1. ' WALI MUHAMMAD KHAN, J.---Through the instant appeal, the appellants have challenged the judgment, dated 15-1-1991 of the Lahore High Court, whereby the Letters Patent Appeal filed by the respondents was accepted.
2. ' The facts of the case forming the background of the controversy , between the parties is that one Bhaga was the original owner of the suit land. He died issueless in 1918 leaving behind Mst. Fateh Bibi defendant No,2 his wife, who inherited his property as a limited owner according to the custom prevalent at that time. She gifted 201 kanals 11 marlas out of the suit land in favour of Suba, defendant No,1/predecessor-in-interest of the appellants,,,vide Mutation No,.369 attested on 12-12- 1960. The same was challenged by Noor Muhammad and others collaterals of Bhaga, the last male owner, on the ground that Mst. Fateh Bibi defendant No,2 being a limited owner was legally not competent to alienate the suit property in any way and that consequently the transaction embodied in Mutation No,369 is void and ineffective against their rights. The suit was contested by Suba defendant No,1, the transferee, as well as by -Mst. Fateh Bibi defendant No,2. The learned trial Judge who was seized of the case, vide his judgment and decree, dated 30-3-1965 decreesd the suit to the extent. Of 3/4th share to which reversionaries were entitled under the Muhammadan Law and dismissed the suit regarding 1/4th share, which was the Shari share of Mst. Fateh Bibi being the widow of last full owner and to that extent the transfer in favour of Suba defendant No,1 was held as valid. An appeal was filed against it which was heard by Additional District Judge, Lahore and he, vide his order, dated 15-5-1969, remanded the case to the lower Court under section 151, C.P.C. With a direction to frame necessary issues as to who were the heirs of the last Tull owner and their respective Shari shares. However, the same was challenged through Regular Second Appeal before the Lahore High Court by the plaintiffs which was heard by a learned Single Judge and he, vide his order, dated 11-10-1971, held the transfer to the extent of 1/4th share only being the Shari share of Mst. Fateh Bibi transferor as valid and declared the transfer with regard to the remaining area as void and in consequence dismissed the appeal holding the plaintiffs/reversionaries as owners of 3/4th share in the estate of Bhaga and declared the alienation to that extent as ineffective on their rights. However, the transaction to the extent of 1/4th share was held as valid. This gave rise to the filing of the Letters Patent Appeal filed by Mst. Fatima Bibi and others legal representatives of Mst. Fateh Bibi defendant No,2 who had died in the meantime and they had ,been brought on the record as her legal representatives. A Division Bench of the Lahore High Court, vide their judgment, dated 15-1-1991, accepted the same and declared the appellants before them viz., Mst. Fatima Bibi and other legal representatives of Mst. Fateh Bibi as owners of the 1/4th share of Mst. Fateh Bibi and the gift mutation in favour ofSuba was held as void in toto. Hence the instant direct appeal.
3. ' We have heard Shaikh Maqbool Ahmad, Advocate, for the appellants and have perused the record of the case. The learned counsel for the appellants submitted that Mst. Fateh Bibi donor was alive at the time of the termination of her limited estate on the promulgation of West Pakistan Muslim Personal (Shariat) Application Act, 1962 and Suba predecessor-in-interest of the appellants was within his right to lay hand on the 1/4th share being inherited by her; moreso, when she herself, in her written statement claimed herself to be a full owner of the suit property and admitted the factum of gift in favour of Suba defendant No,1. According to him, Mst. Fatima Bibi and others legal representatives of Mst. Fateh Bibi defendant No,2 could not set up a case inconsistent with the one set up by their predecessor-in-interest and the learned High Court erred in holding in the Letter Patent Appeal that the gift Mutation was void in toto and that they were owners of the Shari share inherited by Mst. Fateh Bibi. The appellants had not challenged the finding of learned Single Judge whereby Noor Muhammad and others reversionaries had been held entitled to 3/4th share and the mutation annulled to that extent, as such, the finding of the learned Single Judge to that extent has become final. The only question requiring determination in the instant appeal therefore, is as to who are entitled to 1/4th share i.e,, Suba predecessor-in-interest as transferee from Mst. Fateh 'Bibi vide Mutation No, 369 attested on 12-12-1960 or Mst. Fatima Bibi and others heirs df Mst. Fateh Bibi defendant No,2. There is no dispute between the parties that at the time of death of Bhaga custom was the rule of inheritance under which females did not inherit absolute ownership A but in certain situations viz., in the absence of male lineal decendant, widows and unmarried daughters succeeded to the estate as limited owners only to enjoy the usufruct of the property till life, marriage or remarriage and the ownership used to vest in the reversioners of the last full owner. In the case in hand too, Mst. Fateh Bibi defendant No,2 succeeded to the property as life estate owner and was not competent to alienate the property in favour of anybody and consequently the gift made by her vide Mutation No,369 was invalid.
