' WALI MUHAMMAD KHAN J.--The instant three Regular First Appeals No,2/86, filed by Habibullah and others, the successors-in-interest of Mst. Kishwar Nigara deceased defendant No,1, No,9/86 filed by Mst. Mehr Nigara and others, the successors-in-interest of Saadat Khan and Ashraf Khan deceased plaintiffs and No,12/86 filed by Aslam Khan and others defendants Nos.2 to 17, challenging the judgment and decree dated 20-11-1985 passed by the learned Senior Civil Judge, Peshawar whereby, a decree for joint possession was passed in favour of the plaintiffs to the extent of 5/24th shares out of the property left by Fazalur Rehman deceased, the last full owner of the suit property, excluding the property transferred by him in favour of Mst. Jamsheda his widow in lieu of dower during his life time through registered deed dated 21-12-1920 and their prayer for partition was left open for decision in another suit. Since all the three appeals arise out of the same judgment and common questions of law and facts are involved, we propose to decide all the three through this single judgment.
2. The facts of the case as gleaned from the record are that Fazalur Rehman was the original owner of the suit property who died in, the year 1922 when custom was the rule of inheritance. Since he left behind no male lineal descendant, his inheritance was mutated in the name of Mst. Jamsheda his widow and Mst. Mehr Nigara his minor daughter side mutation No, 434 attested on 7-11-1923 (copy Ex. DW2/1) in equal share. However, vide mutation No, 459 attested on 20-1-1924 (copy Ex. DW2/4)
Mst. Kishwar Nigara another daughter of Fazalur Rehman was added as the heir of Fazalur Rehman.
Mst. Mehr Nigara died while the rule of custom was still in vogue and her share in the property, therefore, reverted to Mst. Jamsheda her mother and Mst. Kishwar Nigara her sister in equal share as per mutation No, 526 attested on 20-10-1925 (copy Ex.DW2/2). These mutations were given affect to in the subsequent record of rights for the year 1929-30(copy Ex.PW4/4) and repeated in the following Jamabandis. Mst. Jamsheda widow of Fazalur Rehman deceased executed a gift deed dated 4-3-1961 (copy Ex.DWI/2) on the file in favour of Mst. Kishwar Nigara her daughter, defendant No,1, and on the strength of this deed, mutation No, 511 (copy Ex.DW2/3) was attested on 25-8-1961 and in consequence thereof Mst. Kishwar Nigara is exclusively recorded in the ownership column of Jamabandi for the year 1964-65 (copy Ex.PW1/9). Saadat Khan and Asharf Khan plaintiffs (since dead) claiming to be the sons of Mst. Chano sister of Fazalur Rehman instituted the present suit for declaration to the effect that the limited estate inherited by the female heirs of Fazalur Rehman had come to an end on the enforcement of West Pakistan Muslim Personal Law Shariat Application Act, 1962 as well as on account of the death of Mst. Jamsheda, and that the entire property, both agricultural and residential, left behind by Fazalur Rehman deceased has to be distributed amongst his shari heirs living at the time of his death as if the Muslim Personal Law was the rule of inheritance at that time. They did not admit Mst. Kishwar Nigara as the daughter of Fazalur Rehman in the plaint and, therefore, claimed 9/24 shares in the inheritance of Fazalur Rehman. Besides, they also challenged the registered gift deed dated 21-12-1920 registered on 10-1- 1921 (copy Ex.DW1/1) whereby Fazalur Rehman deceased had transferred land measuring 59 kanals 6 marlas in favour of Mst. Jamsheda his wife in lieu of dower. Additionally they also prayed for their own share in the compensation amount received by Mst. Jamsheda as consideration of part of land acquired by the Government for Radio Transmitting Station as well as the land obtained in exchange in lieu of part of the land comprised in the inheritance of Fazalur Rehman deceased.
