1. S. USMAN ALI SHAH, J.---The above-noted civil appeal by leave of the Court and connected Civil Petition No, 103-P/1985 for the grant of leave to appeal, both directed from the judgment of the Peshawar High Court, Peshawar; whereby R.S.A. No, 10 of 1978 (arising out of an inheritance matter) filed by the appellants/petitioners against the judgment of the Additional District Judge, Peshawar dated 22-1-1978 was dismissed.
2. The relevant facts in brief of both these matters are that Late Malik reroze Khan had considerable landed and residential property in village Chughalpura, Tehsil and District Peshawar. He made and executed a 'Will' (Exh.PX) of his entire property on 28-5-1911 which was registered on 8-6-1911; whereby he bequeathed his entire property in favour of his one wife Mst. Mira Jan and her three daughters, namely; Mst. Sahib Sultan, Mst. Tajwar Sultan and Mst. Channo in equal shares to the exclusion of his other four daughters namely; Mst. Babo and Mst. Maqbool from his other wife who pre-deceased the Testator, Mst. Ruqiyya from his third wife, divorced by the Testator and Mst.
3. Badrai from his fourth wife Mst. Mehjan who was also divorced by the Testator. The latter four daughters were declared to have no concern with the Testator's property because their marriages have already taken place and the Testator have discharged his obligations in their respect. The 'Will' also provided that in case the Testator got a male issue, he would be owner of the entire property and if he got a female issue, she would get equal share with the aforementioned four legatees. The 'Will' also provided that in case of death of any one of the daughters, her children would succeed and if any one of the daughters died issue less, her other sisters and mother would get in equal share her inheritance. In case of death of Mst. Mira Jan (wife), the daughters or their children would inherit her share. According to the Will' the legatees were to be the full owners of the property bequeathed to them.
4. On 25-4-1916 the said Feroze Khan, subsequently, made a gift (Exh.P.W 4/1) of 664 kanals 10 marlas of his agricultural land out of the bequeathed property, in favour of the aforementioned legatees, the mutation No,251 (Exh.P.W. 4/2) of which was entered on 9-9-1916. Malik Feroze Khan died on 24- 7-1921 and his inheritance Mutation No, 414 (Exh.P.W 4/4) was attested on 26-9-1921 in favour of Mst.
5. Mira Jan and her three daughters mentioned above in equal shares according to the Will.
6. On 13-1-1922 in a declaratory suit, the collaterals of Late Malik Feroze Khan challenged both the Will' and the 'Gift' made in favour of Mst. Mira Jan and her three daughters, the said Feroze Khan being Awan by caste was governed by Custom in matters of succession and inheritance and thus his widow Mst. Mira Jan and her three daughters held the property as limited owners and the impugned mutation did not affect their reversionary rights because the limited owners held the estate till remarriage or death in case of the four legatees. The claim of the plaintiffs/collaterals was denied by the four legatees and they have pleaded that the late Malik Feroze Khan was competent to make the Will' as well as the 'Gift' under the prevailing customs and the legatees/donees held the estate as full owners of the property according to the said Will' and 'Gift' so made in their favour. The learned trial Judge vide his judgment dated 5-10-1922 while dismissing the suit of the plaintiffs/collaterals held that Malik Feroze Khan was competent to make legally the Will' and the 'Gift' under the custom and the four legatees/donees had succeeded to the estate as full owners in equal shares.
7. The collaterals filed appeal before the Judicial Commissioner, Peshawar against the judgment of the Civil Judge, which was dismissed as withdrawn vide judgment dated 17-3-1924.
8. The property in dispute, in the first instance, was managed jointly by Ghulam Sarwar Khan and subsequently by his son Hussain Khan husband of Sahib Sultan. On 18-5-1936 Mst. Sahib Sultan died leaving behind Hussain Khan (husband), Habibullah Jan (son), Ashraf Sultan, Bahrawar Sultan and Sarwar Sultan (daughters) appellants herein and Mutation No,103 (Exh, P.C) of inheritance of Mst. Sahib Sultan was entered in their favour which was attested on 9-6-1936, wherein the mother Mst. Mira Jan and Hussain Khan husband were excluded in clear disregard of the Shariat Law which was already enforced in the N.-W.F.P. As N.-W.F.P Shariat Application Act VI of 1935. Similarly, on the death of Mst. Mira Jan widow of late Malik Feroze Khan on 5-5.1944 again Mutation No, 295 of inheritance was entered and attested on 8-2-1945 in favour of her two surviving daughters namely, Mst. Tajwar Sultan and Mst. Channo and the children of Mst. Sahib Sultan in violation of the said Act.
