1. ANWARUL HAQ, J.-This appeal is directed against the judgment dated the 6th of February 1968 passed by a Division Bench of the former High Court of West Pakistan at Lahore in two cross appeals, whereby the decree of the trial Court in a suit for possession of certain agricultural lands was modified in certain respects. In the order granting leave it was observed by this Court that as the value of the subject-matter of the suit was above Rs. 20,000 the appeal would lie as of right under the law as obtaining on the date of the institution of the suit. For this purpose, reliance was placed on the decision in the case of Colonial Sugar Refining Co. Limited v. Irving (1905 A C 369).
2. However, the appeal was directed to be registered subject to all just exceptions. At the hearing, the learned counsel appearing for the respondents has not challenged the maintainability of the appeal, and, therefore, nothing more needs be said on this account.
3. The property in dispute originally belonged to one Phullu, a Dahar Jat by case, and resident of village Jhoke Lashkarpur in Tebsil and District Multan. On his death, it devolved upon his son Allah Bakhsh under custom. However, Allah Bakhsh also died a few days later, without leaving behind any widow or children, and the land was, therefore, mutated in the name of his mother Mst.
4. Khanan, in preference to his sisters and third degree collaterals.
5. Mst. Khanan died on the 12th of June 1955, and thereupon disputes arose about the succession to the lands held by her. During her lifetime she had made two substantial alienations. The first one was an oral gift on the 3rd of May 1930 in respect of 259 kanals and 5 marlas situate in the estate of Jhoke Lashkarpur in favour of Allah Yar, Muhammad and Ahmad, the three sons of one of her daughter named Mst. Bhagan. The relevant mutation was sanctioned in this behalf on the 17th of June 1930. The second alienation was effected by Mst. Khanan by means of a registered gift deed on 29-5-1955 in respect of 422 kanals and 131 marlas of land in favour of her daughter Mst. Allah Jiwai, and four sons of another daughter Mst. Sadhan, viz. Amir, Ramzan, Muhammad Nawaz and Muhammad Yar.
6. On the 19th of October 1955, the children of Rustam and Bahota, the two brothers of Phullu, the original owner of the land, as well as the husband and children of Mst. Bhadai a daughter of Phullu, filed a suit in the Court of the Senior Civil Judge at Multan for possession of 1948/6488 share in the lands comprised in two lots which had been alienated by Mst. Khanan. The plaintiffs Nos. 1 to 6 belong to the first category, whereas plaintiffs Nos. 7 to 11 belong to the second category. They alleged that Phullu was governed by custom ; that Mst. Khanan, the widow of Phullu and mother of Allah .Bakhsh was a limited owner without any power of alienation ; and that on her death the property had devolved upon the Muslim Law heirs of Allah Bakhsh in accordance with section 3 of the Shariat Act. They accordingly claimed possession of their respective shares.
7. The suit was resisted by both sets of donees on a large number of preliminary grounds, as well as on the ground of limitation in so far as the gift of the year 1930 was concerned. They asserted that Mst. Khanan, as the owner of the land, was competent to make the two gifts in their favour.
8. The learned Senior Civil Judge, Multan, who tried the suit, found that Phullu, his son Allah Bakhsh and their family were governed by custom. Under which, on the death of a sonless proprietor, the property devolved upon his mother as a limited owner for life. He accordingly held that Mst. Khanan did not Have the power of disposing of the property by way of .Gift, but the suit was barred by time in respect of the alienation made by Mst. Khanan in the year 1930. In his view, this alienation should have been challenged within six years in accordance with the special provisions contained in the Punjab Limitation (Custom) Act (I of 1920). As regards the second alienation, the learned Senior Civil Judge held that it was not binding on the estate, except to .The extent of 1/6 share, which would have devolved upon Mst. Khanan under the Shariat Act as the mother of Allah Bakhsh. On this view of the matter, he dismissed the suit in respect of the lands forming the subject-matter of the first alienation, but decreed the same in favour of the plaintiffs in respect of the lands forming the subject matter of the second alienation, except to the extent of 1/6 share of Mst. Khanan. While doing so, he also determin--ed the individual shares of the plaintiffs under the Shariat Act.