3. The defendants contested the suit and in their separate written statements raised several pleas, both technical and factual. Mst. Kishwar Nigara defendant No,1 in her written statement claimed to be the daughter of Fazalur Rehman and denied the alleged relationship of Mst. Chano with Fazalur Rehman deceased as well as the alleged relationship of the plaintiffs with the said Mst. ChaNo, The other defendants Nos. 2, 3, 6 to 10 and 13 however admitted the plaintiffs as the sons of Mst. Chano and also admitted her to be the sister of Fazalur Rehman deceased. They only claimed the residue after satisfying the share of the sharers according to Muhammadan Law. Keeping in view the pleadings of the parties, the learned trial Judge framed as many as 17 issues in the case and after recording such of the evidence as the parties wished to produce, pro and contra thereon, vide his judgment and decree dated 20-11-1985 passed the decree as prayed for by the plaintiffs to the extent of 5/24 shares in the property left behind by Fazalur Rehman, of course excluding the land transferred to Mst. Jamsheda in lieu of dower during his life time. While discussing the issues he also determined the share of the other heiRs, hence the instant appeals.
4. We have heard Mr. Khalilur Rehman, Advocate Lahore (ex-Justice) assisted by Haji Z.Mafooz Khan, Advocate for the heirs of Mst. Kishwar Nigara (appellants in appeal No,2/86), Syed Muhammad Shah Badshah, Advocate for the heirs of Saadat Khan and others deceased plaintiffs (appellants in appeal No,9/86) and Mr.Samiullah Jan, Advocate for defendants Nos.2 to 17 (appellants in appeal No,12/86) for considerable length of time and have perused the bulky record of the case with their assistance.
5. The learned counsel for the heirs of Mst. Kishwar Nigara deceased defendant No,1 (appellants in appeal No,2/86) mainly argued the matter in hand and attacked the impugned judgment on various grounds. He submitted that issue No,11 was not properly framed as, according to him, the wording of the issue presupposes the plaintiffs as the sons of Mst. ChaNo, He also contended that there was not an iota of admissible evidence on the record to suggest that Mst. Chano was the sister of Fazallur Rehman deceased and in consequence entitled to inherit him as shari heir. He was of the view that the evidence produced in the case in this regard was of a hearsay nature and unless the witnesses had shown special means of knowledge ante litem-wotam before the dispute had arisen, their evidence was not admissible and could not be made the basis of the impugned judgment. In support of his arguments he referred to section 165 section 50, section 32 (5) and section 60 of the Evidence Act and cited the following authorities: ' AIRS 1936 Lah. 114; AIR 1931 Cal. 189; 1937 P.C. 101; AIR 1936 Mad. 808; AIR 1936 Oudh 340; AIR 1933 Bom.
126; AIR 1931 Oudh 177; 1980 SCMR 340; PLD 1976 Supreme Court 767; PLD 1978 Supreme Court (AJ&K) 62; PLD 1969 Supreme Court 53; PLD 1969 Supreme Court 261; AIR 1937 P. C. 201; PLD 1965 Lah.
482; PLD 1976 Supreme Court 767; AIR 1943 Cal. 76; AIR 1937 Sindh 126 and AIR 1940 Lah.
245.
' Disputing the birth certificate Ex.PW3/6 on the file regarding the birth entry of Mst. Chano showing her to be the daughter of Muhammad Khan, he cited 1989 SCMR 226, AIR 1938 Calcutta 120 and 43 and AIR 1931 Allahabad 307 and contended that in the absence of any proof that the said document pertained to the very Mst. Chano, the same could not be relied upon by the learned trial Judge. He also stressed that Mst. Kishwar Nigara defendant No,1 had gifted ?Way her entire property in favour of her son and daughters as evidenced by the judgment of the learned Senior Civil Judge, Peshawar dated 29-3-1972 and that without impleading the transferees and challenging the said judgment, the suit could not proceed as no effective decree could lie passed in their absence. He also reiterated the plea of limitation and adverse possession.
6. The learned counsel' for the heirs of deceased plaintiffs (appellants in appeal No,9/86), on the other hand, controverted the submissions of the learned counsel for the heirs of Mst. Kishwar Nigara defendant No,1 and submitted that the provisions of law referred to and authorities cited by the learned counsel were not at all attracted to the facts of the instant case inasmuch as the learned trial Judge had not only based his judgment on the statement of the heirs of Saadat Khan and others plaintiffs but had also taken into consideration the other oral and documentary evidence in the case relating to the relationship of Mst. Chano with Fazalur Rehman deceased, the last full owner. About the non-framing of issues he maintained that the parties knew each other's case and had led evidence thereon and that even if the issue No,11 is held to be not correctly framed, even then this omission is not fatal to the decision arrived at by the learned trial Judge. He cited PLD 1969 Peshawar 85 and PLD 1971 Supreme Court 82 in support of his arguments.