4. ' On the enforcement of West Punjab Muslim Personal Law. (Shariat) Application Act, 1948, the law of inheritance, then prevalent, underwent a change and under section 2 of the Act ibid it was provided that notwithstanding any rule of 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, legacies, gifts, religious usages or institutions including waqfs, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims. Obviously, this provision was for succession of Muslim owners who were to die after the enforcement of this Act.
5. Conscious of the existence of the limited estates, the legislature made provision for the devolution of property held by Muslim female limited owner by enacting section 3 thereof and it would be .Profitable to reproduce the same:--- "Section 3. In respect of immovable property held by a Muslim female as a limited owner wider 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 terminated because of death," #TBS [Vol. XXV #TBE ' Since there were different laws in force in the different provinces of West Pakistan, a consolidated law known as West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (West Pakistan Act V of 1962) was promulgated on 31st December, 1962, section 2 whereof is the reproduction of section 2 of Punjab Act ibid. However, under section 3 of the same, the limited estates held by Muslim females under the Customary Law were terminated and section 5 thereof prescribed the procedure for the devolution of property on the termination of such estate more or less in the same manner as was provided under section 3 of the West Punjab Act.
6. According to the above provisions, on the termination of the limited interest of the female, the property is to be considered as the ownership of the last full owner and shall devolve upon his Shari heirs alive at the time of his death and if anyone of such heirs has died prior to the termination of the limited estate his heirs shall also get the share to which their predecessor would have been entitled if alive. Accordingly, the limited owners were also held entitled to their Shari share whether alive or dead. Obviously, Mst. Fateh Bibi defendant No,2 the predecessor of the respondents was entitled to inherit her husband to the extent of 1/4 share and she was held entitled to it by the lower Courts.
7. ' The provisions of the aforementioned Statutes with regard to its prospective or retrospective operation and the effect of alienation made by limited owners during the continuance of limited estate after its termination, came up for consideration and it has been the consistent view of this Court that they as well as the N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1962, as amended from time to time, operate retrospectively and that whenever a question relating the succession of a Muslim arises in any Court the rule of decision shall be the Muslim Personal Law (Shariat). Some of the cases decided in this respect by this Court are being quoted for convenience sake.
8. ' In case Said v. Fazal Hussain PLD 1959 SC (Pak) 356 when the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 had not yet been promulgated and the limited estate held by a female had not yet been terminated, the alienation made by the limited owner was contested by the reversioners through a declaratory suit and on objection made by the opposite side that the suit being premature and the plaintiff having no locus standi it was observed:-- "The argument is in our opinion, unsound. The position in this regard, was examined by this Court in Abdullah v. Mst. Bakhto Mai PLD 1956 SC (Pak.) 321 and the right of the reversioners of the last male owner of agricultural property to obtain a declaration under S.42 of the Specific Relief Act, that an alienation made by his widow, while holding the property under custom, would not affect their right to succeed under Muslim Law, on the termination of her limited interest, by virute of Punjab Act IX of 1948, was expressly upheld. It was pointed out in that case that while the powers of a limited owner holding under custom, to alienate property, are still goveined by custom the rule governing succession to the property on the termination of the limited estate, has ceased to be a rule of custom and by statute has been replaced by the Muslim Personal Law.
9. ' Eventual Muslim Law heirs have therefore, remedy by way of declaratory suit to safeguard their contingent interests, and it follows that they would be competent to sue for possession after the estate of the last holder under custom terminates and to canvass the validity of any alienation made by the last holder on ground incidental to the law that governed the latter, in the course of such suit."
