' ALI HUSSAIN QAZILBASH, J.--This appeal by leave arises from the judgment of the learned Chief Justice of the Peshawar High Court (as he then was), dated 12-11-1984, whereby the concurrent findings of the Civil Judge, Mansehra, dated 31-10-1972, and that of the learned District Judge, Mansehra, dated 15-6-1977 were set aside and the suit of the respondents was decreed in their favour.
2. The present dispute relates to agricultural land measuring 78 kanals 5 marlas situate in village Ganda Tehsil and District Mansehra. It was originally owned by one Bahadur Ali who died in the year 1912. He was survived by his three sons, namely, Amir, Azad and Mir Alam. Amir died in the year 1922 when custom was rule of decision in matters of inheritance. Amir deceased was thus succeeded by his widow Mst. Zainab Noor as a limited owner of his estate vide Mutation No,490 attested on 13-7-1922. Mst. Zainab Noor got married in 1926 and on her re-marriage her limited interest in the suit property stood extinguished. Mst. Zainab Noor was thus succeeded by her daughters, namely, Mst. Karim Jan and Mst. Janey vide Mutation No,601 attested on 14-6-1926. Of the two ladies, Mst. Karim Jan got married in the year 1935 and as a result of her marriage she was succeeded by her sister Mst. Janey as a limited owner and Mutation No,943 was accordingly attested on 30th March, 1935.
3. It was in the year 1940 that Mst. Janey also got married and after her marriage the estate of her father Amir was mutated in favour of her uncle Azad and the predecessor-in-interest of respondents 3 to 9 and Mir Alam, the present appellant. At that time the share of Amir deceased was subject to mortgage. After her marriage Mst. Janey left for Malaya and returned to Pakistan in 1947.
4. On 31st July 1969 she filed a suit against her uncle Mir Alam and successors-in-interest of her deceased uncle Azad for a declaration that she was owner of 1/3rd share of the suit land. This suit was dismissed on 9-1-1971 by the trial Court but on appeal by her the suit was dismissed as withdrawn by the District Judge, Hazara, on 14-12-1971 with permission to file a fresh suit. In the fresh suit filed by her she associated her sister Mst. Gohar-un-Nisa and the heirs of her deceased sister Mst. Karim Jan as pro forma defendants. Her claim in the suit was that she alongwith the pro forma defendants were owners of 2/9 shares out of the suit land as heirs of her father Amir. The suit was contested by the appellant whereas the respondents confessed judgment.
5. As a result of the pleadings of the parties, the learned trial Court framed as many as 11 issues including issue No,4 which is presently relevant and is to the effect: "Whether the suit is time-barred?"
' The trial Court after recording the evidence of the parties dismissed the suit of the respondents vide judgment, dated 31-10-1972, holding the same as hopelessly beyond time. On appeal the learned District Judge, Mansehra, vide his judgment, dated 15-6-1977, affirmed the findings of the trial Court and thus dismissed the appeal of the respondents. The respondents, however, succeeded in the High Court in getting the concurrent findings of fact of the two Courts below reversed through the impugned judgment. Here it may be pertinent to point out that the portion of the property of Amir, which was under mortgage, was redeemed in the year, 1942.
6. Leave in this case was granted to consider whether the suit of the respondents was time-barred.
7. As per the record, the last female who was holding the property under the custom, was Mst.
Janey. Her right in so holding the suit property, however, terminated when she was married in 1940 and left the country. She came back in 1947 and filed the present suit after about 32 years. In the N.-W.F.P., customary law was done away with by the N.-W.F.P. Muslim Personal Law (Shariat)
Application Act, 1935, which came into operation from the 6th of December 1935. This law, however, did not apply to the limited estates of females, therefore, on her marriage in 1940 Mst. Janey was excluded to inherit from her father (Amir) and thus the property was inherited by the other heirs of Amir and a mutation to that effect was attested on 20-5-1940.
8. In 1950, through N.-W.F.P. Muslim Personal Law (Shariat) Application (Amendment) Act, 1950, the right of the female limited owner was recognized for the first time and the female limited owner was allowed to succeed the last full owner alongwith other heirs under the Muslim Personal Law (Shariat) if her limited interest in the property had terminated by reason of her marriage, remarriage, etc. Etc. In the instant case, as stated earlier, the limited interest of Mst. Janey had terminated in 1940 on her marriage. Under the law of 1950 though she became entitled to inherit from the property of her father but then to succeed she was required to file the suit within twelve years of the termination of her limited interest, i.e,. In 1952. But this she did not do and in fact filed the present suit in 1972 which obviously was barred by time and was rightly held so by the learned trial and the first appellate Courts, moreso when there existed no evidence on the record that she had been receiving any share in the property. The Courts mentioned above rightly sought support from Rehmania v. Maqbula (PLD 1956 (W.P.) Pesh. 115) and Sahib Jan v. Wali Dad (PLD 1%1 (W.P.)
Pesh. 9). We have persued the authorities cited by the learned counsel for the respondents and we are of the view that none is of any assistance to him.
9. The finding of the learned Judge in his Chambers in extending the period of limitation till 1983 on the ground of the property being under mortgage is, with respect, not correct, inasmuch as the mortgage created by the limited owner came to an end in 1940 when Mst. Janey got married.
Further, the perusal of the record shows that this mortgage which was of a portion of the property was got redeemed in the year 1942.
10. As a result of the above, we accept the appeal, set aside the judgment and decree of the High Court dated 12-11-1984 and restore that of the learned District Judge, Abbottabad, dated 15-6-1977.
We, however, do not pass any order as to costs.