1. ' Controversy requiring resolution in the second appeal by Farid defendant No,1 in the suit before the trial Court relates to the succession to the state of one Sohna. He was a Jappa Rajput. He died in 1927. His wife had predeceased him. At the time of death, he was survived by his daughter Mst.
2. Inayatan married to Amir on 8-1-1923. By inheritance Mutation No, 75 sanctioned on 13-2-1928-- Ext.P16, Revenue Officer mutated the land owned by Sohna in the name of his daughter Mst.
3. Inayatan. On 14-3-1958, upon report of one Riaz Hussain son of Farid stating that Mst. Inayatan despite marriage had taken the entire land of Sohna deceased, village Patwari entered mutation of inheritance No, 201 to be dealt with under Shariat Law. By order dated 26-3-1958 passed on the aforenoticed inheritance mutation, Revenue Officer distributed the land held by Mst. Inayatan by giving her one half share in it and the remainder half to Farid and Amir son of Machhia in equal shares. Inheritance mutation is Ext.P15. Mst. Inayatan preferred an appeal to Collector Jhang. It was dismissed on 3-6-1958. This is evident from a note appended on Ext.P15. Aggrieved of the distribution of the land held by her by inheritance Mutation No, 201 in the manner indicated above, Mst. Inayatan took recourse to the Civil Court and instituted a civil suit on 20-1-1964, in the. Civil Court at Jhang. It was stated in the plaint that the land in suit was self-acquired of her father Sohna who in matter of succession to his estate was governed by customary law and as his sole surviving daughter, she was a preferred heir to the collaterals. Upon the above statement of allegations, she claimed exclusive title to the land in dispute after annulment of inheritance Mutation 201 sanctioned on 26-3-1958. To her suit, Farid son of Machhia and sons and daughters of Amir to whom she was married were impleaded as defendants 1 to 7. Farid alone resisted the suit.
4. Others did not oppose. In his defence statement, Farid defendant No,1 submitted that as the plaintiff was not in possession of the land in suit, form of the suit chosen by her was defective. It was further submitted that the plaintiff had married after the death of her father and that mutation of inheritance 201 was rightly sanctioned in favour of the rightful heirs.
5. ' To settle the above controversy, the trial Court framed following issues for determination by it:--
(1) Whether the valuation of the suit for the purposes of court-fee and jurisdiction is correct, or, what is the correct valuation? O.P.
(2) Whether the suit is maintainable in its present form? O.P. Parties.
(3) Whether Mutation No, 201 sanctioned on 20-3-1958 is against law and customs and is inoperative against the rights of the plaintiff? O.P.
(4) Whether Sohna deceased was governed by custom and what was that custom? O.P.
(5) Whether the land in suit was self-acquired property of Sohna deceased? O.P.
(6) Whether the plaintiff is barred from taking the plea of self-acquired property of Sohna deceased, due to the principle of res judicata and estoppel? O.P.
6. (6-A) Whether the plaintiff had become full owner of the suit land after the death of the Sohna deceased? O.P.
(7) Whether the suit is time-barred? O.D.
(8) Relief.
7. ' In support of the above issues, parties gave oral evidence and also produced number of documents. As many as nine witnesses in addition to the plaintiff appeared for her. Defendant Farid was supported by three witnesses. Upon careful analysis of the record, the trial Court found for the plaintiff and decreed the suit to her, on 26-7-1%5. It was held that the valuation set up in the plaint was correct; that the plaintiff being in possession of the land, there was no defect in the form of the suit; that the land in suit was self-acquired of Sohna deceased; that he was governed by customary law which gave right to his daughter to succeed to his estate in preference to his collaterals and in that capacity, she was full owner of the land in suit, and, consequently, Mutation No,201 was wrongly sanctioned and was inoperative upon her rights.
8. Defendant No,1 alone filed an appeal and questioned the conclusions arrived at by the trial Court but his appeal failed on 2-11-1966 in the Court of Additional District Judge, Jhang who confirmed the conclusions of the trial Court. Aggrieved of this decision, defendant No,1 preferred an appeal to this Court. It was admitted to hearing on 20-4-1967.
