1. Land in dispute measuring one hundred forty Kanals and one Marla (140-1) described at `A', 75 Kanals, 5 Marlas at `B' in the plaint, part of Shamilat village Malhowali belonged to Muhammad Khan, Awan by case, resident of village Malhowali, Tehsil Pindigheb, who in matters of alienation of and succession to his land was governed by agricultural custom. He died before the enforcement of Sharia. Consequent upon his death, Revenue Officer mutated the land owned by him in favour of his two surviving widows, Mst. Sahib Noor, Mst. Sultan Bano and Mst. Sharfan, his daughter vide inheritance mutation No. 281 sanctioned on 27-5-1931. Upon death of Mst. Sultan Bano, her share of land was also mutated in the name of Mst. Sahib Noor, vide inheritance mutation No. 808 sanctioned on 9-3-1938. Mst. Sahib Noor donated some land held by her as limited owner to her daughters Mst. Bakht Bano and Mst. Mehr Bhari vide mutation 1698 attested on 25-3-1950. By deed of sale registered on 18-12-1952, Mst. Sahib Noor sold the land in dispute to Sultan Muhammad son of Darvesh and Ghulam A.I son of Khan Bahadur at the sale price of Rs.400. On receipt of registration slip, village Patwari entered mutation No. 1819 to give effect to the above registered sale-deed in the revenue records. Sale mutation was placed before the Revenue Officer on 30-1- 1953. Mst. Sahib Noor denied the sale and questioned the correctness of the registered sale-deed.
2. Consequently, attestation of the sale mutation was postponed by the Revenue Officer so as to examine the genuineness of original registered sale-deed in presence of the vendees who were directed to put in appearance before him. On 31-1-1953, Mst. Sahib Noor repeated her objections whereas Ghulam A.I a co-vendee stated before the Revenue Officer that Mst. Sahib Noor had sold the land in dispute and the registered deed was a genuine document and represented correct version of the transaction. As a result of summary enquiry, Revenue Officer recorded the sale in revenue records and sanctioned the mutation in favour of vendees and directed Mst. Sahib Noor to establish her title, in the Civil Court. Sale mutation is Exh. P.
6. On 19-2-1954, Noor Muhammad son of Mst. Bakht Bano plaintiff No. 1 brought a complaint against the vendees, Mst. Khadija widow of Mian Muhammad Wali and Abbas Khan Lambardar, under section 465/471, P.P.C., in the Court of a Magistrate at Campbellpur. On 5-6-1954, accused arrived at compromise with the complainant. It was agreed that after annulment of the sale recorded in Mutation No. 1819 sanctioned on 31-1-1953, land in dispute shall be got mutated in favour of Mst. Sahib Noor and the accused shall receive their legal (sharie) share only. Certified copy of the statement of the accused in the case is Exh. P. 1.
3. As the terms of compromise were not fulfilled, daughters of Mst. Sahib Noor, namely, Mst. Bakht Bano and Mst. Mehr Bhari brought a civil suit on 31-5-1967, in the Civil Court at Attock to recover possession of the land in dispute from Sultan Muhammad and legal representatives of Ghulam A.I since deceased. It was stated that sale-deed dated 18-12-1952 alleged to have been executed by Mst. Sahib Noor was a mere fabrication and that in terms of compromise arrived at in criminal proceedings initiated at the instance of Noor Muhammad, it was agreed to be set aside and per its terms, land in dispute was to be mutated to Mst. Sahib Noor leaving a right for the vendees to claim their legal 'share as heirs of Muhammad Khan. It was further stated that independent of the compromise, Mst. Sahib Noor as limited owner had no right to sell it except for consideration and legal necessity which did not exist. In para. 5 of the plaint, it was alleged that upon death of Mst.
4. Sahib Noor which had taken place six months before the suit, plaintiffs as heirs of last male owner were entitled to 19/24 shares in the land in dispute.
5. Defendants resisted the suit. It was pleaded that plaintiffs had no cause of action; that they were estopped to sue; that the suit filed by them was not maintainable; that suit was barred by limitation. On merits, it was pleaded that Mst. Sahib Noor was full owner of the land and the sale by her in favour of vendees was valid and legal. Plaintiffs filed replication and reiterated contents of the plaint.
6. On 4-4-1968, the trial Court settled following issues for determination:-- (1)Whether the plaintiffs have no cause of action? O.P.D.
7. (2)Whether the plaintiffs are estopped by their conduct to lodge the present suit? O.P.D.
8. (3)Whether the suit is barred by time? O.P.D.
9. (4)Whether Muhammad Khan deceased husband of Mst. Sahib Noor was the last male holder of the land in dispute? O.P.P.
10. (5)Whether Mst. Sahib Noor deceased inherited the land in suit as a limited owner? O.P.P.