9. The record shows the joint possession of the parties over the property in dispute upto 16-8-1952 when the two daughters Mst. Tajwar Sultan and Mst. Channo Bibi brought a suit for declaration against Hussain Khan and his children of their title to 1/6th share out of Mst. Sahib Sultan's inheritance which was to go to Mst. Mira Jan, their mother along with the entire 1/4th share of Mst.
10. Mira Jan in accordance to Muslim Law under the N.-W.F.P. Muslim Personal Law (Shariat)
11. Application Act VI of 1935. It was averred in the plaint that the plaintiffs have been in joint possession of the suit property and Mutations Nos. 103, 295 dated 9-6-1936 and 8.2-1945 respectively were inoperative and ineffective against the right of the plaintiffs and the, entries in the Revenue Record to this extent were defective and not binding on the plaintiffs. The suit was resisted on all the grounds. On the pleadings of the parties the learned trial Judge framed as many as 14 contesting issues. During the pendency of the suit, on 14-4-1955 Mst. Channo, plaintiff No,2 made a gift in favour of Mst. Tajwar Sultan, the first plaintiff, of her entire property, including the property inherited by her from her father Malik Feroze Khan, along with the property she claimed in the suit from the inheritance of Mst. Sahib Sultan and Mst. Mira Jan. She made two gifts in this regard, one of agricultural land and the other of residential property. Both the gifts were registered and possession was delivered to the donee. Mst. Channo died on 30-12-1955 and the question of impleading her L.Rs, went up to the Supreme Court in C.A. 79 of 1064. The learned Supreme Court vide its judgment dated 3.2-1967 issued direction that heirs of consanguine sisters and or their daughters, if any, may be impleaded as party to the suit. This direction was complied with and the husband of Mst. Channo, Subedar Muhammad Yunis (petitioner in C.P. No, 103-P/85) had already been impleaded and Mst. Kishwar Nigar was also brought on the record. The suit was decreed on 20-2-1971 and appeal of the defendants before the District Judge also failed vide judgment dated 22-1-1978.
12. The defendants except Subedar Muhammad Yunis being aggrieved filed a regular second appeal before the Peshawar High Court, Peshawar, wherein the following objections were raised:--
(i) The suit was time-barred.
(ii) Inheritance mutation of Mst. Sahib Sultan and Mst. Mira Jan had been correctly attested in accordance with the will which was accepted by the parties.
(iii) The plaintiff Mst. Tajwar Sultan was estopped to challenge the will, and,
(iv) The gift by Mst. Channo of disputed and undivided share was void.
13. All the above objections so raised have been repelled by the High Court in its judgment dated 20- 2-1985. It is worthnoting that the appeal before the High Court was filed only on behalf of defendants No, 2-5 i,e, appellants herein and neither Muhammad Yunis nor Mst. Kishwar Nigar had filed any appeal against the judgment and decree of the District Judge. The appellants filed a petition for leave to appeal (No,111-P/1986) in which leave was granted on 10th February, 1988 by this Court on the following points:-
(a) Whether the will and gift made by the last male holder will control the devolution of the estate or the Shariat Law as applicable in the N.-W.F.P. From time to time since 1935.
(b) The effect of will as also whether the same can be treated as a will under the Muslim Law.
(c) Whether the parties to these proceedings by their conduct, after the death of the testator had not consented to the same.
(d) Other points raised in the petition.
14. Civil Petition for Leave to Appeal No, 103-P/85 filed by Subedar Muhammad Yunis was kept pending because of the objection raised by the respondents/caveators that the said Subedar Muhammad Yunis having accepted the judgment and decree of the District Judge and not having filed any appeal before the High Court is thus precluded from filing an appeal against the judgment of the High Court. It was ordered by this Court that this petition be heard along with Civil Appeal No, 53- P/88 arising out of C.P.L.A. No,111-P/1985.
