' Late Malik Feroz Khan resident of village Chughalpura was owner of considerable landed and residential property. It appears that in the hope of having a male child he married four wives but unfortunately two of them, Mst. Fatima Bibi and Mst. Shahzadi Bibi, were issuless and the other two Mst. Mah Jehan and Mst. Mira Jan, gave birth to only daughters, four by the former and three by the ratter. It also appears that the late Malik Feroz Khan lost all hope of procreating a male child and perhaps prevailed upon by the need to keep his property inside his own family, he made and executed a Will on 28-5-1911, which was registered on 8-6-1911, copy Exh.P.X. And whereby he willed away all his landed and residential property to his wife Mst. Mirza Jan and her three daughters, named, Mst. Sahib Sultan, Mst. Tajwar Sultan and Mst. Channo Bibi in equal shares to the exclusion of his daughters from his wife Mst. Mah Jahan.
' According to this will is entire property was to be inherited after his death by aforesaid four females n equal shares. The perusal of the deed of Will will show that he made some arrangements regarding the devolution of property in the event of death of any of these four females, according to which if any of them died issueless then her ;hare was to revert to the remaining three females but in the event of death of any one of them leaving behind children, her share was to go to her children to specific exclusion of the husbands and the three aforesaid daughters. Malik Feroz Khan is alleged to have executed a deed of gift in favour of the aforesaid females on 25-41916 and registered on 2-5-1916, copy Exh.P.W.4/1, according to which he made a gift of land measuring 664 Kanals 10 Marlas out of the property which was the subject-matter of the Will, but it appears that this gift deed was not acted upon and the parties relied upon the Will. Malik Feroze Khan died on 24-7-1921 vide death certificate, copy Exh.P.W.4/3, and the Will made by him was acted upon in the Revenue Record. After his death a Suit No,210/1 of 1922 was brought by his collaterals on 13-1-1922 to challenge the Will in question but that suit was dismissed on 5-10-1922, copy of judgment in that suit is Exh.P.W.4/8. Appeal against that order was also dismissed by the Judicial Commissioner on 17-3-1924 vide judgment, copy Exh.P.A .4/9. Out of the aforesaid four females, Mst. Sahib Sultan died on 18-5-1936 vide death certificate, copy Exh.P.W.4/5, leaving behind one son Habibullah Jan and three daughters, Mst. Ashraf Sultan, Mst. Behrawar Sultan and Mst. Fakhar Sultan, who are appellants herein, and her inheritance Mutation No,103 was attested on 9-6-1936 whereby her 1/4 share in the property left by late Malik Feroz Khan devolved upon her son and daughters as aforesaid. Subsequently, Mst. Mira Jan died on 5-5-1944, death certificate, copy Exh.P.W.4/6, and her inheritance Mutation No,295 was attested on 8-2-1945 in favour of her remaining two daughters, Mst. Tajwar Sultan and Mst. Channo Bibi and the children of her third daughter late Mst.
Sahib Sultan. Mst. Tajwar Sultan and Mst. Channo Bibi, the remaining two daughters of Malik Feroz, feeling aggrieved by the attestation of the aforesaid two Mutations Nos. 103 and 295 claimed to have inherited 1/6 share from the property left by Mst. Sahib Sultan and which share was to be inherited by her mother Mst. Mira Jan and also their share from the properly left by their mother Mst. Mira Jan. They, therefore, instituted a suit on 164-1952 in the Court of Senior Civil Judge, Peshawar for a declaration of their title, against the husband and children of Mst. Sahib Sultan. The suit was contested by the said defendants. Hussain Khan, defendant No,1 in the suit, who was husband of late Mst. Sahib Sultan, mentioned in his written statement that the property left by his wife had been equally inherited by his children from her in accordance with the Will and he was not entitled to any share therefrom according to it. The other defendants in the suit also asserted that they had inherited' the property left by their mother and a share from the property left by their maternal-grandmother in accordance with the Will. They denied the claim of the plaintiffs in the suit and also raised many other objections, legal as well as factual to the suit. Mst. Channo Bibi, one of the plaintiffs in the suit, is alleged to have made a gift of her share of the property inherited by her from her father and of her share in the property left by Mst. Sahib Sultan and Mst. Mira Jan in favour of the other plaintiff Mst. Tajwar Sultan. This gift deed was executed on 14-4-1955 and was registered on 14-5-1955, copy Exh.P.W. X/1. Mst. Channo Bibi was issueless and died on 30-12-1955.
