' This revision petition under section 115 of the Code of Civil Procedure was directed against the judgment, dated 8-7-1981 of the learned Additional District Judge, Lahore, whereby the appeal filed by Siraj Din, plaintiff-petitioner, was dismissed and the judgment dated 18-4-1981, of the learned trial Court was upheld and maintained.
' This case has a chequered history. The land in dispute originally belonged to one Saddar Din who died in 1922, leaving behind one widow namely Mst. Mehtab Bibi, one male issue namely Noor Din from Mst. Aisha, the predeceased wife and one daughter namely Mst. Hamida Begum from Mst.
Mehtab Bibi. After his death his land was mutated in equal shares in the names of Noor Din son and Mst. Mehtab Bibi widow, vide Mutation No,332, dated 6th May, 1922, Exh.D.9. Noor Din adopted a son namely Siraj Din, the present plaintiff, in the year 1935. Noor Din died on 14th May, 1947, and the land in his possession and recorded in his name in the Revenue Record was mutated in favour of Siraj Din vide Mutation No,283 dated 8-4-1948, Exh.D.8. Mst. Mehtab Bibi widow and Mst. Hamida Begum daughter, respectively of Saddar Din, filed a suit for possession challenging the adoption but they failed upto the level of the Supreme Court as the adoption was upheld and thus Siraj Din continued in possession as owner of the said land in the capacity of adopted son. The land which was mutated in the name of Mst. Mehtab Bibi and which had remained in her possession was gifted by her to Mst. Hamida Begum her daughter vide registered deed dated 24th June, 1948. Mst. Mehtab Bibi died on 11th April, 1950.
2. Siraj Din, the present petitioner, after the death of Mst. Mehtab Bibi filed a suit for a declaration to the effect that the aforesaid gift was void and ineffective in law and as a consequential relief delivery of possession was also claimed. This suit was decreed by the then Civil Judge, Lahore, vide judgment and decree dated 12th October, 1964. The appeal filed by Mst. Hamida Begum challenging the said judgment and decree was dismissed vide judgment and decree dated 20th October, 1965, returning the finding that Mst. Mehtab Bibi was not a limited owner and that she had held the land in lieu of maintenance. This led to the filing of a second appeal (Regular Second Appeal No,1052 of 1965) in this Court. This appeal succeeded vide judgment and decree dated 5th November, 1977, in the terms that the case was remanded after making certain observations as to the questions requiring determination in the suit and as to the application of Muslim Personal Law (Shariat Application)
Act, 1948.
3. After remand the learned Civil Judge dismissed the suit vide judgment dated 4th May, 1978, observing that the fate of the suit stands sealed in view of the observations made by the learned Judge of this Court in aforesaid regular second appeal. It is pertinent to note at this stage and the assertion of Siraj Din petitioner that he took possession of the land in dispute on 1-12-1965 in execution of the decree earlier passed in his favour by the learned Civil Judge. This assertion was, however, refuted by the respondent.
4. After dismissal of the suit, the petitioner filed a review application in the High Court seeking review of the judgment dated 5-11-1977 passed in the R.SA. He also filed an appeal against the judgment and decree dated 4-5-1978 of dismissal of the suit passed by Civil Judge. The review petition was dismissed in limine as misconceived. It will, however, be pertinent to note the observations made wherein the learned Judges pointed out the questions which required to be determined in the case. The observations read as under:- "The case involved the determination of questions as to what was the nature of interest of Mst.
Mehtab Bibi, what was the effect of the conduct of Nur Din in not challenging her rights, if any, what was the validity and effect of the gift made by Mst. Mehtab Bibi in favour of Mst. Hamida Begum, how does and in what manner the Shariat Act operate in the situation and whether the vested rights, if any, acquired by adopted son Siraj Din get affected by the later law."
5. The appeal filed by Siraj Din was accepted vide judgment dated 2-7-1980 and the case was remanded for fresh decision. On remand the learned Civil Judge vide judgment, dated 18-4-1981 again dismissed the suit observing that Mst. Mehtab Bibi was a maintenance holder but the Shariat Application Act, 1948, applies, and inheritance is to be traced from the last male owner. Siraj Din again challenged this judgment and decree of dismissal of the suit by filing an appeal which was dismissed by the learned Additional District Judge, Lahore, vide judgment and decree dated 8-7- 1981. This led to the filing of the present revision petition.