15. The learned counsel for the appellants in the Civil Appeal has firstly addressed the Court on the question of limitation and urged that the 'Will' was made in 1911 and the suit was filed in 1952 is not within time under Article 91 or 120 of the Limitation Act, because without firstly, setting aside the 'Will' of 1911 the plaintiffs cannot obtain any relief as to the title. According to the learned counsel the 'Will' has been acted upon and Mutations Nos. 103 dated 9-6-1936 and 295 dated 8-2-1945 were attested in pursuance thereof and as such these mutations cannot be challenged in the declaratory suit in view of sections 52 and 53 of the West Pakistan Land Revenue Act as applicable in N.-W.F.P. The learned counsel vehemently urged that the limitation starts to run from 1911 when the 'Will' was made in accordance with the Custom, thus the suit for declaration is barred by time.
16. In rebuttal of this the learned counsel for the plaintiffs/respondents contended that the suit property has been in joint possession throughout from the time of the death of Malik Feroze Khan in 1921, when Mutation of inheritance under the `Will' was entered in favour of the mother and her three daughters in equal shares. The plaintiffs in para 6 of their original plaint which is in Urdu have disclosed that they have been in joint possession of the property. These assertions were denied in para 6 of the written statement by the defendants and stated that there has been a partition between the parties of the suit property from !Chard 1951 and the form of the suit was bad and it was for this reason that issue No,1 was framed as to the form of the suit. Musa Khan Patwari Halqa (P.W-5) appearing on behalf of the plaintiffs/respondents stated that the suit property is still joint between the parties. No mutation of family settlement has been attested. Mutation of Partition No, 411 was entered, but was dismissed. Similarly, Shah Nawaz (P.W-2) has stated that the property is joint and there has been no partition. The statement of Habibur Rehman (P.W-4) is also to the same effect, who stated that Mutation No,411 of family settlement was entered and rejected.
17. Hussain Khan defendant father of the appellants herein in his statement had deposed that at the time of the collaterals' suit his father Ghulam Sarwar Khan was managing the joint property on behalf of all the four ladies and on his behalf he has been managing the property till 1950. He admitted that various Mutations i,e, No,103, 295 and 411 were entered in the absence of the plaintiffs/ladies. Mst. Tajwar Sultan, plaintiff No, 1 in the case also as her own witness deposed as to the averments made in the plaint and stated that the property was still joint and she alongwith Mst.
18. Channo claimed 1/6th share of Sahib Sultan's inheritance which devolved on them through Mst.
19. Mira Jan, their mother and they also claimed 1/4th share of Mst, Mira Jan which devolved on her as a legatee of Feroze Khan under the Subsequently two gifts had been made in her favour by Mst.
20. Channo by registered deeds and possession has since been delivered to her and the gifts were completed in her favour as donee. She was not cross-examined as to the alleged partition of the property. The concurrent findings of the three Courts as to joint possession thus remained intact.
21. Otherwise too the question of limitation, does not arise in this case as there is no bar against a co- sharer/co-owner in joint possession for declaration of title under section 42 of the Specific Relief Act because terminus a quo under Article 120 of the Limitation Act is when the right to sue accrues and in this case even if the statement of Hussain Khan is taken to be correct about the management of the property by him jointly till 1950, the suit filed in 1952 is well within time. The plaintiffs/respondents have maintained and have proved that till the date of suit, the suit property was joint and the plea of partition of the property has been proved as unfounded. Hence the question of setting aside the Will' does not arise for the simple 1-eason that the plaintiffs/respondents do not challenge the The mother and the three daughters succeeded to 1/4th share each under the Will' and at the time when the N.-W.F.P Muslim Personal Law (Shariat)
22. Application Act VI of 1935 was enforced on 6th December, 1935, the two mutations made subsequently in 1936 and 1944 could be challenged and suit for declaration of title to the property could be filed at any time when the plaintiffs felt that their right is being denied. In this regard the learned counsel for the respondents referred to the following authorities:- (a)PLD1990 SC 1 (Ghulam Ali and twoothers v. Ghulani SarwarNaqvi)
23. (b)AIR 1936 Lah. 37 (Ghulam Muhammad Khan etc. v. Samundar Khan etc.)