On 14-1-1956 her husband Muhammad Yunus was impleaded as defendant No,6 in the suit and Mst. Maqbool Jan and Mst. Ruqayya Begum, daughters of Malik Feroz Khan from Mst. Mah Jahan, were also impleaded as defendants in the capacity of legal heirs of Mst. Channo Bibi. Subsequently it transpired that both the late females had died and Mst. Kishwar Nigara was impleaded as their legal representative. The latter also died survived by her husband Habibullah Jan, appellant No,1 herein. The said Muhammad Yunus defendant did not submit any written statement. However, a written statement was submitted by Mst. Kishwar Nigara wherein she challenged the gift mutation made by Mst. Channo Bibi in favour of Mst. Sahib Sultan on the grounds of being fictitious, collusive, executed during `Marz-ul-Moat' and under undue influence and coercion. Her further objections were that the gift was void because possession had not changed hands and was illegal being gift in future. The learned trial Judge finally framed the following issues regarding the pleadings of the parties:--
(1) Is the suit competent in the present form?
(2) Is the suit within time?
(3) Are the plaintiffs estopped to bring the present suit?
(4) Is the suit barred by the principle of res judicata?
(5) Are the gift deeds of Mst. Channo Bibi in favour of Mst. Tajwar Sultan, which were executed during the pendency of this suit, ineffective and void?
(6) Have the plaintiffs a cause of action?
(7) Whether Malik Feroz Khan had made a valid Will of the entire suit property in favour of the plaintiffs, their sister Mst. Sahib Sultan and their mother Mst. Mira Jan, if so, what is its effect?
(8) Whether the will referred to above was modified by Malik Feroz Khan by a gift deed dated 25-4- 1916 in favour of his heirs, if so, what is its effect?
(9)Whether the inheritance of Mst. Mirza Jan exclusively devolved on the plaintiffs?
(9-A) Whether Mst. Mira Jan was entitled to 1/6th share in the estate of Mst. Sahib Sultan, her daughter?
(10) Whether there has been any partition between the parties in respect of the suit property, if so, what is its effect?
(11) To what shares are plaintiffs entitled in the suit property?
(12) Whether pedigree-table given in the plaint is incorrect and incompetent, if so, what is its effect and what is complete and correct pedigree-table?
(13) Whether the gift deeds were obtained during `Marz-ul-Moat' by undue influence and were never given effect to and as such are of no legal consequence?
(14) Relief?
' After recording evidence of the parties the learned trial Judge decided the suit in favour of the plaintiffs vide his judgment, dated 20-2-1971. He granted a decree for the declaration as well as for joint possession in favour of the plaintiffs to the extent of 19/48 share in the suit property. The aggrieved defendants filed an appeal in the Court of the learned Additional District Judge, Peshawar. The plaintiff Mst. Tajwar Sultan also feeling aggrieved of the judgment of the learned trial Judge to the extent of the share decreed in her favour also filed cross-objections and claimed 38/48 share in the suit property. The learned Additional District Judge vide his judgment, dated 221- 1978 dismissed the appeal filed by the defendants and accepted the cross-objections of the plaintiff and modified the decree of the trial Court to the extent of 19/24 share in the suit property.
Again feeling aggrieved, the defendants have come up with the present regular second appeal by impleading as respondents the legal representatives of Mst. Tajwar Sultan who had died during the pendency of the first appeal.
2. The learned counsel for the appellants has challenged both the impugned judgments on the following grounds;
(i) the suit was time-barred;
(ii) the inheritance mutations of Mst. Sahib Sultan and Mst. Mira Jan had been correctly attested in accordance with the Will which was accepted by the parties;
(iii) plaintiff Mst. Tajwar Sultan was estopped to challenge the Will; and
(iv) the gift by Mst. Channo Bibi of disputed and undivided share was void.
