1. ' Civil second appeal from the judgments and decrees by the lower Courts related to a dispute about the inheritance to the land situated in revenue estate Hoseke in Tehsil Hafizabad of District Gujranwala. It was once owned by Bagga son of Pathana, Caste Jat Lodheka. He died in the year 1914. He had five sons, namely, Shahu, Shahshu, Bahawali, Jahana and Ali. Except for Jahana, his four sons had predeceased him. Shahu was survived by two sons namely, Hayat and Jalla. Shashu left behind sole son Mughla. Bahawali was survived by his son Hidayat only. Ali left no male issue.
2. He was survived by a daughter Mst. Fatima,, and, widow Mst. Bhakhan. By Mutation No,77 sanctioned on 7-7-1914, land owned by Bagga was distributed, a fifth share to each line of his sons.
3. Jahana was allotted 1/5th share; Hayat and Jalla were given 1/5th share; Mughla was allocated 1/5th; Hadayat 1/5th and the remainder 1/5th devolved upon Mst. Bhakhan as widow of Ali predeceased son of Bagga. Mughla breathed his last in the year 1918. His share of land was mutated in favour of his unmarried sister Mst. Rehmon, vide inheritance-Mutation No,96 sanctioned on 10-12-1918. She was married in the year about 1926-27. By Mutation No,6 attested on 11-5-1927, her estate was mutated between Hayat and Jalla 1/4th share, Jahana, Hidayat and Mst. Bhakhan 3/4th share equally. Thus, Mst. Bhakhan was further allocated 1/20th share in the estate as representative of her deceased husband. This brought her total share in the land 1/4th share.
4. Hidayat son of Bahawali died issueless in about the year 1931-32. His land devolved upon his surviving widow, namely, Mst. Fatima vide inheritance-Mutation No,37, Sanctioned on 25-4-1932.
5. Mst. Fatima re-married on 24-1-1937. Consequently, land standing in her name was distributed to Hayat, Jalla sons of Shahu 1/3rd, Jahana son of Bagga 1/3rd and Mst. Bhakhan remaining 1/3rd, vide inheritance Mutation No,82 dated 13-2-1937.
6. ' Mst. Bhakhan died on 5-12-1962. Her death preceded enforcement of Act V of 1962 on 31-12-1962.
7. By inhertance Mutation No,396 attested on 25-1-1963, land held by her was given in half share to her daughter Mst. Fatima, and, the other half to Ghulam Muhammad, Azam, and Hayat collaterals.
8. On appeal, inheritance-mutation was remanded by the Collector, Gujranwala, on 5-8-1963 for its re-decision. Remand order is however, not on file. On 28-10-1965, Revenue Officer found that Mst.
9. Fatima and Mst. Bhakhan being Shiites, land held by Mst. Bhakhan was mutated in the sole name of Mst. Fatima Bibi, No appeal from the inheritance-Mutation No,396 dated 28-10-1965 was preferred by either party. Instead, plaintiffs who are respondents in second appeal before this Court, instituted a civil suit against Mst. Fatima for claiming entire land held by Mst. Bhakhan. It was averred that Mst. Bhakhan was a mere maintenance holder of the land held by her; she had no transmissible rights in it for transfer to her personal heiRs, Main stay of the civil suit was that in terms of Rule of Custom governing the succession, Mst. Bhakhan was a maintenance holder and upon her demise, land owned by her shall be deemed to have reverted to the near collaterals of the last male-holdeRs, ' Mst. Fatima contested the suit. She submitted that in view of Shia Law of Inheritance, she was the sole heir to the land-in-dispute. It was controverted that Mst. Bhakhan was a maintenance holder of the estate. Full ownership was asserted for her.
10. ' Trial Court framed necessary issues. These are found in its judgment and need not be reproduced for reference. Upon taking of evidence from the parties and its review, the trial Court decreed the suit, in favour of the plaintiffs, on 23-9-1967. It was held that Mst. Bhakhan--widow of Ali held the estate as a maintenance-holder and upon her death, it reverted to the collaterals of the last male- holdeRs, ' Mst. Fatima preferred an appeal from the judgment of the trial Court. Appeal was dismissed on 7- 4-1981 and the conclusions arrived at by the trial Court were affirmed. Thereupon, Mst. Fatima took up the matter in second appeal to this Court. Appeal was admitted on 28-9-1981. It was heard yesterday and its hearing concluded today.