10. ' As regards the alienations made by the limited female-holder through sale before the termination of life estate, it was observed:-- "Mr. Jaffery stressed the. First part of the section which declares that on the termination of the limited interest held by a Muslim female, succession shall be deemed to open out to all persons who would have been entitled to inherit under the Muslim Law at the time the last full owner died and argued that in the present case Mst. Sabhrai, as mother of Hayat would be included among these heirs. Learned counsel then invoked the provisions of S.43 of the Transfer of Property Act and pressed in aid the principle of "feeding the estoppel" to support his contention that the alienees from Mst. Sabhrai were entitled to retain at least the share of the property that would have fallen to her. This argument would have had force if instead of the notional inheritance envisaged in the first part of S. 3 of the Act, Mst. Sabhrai had actually succeeded to .a share in the property as she would have done if her limited interest had terminated otherwise than by her own death. In the present circumstances the proviso to the section applies in full force and it enacts that in case her limited interest terminates because of her death, the share which she would have otherwise inherited shall devolve on her heirs under the Muslim Personal Law. It is plain that she herself never, became vested with full onwership in any part of the property, on the facts of this case. The formula contained in the section would seem to be designed to discover the person or persons who should take the property in such a contingency and the mere notional inheritance by her after her death; even if it could be spelt out of the first part of the section, would be too slender a basis for the eguitable doctrine contended for, to apply to the facts of the case. The result in our view is that no part of the property can be retained by the alienees and that they are merely entitled to reimbursement to the extent to Rs,2,400, the legally supportable part of the consideration of the sale in their favour, before they are asked to surrender the subject. Of that sale to the heirs at law. It may be mentioned that the concurrent finding of the Courts below that the alienation was supported by consideration and necessity to the extent of Rs,2,400 only was not seriously challenged before us."
11. ' In case Muzaffar Khan v. Roshan Jan PLD 1984 SC 394 pertaining to the area forming part of the N.- W.F.P. After reviewing the case-law and the amendment in section 2 of Act, 1962, under the command of Shariat Appellate Bench of this Court in 1983 it was held that N.-W.F.P. Act, 1935 is to be given retrospective effect and that whenever a dispute comes to the Court of law with regard to succession in respect of a Muslim deceased, he will be deemed to have died under the domain of Muslim Law, even if the death had taken place before coming into force of the N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935.
12. ' The points cropped up in civil Appeals Nos.144 and 159 of 1972, and 48 and 95 of 1973, were more or less, of the same nature and were decided through single judgment dated 22-5-1985. PLD 1985 SC 407 in which the implication of section 2-A added vide amendment Order XIII of 1983 by the Punjab Muslim Personal Law (Shariat) Act and other allied matters were thoroughly thrashed out, considered and decided upon. In Civil Appeal No,159 of 1972, referred to as Appeal No,2 in this judgment, the question of alienation through gift by the limited owner, namely, Mst. Phapho Bibi in favour of her daughters Mst. Zenab Bibi and Mst. Shakran Bibi regarding 1/2 of the land left by Taj Muhammad deceased was also adjudicated upon. The conclusions arrived at by the learned Judges in this respect are contained in page 427 of the judgment and the verdicts of the Court are at page 429 which are to the following effect:-- "Appeal No,2. This appeal is by two daughters of the last male owner in the case--Taj Muhammad.
13. A gift of agricultural land was made in their favour by their mother, a widow of Taj Muhammad in 1953. Taj Muhammad had acquired the land under Custom before. 15th March, 1948. His widow the donor in this case died soon after the said gift in 1953. Musa the predecessor-in-interest of the respondents a reversioner of Taj Muhammad challenged this alienation (made by way of gift) by the widow in favour of the daughters). He succeeeded in obtaining the decree for annulment of the alienation on the usual ground of restrictions on alienations by female limited holder. The two points noted in the leave granting order are of not much relevance now on account of the change in law as discussed earlier. By virtue of section 2-A as interpreted above Taj Muhammad would be deemed to have inherited the land under Muslim (Shariat) Law and would be deemed to be its full owner. On widow's death in 1953, the estate would have (and did) devolved, straightway on Muslim heirs of Taj Muhammad under the the then existing law namely, Act IX of 1948. The two appellants would have, together with their other sisters, inherited two-third as heirs of their father Taj Muhammad because there Was no male issue. They together with their other sisters would also have inherited their share which on widow's death would devolve on them as her heirs out of her Muslim Law share as widow'. It is true that only 1/2 share of the estate left by Taj Muhammad was brought under present litigation by Musa respondent/plaintiff and the remaining half is not the subject-matter .Of this suit. But it cannot be said that the said half appertains to what is now "past and closed transaction" because proviso to sub-clause (c) of section 2-A makes transaction past and closed only if the possession of such land has already been delivered under such decree. The other half which was not the subject-matter of this litigation was not distributed under any decree therefore for the purpose of the determination of due shares in this appeals one-half of Taj Muhammad's land, which only was the subject-matter of the suit in the present proceedings, can be treated as available in its entirety for distribution of total share of the present two appellants in the entire land. It is true that they have two other sisters; but the one-half of the entire land has already gone to the said two other sisters. Therefore, the land in dispute -(or the other half of the entire land) would be available to satisfy the claim of the appellants as the Shariat Law heirs of Taj Muhammad as also of their mother's share under the Muslim (Shariat) Law, from Taj Muhammad's property. The appeal is allowed in these terms. The actual distribution in accordance with his decision shall be made by the Revenue Authorities through a proper mutation. The two other sisters of the appellants who have already obtained half of the land would not again obtain their share from the land in .Dispute in this appeal.