3. In so far as the question of limitation is concerned, it was urged by the learned counsel for the appellants that the suit for declaration of title over the suit property brought in 1952 and challenging the inheritance mutations attested in 1936 and 1945 was time-barred. His contention was that Article 120 of the First Schedule to the Limitation Act was applicable to the suit whereunder the suit could have been brought within six years of the attestation of both the mutations. It was urged by him that right to sue accrued to the plaintiffs immediately after the attestation of both the inheritance mutations and the suit was time-barred even for the purpose of challenging the inheritance mutation of Mst. Mira Jan attested on 8-2-1945. 1 he learned counsel argued that it was wrong to assume that every wrong entry in the record of rights gave a fresh cause of action to the laintiff. In this connect ion he has relied upon the case of Muhammad Shah son f Syed Ahmad Shah and another v. Mir Zaman son of Sadiqullah and others, R 1930 1943 Pesh. 83 wherein it has been held that a suit by the plaintiff for orrection of an entry in the Jamabandi papers is governed by Article 120. The abuse of action for the suit accrues when the entry is made in the Jarnabandi for he first time. The opposition by the opposite party to an attempt by the plaintiff change the entry in his favour does not amount to a fresh invasion of the laintiff's right so as to give the plaintiff a new cause of action from the date when is attempt to enter a correction in the Jamabandi failed. There must be some attempt on the part of the opposite party to oust the plaintiff in possession in order to give the plaintiff a fresh cause of action. However, the learned counsel appears to he under an erroneous view of the matter. Perhaps he has confused he record-of-rights with the Jamabandi. Of course, record-of-rights is prepared after much investigation and presumption of truth attaches to it. On the contrary, amabandi is prepared without any investigation and on the basis of the four ears' entries in the Khasra Girdawaris and both these documents cannot be considered to be alike.
Entry in the Revenue Record would, therefore, be difficult be challenged after the expiry of the period of six years, but wrong entries in the Jamabandis which are repeated in the successive Jamabandis will furnish a rash cause of action every time a wrong entry is repeated. This has been the onsistent view of the superior Courts of the country since a long time and in this connection reference with benefit may be made to the cases of Akhbarullah v. Assan Ali Khan and others AIR 1937 Pesh. 94, Nazir Din and another v. Uhammad Shah and others AIR 1936 Lah. 92, Intazamia Committee, urdwara Ramsar Manji Sahib v. Mani Ram AIR 1940 Lah. 154 and Malku and (hers v.
Qazi Abdul Karim and another AIR (34) 1947 Pesh. 15 and this principle was re-affirmed in the case of Jumma Khan and others v. Mahmud an and others 1973 SCM R 289. Needless to say that in the present suit both the parties are in joint possession of the suit property and the suit was only for eclaration of their shares and such a declaration could be sought by the plaintiffs then they felt aggrieved by any entry in the Jamabandi. I would, therefore, hold that the suit was within time and the impugned judgments are unexceptionable on the point of limitation.
4. It was next urged by the learned counsel for the appellants that although .-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 had come into force on 6-12-1935 but the parties had accepted the arrangements which had to follow according to Will in the event of demise of any of the beneficiaries of the ill and the shares worked out in the Will were also in accordance with Islamic law and the future devolution of property was to be according to the Will and hat this scheme had to be accepted by the remaining beneficiaries. His contention was that the future scheme which was specified in the Will had to be considered as having been made by the beneficiary herself and they could not depart from the scheme. However, this contention is also not acceptable for the simple reason that after coming into force of the Shariat Application Act, 1935 and by force of the provisions contained in subsection (2) of section 3 thereof, whenever a question relating to the succession upon the death of a Muslim arose in any Court, the rule of decision was to be according to Muslim Personal Law (Shariat) Application Act, 1935 as if that law had been applicable at the time of such death. It shall thus be seen that after the coming into force of the said Act, the questions relating to succession of Muslims had to be decided according to Shariat. It will further show that the will made by Malik Feroz Khan did not remain binding on the parties to it after the enforcement of the Shariat Application Act, 1935. It would be more so because all the females were also heirs of each other and the plaintiffs had not agreed to the future arrangements made in the will in respect of heirs so the will became ineffective because it was made in favour of some of the heirs. It is a clear principle of Islamic Law that a will made in favour of an heir can only be binding if it is accepted by all the heirs after the death of the testator. The institution of the suit would show that the will was not acceptable to the plaintiffs and it had to be disregarded. Even otherwise, as already held, the property left by Mst. Sahib Sultan and Mst. Mira Jan was to be inherited by their 'Shari' heirs because both died after the coming into force of the Shariat Application Act, 1935. This point came up before the Privy Council as early as 1944 and their Lordships were pleased to hold that 'the effect of the Act is that it had altered the course of succession in so far as to make the ordinary rule of Mahomedan law applicable and to exclude the operation of custom. Where therefore, succession opened after the Act came into force, a party cannot rely upon any decision based upon the rule of custom given in his favour before the Act came into force and the succession will be governed by the rule of Mahomedan law". Sardar Abdul Raman Khan v. Sardar Muhammad Ashraf Khan and others AIR (31) PC 27. This point was reaffirmed in Mst. Rehmania and others v. Mst. Maqbula and others PLD 1956 (W.P.) Pesh. 115 and Muzaffar Khan v. Mst. Roshan Jan and others PLD 1984 SC 394. As the appellants could not in 1945 claim any share from Mst. Mira Jan it cannot be held that the arrangement made in the will is also according to Shariat. The impugned judgments are, therefore, not exceptionable on this ground as well.