9. Two appeals were filed in the High Court : one by the plaintiffs to challenge the correctness of the trial Court's view that their suit in respect of the alienation of 1930 was barred by time ; and the other by the donees of the 1955 gift, against whom the suit for possession had been decreed. By the impugned judgment, the High Court has dismissed the appeal of the defendant-donees, but has partly allowed the plaintiffs' appeal. The High Court has held that the parties were governed by custom under which the widowed mother could hold the land only as a limited owner with no power of alienation ; and that for the purposes of succession under the Punjab Muslim Personal Law (Shariat) Application Act, 1948, the last full owner of the property was Allah Bakhsh the son of Mst. Khanan, and not her husband Phullu, and therefore Rustam, as the paternal uncle of Allah Bakhsh had precedence over his sisters. The High Court has further held that the land was not ancestral qua plaintiffs Nos. 1 to 6 as it had not devolved upon Allah Bakhsh from their common ancestor, but it was so qua plaintiffs Nos. 7 to 11 as Phullu, the last owner, before Allah Bakhsh, must be regarded as the common ancestor of the parties, Phullu's daughter Mst. Bhadai having acted merely as a conduit to pass on the property to her sons and husband. On this view of the matter, the High Court has found that the trial Court was in error in thinking that the suit of plaintiffs Nos. 1 to 6 was barred under the special provisions of the Punjab Limitation (Custom) Act (I of 1920) as these provisions apply only to cases where the land is ancestral qua the plaintiffs and the last male owner. Accord--ingly, these provisions would bar the suit only as regards plaintiffs Nos. 7 to 11. The High Court has also expressed the view that under the general law of limitation the Article applicable would be 141 and not 125 of the Schedule to the Limitation, as the plaintiffs were under no obligation to challenge the validity of the alienation made by Mst. Khanan, and could file a suit for possession on the termination of her limited estate. As a result, the plaintiffs' suit for possession, filed within a short time after death of Mst. Khanan, was held to)be within time even in respect of the land forming part of the gift made by her in 1930. Finally, the High Court has made certain corrections with regard to the individual shares of the plaintiffs. On these findings, the suit of the plaintiffs Nos. 1 to 6 has been decreed by the High Court also with regard to the lands which had been alienated by Mst. Khanan in 1930, whereas the suit of plaintiffs Nos. 7 to 11 remains dismissed in this behalf.
10. Mst. Khanan, the daughters of Phullu would exclude his brothers and their children. It is next contended that in any case the High Court is in error in holding that the special provisions of the Punjab Limitation (Custom) Act (I of 1920) are not applicable to the suit of plaintiffs Nos. 1 to 6 as regards the property forming the subject-matter of alienation by Mst. Khanan in 1930.
11. After hearing the learned counsel --for both sides at some length, we are of the view that there is no merit in these contentions.
12. Hamira and others v. Ram Singh and others (1907 P R 134), Mst. Gango v. Mst. Hukam Kaur (AIR 1938 Lah. 111), Akhtar Abbas v. Nazar Abbas (AIR 1946 Lah. 10) and Mst. Fatima Bibi v. Nur Muhammad Shah (PLD 1951 Lah. 147). We find, however, that in all these cases the decision rested on' the general principle of agricultural custom that the property of a person who dies issueless, /- first reverts to the ancestor who left issue and then descends to his lineal descendants. The line that left no descendants is deemed not to have existed at all, and therefore on the termination of the life estate of a widowed mother, inheritance has to be traced to her husband and not to the last male- -holder. It is significant that even in these cases a distinction was made between the husband of the widowed mother and the last male-holder, this latter term obviously referring to her issueless son.
13. These decisions are, however, of no assistance to the appellants beforei us, for the reason that in the present case the question of succession to the widow's limited estate is governed by the specific provisions contained in section 3 of the West Punjab Muslim Personal Law (Shariat)
14. Applica--petition Act of 1948, and not by the principles obtaining under the agricultural custom of the Punjab. This precise question was considered in Muhammad Hussain v. Alam Din (PLD 1955 Lah. 420), Mst. Amiran v. Nadra (PLD 1958 Lah, 448and Bano v. Mahlu (PLD 1965 SC 33) and it was held that the words "last full owner" as used in section 3 of the Act, would ordinarily refer to the person who in fact was the last full owner. It was added that :- "The Legislature, which was applying Muslim Law to cases of succession to persons who were previously governed by customary law, had to provide for the situation that there was a large number of females with limited estates whose estate could terminate by death or marriage and they did not possess any heritable estate. The wording of section 3 shows that the Legislature allowed inheritance to take place on the termination of the limited interest as it would have taken place if the Muslim Law was applicable when the last person who left a heritable estate died."
15. The Court further observed that even under customary law it was not correct to say that the words "last male holder" referred to the husband of the widow who had succeeded collaterally ; on the contrary, these words definitely referred only to the person who actually held the land and not to the husband of the widow. It was, therefore, concluded that succession under section 3 of the Act would open out to the heirs of the last full owner who actually held the land as a heritable estate, and that would mean the issueless son of the widowed mother, and not her husband. It is clear, therefore, that the High Court has rightly proceeded on the basis that the property in suit was to devolve on the heirs of Allah Bakhsh as the last full owner of the property and not on those of his father Phullu.