7. The learned counsel for the defendants Nos.2 to 17 (appellants in appeal No,12/86) challenged the consent decree dated 29-3-1972 passed in suit No,88/1 whereby, Mst. Kishwar Nigara deceased defendant No,1 had confessed in favour of the defendants in that case and argued that on the death of Mst. Kishwar Nigara on 10-5-1972 during the pendency of the suit, his clients were legally entitled to a share in her property.
8. We have anxiously considered the learned arguments of the learned counsel for the parties and have minutely gone through the authorities cited by them. In order to avoid confusion and for brevity sake, we propose to discuss each appeal separately.
' Regular First Appeal No, 2/1986.
9. The trial of the suit has admittedly consumed considerable length of time and no less than 17 issues were framed in the suit. The very basis of the claim of the plaintiffs was that Mst. Chano their mother, was the sister of Fazalur Rehman deceased, the last full owner of the suit property and, as such, was entitled to inheritance in his estate and that the gift made by him in favour of his widow Mst. Jamsheda regarding some portion of the suit land was wrong, illegal and ineffective on .Her rights. The defendants were aware of these averrments in the plaint and were supposed to meet them. As a matter of fact the parties led their evidence, pro and contra, these allegations and nobody appears to have been prejudiced with the non-framing of proper issues in the case. The dispute, in stricto senso, was not whether the plaintiffs were the sons of Mst. Chano or not but was as to whether Mst. Chano was the sister of Fazalur Rehman deceased or A not about which an issue was distinctly framed. Undoubtedly, the framing of the issues under Order 14 of the Civil Procedure Code is the duty of the Court but it is equally expected of the counsel representing the parties to bring to the notice of the Court any omission or incorrectness of any issues framed by the Court. The failure of the learned counsel for deceased defendant No,1 to point out the error at the proper time, disentitled him to raise this point for the first time at the appellate stage, particularly, when he cannot show any prejudice having been caused to his client in the discharge of onus placed upon them. In this respect the dictum of the Supreme Court in case 'The Province of East Pakistan v. Major Nawab Khawaja Hassan Askary and others and Maulvi Khurram Khan Panni v. The Province of East Pakistan, reported as PLD 1971 Supreme Court 82, can be referred to with advantage. Consequently we disallow this technical objection of the learned counsel for the appellants in appeal No,2/86.
10. Section 60 of the Evidence Act provides that oral evidence must be direct and that hearsay evidence is not admissible. However, the provisions of section 32 and section 50 are exceptions to the said general rule. According to section 32, statement, written or verbal, of relevant facts made by person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts under certain circumstances. Subsection (5) thereof pertains to the matter in issue herein and the same is reproduced for ready reference:-- "Or relates to existence of relationship.
' When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised."
According to section 50 when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship, of any person who, as the member of the family or otherwise, has special means of knowledge is the relevant fact. The authorities cited by the learned counsel are based on the aforesaid statutory provisions of the Evidence Act and it is emphasized in all of them that the person making the statement must have special means of knowing the relationship to which it relates and that it must have been ante litem modem i.e, before the dispute had arisen. It is also laid down therein that under section 50 of the Evidence Act what is made admissible, is," the opinion expressed by conduct as to the existence of the particular relationship and not merely a 'statement as to that relationship'. The learned counsel tried to impress upon us that the evidence produced by the plaintiffs in the case did not conform to the requirement of section 32(5) and section 50 of the Evidence Act (since repealed) and that in the absence of any other admissible evidence, the suit of the plaintiffs merited dismissal. There can be no cavil with the proposition of law propounded in the cited rulings but we are afraid they are not relevant to the controversy in hand. Besides the statement of Muzzafar Khan (PW4), the son and legal heirs of Ashraf Khan deceased plaintiff No,2, the plaintiffs, also produced Gul Muhammad (PW5) and Sohbat Khan (PW6) aged 70 years and 80 years respectively. Both of them, who admittedly belonged to the village where the suit land is situated, have deposed on oath that Mst. Chano was the sister of Fazalur Rehman deceased, the last full owner. They also admitted that Mst. Kishwar Nigara was the daughter of the said Fazalur Rehman in spite of the fact that they were produced by the plaintiffs who themselves denied her as the daughter of Fazalur Rehman in the plaint. Both of them were not corns-examined as to the relationship of Mst. Chano with Fazalur Rehman. Gul Muhammad (PW5) is a totally disinterested person whereas Sohbat Khan (PW6) frankly conceded that he was irrigating the field of Habibullah husband of Mst. Kishwar Nigara deceased defendant No,1 from which he had been dispossessed.