9. ' Appeal raises three points for determination. First point is about nature of the property, whether it was self-acquired or ancestral, second is about application of customary law and its impact on right of daughter to succeed to the property of her father and the third is about the legal status of the plaintiff, whether she took the property as a limited estate holder or was its full owner. Before adverting to and embarking upon an enquiry in those points, I must observe on the conduct of the appellant's counsel who failed to appear and assist the Court. Despite adjournments and intimation by the office, appellant's counsel did not choose to appear and assist the decision of the appeal, so much so, that an intimation was also sent to the Bar Room but instead of responsibly responding to the anxiety of the Court to afford an hearing to the appellant who had waited for 23 long years for the decision of his appeal, counsel for the appellant deputed one Rai Ayub Marth, Advocate to appear on his behalf merely to state that he himself was busy elsewhere. I do not think that it was a proper performance of professional duty an Advocate who is engaged by his client to further his cause and assist the Court in its correct resolution. To say the least, it is regrettable. In the default of the counsel for the appellant, I have had not the advantage of useful hearing from the appellant's side. As for Rai Ayub Marth, Advocate, he was not even cognizant of the facts of the case. Disappointed with the attitude of the Advocate and with no hope of his putting in appearance in the appeal, Mr. Khizar Abbas Khan Advocate, learned counsel for Mst. Inayatan plaintiff respondent was called upon to address the Court. To be fair to him, he performed his duty admirably. Evidence was read out and decisions having bearing on the points were cited by him.
10. ' Having narrated the facts and the points emerging for decision therefrom, I shall now advert to them in seriatim. First point is about nature of the property, whether it was ancestral or self- acquired. On the pedigree of the parties, there is no dispute between them. Jahanan was grantee/occupancy tenant of the land. Machhia and Sohna were his two sons. Sohna had no male issue. He was survived by a daughter Mst. Inayatan. As far Machhia, he had two sons, namely, Farid and Amir. Farid was defendant No,1 to the suit filed by Mst. Inayatan. Amir who was paternal-cousin of Mst. Inayatan was married to her. Though defendant No,1 denied in the written statement that Mst. Inayatan was married to Amir during the lifetime of Sohna, yet in presence of oral evidence as also an extract from register nikah khawani Ext. P17, it is not open to any doubt that she was married to Amir on 8-1-1923 and to this extent, agreed findings of the Courts below are correct. Copy of Mutation No,29 dated 15-6-1914 showed that proprietary rights in the land were conferred upon Sohna and Machhia in equal shares. Conferment of proprietary rights was made in pursuance of an order dated 7-5-1914 referred to in column 13 of the above mutation. Having purchased the ownership rights from his landlord, the occupancy rights were extinguished and merged in the proprietary rights which rightly could be held as self-acquired. There was no evidence to support payment of Malikana dues by Jahanan. Agreed finding of the Courts below on the nature of property, therefore, is correct. Now comes the second question about applicability of custom and, as to its nature and kind. Jappa Rajputs are predominantly an agricultural tribe. Undisputable, they were consulted at the time of preparation of Rewaj-i-Aam. Initial presumption, therefore, arose that they were governed by customary law. In the plaint, plaintiff pleaded that the parties were governed by custom. Defendants did not traverse it. Even otherwise, there is enough evidence to establish that parties were governed by agricultural custom. Real disptue between them was about its nature. Plaintiff contended that it gave her right to succeed to the self-acquired property of her father to the exclusion of the collateral. Contesting defendant No,1 denied the correctness of this statement and submitted that no such custom prevailed amongst Jappa Rajputs of District Jhang. Nine P.Ws supported the plaintiff and deposed that amongst Jappa Rajputs, daughter/daughters, married or unmarried excluded the collaterals from inheriting the self- acquired property of the father. To strengthen oral evidence, reliance was placed upon number of sanctioned mutations as clear instances to support this kind of customs. Judgment of the High Court by M.V. Bhide, J., in Regular Second Appeal No, 38 of 1939 decided on 22nd November, 1939, Ext.P19 and, of the Civil Judge, Ist Class, District Jhang Ext.P-18 were also relied upon. Contesting defendants merely relied upon the oral statements of three witnesses who themselves did not belong to the tribe of Jappa Rajputs. Upon close and careful analysis of the evidence, Courts below are agreed that in respect of self-acquired property of her father, a daughter is a preferred heir.
11. Judgment of the High Court Exh.P-19 does not materially assist the point because it did not decide on the actual custom, but, the decision of the Civil Judge certainly helps. General custom in the Province of Punjab favoured the succession of the daughter to the self-acquired or non-ancestral property of her sonless father in preference to collateral though near. Answer to question No, 71 in Rewaj-i-Aam Jhang which related to succession of the daughter to self-acquired property of her father does not render much assistance. It, as observed by M.V. Bhide, J., is vague. But sufficiently strong evidence was led by the plaintiff supported by various instances to establish that custom amongst Jappa Rajputs of District Jhang allowed a daughter to succeed to the self-acquired property of her father to the exclusion of collaterals. In the instant case, the daughter was married to a near collateral in the family. Evidence led in the case to support the custom favouring the daughters was in accord with the general custom in Punjab which preferred the daughters in regard to self-acquired property of their father. Onus lay upon the collateral/defendant No,1 to prove that he had a right to inherit the non-ancestral land as against the daughter. This burden, he has not sufficiently discharged. To the contrary, there is voluminous evidence to negative his right.