5. It was then urged by the learned counsel for the appellants that the plaintiffs were estopped to challenge the Will because they had accepted its contents and the arrangements specified therein. This contention can be repelled on the simple ground that there can be no estoppel against law. After the coming into force of the Shariat Application Act, 1935, the inheritance was to be governed by Shariat and the till to what extent had become invalid.
6. The next contention of the learned counsel for the appellants was that the gift made by Mst.
Channo Bibi was void inasmuch as it had been made of an undivided and disputed share. He had urged that in so far as the share of property which Mst. Channo Bibi was claiming from Mst. Sahib Sultan and Mst. Mira Jan is concerned, that share was not yet determined and it was not known as actually she would get any share from both the said females and the gift in that respect being of a undivided share was void. He also urged that the possession could also not be given of that unspecified share under the gift. The perusal of the gift deed would show that Mst. Channo Bibi had not only gifted the share which she had to inherit from Mst. Sahib Sultan and Mst. Mira Jan but she had gifted her own entire share in the suit property. Not only that she had also actually put Mst.
Tajwar Sultan in possession of that share by directing the tenants to attorney to the latter. The validity of the gift is now determinable only with respect to the share which she was allegedly to inherit from the aforesaid two deceased females and that is a very small portion in the entire suit property and it comes to about 24 Kanals. The perusal of the gift deed and the plaint would show that that portion could also be definitely calculated. It cannot, therefore, be said that the gift was of an undivided portion. Even otherwise the learned counsel for the appellants failed to point out anything from the Islamic Law as to show that the gift was void.
' Admittedly Mst. Tajwar Sultan and Mst. Channo Bibi were co-sharers in the suit property and a gift of undivided share could be made by Mst. Channo Bibi in favour of Mst. Tajwar Sultan. In this connection reference may be made to Sonaullah Fakir v. Alam Fakir and others 1968 SCMR 311(2).
There is another aspect regarding the gift. Mst. Kishwar Nigara in her written statement submitted on 13-7-1970, had objected to the validity of the gift on the grounds of undue influence, coercion and having been executed during `Marz-ul-Moat'. But, however, she being a grand-daughter of consanguine sister of Mst. Channo Bibi could not inherit any property from the donor. As such she being a stranger and third party, could not challenge the validity of the gift. Similar is the position of the appellants. They would also not be able to inherit any share from Channo Bibi. As such they are also strangers and third party in so far as the matter of the gift is concerned and would not be able to challenge its validity. In this connection reference may be made to Muhammad AZim and another v. Mst. Halima and 9 others PLD 1975 Pesh.
60. The person who could really challenge the gift made by Mst. Channo Bibi was her husband Muhammad Yunus respondent No,6 herein. It was urged by his counsel, Mr. Abdus Samad Khan that respondent No,6 had been prejudiced by pleadings of parties regarding gift. But although he was made a defendant in the suit, he did not submit any written statement. Even appearing as a witness he did not raise any plea of any right against the gift. He also did not bring any suit during all this period to challenge the gift made by his wife. It shall thus be seen that Muhammad Younus did not feel aggrieved by the gift made by his wife in favour of her sister, depriving him of any share in her property. The matter of gift is also not exceptionable.
7. The net result of the above discussion is that the appeal fails which is hereby dismissed, with no order as to costs.