Simply on this score he cannot be dubbed as an interested witness, particularly when he admitted Mst. Kishwar Nigara as the daughter of Fazalur Rehman without caring for the wishes of the party producing him. We are, therefore, convinced that they are truthful witnesses and reliance was rightly placed on them by the learned trial Judge.
11. Moreover, according to the birth and death certificates, Ex.PW3/6 and Ex.PW3/5 respecting Mst.
Chano daughter of Muhammad Khan, she was born on 27-1-1900 and died on 15-2-1934. She survived Fazalur Rehman because he died on 18-12-1922 as per entries of the death certificate Ex.PW3/4. Thus, it is apparent on the face of the record that the two witnesses named above were grown up persons at the time of the death of Fazalur Rehman and that of Mst. Chano and being the domiciled residents of the village, are presumed to have the knowledge about the paternity of Mst.
Chano as well as her sons, the plaintiffs. In the jamabandi for 1946-47 (copy Ex.PW1/E), Sohbat Khan (PW6) son of Azim is recorded in possession of khasra No,108 in suit and this entry is repeated in jamabandi 1950-51 (Ex.PW1/F), 1955-56 (Ex.PW1/G), 1959-60(Ex.PW1/H), from which it can be safely inferred that he had special means of knowledge regarding the relationship of the parties inter se being the tenant of the suit land. No doubt the statement of Muzaffar Khan (P.W.4) is based on the knowledge derived from his father and uncle deceased plaintiffs but the suit had been instituted by Saadat Khan and Asharf Khan plaintiffs themselves claiming to be sons of Mst. Chano and they knew better about their mother and maternal grandfather and in consequence maternal uncle.
They had the special means of knowledge of this relationship and there appear to be nothing abnormal if they passed on this information to their children including Muzaffar Khan (PW4). We are, therefore, of the considered opinion that the law and authorities cited by the learned counsel for the deceased/defendant No,1 are of no help to him and the learned trial Judge was justified in basing his conclusions on the evidence produced before him in the case.
12.Besides the oral evidence discussed above, there is documentary evidence in the case as well in the shape of extracts from the entries of birth register, copy Ex.PW3/6 regarding the birth of Mst.
Chano showing her as the daughter of Muhammad Khan of Chughlpura. Khan Zaman (PW3), a Clerk of the DHO Office, Preshawar produced the same along with other similar registers, containing entries of birth and death of persons belonging to village Chughalpura. In his detailed statement he disclosed the dates of birth and death of Mst. Chano daughter of Muhammad Khan, Fazalur Rehman son of Muhammad Khan and Mst. Mehr Nigara daughter of Fazalur Rehman. He was not cross-examined about the genuineness of the entries contained in the registers produced and exhibited by him. Obviously these entries were made by public servants in the discharge of their official duties and were relevant under section 35 of the Evidence Act and were prima facie evidence of what had been stated therein. There being no rebuttal, the learned trial Judge was justified to rely upon the same in holding that Mst. Chano was the sister of Fazalur Rehman.