12. As to the status of the plaintiff, whether she took the property as limited estate holder or full owner, reference to case of Mst. Bakht Bibi v. Mehr Khan and 2 others PLD 1974 Lah. 367 a Division Bench judgment of this Court, shall suffice. Consequently, where a daughter of last male sonless proprietor succeeded to his estate excluding his collaterls, she did so as full owner. Ever since 1928, when inheritance mutation was sanctioned in her favour, plaintiff is in possession of the suit land.
13. As said above, she was married to a near collateral in the lifetime of her father. Nonetheless, she was allowed to succeed to his property. Farid defendant No,1 never questioned her act of inheriting the property of her father as a married daughter. In 1958, this act could not have been undone.
14. More so, when the applicable custom gave her right to succeed to the self-acquired property of her father to the exclusion of the collaterals. Therefore, upon the above legal premises, agreed decision of the Courts below holding the plaintiff entitled to hold the land as its absolute owner is not questionable. To this extent, the judgments are correct. In the end, I may like to notice and observe on the application of section 2-A inserted in Act V of 1962, by Punjab Ordinance XIII of 1983.
15. In my judgment, clear object behind this enactment by the Punjab legislature was merely to give effect to the decision of Shariat Appellate Bench, Supreme Court of Pakistan, in case of the Federation of Pakistan through Secretary, Law and Parliamentary Affairs, Islamabad v. Muhammad Ishaque and another PLD 1983 SC 273 which had held that restrictions upon powers of alienation of an owner of land under customary law were contrary to Islamic injunctions and were unenforceable. To achieve this purpose, the legislature resorted to creating a legal fiction of law.
16. That it could do was unquestionable. A fiction, they say, is a favourite device of the legislature to achieve the object of statute. Even though, one thing is not the same thing as another, the legislature for effectuating its will and purpose might create a fiction that the former shall be H deemed to be the latter. In such a case, it shall not be open to the Court to contradict the fiction, for to do so, would be to defeat the purpose for which the legal fiction was created. Therefore, though upon inheritance, a male heir had acquired agricultural land under custom with its concomitant restrictive powers of disposition, yet he "shall be deemed" to have become its "absolute owner" and this he was made by relating his acquisition to have taken place under Islamic Law (Shariat) which, on its part, did not place any fetters on powers of alienation. By insertion of section 2-A, in Act V of 1962, acquisition by a male heir having taken place under custom which then governed the succession was by a deeming provision of law shown to have devolved under Islamic law and the inheritor made its absolute owner. This result, as said above, was achieved by a fiction of law. As I read the judgments of their Lordships of Supreme Court in Abdul Ghafoor and others v.
17. Muhammad Shafi and others PLD 1985 SC 407, Hakim Ali and others v. Barkat Bibi and others 1988 SCMR 293, Muhammad Akram and 26 others v. Noor Ahmad and others 1989 SCMR 755, they lead me to think that they do not seem to lay down that the succession to such an "absolute owner" on his death shall be instantaneously governed by Islamic law of inheritance. Holding so, would be fraught with manifold complications likely to unsettle vested rights in the property. For example, as in the instant case, upon death of Sohna who died without a male issue, his daughter succeeded his land under custom as a preferred heir to the exclusion of his collaterals. Upon this eventuality, she was clothed with absolute ownership rights in the land not liable to forfeiture upon her marriage. Since she did not take the land as limited estate holder, neither provisions in West Punjab Muslim Personal Law (Shariat) Application Act IX of 1948 nor Act V of 1962 were attracted to her estate. Therefore, mutation of inheritance No,75 dated 13-2-1928 sanctioned in her favour could not be undone to denude her of full ownership rights in the land for reducing her entitlement to a moiety only. It was a past and closed transaction, so far as Mst. Inayatan's succession to her father's land was concerned. However, I may also added that in case, I had taken the view that section 2-A applied to the succession of Sohna on his death and his land was to be distributed in accordance with Shariat, then I would not have hesitated to permit the plaintiff-daughter to amend her plaint to assert, as her learned counsel orally requested that the deceased Sohna was a Shiite, and, under that system of law, the daughter was the sole heir.
18. ' In the circumstances, I am satisfied that dispute about inheritance to the land left by Sohna was correctly resolved in the Courts below, and, no interference is called for against their agreed judgments. Therefore, appeal must be dismissed with no order as to costs occasioned by it.
19. Records be returned.