11. (6)Whether the sale of the land in dispute made by Mst. Sahib Noor deceased in favour of defendant No. 1 and father of defendants 2 to 8 was for consideration and legal necessity? O.P.D.
12. (6-A) What are the shares of the parties? O.P.P.
(7) Relief.
13. Gohar-ur-Rehman, Moharrir Patwari ---P.W. 1 proved revenue excerpt Exh. P.W.1/1. Noor Muhammad P.W. 2 deposed that sale of the land was a fake and fraudulent transaction and upon him complaint to the Court of a Magistrate, it was agreed that effect of mutation 1809 (it should be 1819) shall be reversed and the vendees shall claim only their share as heirs of Muhammad Khan.
14. He tendered copy of the statement Exh. P.
1. It was taken on file subject to objection by the other side. Nature of the objection was neither disclosed nor noted by the trial Court. Witness further deposed that Mst. Sahib Noor was dead about two years and some months ago. Statement-in- chief of P.W. 2 was not effectively cross---examined by the opponents. P.W. 3 is Mst. Bakht Bano herself. She deposed that land in dispute belonged to her father and it was never sold by Mst. Sahib Noor to the vendees. She stated that a different woman impersonated Mst. Sahib Noor before the Registration Officer. As far Mst. Sharfan, it was stated that she died unmarried after the death of Muhammad Khan. In cross-examination, it was admitted that a suit filed against the woman who was alleged to have impersonated Mst. Sahib Noor was dismissed but no record of it was put in.
15. She further admitted that after the sale in question, Mst. Sahib Noor sunk a well in the village and had also got repaired a fallen house. Fazal Dad D.W. 1 deposed that Mst. Sahib Noor and Mst. Sultan Bano were widows of Muhammad Khan From Mst. Sultan Bano, Muhammad Khan had a daughter by the name of Mst. Haliman. Mst. Bakht Bano and Mst. Mehr Bhari were daughters of Mst. Sahib Noor and that after the sale of the land in dispute. Mst. Sahib Noor had sunk a well in the village and had also carried out repairs to a house. In cross--examination, it was stated that Mst. Haliman was married in Kohat. Suggestion that sale of the land in dispute by Mst. Sahib Noor was either fake or fraudulent was denied. Witness denied knowledge about the complaint filed against the vendees.
16. Sultan Muhammad defendant deposed that Mst. Haliman daughter of Mst. Sultan Bano was married in Kohat and had two sons, namely, Toor Gul and Shah Gul. Witness deposed that Muhammad Khan was his collateral and in the land left by him, he had received a share. It was further stated that Mst. Sahib Noor had sold the land in dispute for sale price of Rs.400 through a registered sale-deed and had sunk a well in the village which was later dedicated to the use of the public and had carried out repairs to the house. He also deposed that the. Plaintiffs though had knowledge of the sale, yet raised no objection to it. It was admitted that Noor Muhammad had filed a complaint in respect of the sale to question. In cross-examination, this witness conceded that land in dispute was ancestral but in regard to the complaint filed by Noor Muhammad stated that the same had been dismissed. Witness denied the correctness of the statement attributed to him in Exh. P.1. It was further deposed that Mst. Haliman was married to Sattar Gul and that Muhammad Khan owned large property which upon his death had fallen to Mst. Sahib Noor. After the parties had concluded evidence, on 16-6-19(,9, the trial Court added following additional issue and numbered it as 6-B.
17. "Whether the suit is not competent? O.P.D."
18. Parties agreed not to produce additional evidence upon the above issue.
19. On consideration of the evidence, oral and documentary, the trial Court held that plaintiffs had cause of action to bring the suit; that estoppel was not established; that the suit was barred by limitation and was also not competent: that Muhammad Khan was the last male owner of the land in dispute and upon his death, Mst. Sahib Noor took it as limited owner; that the sale in question was both for consideration and legal necessity: that plaintiffs were entitled to 19/24 shares in the suit land. Consequent upon the above conclusions, plaintiffs' suit was dismissed on 9-7-1969. They filed an appeal to learned District Judge, Campbellpur. Before him, findings on issues Nos. 3 and 6 only were contested. In regard to these issues, learned District Judge observed:-- "4.It is to be remembered in this connection that the alienation in dispute took place in 1952 and that too by a widow. Thus, it was a voidable transaction to be avoided by the collaterals of the last male-holder within six years of the sale in question. The present suit was brought in 1967 and straightaway relief of possession was sought for. It has been laid down in the ruling cited as PLD 1964 SC 329 that if the transaction is void, then the plaintiff can ignore altogether, but if it is voidable, he has to get it declared ineffective against his rights first and then sue for possession.
20. The Court below, therefore, rightly held that the suit was barred by time.
21. 5.So far as the question of the sale being for consideration and necessity is concerned, the consideration of Rs.400 was paid before the Sub---Registrar. Therefore, it is held to have passed to the vendor. The amount received by the widow is very small and the defendants led sufficient evidence to the effect that she stood in need of the money for sinking of a well. No evidence has been led to rebut this overwhelming evidence. In these circumstances, the sale has rightly been held to be for consideration and necessity. No other point was urged at the bar."
