' AJMAL MIAN, J.---Leave to appeal was granted from the judgment dated 13-10-1979 passed by a Division Bench of the Lahore High Court in L.P.A. No,5 of 1964 P (216/70(L)) to consider the questions, whether the collaterals of Amir Khan had no locus standi to challenge the gift; whether the Punjab Muslim Personal Law (Shariat) Application Act, 1948, hereinafter referred to as the Act, had not correctly been applied; and lastly, whether the effect of the earlier decision with regard to the same property and inheritance, had not been correctly decided.
2. The facts to be noted are that the suit property was owned by Amir Khan, the last male owner, who expired in the year 1914, leaving behind a widow by the name of Noor Begum and a daughter, Mst.Sahib Jan. Widow Noor Begum died in the year 1941. After her death, Amir Khan's brother's sons, Razi Khan and Muzaffar, filed Suit No,222 of 1944 claiming that the suit property was ancestral property and, therefore, they had preferential right over Amir Khan's daughter, Mst.Sahib Jan. The above suit was contested by Mst.Sahib Jan and inter alia it was pleaded that the suit property was self-acquired property of Amir Khan and that under the custom, she being the daughter had a preferential right over the collaterals. The above plea found favour with the learned trial Court inasmuch as the suit was dismissed on 22-1-1945 (Ex.D.3). Appeal and Revision filed by said Razi Khan and Muzaffar were also dismissed on 2-6-1945 and 1-4-1947 by the District Judge, Attock, and a learned single Judge of the Lahore High Court (Exhs. D.4 and D.1), respectively. After the above first round of litigation, the Act was enforced in Punjab Section 3 of which provided that in respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open on the termination of her limited interest to all persons who would have been entitled to inherit property at the time of the death of the last full owner, had the Act been applicable at the time of such death. It appears that after the enforcement of the Act, Mst.Sahib Jan purported to effect transfer of the suit property by way of registered gift deed dated 29-10-1949 in favour of her son, Musa Khan, the present appellant. Mst.Sahib Jan died in the year 1956. Upon her death, aforesaid Razi Khan and Muzaffar, sons of Amir Khan's brother, who are now represented by their legal representatives -- the respondents, filed suit for their share in the suit property on the ground that upon the death of Mst.Sahib Jan, her life interest in the suit property stood terminated and, therefore, by virtue of Section 3 of the Act, they were entitled to inherit as collaterals to the extent permissible under the Muslim Law. The above suit was resisted by the appellant. On the basis of the pleadings of the parties, the following six issues were framed:-
(1) Whether the suit is barred by the principle of res judicata?
(2) Whether the land in dispute is ancestral qua the plaintiffs?
(3) Whether Mst.Sahib Jan was full owner of the land in dispute and was, therefore, competent to make a gift of this land in favour of defendant?
(4) Whether Mst.Sahib Jan was limited owner and she was entitled to maintenance only? If so, what is its effect?
(5) Whether the defendant is the sole heir of Mst.Sahib Jan under the Shariat Act? If so, what is its effect?
(6) Relief.
3. After recording the evidence, the learned trial Court i.e, the Administrative Civil Judge Ist Class, Campbellpur, through his judgment/decree dated 24-7-1961 held under Issue No,1 that the suit was not barred by the principle of res judicata, under Issue No,2 he concluded that the plaintiffs failed to prove the suit property as ancestral and under Issue Nos.3 to 5 which were taken up together, he recorded the finding that Mst.Sahib Jan had not inherited the suit property as a limited owner and even if she inherited as such, her life interest had not been terminated because the property had passed on to her only son who was a preferential heir under the Act. It was further held that it was not necessary for Mst.Sahib Jan to have made a gift of the suit property in favour of the appellant, her only son, as the property was to pass on to him otherwise too. It was also concluded that Mst.Sahib Jan acquired the property as a full owner and she was thus competent to alienate it as she liked. Accordingly, the learned trial Court decided the above issues in favour of the appellant.
Against the above judgment, said Razi Khan and Muzaffar filed an appeal which was dismissed by the District Judge, Attock, by his judgment and decree dated 29-3-1969. While dismissing the appeal the learned District Judge also held that the suit was barred by res judicata. The second appeal filed by them also met the same fate inasmuch as it was dismissed in limine by a learned single Judge of the Lahore High Court. Thereupon, a certificated L.P.A. Was filed which was allowed by a Division Bench of the Lahore High Court through the judgment under appeal on the ground that the main point which could resolve the controversy had not been taken into consideration by all the Courts below. The suit was accordingly decreed in favour of the respondents to the extent of 3/8, whereas 1/2 and 1/8 were given to Mst.Sahib fan and the widow of Amir Khan, respectively. After that, the appellant filed a petition for leave from the above judgment of the Division Bench, in which leave was granted to consider the above questions.
