst. Subuh Sultan respondent No.163 are the daughters of Alam Khan from his second wife Mst. Attar Noor.
Thus, the appellants being the daughters of Alam Khan claimed their share in the compensation amount of the acquired land which had been assessed by the Collector exclusively, in favour of the collaterals of Alam Khan. The appellants claimed that in the inheritance of their father they along with respondent No.163 were owners of 14/24th shares and being the daughters of Mst. Attar Noor also entitled to her 3/24th shares in the disputed land. It was alleged that inheritance Mutation No. 1776 attested on 12-2-1940 exclusively in the name of the collaterals of Alam Khan was fictitious and fraudulent and the appellants came to know of this mutation when they inspected the Revenue record in connection with acquisition proceedings in 1969. Since the land was acquired-by the Land Acquisition Collector by award No.12 dated 27-7-1971 and the entire compensation was awarded in favour of the respondents the appellants preferred an objection petition under section 18/30 of the Land Acquisition Act which was referred for decision to the Civil. Court. The learned Acquisition Judge in view of the pleadings of the parties framed the following issues:-
(1) Whether the .Objectors have a cause of action?
(2) Whether the claims of the objectors is within time?
(3) Whether respondents; have matured their title through prescription for being in adverse possession for more than 1.2 years, if so, its effect?
(4)Whether the objectors are estopped by their conduct to bring this present objection petition?
(5)Whether the objectors are barred under the principle of res judicata?
(6)Whether the claim of the objectors is more than their due share and for excess area if so, its effect?
(7)Whether the objectors are entitled to inherit the lagacy of Alam Khan deceased?
(8)Relief:
2. The learned trial Court having found issues 1, 2, 3 and 7 against the appellants dismissed their objection petition leaving the parties to bear their own costs. The findings on the aforesaid issues are assailed in this appeal.
3. Since it was disputed by the respondents that Mst. Attar Noor widow -of Alam Khan had died after the enforcement of the Shariat Act, the appellants were allowed to lead additional evidence in this Court. Shabir Hussain, Registration Moharrir office of the D.H.O., Abbottabad (C.W.1) was, therefore, examined on 24-4-1987. He deposed that according to the register 'Amwat' of the year 1938 the date of death of Mst. Attar Noor is recorded as 20-3-1938 and the death was reported to the police station on 24-3-1938. He stated that the certified copy. (C.W.1/1) about the death of Mst.
Attar Noor was correct according to the entry in the register. From this evidence as well it was, therefore, established that Mst. Attar Noor has died in the domain of Muhammadan Law.
4. In support of the appeal it is contended firstly, that the Shariat Act being retrospective in effect, Alam Khan the last full owner will be deemed to have died in the domain of Muhammadan Law even if the death had taken place before the enforcement of the Shariat Act and secondly, that the limited estate of Mst. Attar Noor having been terminated on her death in 1938 the Muslim Law heirs of Alam Khan, the original owner, shall be deemed to have inherited his estate in accordance with their Muhammadan Law 'shares and that even if the inheritance mutation of Alam Khan was attested in favour of his collaterals and they remained in possession of the. Property it would be of no consequence as they shall be deemed to be in possession as co-owners along with other Muslim Law heirs of Alam Khan. It is contended that the respondents who claimed themselves as customary heirs did not inherit the property as such in their own right and thus, their possession would not be adverse to other co-sharers. Reference is made to section 4(1) of the Shariat Act as added by the N.-W.F.P Muslim Personal Law (Shariat) Application (Amendment) Act, 1950 which provides that in respect of immovable property held by a Muslim female as a limited owner under the customary law, the persons entitled to succeed to such property upon the termination of the limited interest of the female shall be those persons who would have been entitled to succeed at the time of the death of the last full owner .Had the Muslim Personal Law (Shariat) been the rule of decision governing the succession upon such death. It is thus, argued that since the limited interest held by Mst. Attar Noor terminated after the enforcement of Shariat Act the Muslim Law heirs of the last full owner were entitled to succeed. Him. It is next contended that the Muhammadan Law share of Mst: Attar Noor in the inheritance of her husband, in the absence of her collaterals, also devolved upon her real daughters i.e. Mst. Mubarak Jan appellant and Mst. Subuh Sultan respondent No.163.