24. (c)PLD 1966 Pesh. 147(Zebun Nisa v. Atta Shabir)
25. (d)1973 SCMR 289 (Jumma Khan and others v. Muhammad Khan and others)
26. (e)1983 SCMR 626 (Aswar Muhammad and another v. Sharifuddin and others)
27. The learned counsel for the appellants also urged the questions of estoppel and res judicata that both the sisters Mst. Tajwar Sultan and Mst. Channo were estopped by their conduct. The question of estoppel by conduct does not arise for the reason that the plaintiffs/respondents have claimed their share of the property of Mst. Sahib Sultan coming to them through their mother Mst. Mira Jan and also the share of Mst. Mira Jan on her death under the Act VI of 1935 which has come into force on the 6th of December, 1935, substituting the rule of custom by Shariat. The amending Act VI of 1951 is also in point. There being no estoppel against the statute, the objection of estoppel cannot be pressed into service. So far as the question of Res judicata is concerned, the judgment in collaterals' suit in 1922 cannot be invoked for that purpose because this suit was contested by all the four ladies jointly on the basis of validity and legality of the Will' under custom, whereby, the testator Malik Feroze Khan bequeathed to them the property in 1911 and subsequently gifted some land in 1916. In the said suit the plaintiffs and the predecessor-in-interest of the defendants were defendants on the same side and unless and until there is any conflict of interest between the co- plaintiffs and co-defendants, the question of Res judicata does not arise, as has been held in PLD 1983 SC 344 (Ghulam Nabi and others v. Seth Muhammad Yaqoob and others), and PLD 1953 Lahore 199 (Allah Bakhsh v. Taggia and another)
28. The learned counsel for the appellants also attempted to argue the question of validity of the Will' under issue No,
7. When it was pointed out that the plaintiffs/ respondents have accepted the same as validly made under the custom which has been acted upon on the death of the Testator, the four ladies have been holding the estate jointly in 4 equal shares and the appellants also have based their defence on the Will, the learned counsel did not press this point any further. As the learned counsel for the appellants instead of dealing with the question mentioned in the leave granting order, argued the above point and hence we now on our own take up the question in the leave granting order. As the learned counsel for the appellants has argued that the Will' controlled the devolution of the estate. It is a matter of record that the parties have accepted the `Will' and the two mutations in question have been entered and attested in accordance with the said The main thrust of the arguments of the learned counsel rests on the The respondents' counsel contemplated that the Will' having been validly made by late Malik Feroze Khan who was governed by the custom and thus the mutation of inheritance in equal shares of the property in favour of the legatees according to the 'Will' duly entered and attested and the estate was jointly enjoyed thereafter by the said legatees, each one of them was holding the property as a full owner. They being full owners, hence the question of their inheritance if and when succession of any one of them opened after 6-12-35 is to be governed by the Shariat by virtue of the provisions of Act VI of 1935 as amended by Act XI of 1950.
29. At this juncture, the history of the legislature in the light of this case requires consideration. Prior to 1901, section 5 of the Punjab Laws Act 1872 was the relevant statute on the basis of which, custom was the rule of decision, between the parties. The said Act was repealed in 1901 by the North-West Frontier Province Laws Justice Regulations, 1901, section 27 of which replaced section 5 of the Punjab Laws Act of 1872. The position was materially altered with the enforcement of the Muslim Personal Law (Shariat) Application Act VI of 1935. The preamble of which is as under:- "Whereas it is expedient to make provision for the application of Muslim Personal Law (Shariat) in the North-West Frontier Province, it is hereby enacted."
30. Section 2 of this Act VI of 1935 which is relevant to successions and wills, reads as under:- "In questions regarding successions...Wills...The rule of decision shall be Muslim Personal Law (Shariat), in cases where the parties are Muslims. Except in so far as such law has been altered or abolished by legislative enactment or is opposed to the provisions of North-West Frontier Province Law & Justice Regulation 1901."
31. Section 3 of the said Act pertaining to the repeal of provisions of previous law which says:- "On and from the date of enforcement of this Act section 27 of the N.-W.F.P Law and Justice Regulation of 1901 shall be repealed in so far as the Muslims are concerned."