14. ' Appeal No,2 is allowed in the terms stated above under the relevant heading i.e, "Appeal No,2" (at pages 35/36). The actual distribution in accordance with the said decision shall now be made through proper mutation by the Revenue Authorities. There shall be no order as to costs."
15. ' The dictum contained in above judgment have been followed subsequently in cases Mst. Farida v.
16. Rehmatullah PLD 1991 SC 213; Lal v. Rahmat Bibi PLD 1991 SC 582; Ilam Din v. Muhammad Ishaque 1991 SCM R 1911 and Sultan Ibrahim v. Muhammad Hayat 1991 SCM R 2050.
17. ' In the case in hand the appellants being the heirs of Suba, in whose favour Mst. Fateh Bibi had made a gift during subsistence of the limited ,estate, claimed the 1/4 share presumably under the principle of feeding the estoppel as contained in section 43 of the Transfer of Property Act and section 115 of the Evidence Act. Both these provisions are quoted below for ready reference:-- "Section 43. Transfer by unauthorised person who subsequently acquires interest in property transferred.---Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any, time during which the contract of transfer subsists.
18. ' Nothing in-this section. Shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."
19. "115. Estoppel.--When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
20. Illustration: A intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it.
21. ' The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title."
22. (Since repealed substituted by Article 114 of the Qanun-e-Shahadat Order, 1985).
23. To attract the 'equitable principle of section 43 of the Transfer of Property Act it is essential that the transferor must have fraudulently or erroneously represented himself to be authorised to transfer the property and acting on such representation, the transferee must have acquired the property for consideration in order to retain the same on the transferor's subsequently acquiring ownership rights in the property, while according to the principle of estoppel as contained in section 115 of the Evidence Act substituted by Article 114 of the Qanun-e-Shahadat if the transferor by his declaration, act or omission causes another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. The illustration appended covered alienation through sale of property by transferor to the transferee which presupposes the payment of cash consideration. On the touchstone of the ingredients of above sections, it is to be determined whether the transferee Suba defendant-1 is entitled to retain the property on the principle of feeding the estoppel as against the Shari heirs of Mst. Fateh Bibi or whether they are estopped under section 115 of the Evidence Act (Article 114 of the Qanun-e-Shahadat) to den" y the gift in favour of Suba. The answer is no. Mst. Fateh Bibi was a limited owner to the knowledge of Suba and she could not legally transfer ownership rights which she herself did not possess at the time of the gift. At the most, the transfer could only be deemed to the extent of limited interest viz., enjoyment of property till the termination of the limited estate and no more.
24. ' It was additionally contended that Mst. Fateh Bibi after the termination of her life estate has during the course of instant proceedings claimed the full ownership in .The suit property and in that capacity gifted the suit land in favour of Suba their predecessor-in-interest and as such the equitable principle of section 43 of the Transfer of Property Act wag squarely attracted to their case. This contention has no force because her claim to full ownership was negatived by the Courts below which has attained fmality because the appellant and their sucesssors have not challenged the said finding before the lower forums or the High Court and Mst. Fateh Bibi having been adjudged as limited owner could not legally gift away the proprietary rights in the suit land which.Are legally vested in the reversioners. The transfer through Mutation No,369 being a gratuitous one neither the principle of feeding the estoppel nor those of estoppel under section 115 of the Evidence Act (Article 114 of the Qanun-e-Shahadat) could be pressed into service by the appellants. Consequently, the finding of the High Couret holding Mst. Fatima Bibi and others legal representatives of Mst. Fateh Bibi entitled to inherit 1/4 share of Mst. Fateh Bibi in'the estate of her husband Bhaga and declaring gift made by Mst. Fateh Bibi defendant No,2 in favour of Suba predecessor-ininterest of the appellants totally invalid, does not suffer from any legal infirmity to call for intereference by this Court.
25. ' Finding no merit in the instant appeal, the same is dismissed with no order as to costs.