13. There is yet another hurdle in the way of the appellants of Appeal No,2/86. The plaintiffs sought the declaration for the residue in the inheritance of Fazalur Rehnnan deceased after satisfying the entitlement of the sharers equal to 9/24 share as they did not admit Mst. Kishwar Nigara as the daughter of Fazalur Rehman. The defendants Nos.2 to 17 were impleaded as defendants in the case because they inherited some of the property as residuaries of Mst. Merh Nigara who had died after the death of her father Fazalur Rehman. They would also inherit Fazalur Rehman as residuaries if Mst. Chano is not held to be the sister of Fazalur Rehman and thus the clash of interest so far as the residue is concerned is between the plaintiffs on the one hand and defendants Nos.2 to 17 on the other. Strangely enough defendants Nos.2, 3, 6 to 10 and 13, who are the collaterals of Fazalur Rehman and entitled to inherit the residue in the absence of Mst. Chano, have in their written statement admitted Mst. Chano as the sister of Fazalur Rehman and entitled to her share in his estate. In additional to this clear admission in the pleadigns which is legally binding on them, Sabaz Ali Khan (DW4), who appeared as a witness for himself as well as in his capacity as special attorney for others vide Ex.DW4/1 deposed in the examination-in-chief that Mst. Chano was the daughter of Muhammad Khan and the sister of Fazalur Rehman deceased. These admissions being against the interest of the maker thereof and in the very proceedings in which their interest is being adjudicated upon and having not been retracted so far, are conclusive evidence against them as well as against defendant No,l. These admissions by themselves were sufficient proof of Mst. Chano being the sister of Fazalur Rehman deceased.
14. Learned counsel for the heirs of defendant No,1 also made a halfhearted attempt to prove that Mst. Jamsheda and Mst. Kishwar Nigara were full owners of the property being the heirs of Fazalur Rehman deceased and not limited estate holdeRs, In the alternative he asserted that they having remained in possession of the suit property for more than 12 years as owners, in denial of the rights of the plaintiffs, their mother Mst. Chano and the defendants Nos.2 to 17, had acquired prescriptive title to the suit land. The area where the suit land is situated is part of Peshawar District where, prior to the promulgation of N.W.F.P. Muslim Personal Law Shariat Application Act, 1935, customs was the rule of inheritance. The customs prevalent in those days in the Peshawar District have been complied in the shape of book known as Customary Law by J.G. Lorimer in the form of questions and answers, Section V thereof comprising questions 41 to 72 relate to succession but the relevant questions and answers helpful for the disposal of the instant controversy are questions 41, 50, 51, 58, 59 and 60 which are reproduced hereunder for ready reference:-- ' Question: 41.-- Rights of widows, sons, daughters, brothers and other relatives.
' Answer: 41.-- Sons, grandsons or others male lineal descendants exclude all others heirs, To the absence of male lineal descendants, widows, after widows, daughters, after daughters, sisters, and after sisters, mother, are entitled to possession of property for life or till marriage or re-marriage.
After the above named, the succession passes to the collaterals.
' Question:
50. Devolution of the inheritance where there are no male' lineal descendants, but a widow or widows, and either a daughter or daughters, or brothers or their descendants, or -uncles or their descendants, or grand-uncle or their descendants.
' Answer 50. The Halimzai and Tarakzai Mohammad stated that women could not in any circumstances inherit, but would only receive a subsistence allowance from the heirs, ' The other tribes stated that in the absence of male lineal descendants the inheritance would pass to the widow or widows or failing a widow to the daughter or daughters, In these cases the interest would be one for life or till re-marriage of widow or marriage of daughters only. In the case described in the question, failing widows and daughters, the estate would pass to brothers or their descendants; failing those two uncles or their descendants; failing those to grand-uncles or their descendants. Only among the saiyads of Peshawar City there appeared to be doubt as to whether widows or daughters could inherit, or could merely claim to be supported by the heirs, ' Question:
51. Interest of the widow where she succeeds to the estate. Her power to alienate, and by what conditions restricted.
' Answer:
51. The interest of the widow in the estate to which she succeeds continues only till her death or re-marriage. Most tribes are agreed that she may only alienate for necessity, thus recognizing alienation by mortgage and sale in certain circumstances, but not alienation by gift or bequest. In case of necessity she must first seek help of the heirs, and only if they refuse the required assistance will her alienation be valid, Also, if the necessity can be met by mortgage she should abstain from sale, and mortgage should not be for any fixed time.
' Question 58. Maintenance of daughters, Qualification and disqualifications of daughters in regard to maintenance and inheritance.
' Answer 58. Unmarried daughters only are entitled to maintenance out of the estate of their deceased father. Marriage destroys the right of a daughter both to maintenance from or inheritance of her fathers' estate, but the right is not affected by the mere fact of her residence in a strange village. The residence of a daughter and her husband with her father up to his decease does not give the daughter a right to inherit his estate.