6. Learned counsel for the petitioner contended that the learned Courts below have failed to comprehend as well as determine the questions involved in the suit. The question which required to be determined was as to what was the nature of the interest held by Mst. Mehtab Bibi in the land in dispute. According to the learned counsel Mst. Mehtab Bibi was not a limited owner but a mere maintenance holder and as such Muslim Personal Law (Shariat) Application Act, 1948, did not apply in the instant case. The succession opened on the death of Saddar Din in 1922 and Mst. Mehtab Bibi having held the land only as a maintenance holder, such an interest terminated with her death and as such the land would be deemed to have reverted back to Noor Din in 1922 and as such his adopted son Siraj Din is entitled to the possession of the same. Learned counsel further submitted that in the absence of son, the widow under custom received the land for the purpose of maintenance only. Section 3 of the Shariat Application Act, 1948, applies when a female is in possession as limited owner but not to the case like the present one where there was son by the other wife, and the stepmother, the other widow, was granted land for maintenance as in such a situation the widow is entitled to receive suitable maintenance out of the property of the last male owner. He added that in a case where maintenance amount could not be fixed through mutul arrangement between the parties a portion of the land used to be given over to the widow for the purposes of maintenance. According to the learned counsel such a giving of the land to a widow would not make her a limited owner. In support of this submission the learned counsel relied on Irshad Begum v. Shah Muhammad (PLD 1957 Lah. 605), Nawab v. Muhammad Fazil (PLD 1964 Lah.
334) and Muhammad Iqbal v. Durab Khan (1976 SCMR 149). Next it was submitted that the impugned judgment of the learned Additional District Judge cannot be sustained as it is based on the observations made by the learned Judge in the judgment dated 5-11-1977. These observations in view of the observations made by the Division Bench of this Court in review petition as well as in the presence of the judgment dated 2-7-1980 of the Additional District Judge remanding the case cannot be availed of. It was emphasised that the remand judgment dated 2-7-1980 passed by the Additional District Judge having not been challenged the same will debar the respondent to reagitate the same question at a later stage. In support of this plea reliance was placed on Abdul Hakim v. Saadullah Khan (PLD 1970 SC 63).
7. Ch. Hafeez Ahmad and Mr. Muhammad Yasin Khan Wattoo, Advocates, for the respondent supported the findings recorded by the learned Courts below and argued that the concurrent findings of fact cannot be interfered with by this Court in exercise of revisional jurisdiction. The detailed submissions and the precedents relied upon by the learned Advocates for the respondent will be noted while dealing with the submission of the learned counsel for the petitioner. The questions which require determination in the case were succinctly pointed out by the learned Judges of the Division Bench while disposing of the review petition of Siraj Din petitioner. These observations pointing out these questions have been quoted in para. 4 above. The foremost questions are (a) what was the nature of interest of Mst. Mehtab Bibi in the land in dispute and (b) what was the effect of the conduct of Noor Din in not challenging her right, if any. The petitioner led the evidence to show that Saddar Din, the owner of the land, was governed by custom while the evidence led by the respondent was that the family of Saddar Din followed Shariat and that succession is to be regulated by Shariat. The evidence so led is not of much consequence in view of the following uncontrovertible facts emerging from the record. On the death of Saddar Din Mutation No,332, Exh.D.9, dated 6-5-1922 was sanctioned. The order sanctioning the mutation reads as under:-- {{URDU TEXT}}
8. The Revenue Officer sanctioning the Mutation in unequivocal terms observed that he fmds no cause/reason for depriving the widow of her right unncessarily and that if Noor Din desires to have the widow's name excluded he can do so by having her maintenance fixed from the Civil Court or he should obtain her consent. After making these observations he directed that the succession of Saddar Din is hereby sanctioned in the name of Noor Din his son to the extent of one half and in favour of Mst. Mehtab Bibi his widow to the extent of the other half. Thus, Mst. Mehtab Bibi succeeded to the half of the land left by Saddar Din as a widow of her deceased husband and not as stepmother of Noor Din in fulfilment of the obligation of the son to maintain his stepmother.