16. As regards the second contention raised on behalf of the appellants regarding the applicability of the special provisions contained in the Punjab Limitation (Custom) Act (I of 1920), suffice it to say that this Act applies, as its very preamble shows, to suits relating to alienation of ancestral immovable property and appointment of heirs by persons who followed customs in the Punjab Province. This Act has no application of the property in suit is not ancestral qua the plaintiff. See Sant Singh v. Hardit Singh (AIR 1933 Lah. 945), Hazura Singh v. Kishen Singh (AIR 1933 Lah. 369) and Barkat v. Muhammad Shafi (43 P L R 181 According to Rattigan's Digest of Customary Law, "ancestral property" means, as regards sons, property inherited from a direct male lineal ancestor, and, as regards collaterals, property inherited from a common ancestor. Property which has never been held by the common ancestor cannot be regarded as ancestral in any sense. Under the customary law the word "ancestral" carries a peculiar signification and even if the land be ancestral of the last male-holder, it cannot be held to be ancestral qua the party unless it is proved that the common ancestor of the c parties had ever held it. Land to be ancestral must have been held by the common ancestor of the parties. Judged in the light of this definition, the land in suit could not be regarded as ancestral qua the sons of the brothers of Phullu, as it was not held by a common ancestor of the parties. There was no assertion as to how the property had devolved upon Phullu. The High Court was, therefore, right in observing that the suit of plaintiffs Nos. 1 to 6 could not be governed by the special provisions of the Punjab Limitation (Custom) Act.
17. No argument was addressed at the Bar against the decision of the High Court that under the general law the suit of these plaintiffs was governed by Article 141 of the Schedule to the Limitation Act and not by Article 125 thereof. In the circumstances, we would uphold the finding of the High Court to the effect that the suit of these plaintiffs was also within time as regards the alienation made by Mst. Khanan in the year 1930.
18. As regards the plaintiffs (viz., 7 to 11) who derive their title from Mst. Bhadai, a daughter of Phullu, the High Court has held that the land must be regarded as ancestral qua them, as it was held by their maternal grand-father. In coming to this conclusion the High Court has followed the view expressed by a Full Bench of the Lahore High Court in Mahindar Singh v. Allah Ditta (AIR 1924 Lah.
19. 539) in preference to the contrary view taken by an Indian High Court in the case reported as Narotam Chand v. Mst. Durga Devi (AIR 1949 E P 109). As early as 1924, the High Court had refused to depart from the rule laid down in this behalf in the earlier case of Lehna v. Mst. Thakari (32 P R 1895) on the ground that the doctrine of stare decisis was a statutory principle to be applied to the law relating to property, and the Court would be reluctant to overrule a decision, upon which many persons might have acted, unless the decision was shown to be clearly wrong.
20. This question also fell for examination by a Division Bench of the former High Court of West Pakistan at Lahore in Muhammad Tahir Raza Khan v. Lingat Hayat Khan (PLD 1966 Lah. 151The judgment in that case was delivered by one of us (Anwarul Haq, J.). After an examination of a voluminous body of case-law, the view taken by the Full Bench of the Lahore High Court in Mahindar Singh v. Allah Ditta, already referred to, was adopted and it was added that since 1924 the same view had continued to prevail (see AIR 1925 Lab. 385, 1 L R 13 Lab. 126, (1929) 122 1 C 226, 31 P L R 125, PLD 1949 Lah. 435). The contrary view adopted by the East Punjab High Court in India was not followed. It does not appear to us to be necessary to go over the same ground again. We agree that it will not be desirable to disturb the settled law on this point at this late stage when cases arising under custom are gradually dying out, owing to its replacement by the Muslim Law of inheritance even in the matter of agricultural lands.
21. The case of Muhammad Tahir Raza Khan came up in appeal to the Supreme Court, viz., Civil Appeal No. 117 of 1966, which was decided on the 26th of February 1968. A perusal of the judgment shows that no arguments were addressed regarding the ancestral nature of the property once held by the maternal grandfather. It would thus appear that the parties accepted the view adopted by the High Court in this behalf, and that this was impliedly approved by this Court, as the other questions were decided on this basis.
22. On this view of the matter we consider that the High Court was right in holding that the property in suit was ancestral qua plaintiffs 7 to 11, as a daughter simply acts as a conduit to pass on the property as ancestral D property to her. Sons and their descendants and does not alter the character of the property simply because she happens to be a female. For this reason the limitation in their case was governed by the special provisions of the Punjab Limitation (Custom)
23. Act. The suit of these plaintiffs was, therefore, clearly barred by time in respect of the alienation made in the year 1930.
24. For the foregoing reasons, the present appeal fails and is hereby dismissed with costs.
25. 37513