32. Thus further amendment of this Act by Act 11 of 1950 when sections 3(ii) and 4 were added to the original Act. Subsection (ii) of section 3 so added in 1950 was to the following effect:- "Whenever a question relating to the succession upon the death of a Muslim arises in any Court, the rule of decision shall, whether the said death had taken place before or after the commencement of this Act, be the Muslim Personal Law (Shariat)."
33. This subsection was replaced in 1953 by the following subsection:- "3.(ii) Whenever a question relating to succession upon the death of a Muslim arises in the Court, the rule of decision shall be according to the Muslim Personal Law (Shariat) as if the law has been applicable at the time of such death."
34. Thus with the coming into force of the 1935 Act, Custom was no longer the rule of decision and if succession opened after 6th December, 1935, the rule of decision is to be Muslim Personal Law. As far as the question of retrospectivity is concerned, it does not arise in this case because the deaths of Mst. Sahib Sultan and Mst. Mira Jan respectively took place after 6th December, 1935 and the rule of decision was the N.-W.F.P. Muslim Law (Shariat) Application Act VI of 1935 as amended by Act XI of 1950. A case from this Province went to the Privy Council which is reported in AIR 1944 P.C. 27 (Sardar Abdur Rehman Khan v. Sardar Muhammad Ashraf Khan and others) wherein the effect of section 2 of the Act VI of 1935 has been considered and it has been held that:- "The effect of the Act is that it has altered the course of succession in so far as to make the ordinary rule of Muhammadan Law applicable and to exclude the operation of custom. Where, therefore, the 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 rule of Muhammadan Law."
35. The question of applicability of Shariat Law was also considered in PLD 1956 Pesh. 115 (Mst.
36. Rahmaniya v. Mst. Maqboola) and in PLD 1961 Peshawar 9 (Mst. Sahib Jan Bibi and others v. Wali Dad and others). The effect of N.-W.F.P. Muslim Personal Law (Shariat) Application Act subsequently has been considered in Muzaffar Khan v. Mst. Roshan Jan (PLD 1984 SC 394), wherein it has been held at page 400 that:- "....As there is now no doubt left that the N.-W.F.P. Act 1935 is to be given retrospective effect and that whenever a dispute comes before a Court of law with respect to succession to the estate of a deceased Muslim, the deceased will be deemed to have died under the domain of Muslim Law even if the death has taken place before the coming into force of the N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935."
37. Hence the question of retrospectively needs no discussion because the succession in both the cases of Mst. Sahib Sultan and Mst. Mira Jan has opened after 6th December, 1935. Therefore, in order to calculate the shares of Mst. Sahib Jan and Mst. Mira Jan, the rule of Shariat is to be applied which the learned Courts below have correctly calculated and remained unchallenged.
38. The learned counsel for the appellants has also argued the question of repeal on the basis of section 6 of the General Clauses Act. The answer of these arguments of the learned counsel can be found in discussion in the case reported in AIR 1940 Peshawar-52, titled "Fazle Hague Dilzada and another v. Dawar Shah." We find that section 27 of the N.-W.F.P Act is substituted by Act VI of 1935 which makes Muhammadan Law the rule of decision for every question which arises before the Court after the Act came into force, and that the legislature did not intend to make a distinction between cases in which an estate had opened before the enactment of Act VI of 1935 or after it. It is more or less a rule of procedure and it became operative from the date on which that rule was ordered to come into force. Thus it is to be found that section 27 of the N.-W.F.P Law and Justice Regulation Act 1901 had not created any right or privilege as contemplated by section 6 (c) of the General Clauses Act, the contention is without force.
39. As far as Civil Petition No, 103-P/85 is concerned, as already discussed above, Sub. Muhammad Yunis Khan petitioner has not filed any appeal against the decree and judgment of the District Judge, therefore, he cannot invoke the jurisdiction of this Court under Article 185 (3) of the Constitution of the Islamic Republic of Pakistan, 1973 as already held by this Court in 1975 SCMR 314 (Inayatullah v. Muhammad Aslam Khan and two others).
40. The result is that, there is no force in both the appeal as well as the civil petition. Both are hereby dismissed with no order as to costs.