Mst. Shabnama (deceased) instituted a suit against the appellant and four others for declaration that she was owner in possession of suit house (to the extent of 2465/6912 share) sad that the sale of the entire house in favour of the appellant, in so far it purported to convey him her share also, was ineffective against her rights. In the alternative, she claimed possession of the entire house by way of pre-emption on the ground of superior right; being a co-owner in it, in preference to the claim of the appellant who was alleged to have no such right.
The suit was contested by the appellant and defendant Abdul Manan (who has not appealed) on various grounds which are reflected by the following issues :-
(1) Is the suit bad for non-joinder of necessary parties?
(2) Whether Mst. Shabnama has brought her suit for the benefit of the vendors?
(3) Is the suit within time?
(4) Is the suit incompetent in its present form?
(5) Whether plaintiff is estopped from suing?
(6) Whether plaintiff was the owner of 2465/6912 share in the house fn suit and the sale as regard it by defendants Nos. 1 to 3 in favour of defendant No. 4 was illegal and inoperative against her interest?
(7) Whether plaintiff has got a superior right of pre-emption as against the vendee and rival pre- emptor?
(8) Whether sum of Rs. 1,698 was fixed in good faith or paid as sale price of the suit house?
(9) What is the market value?
(10) Whether suit is properly valued for purposes of court-fee and jurisdiction?
(11) Relief.
Upon these issues, the parties produced their respective evidence and in consequence the suit was dismissed. In appeal filed against the judgment of the trial Court, the Learned District Judge decreed the suit of Mst. Shabnama for pre-emption of the suit property, hading that on account of inheriting the share of her late husband, Akram, she had become co-owner therein and, therefore, would have superior right as against the appellant to whom the property had been sold by the other co-sharers. The learned Judge, however, dismissed her suit in regard to the claim made by her that her husband had transferred her 1/3rd share in. The suit property in lieu of dower of Rs. 400, for the dower-deed was unregistered and consequently could not convey her any interest in the property.
2. Against this part of the judgment, Mst. Shabnama has filed a Second Appeal which would be considered on its own merits.
3. S. Rifaqat A.I Shah learned counsel conceded before me (1) that he could not question the finding of the learned District Judge that Mst. Shabnama was a co-sharer in the suit property N on account of Inheriting the share of her husband and (2) that the sale-deeds Exhs. D. 6 to D 22), on the basis of which the appellant had attempted to make out a case that 17/32 share of G tie suit house had been sold to him, would not enure to his S benefit, for in-there it was clearly mentioned that he had purchased the entire house. The Darned counsel, however, conteaded that after the death of Just.
Shabnama, vendors Taj Mohammad (the brother of her husband), Mst. Hafifa (the mother of her husband) and Mst. Zeb-un-Nisa (the wife of Taj Mohammad) would inherit her share proportionately as her Muslim Law heirs and thin they would become co-owners in the suit property. He. Therefore, contended that one sale transaction of the suit house in favour of the appellant by these three persons would, after the death of Mst. Shabnama. Remain uneffected notwithstanding the decree of the learned District Judge in favour of Mst. Shabnama.
I am afraid this contention proceeds in disregard of the fact that by section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (hereinafter called Shariat Act), all limited estates in respect of immovable property held by Muslim females under the Customary Law were terminated and in the result all such females became the owners of the property In their own right.
Therefore, even assuming for the sake of argument that Mst. Shabnama, after the death of her husband in 1935, had succeeded to his share in the suit house as a limited owner, section 3 of the Shariat Act would convert her interest as full owner and on her death her share would be inherited by her Muslim Law heirs. The learned counsel conceded before me that the only Muslim Law heir of Mst. Shabnama was her brother Mohammad Gul, who, after her death, was brought on the rear rd of this appeal as her legal representative. It is obvious, therefore, that Mohammad Gal alone would succeed to the share of Mst. Shabnama and none of the three vendors, through whom the appellant claims, for they were related to her only through her husband. In this view. It cannot be contended that the three vendors had become co-owners in the share of Mst. Shabnama, although it Is not disputed that they were co-owners in the rest of the snit property fn their own right.
4. The learned counsel next contended that the impugned decree of pre-emption paused by the learned District Judge in favour of Mst. Shabnama would be invalid, far when she filed leer suit in the trial Court she was a limited-owner and, therefore, she could not have possibly claimed to be a co-sharer in the property. It is true that Mst. Shabnama had filed her suit on 2-5-1962, when she would re deemed to be a limited-owner, and the Shariat Act had come into force about six months later i.e. On 31-12-1962. But this would not make any difference when notice is taken of sections 3 and 6 of that Act which respectively read as under :- "S. 3. Termination of life estate under Customary Law.---The limited estates in respect of immovable property held by a Muslim female under the Customary Law are hereby terminated.
