1. ' NASIM HASAN SHAH, J.--This is a petition for leave to appeal against the judgment and decree dated 8-6-88 passed by a Division Bench of the Lahore High Court in R.FA. No,63 of 1984.
2. ' The relevant facts briefly are as follow: ' Bungalow No,23-Aikman Road, Lahore, was purchased by Mst. Mehar Bano Begum widow of the late Nawab Qutab-ud-Din of Mamdot in the year 1942 and she started living therein. According to the petitioner he was the adopted son of the Mamdot Family (i.e, Nawab and Begum both) and at the relevant time was serving in Royal Indian Navy.
3. ' After the establishment of Pakistan, the petitioner on the request of Mst. Mehar Bano Begum came to Pakistan in May, 1951 and started living in the said house. In fact, according to the petitioner, the Begum had intimated to the petitioner by way of a letter that she had already ordered her servants that the petitioner can have the whole house and everything in it excepting one room, the key of which she has taken alongwith her to Karachi, and had further asked the petitioner to see her there and have that key also.
4. ' Be that as it may the petitioner started to live in the house and continued as such till a dispute arose between Mst. Mehar Bano Begum and the petitioner. The former wishing him to leave the premises while the latter claiming that he had become its owner.
5. ' Mst. Mehar Bano Begum filed a suit for possession but during its pendency all the properties of Begum of Mamdot i.e, Mst. Mehar Bano Begum were taken over by the Court of Wards in the year, 1954.
6. ' Subsequently, the Court of Wards filed a suit for possession against the petitioner, but the plaint was rejected because the Court of Wards ultimately failed to make up the deficiency in the court- fee. However, the Court of Wards again filed a suit in 1963 (out of which the present proceedings have arisen) claiming that the petitioner was accommodated in a portion of the property but he subsequently took over possession of the whole of it and thus was in illegal possession thereof and prayed for a decree for possession on the ground that the petitioner is in unauthorised possession of the whole house, which he should deliver to the Court of Wards.
7. ' The suit was resisted by the petitioner on the ground that he was in occupation of the house in dispute in his own right as, according to him, he was the adopted son and that the house was purchased from the resources obtained by Mst. Mehar Bano Begum by reaching a compromise with the collaterals of Nawab of Mamdot wherein the petitioner had a definite share; therefore, he had come to occupy the said house in lieu of his share of the settlement reached between Mst.
8. Mehar Bano Begum and the said collaterals of the Nawab of Mamdot.
9. ' During the pendency of these proceedings, Mst. Mehar Bano Begum died in the year 1963 whereafter an application was filed by her sister, consanguine brothers and consanguine sisters.
10. The said application was granted by the Court and they were impleaded as plaintiffs alongwith the Court of Wards. In the year 1964 when the Court of Wards released the property, the newly impleaded plaintiffs, however, continued with the suit. The suit of the plaintiffs/respondents was decreed on 16-4-1984. The Regular First Appeal filed by the petitioner was dismissed by a Division Bench of the Lahore High Court, vide judgment and decree dated 8-6-1988. Hence this petition for leave to appeal.
11. ' Although a large number of contentions were raised in the petition for leave to appeal; however, only two of them have been pressed before us.
12. ' The first contention is that a gift had been made in favour of the petitioner by Mst. Mehar Bano Begum and, therefore, he was not a licensee in the property but was in possession thereof in his own right. In this connection, he relied upon the letter dated 16-5-1951 written to him by Mst. Mehar Bano Begum (Exh.D.3) which reads as follows:-- "23 Aikman Road, Lahore dated the 6th May, 1951 ' My dearest Ali, ' Many thanks for your letter of the 2nd. I wish I did know this that you want to come here when I am not here, then I would not have stayed in this heat.
13. ' I have only one car and you can use it, but you will have to buy one new tyre I think.
14. ' I have ordered you can have all the house and everything in it. I have key of one room which I will give you if I see you in Karachi.
15. ' I must leave from there by the 15th. I think it is urgent for you to see me before I leave for England.
16. ' I am leaving a cheque of Rs,550 for you with the head servant. He is silly and a liar etc. You should not have much to do with him.
17. ' With love to you and all yours. Mehar Bano Begum"
18. ' The recital in the letter "I have ordered you can have all the house and everything in it" has been strongly relied upon and it is argued that the said recital establishes that the house was gifted in favour of the petitioner. The High Court did not accept this plea observing that these words were intended simply to inform the petitioner that Mst. Mehar Bano Begum had ordered his servants to allow the petitioner to enjoy all the amenities in the house and furthermore in the absence of any registration of the property, in his favour, no valid gift could be effected.
19. ' We agree. In fact, none of the ingredients necessary for effecting a valid gift exists and the plea that the house had been gifted to the petitioner by means of this letter is totally misconceived and cannot possibly be accepted.
20. ' The second contention which was pressed before us was that Mst. Mehar Bano Begum being Indian National at the time of her death (which occurred on 18-1-1969) was living in Dar-ul-Harab inasmuch as India was at war with Pakistan and she was an enemy alien. Consequently, Nawab Sher Ali Khan respondent, her son, who resided in Pakistan, could not inherit any share out of the property left by Mst. Mehar Bano Begum.
21. The above plea was also taken before the High Court and has been discussed at full length by it and the High Court after taking due note of the authentic works on Islamic Law such as Al- Sirajiyyah, Fatawa Alamgiria, Baillie's Digest of Mohummudan Law, Syed Ameer Ali's Mahommedan Law, Mulla's Mahomedan Law, Mulla's Mahomedan Law, MacNaghten's Moohummudan Law, Wilson's Muhammadan Law, Hamilton's Hedaya and Minhaj-et-Talibin came to the conclusion that the mere fact that the owner of the property is living in Dar-ul-Harab while his heirs are living in Dar-ul-Islam does not have the effect of depriving the heirs from inheriting the property of their predecessor-in-interest if both the parties are believers. In such circumstances, there is no impediment in Islamic Law to prevent such heirs from inheriting the property. Accordingly, the property could be inherited by the heirs living in Pakistan. On this view of the matter, Sher All Khan though living in Pakistan was entitled to inherit his share from the property of his mother.
22. Ch. Khalil-ur-Rehman, learned Advocate for the petitioner, was not able to persuade us that the above finding of the High Court was erroneous. Moreover, this question was not put in contest in the suit between the parties and no issue thereon was framed by the trial Court. In these circumstances, the High Court was not even obliged to go into this matter. Be that as it may, even otherwise there is no merit in this plea.
23. ' The upshot is that this petition is without force and must, therefore, fail. It is dismissed hereby.