4. In support of the above appeal, Syed Iqbal Haider Zaidi, learned A.S.C. Appearing for the appellant, has urged as follows:-
(i) that since in the first round of litigation it was held that Mst.Sahib Jan had inherited as the sole owner, the second suit to contest the above finding was barred by res judicata;
(ii) that even if it is to be held that Mst.Sahib Jan had acquired limited life interest in the suit property by virtue of custom, she could have in her lifetime effected gift in favour of her son even otherwise which could not have been challenged on any ground; and
(iii) that the provisions of the Act were not applicable retrospectively. On the other hand, Mr. M.Rashid Chughtai, learned A.S.C. Appearing for the respondents, has contended as under:-
(i) that in the first round of litigation, two -questions were decided, namely, that the suit property was self-acquired property of Amir Khan and secondly, Mst.Sahib Jan had a preferential right under the custom as compared to the collaterals and since the above questions were not involved in the second round of litigation, the principle of res judicata could not have been pressed into service;
(ii) that the appellant failed to prove any custom in Attock district entitling a daughter having acquired limited life interest in the self-acquired property of her father to effect valid gift during her lifetime and in the absence of any such custom, she could have only alienated any part of the suit property for legal necessity; and
(iii) that the provisions of the Act had not been applied retrospectively to the present case as Mst.Sahib Jan died in 1956 after the enforcement of the Act.
5. Before touching upon the merits of the above contentions, it may be pertinent to reproduce Sections 2 and 3 of the Act, which read as follows:- "2. Notwithstanding any rule or custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, gifts, religious usages or institutions including waqfs, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims.
3. In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any such person before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat): ' Provided that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner, shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death."
6. A perusal of the above-quoted Section 2 indicates that after the enforcement of the Act which was enforced immediately upon its enactment (in March, 1948) notwithstanding any rule or custom or usage questions regarding succession (whether testate or intestate) and other matters referred to in the above section were to be governed by the Muslim Personal Law (Shariat) in case where the parties were Muslims, whereas Section 3 provided that in respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any such person before the termination of the limited interest mentioned therein, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat). It also provided that the heirs of a female limited owner would inherit the same share had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner and under which she would have got the share.
6-A. Having dealt with the relevant provisions of the Act, we may now refer to the submissions made by the learned A.S.C. Appearing for the parties. Adverting to the question, whether the decisions in the first round of litigation constitute res judicata or not, we are inclined to hold that the conclusion arrived at by the Division Bench of the High Court on the question of res judicata, namely, that the second suit was not barred, seems to be correct. In the first round of litigation as pointed out by Mr.Rashid Chughtai, the two basic questions were involved, namely, whether the property left behind by Amir Khan was self-acquired or ancestral, and, whether under Customary Law a daughter would have preferential right over the collaterals in respect of the self-acquired property of her deceased father. The Division Bench of the High Court has dilated upon this question as follows:- "10. The learned counsel for the respondents contended in favour of bar of res judicata. We agree with him only to the extent that the principle of res judicata would apply to the finding only in relation to the non-ancestral nature of the property and the preference of Mst.Sahib Jan under custom as a successor of her father over her collateral. The question about the nature or extent of the interest of Mst.Sahib Jan whether it was absolute or was only a life interest was not a matter relevant or arising in that suit nor it was raised by any of the parties there. This question had become relevant only after the death of Mst.Sahib Jan. The suit to that extent was certainly not barred by res judicata."
' The remaining two submissions can be conveniently dealt with together. We may observe that before the High Court it was not seriously contested by the learned counsel that a female used to get life interest in view of the custom. The Division Bench has dilated upon the above question in detail as follows:- "5. Learned counsel for the appellant relied on Mussammat Bhagwani v. Atru (39 PLR 1904), Mul Singh v. Khanu Bhadri and Qaim (55 PLR 1904) Hassan Din v. Rahim Bakhsh PLD 1956 Lah. 145 and para 64 of the Rattigan Digest of Customary Law (Thirteen Edition) revised by Om Prakash Aggarwala. From these authorities it is clear that the female interest, whether it be of the widow or of the mother or of the daughter succeeded to by them under custom is always a lifetime interest.
In Mul Singh v. Khanu Bhadri and Qaim (supra) it was held that the daughter's tenure of her father's land until death or marriage under the Customary Law is very analogous to that of the widow in her husband's property until death or re-marriage. All females inheriting land presumably hold on tenure similar to that of the widow. In Hassan Din v. Rahim Bakhsh (supra) it was stressed in the light of a number of authorities that ordinarily a daughter when she succeeds to her father, and in fact all females who succeed to properties of males under agricultural custom have only a life estate in the property which they inherit.
6. Para 64 of the Rattigan Digest states paragraph 62, no female in possession of immovable property acquired from her husband, father, grandfather, son or grandson otherwise than as a free and absolute gift can permanently alienate such property. Para 65 provides that a person dealing with a female proprietor is presumed to knoW that her estate is merely a limited one.