' A married or widowed daughter cannot inherit from her father even though barren, or the mother of female children only.
' Question 59. Interest of a daughter in property inherited by her and her powers of alienation.
' Answer 59. The interest of a daughter in property inherited ceases at her marriage or death. The Khwajas and Saiyads of Peshawar Centre stated that her powers of alienation are full and absolute. The other tribes defined her powers as the same as those of a widow.
' Question 60. Succession of a daughter's issue.
' Answer 60. The interest of a daughter in property inherited from her father ceasing at her marriage her children can never claim to succeed to it.
15. The perusal of the above makes it abundantly clear that females never inherited the property as owners, However, in the absence of male lineal descendant of the deceased, they acquired only life estate till their death, remarriage or marriage. The perusal of the inheritance mutation narrated elsewhere in this judgment leaves no room for doubt that the deceased Fazalur Rehman died during the time when the custom was the rule of inheritance and that he had no male lineal descendant. The attestation of mutation in equal share in the names of Mst. Jamsheda widow and Mst. Mehr Nigara and Mst. Kishwar Nigara daughters per se establishes that they possessed the land as limited owners and that on the termination of life estate, the property was to revert back to the collateral of the deceased.
16. On the enforcement of N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 (Act VI of 1935) the rule of custom was substituted by Muslim Personal Law and section 3 thereof provided that whenever a question relating to succession of a deceased Mohamedan arises the rule of decision shall be the Muslim Personal Law Shariat irrespective of the fact whether the deceased had died prior to the enforcement thereof or subsequent thereto. This Act was twice amended, once by N.-W.F.P. Act XI of 1950 and secondly by N.-W.F.P. Act-II of 1953. The amending Act XI of 1950 added section 4 providing for the life estates held by females as limited owners, It is to the following effect:-- "4 (1) In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, the persons entitled to succeed to such property upon the termination of the limited interest of the female shall be those persons who would have been entitled to succeed at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been the rule of decision governing the succession upon such death.
(2) If any person entitled to succeed under subsection (1) dies before the termination of the said limited interest the share which he would . have taken had he succeed and the heirs entitled to succeeded to that share shall be ascertained as follows, that is to say, he shall be deemed to have died immediately after the termination of the said limited interest and the rule of decision governing the succession upon his death shall be deemed to have been Muslim Personal Law (Shariat): ' Provided that the share which the female limited owner would have taken had the Muslim Personal Law (Shariat) been the rule of decision governing the succession upon the death of the last full owner shall devolve on her if her limited interest in the property terminates by reason of her in marriage of re-marriage, and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates by reason of her death."
These statutes were repealed by West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (Act V of 1962) which consolidated and amended the law of inheritance for the entire West Pakistan and according to section 3 of the said Act, all the limited estates were terminated and section 5 thereof provided for succession of such estates which are also reproduced hereunder:-- ' Section 3-Termination of life estate under Customary Law.-- ' The limited estates in respect of immovable property held by a Muslim female under the Customary Law are hereby terminated."
Section 5. Devolution of property on the termination of life estate and certain wills.
' The life estate terminated under section 3 or the property in respect of which the further operation of a will has ceased under section 4 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner of the testator as though he had died intestate: and if any such heir has died in the meantime, his share shall devolve in accordance with Shariat on such persons as would have succeeded him if he had died immediately after the termination of the life estate or the death of the said legatee.
' Provided that the share to which Muslim female holding limited estate under Customary Law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her."
17. Keeping in view the above statutory provisions of law the persons entitled to the property left behind by Fazalur Rehman deceased shall be Mst. Jamsheda widow 1/8th share, Mst. Mehr Nigara and Mst. Kishwar Nigara daughters 2/3rd share, as sharers and Mst. Chano sister 5/24th share, as residuary. Since Mst. Mehr Nigara died prior to the termination of life estate, half of her 1/2nd share would go to Mst. Kishwar Nigara her sister, 1/3rd thereof to Mst. Jamsheda, her mother and the remaining 8/144 shares to her reliquaries (defendants Nos.2 to 17). As Mst. Jamsheda had made a gift of the suit property in favour of Mst. Kishwar Nigara, through a registered deed, her legal entitlement equal to 34/144 shares would also go to Mst. Kishwar Nigara. In this way the parties are entitled to the property left behind by Fa7alur Rehman deceased in the following proportion:--
(i) Heirs of Mst. Kishwar Nigara deceased defendant No,1 (106/144 shares).