S.6. Sections 3, 4 and 5 only to be retrospective. ---Save as expressly provided by 'tae provisions of sections 3, 4 and 5, this Act shall have no retrospective operation."
It can hardly be disputed that lay the operation of section 3 Mst. Shabnama had become the full owner of her share in the suit property long after she filed her suit, but by the clear language of section 6, retrospective effect was given to section 3 and, therefore, the suit filed by her earlier would be unexceptional, for the defect, it any, in the suit would be cured by the operation of section
6. In order to show that this conclusion would be erroneous, the learned counsel referred to subsection (2) of section 7 of the Shariat Act, which, for the sake of facility, may be reproduced:- "This Act shall not apply to cases where the death of the last full owner or the termination of the life estate or the death of the legatee-in-enjoyment, as the case may be, has occurred before the commencement thereof, and all such cases shall be governed by the Acts repealed in subsection
(1) according to territories in which they were operative."
Apart from the fact that this subsection would have no material bearing on the facts of this case, the learned counsel' conceded that he was not aware that this subsection had been omitted by the West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act XXVII of 1964. In any event, the effect of this subsection bad come up for consideration before the former West Pakistan High Court at Lahore in the case of Mst. Sarwar Bibi v. Said Ahmad and others (PLD 1969 Lah. 412), and the conclusion reached therein was that it was repugnant to the express provisions of section 3 of the Shariat Act and was, therefore, void. I respectfully agree with this conclusion, for by the clear language of section 3, all limited estates in respect of immovable property, held by Muslim females under the Customary Lava were terminated and instead they had become full owners. Le this view subsection (2) of section 7, by which an attempt was mad to deprive the Muslim females of the said benefit, was obviously repugnant to section 3 of the Shariat Act and, therefore, would void.
5. The last contention of the learned counsel is that the suit of Mst. Shabnama was barred by limitation and the learned District Judge should have desisted from setting a4de the finding of the trial Court on that point. In support of this contention, he referred to pare. 2 of the plaint in which Mst Shabnama had alleged that the entire suit house had been sold to the appellant through sale- deeds dated 13-12-1960 and pointed out teat by this admission, the suit of Mst. Shabnama would be barred by limitation under section 31 of the N.-W. F. P. Pre-emption Act, for by the sale-deeds in question the possession of the suit --house was also delivered to the appellant. In order to appreciate this contention, it would be proper to reproduce that section which in its relevant parts reads as under:--
31. In any case not provided for the Article 10 of the Second Schedule of the Limitation Act. 1908, adapted by the Pakistan (Adaptation of Indian Laws) Order. 1949, the period of limita--petition in a suit to enforce a right of pre-emption under the provisions of this Act. Shall notwithstanding anything in Article 120 .f the said Schedule, be one year :
(1) In the case of a sale of agricultural land or of village Immovable property from the date of the attestation (if any) of the sale by a Revenue Officer 'Raving jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical possession of any part of such lend or property whichever date shall be the earlier.
(2) .
(3) .
Article 10 of the Limitation Act, 1908 would not apply to -this case, for unlike the present case fn which the sale-deeds in favour of the appellant are unregistered, this Article applies only to those sale transactions In which a deed has been registered, In this view, the law applicable to the facts of this case would be subsection (1) of section 31 of the N: W. F. P. Pre-emption Act, as the suit house Is situated in a village, provided it could be shown by the appellant that he had taken physical possession of the suit house under the sale-deeds dated 13-12-1960. It Ifs true that in the sale- deeds in question, mention has been made that the appellant was given possession of the said hose. But by the evidence brought on record, this narration was proved to be incorrect. In her evidence before the trial Court, Mst. Sbabnama had clearly asserted that she had been living in the suit house for all these years and on this point she was not cross-examined. Similarly, one of the vendors, Taj Mohammed, from whom the appellant claims to have purchased the suit house, admitted in his evidence that after about 11 months of the execution of the sale-deeds in question he, vide lease-- agreement (Exh. D. 23), rented the house from the appellant. From this, It would be clear that at no stage was the possession of the suit house delivered to the appellant, and consequently it cannot be said that the suit of Mst. Shabnama should have bees filed within one year of the execution of these deeds, as prescribed tender subsection (1) of section 31 of the N: W. F.
P. Pre-emption Act.
It seems to me that the law, which, In the absence of Article 10 of the Limitation Act, 1908, and subsection (1) of section 31 of N.-W. F. P. Pre-emption Act, would apply to this case, would be article 120 of the said Limitation Act, which by its very nature is a residuary Article. The learned District Judge was, therefore, right to hold that the suit of Mst. Shabnama would be governed by this Article, and since she had filed her suit long before the expiry of six years of the date on which the sale-deeds dad been executed in favour of the appellant, her suit would be well within time.
The not result of all this discussion Is that this appeal falls and is dismissed, but under the circumstances the parties would bear their own costs.