Moreover, neither Noor Din, till his death on 14th May, 1947, nor Siraj Din, his adopted son, in the lifetime of Mst. Mehtab Bibi, challenged the aforesaid mutation recognizing the right of the widow to succeed to one-half of the land left by Saddar Din. Again neither Noor Din nor Siraj Din ever instituted any proceedings for having the maintenance of Mst. Mehtab Bibi fixed either by the Revenue authorities or by the Civil Court. Thus, Mst. Mehtab Bibi right from 6th May, 1922, till her death on 11th April, 1950, remained in possession of the land in dispute as the widow of Saddar Din.
The interest so held even if Saddar Din was governed under custom has to be treated as that of a limited owner. This interest in the circumstances cannot be equated with the interest of a mere maintenance holder. The emphasis of the learned counsel on the statement of Mst. Mehtab Bibi that on the death of Saddar Din his property went to Noor Din, who was her stepson, and that Noor Din had given her some land for maintenance and that that very land which was given to her for maintenance was gifted by her in favour of Mst. Hamida Begum, her daughter, appearing in her cross-examination, cannot be given much weight as she being a rustic lady could not understand the import of the questions put to her. She cannot be deprived of the rights which came to vest in her under the mutation and in view of the persistent conduct of Noor Din and Siraj Din extending over a period of more than 28 yeaRs, The policy of the law is to afford protection to the rights of the females rather than destroying them on flimsy grounds. In this respect reliance may be placed on the weighty observations of the learned Chief Justice in Ghulam Ali v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1).
9. In view of the features noted above the reliance of the learned counsel for the petitioner on the case of Muhammad Iqbal v. Durab Khan (1976 SCMR 149) is inapt. The principle that an issueless widow only gets maintenance out of the estate of the male proprietor having male descendants though is based on custom and has the support of precedents but it is not a rule of universal application as the question whether a widow succeeded as a limited owner or got some land for her maintenance is essentially a question of fact which will have to be answered in each case on the basis of evidence produced and the circumstances emerging from the record of that very case. In the instant case Mst. Mehtab Bibi inherited one-half of the land left by her deceased husband as a widow. The mutation so recognising her right to succeed was sanctioned and the same was not challenged firstly by Noor Din in his lifetime and then by Siraj Din, the adopted son, throughout the lifetime of Mst. Mehtab Bibi.
10. The widow so succeeding in the presence of a son from the other wife, was given one-half of the land left by the husband by way of inheritance and not in lieu of maintenance. In similar circumstances the same conclusion was reached in the case of Ghulam Akbar v. Mst. Irshad Begum (PLD 1963 SC 543). It was held in this precedent after referring to pages 322, 323 of Rattigan's Digest of Customary Law, 13th Edition by Om Parkash Aggarwalla, that the general custom does not rule out entirely the possibility of her being allowed a share in the property as is evidenced by instances collected in Rattigan's Digest. This is what appears to have happened in the present case.
11. Mst. Mehtab Bibi, the widow, was thus holding the land in the capacity of the limited owner and as such section 3 of the Muslim Personal Law (Shariat) Application Act, 1948, would squarely apply.
Siraj Din being an adopted son will not be entitled to any share in the property in dispute as Sharia does not recognise adoption. On the death of Mst. Mehtab Bibi, her life interest would terminate and in view of section 3 of the Muslim Personal Law (Shariat) Application Act, 1948, 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) Application Act been applicable at the time of such death, would be entitled to succeed. The net result would be that Siraj Din who is adopted son would not be entitled to succeed as Sharia does not recognise adoption of a son by a Muslim. It may also be added that after the enforcement of Muslim Personal Law (Shariat) Application Act, 1948, the females holding property under custom are being deemed to be holding the same as limited owneRs, This is trend of the authorities since 1988, see Mst. Sunar Begum v. Federal Government of Pakistan (PLD 1988 FSC 1) wherein the view taken in Nawab v. Muhammad Fazil (PLD 1964 Lah.
334) was dissented from. To same effect are the observations recorded in Muhammad Qasim Khan v Mst. Mehbooba (1991 SCMR 515).
12. In view of the above it is apparent that Siraj Din petitioner cannot claim any right in the land in dispute. No justifiable exception can be taken to the finding returned by the learned Courts below.
This revision petition, therefore, fails and is dismissed. The parties are, however, left to bear their own costs.