22. It is against this decision that the plaintiffs preferred second appeal to this Court It was admitted on 22-6-1970.
23. Seen from the above, two points of importance require determination. First is whether the suit filed by the plaintiffs was barred by limitation as held by the Courts below and the second was in regard to the consideration and legal necessity to support the impugned sale. It is agreed that Muhammad Khan was the last male owner of the land in dispute; that he was governed by agricultural custom; that the land in dispute was ancestral; that Mst. Sahib Noor held the land as limited owner and was incompetent to allienate it except for valid consideration and legal necessity as understood under rule of custom.
24. Learned counsel for the appellants argued that upon facts either admitted or proved, suit could not have been held as barred by limitation. It was submitted that Punjab Limitation (Custom) Act (1 of 1920) did not apply as held by Full Bench of East Punjab High Court in case of Narotam Chand and another v. Kist. Durga Devi AIR (36) 1949 East Punjab 109 and as far consideration and legal necessity, there is no evidence to support them and findings of the Courts below in this behalf suffered from gross misreading of record and misapplication of true legal principles. It was argued that registered sale-deed which was primary evidence in the case was not put in evidence and this omission, raised an unfavourable inference against the respondents.
25. Muhammad Younis Bhatti learned counsel for the respondents frankly conceded the correctness of view of law taken by the Full Bench- in the above noted case and submitted that the suit was not barred by limitation but it was argued that the sale in question was supported by consideration and legal necessity. It was submitted that on point of consideration and legal necessity, Courts below are agreed and it being a finding of fact was not reviewable in second appeal. Learned counsel further submitted that in the event of the suit succeeding, plaintiffs were not entitled to 19/24 shares as there were other heirs of the last male owner also. As said above, the Courts below had held that suit was barred by limitation and the sale in question was supported by consideration and legal necessity. As far point of limitation, it is clear that the Punjab Limitation (Custom) Act I of 1920 does not govern suits brought by female heirs or other cognate relations to challenge alienations made by a widow who is in possession of the property of her husband which had descended to him from his ancestors. See Narotam Chand and another v. Mst. Durga Devi AIR
(36) 1949 East Punjab 109, a Full Bench decision in which after an illuminative survey of the provisions of Punjab Act I of 1920 and the decided cases, it was concluded that in such a case, Article 141 of the Limitation Act 1908 applied. Learned counsel for the respondents conceded to the correctness of above view and said that from the, date of death of Mst. Sahib Noor, suit filed by the plaintiffs as heirs of last male owner was well within limitation. This disposes of the first point. I shall now advert to the point of consideration and legal necessity. It is common ground that impugned sale was evidenced by deed registered on 8-12-1952 for a sale price of Rs.400. Neither the original sale-deed nor its certified copy was filed in evidence by the defendants. They also gave no acceptable explanation for withholding it from the Court. Marginal witnesses to the deed of sale who had, seen its execution and subsequent registration were also not produced. Sale mutation Exh. P.6, therefore, is not the primary evidence of the sale. Exh. P.6 merely records the sale in the revenue records on the basis of the registered sale--deed. As Mst. Sahib Noor had questioned the execution of the sale-deed by her and described it as fabrication, it was all the more necessary for the defendants to put it in evidence. Looked at thus, certified copy of the joint statement of the accused in Exh. P.1 gains prominence. It is not understandable as to how the learned District Judge in absence of the registered sale-deed took the view that "the consideration of Rs.400 was paid before the Sub-Registrar" and the same was held to have passed to the vendor. This part of his finding is not supported from the evidence on record. As for necessity, suffice it to say that a female governed by Customary Law inheriting landed estate (ancestral or self-acquired) from a male, holds the property on a life-tenure, and has no power to alienate such property, except for legal necessity as understood by Customary Law. Para. 65 in "A Digest of Civil Law for the Punjab chiefly based on the Customary Law by the late Sir W.H. Rattigan" provides:-- "A person dealing with a female proprietor-- (a)is presumed to know that her estate is merely a limited one; and (b)is bound to enquire into the necessity for the alienation, and to satisfy himself as a reasonable man that it is of such a character as would justify the act; but he is not required to see to the application of the money."
26. For the reasons stated above, second appeal is allowed, impugned judgment and decree dated 13-4-1970 of learned District Judge, Attock are set aside and the case is remanded to him for only deciding issue No. 6-A (what are the shares of the parties) afresh with option to the parties to lead additional evidence to assist the satisfactory decision of the above issue. Costs of this appeal to be borne as incurred.
27. Records be returned to the learned Judge below where parties shall appear on 30-5-1989.
28. M.Y.H./N-269/L