On the other hand, it is contended on behalf of the respondents that they had inherited the property as customary heirs of Alam Khan and, therefore, their possession from the very inception was adverse to the appellants for the reason that the amendment in the Shariat Act brought about by Act XI of 1950 was not in the field when the limited estate of Mst. Attar Noor terminated in the year 1938 and this was the reason that Mutation No.1776 was attested on 12-2-1940 exclusively in the name of the collaterals of Alam Khan deceased. We are not convinced by this argument'. By the amending Act XI of 1950, subsection (2) was added to section 3 of the Shariat Act which provided that when ever a question relating to the succession upon the death of a Muslim arises in any Court, the rule of. Decision shall be, whether such death has taken place before or after the commencement of the Act, be the Muslim Personal Law (Shariat). In view of this provision of law read with section 4(1) of the Shariat Act the argument advanced on behalf of the respondents cannot prevail. It cannot be disputed that when ever a dispute arises with respect to succession of the estate of a deceased Muslim the deceased will be deemed to have died under the domain of Muslim Law even if the death had occurred before the enforcement of the Shariat Act 1935. It is not a case where the respondents succeeded Alam Khan in their own right as customary law heirs and remained in possession as such. Rather they succeeded to the state as co-owners with the other Muslim Law heirs of the deceased on the termination of the life interest of Mst. Attar Noor after the enforcement of the Shariat Act, 1935. In Aslam and another v. Mst. Kamal Zai and others PLD 1974 SC 207 it was held that:-- "Only the limited estates taken under custom, which were, in any event to terminate on the death or remarriage, of the female heir, were intended to be distributed according to Muslim Personal Law.
The language of section 4 leaves no room for doubt that the intention was to provide for the distribution of such properties only which -were notionally still the properties of the last male owner and would have otherwise gone to his reversioners on the termination of the life estate. "
In AIR 1942 Pesh. 27(2) it was observed "that the life estate acquired by a lady during custom was not affected by passing of Shariat Act, 1935 and the heirs of her husband under Muhammadan Law who were in existence where the life estate came to an end in 1939 were entitled to succeed and, therefore, the daughters were entitled to their share as sharers under Muhammadan Law". The principle laid down in the cited cases, in our view, is fully attracted to facts of the case in hand as the life interest of Mst. Attar Noor terminated in 1938 after the enforcement of the Shariat Act and, therefore, the appellants being the daughters of Alam Khan would be entitled to inherit from the estate of their father irrespective of the fact that the inheritance mutation was exclusively attested in favour of his reversioners as they shall be deemed to have inherited the estate under Muslim Law along with the Muslim Law heirs of the deceased. In Mst. Rahmania v. Mst. Maqboola PLD.1956_(W.P.) Pesh.'115, it was held that: "When the question of - succession arises after the addition of subsection (2) to section 3, the Act- would apply n matter the interest to which it related had terminated before the coming into force of section 4 or the death had taken place before 1935. Therefore, the question of succession arising in 1959, to the limited estate of a daughter who had married in 1943, and who herself had succeeded, under custom and under a will, to her father who had died in 1912, was to be determined by going back to 1912 and finding out such father's Muhammadan. Law heirs."
In this view of the matter the respondents shall be deemed to be in possession as co-owners with the Muslim Law heirs of the deceased and the plea of adverse possession thus, raised on their behalf would C not be- available to them in .The absence of any positive evidence of ouster or disclaimer. Regarding the contention on behalf of the respondents that Mubarak Jan (appellant) had sold her share in the property in favour of Sultan Ahmed by unregistered sale-deed dated 31- 10-1939 (copy Exh. O.W.3/R), it may be mentioned that the sale was denied by Mubarak Jan in her evidence. The sale-deed allegedly bearing her thumb impression was forwarded to the finger print expert for opinion. But no opinion could be given as the thumb-impression on the deed was found.
Blurred and unfit for comparison. The contention D that the Stamp Paper of the sale deed was purchased by Mst. Mubarak Jan under her own thumb-impression (which was found .To be genuine by the finger print expert), is of no avail for the mere purchase of the stamp paper would not ipso facto prove that she was also the executant of the sale-deed.
5. For the aforesaid reasons this appeal, is accepted and the impugned judgment .Of the learned Acquisition Judge is set aside with the result that. The objection petition succeeds and' the appellants along with Mst. Subuh Sultan (respondent No.163) are declared entitled to 14/24th shares in the inheritance of Alam Khan deceased. Mst. Mubarak Jan (appellant) and Mst. Subuh Sultan (respondent No.163) are also entitled to inherit 3/24th shares of Mst. Attar Noor. The remaining 7/24th shares would go to the respondents as collaterals of Alam Khan. The compensation amount shall be distributed accordingly. There shall be no order as to costs.