7. The point that a female gets only life interest was not seriously contested by the learned counsel for the respondents. In fact the learned counsel himself referred to page 411 of the Rattigan Digest where the nature of the daughter's estate is described. He relied upon that portion of it in which it is held that in a village community where a daughter succeeds either in preference to or in default of male heirs, she simply acts as a conduit to pass on the property as ancestral property to her sons and their descendants, and does not alter the character of the property. It was, therefore, argued that after the termination of the limited interest since the property is to devolve upon her own son for whom she acts as a conduit, the appellants have no locus standi to file the suit since they would not get the property in any case."
' However, Mr.Lqbal Haider Zaidi, learned A.S.C. Appearing for the appellant, has relied upon the following two judgments in order to canvass that the conclusion arrived at by the Division Bench was erroneous;-
(i) Khair Din and another v. Muhammad Hussain and others PLD 1961 SC 468; in which the facts were that a father sought to divide property in his hands unequally among, his four sons by the device of a gift to one son inter vivos. The above gift was challenged by the other sons. The son in whose favour the gift was made had contended that after the enforcement of the Muslim Personal Law (Shariat) Application Act, 1948, as amended in 1951, the father had become the sole owner and, therefore, was entitled to effect the gift. The above contention was repelled by the Supreme Court in the following words:- "No express words to that effect are to be found in the Muslim Personal Law (Shariat) Application Act, 1948, as amended in 1951. The new Law has not, by necessary implications, clothed the male holder under custom with all the powers of a Muslim Law owner and removed the disabilities that were incidental to the law which was the source of his rights. Such a result, if intended, could have been more easily achieved by a simple declaration to that effect. But that simple expedient has obviously not been adopted. Section 5 of the Act expressly declares that the provisions of the Act are not to be given retrospective effect, except to the extent indicated in section 3 thereof. This leads to upholding the status quo ante in respect of the property in the hands of a customary holder. The nature of that estate should not be held to have changed merely because henceforth matters like succession, gifts, etc. Are to be governed by Muslim Law."
(ii) Mst.Rabia v. Akbar and others PLD 1962 (W.P.) Lahore 837.
' In the above case the widow having limited interest effected a gift in favour of her daughter for services rendered to her in Gujrat district. The question before a Division Bench of the erstwhile High Court of West Pakistan was, whether the above gift was valid or not, which question was answered as follows:- Logically, this argument is patently unsound. If the incidents of customary law continued to apply to property in the case of a person whom the customary law does not give the property as a full owner, I do not see how the same principle should not be followed where the position is the reverse i.e, where though under the customary law there was power of disposition of property under the Muslim Law there was none. The contention of the learned counsel who wanted the gifts to be held to be invalid, was that the widow held that property for her life and, therefore, was not competent under the Muslim Law to make a gift of that property to anyone but at any rate could not make a gift which would ensure to the benefit of the donee after the death of the donor. No convincing argument could, however, be advanced to support this contention. It would be strange if Courts were to hold that the passing of the West Punjab Muslim Personal Law (Shariat) Application, 1948, did not abrogate the restrictions on the disposal of property which were applicable by reason of the customary law under which the property was inherited, but the restrictions under the personal law would be applicable if the holder had come into the property under the customary law which allowed the transfer of property by gift or otherwise. In each of the three cases under consideration, the gift which was challenged would be valid under customary law which was applicable to the property which had been gifted at the time when the property came into the possession of the donor, and I would, therefore, hold that the power to make a gift of the property which was conferred on the holder of the property under the customary law has not been abrogated by reason of the passing of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, just as the power to make a gift has not been conferred on a person who came into possession of the property under a system of customary law which did not give the holder the right of absolute ownership in the property. The view I am taking receives ample support from a decision of their Lordships of the Supreme Court of Pakistan in Khair Din and another v. Muhammad Hussain and others PLD 1961 SC 468."
7. In our view, the .Above-cited cases do not support the case of the appellant. In the above Supreme Court case, it was held that if a person inherited certain property under one system of law, he would remain bound by the rules of that law. In other words, if he held the property as a customary holder, the nature of that estate would not change because of the enforcement of the provisions of the Act. Whereas in the second case, the Division Bench of the erstwhile High Court of West Pakistan held that since the widow was holding the property under the custom obtaining in Gujrat district, which custom entitled her to effect gift in favour of her daughter for the services, the above custom did not cease because of the enforcement of the provisions of the Act. The above two cases seem to be in consonance with the provisions of the Act.
8. It may again be pointed out that under Section 3 of the Act; succession was to open upon the death of a Muslim female having limited ownership under the Customary Law. During her lifetime she continued to be subject to the custom under which she received the property. In the present case, as pointed out hereinabove, the appellant has not been able to prove the factum that there was any custom in the Attock district entitling a daughter having acquired limited interest in the self-acquired property left by her father to effect valid gift in favour of her son. In the absence of any such proof, none of the above two cases advances the case of the appellant.
' The appeal has, therefore, no merits. It is accordingly dismissed. However, there will be no order as to costs.