(ii) Heirs of Saadat Khan and Ashraf Khan, the sons of Mst. Chano (30/144 shares) and
(iii) Defendants Nos.2 to 17 (8/144 shares), out of which 4/144 shares would go to the heirs of Muhammad Khan and the remaining 4/144 shares to the heirs of Safdar Khan.
18. On the enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the life estate of Mst. Jamsheda and Mst. Kishwar Nigara terminated and the life estate got opened for succession. The plaintiffs have filed the instant suit on 20-5-1963 which is within the statutory period of limitation under Articles 142 and 144 of the Limitation Act. As regards the plea of adverse possession it has already been held above that the possession of Mst. Jamsheda etc. Was that of life estate holders and the collaterals or the other shari heirs, had no immediate right to the possession thereof before the termination of the life estate. It is an established principle of law that limitation does not start running against the persons who have no right to immediate possession of the property sued for. A similar point came up for consideration before the then Federal Court in case `Mst. Ghulam Ilahi v. Muhammad Waris Khan' reported as PLD 1955 FC 31, wherein the plea of adverse possession raised by the daughter of the last full owner having entered into possession under custom was negative. The dictum of their Lordship is to the following effect:- "Adverse possession.--Original occupation referable to lawful title--Possession not adverse.
' The principle of law is that possession is not to he considered adverse if its origin can be referred to a lawful title whenever that is possible, because a person who claims to have entered into possession as a trespasser will be presumed not to have done so if at the time he so entered he had some lawful title to possession.
' Where the custom by which the parties were governed was that a daughter was entitled to maintenance and sometime succeeded to the property till her marriage, the presumption, in the absence of clear evidence to the contrary, must be that she entered into possession under that custom and not that she was a trespasser as initio.
' The daughter therefore was not in adverse possession of land she had acquired under custom."
19. In another case `Gul Muhammad and another v. Mst. Shama and others' reported as PLD 1951 Pesh. 40, a Division Bench of this Court after exhaustively discussing the N.-W.F.P. Muslim Personal Law (Shariat) Application Acts referred to above, came to the conclusion that the life estate of those females who are in possession of the property as such are alive till termination of their limited estate and that devolution of property according to Mahammadan Law has been postponed until the life estates end. It was further held that a reversion can file a suit to get the alienation made by a limited owner during the subsistence of limited estate as ineffective, null and void against his rights but cannot sue for possession as the right to sue for that relief is not available to them. In this view of the matter, no question of limitation or adverse possession arises in the instant case.
REGULAR FRIST APPEAL NO,9 OF 1986.
20. The facts of the case have already been discussed above in detail. The plaintiffs have already been held entitled to 5/24 share by the trial Court. Their allegations that Mst. Kishwar Nigara is not the daughter of Fazalur Rehman deceased and that in consequence they are entitled to 9/24 share are unfounded in view of the statements of their own witnesses which are legally binding on them. There is thus no substance in this appeal.
REGULAR FIRST APPEAL NO,12 OF 1986
21. The learned counsel for defendants Nos.2 to 17 argued that the alienation made by Mst. Kishwar Nigara during the pendency of the suit and incorporated in a consent decree passed by the learned trial Judge in another suit should be declared as null and void and ineffective upon their reversionary rights. It has already been held that the said alienation is hit by principle of lis pendens and is ineffective on the rights of the parties. It was also rightly held by the learned trial Judge that the gift made by Mst. Jamsheda in favour of Mst. Kishwar Nigara being during the continuance of the life estate was ineffective on the rights of Mahammadan Law heirs of the last full owner. This plea of the defendants Nos.2 to 17 could not be gone into by the learned trial Judge as the dispute was inter se defendants and arose after the pleadings of the parties had been filed and the issues framed. The defendants Nos.2 to 17, if so advised, can call in question the said consent decree through a separate suit.
22. The upshot of the above discussion is that we do not find any legal or factual flaw in the impugned judgment and decree of the learned trial Judge and resultantly all the three appeals are dismissed. However, in view of the complicated legal points involved, the parties are directed to bear their own costs.