11. ' There was no dispute on facts and inter se relations between the parties. The dispute only centred around the status of Mst. Bhakhan and mode and manner of distribution of the estate held by her upon her demise. Respondents claimed that she held the maintenance-estate and upon her death, it reverted to them as successors of the last male-owneRs, Conversely, it was argued on behalf of the appellant that Mst. Bhakhan was full-fledged owner of the land and appellant as her daughter was her exclusive heir, under Shia Law of Inheritance. True decision of appeal lay mid- way. Initially, Bagga son of Pathana was the owner of the land-in-dispute. He belonged to a tribe of Jats Lodheka. In matters of alienation and succession, he was governed by custom. Upon his demise, his land was mutated in favour of his surviving living son, male progeny and a widow of predeceased sons. Each line was allocated a fifth share of his estate. Manner of devolution supported governance of succession by custom. Later mode of devolution gave further strength to it. Seen from the above, Mst. Bhakhan took '1/5th share in the land left by Bagga as widow of his son Ali; 1/20th share from the estate of Mughla and 1/12th share from that of Hidayat. Thus, she acquired land through three distinct sources, namely, Bagga, Mughla and Hidayat. Therefore, in accordance with section 3 of West Punjab Muslim Personal Law (Shariat) Application Act, 1948 (Act XI of 1948), heirs of these three persons are to be found out, in order to distribute their respective estates in accordance with Islamic Law of Inheritance. Above view was supported by cases reported in Muhammad Hussain and 3 others v. Alam Din and 5 others PLD 1955 Lahore 420 and Mst. Amiran and another v. Nadra and 2 others PLD 1958 (W.P.) Lahore 448. To the estate of Bagga, she succeeded as widow of predeceased son on the strength of rule of representation recognised under Customary Law and to the estates of Mughla and Hiydayat, she succeeded collaterally as a representative of her deceased husband. In the above circumstances there were three last male owners of the land-in-dispute namely, Bagga, Mughla and Hidayat. Appellant Mst. Fatima was real daughter of All who was predeceased son of Bagga. Mst. Bhakhan was her real mother. Succession to the estate of Mst. Bhakhan opened upon her death. Prior to it, section 4 of Muslim Family Laws Ordinance, 1961 had taken effect on 15th of July, 1961. It gave right of succession to the orphaned children of predeceased son and daughter of the prepositus. Therefore, Mst. Fatima daughter of Ali shall be entitled to inherit a share from 1/5th share taken by Mst. Bhakhan on the demise of Bagga.
12. Extent of her share was dependent upon the Personal Law governing the succession. She asserted that her forefathers professed Shia faith and under that system of law, she was an exclusive heir.
13. She may find a place in the line of heirship to the land taken by Mst. Bhakhan from Mughla and Hidayat also but since I propsose to remand the case, I shall not express on it and other related issues regarding the extent of heirship. It shall be advantageous to notice that insertion of section 2-A, in Act V of 1962 by West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 (Ordinance XIII of 1983) transformed the whole scenario. It substituted custom by Shariat retrospectively. Therefore, the land-in-dispute falling for distribution upon opening out of succession consequent upon the death of Mst. Bhakhan shall be divided in terms of Shariat Law supplemented by section 4 of Family Laws Ordinance, 1961, as interpreted in cases, Sardar v. Mst.
14. Nehmat Bi and 8 others 1992 SCMR 82, Mst. Qabal Jan v. Mst. Habab Jan and 9 others 1992 SCMR 935 and Mst. Fazal Nishan and others v. Ghulam Qadir and others 1992 SCMR 1773. Further, I had an occasion to comment on application of section 4 of the Family Laws Ordinance, 1961, in somewhat similar circumstances, in RSA No,1289 of 1970, decided on 10-10-1992 at Rawalpindi Bench of this Court. I gave expression to similar views on it in that appeal also. There was one more point to be noticed. Appellant had claimed inheritance under Shia Law. She gave evidence of it at the trial of the suit. Trial Court found against her and gave entire land-in-dispute to the plaintiffs under Rule of Custom governing the succession of the land held by Mst. Bhakhan. On appeal, the decision was maintained. Judgment in appeal laid incorrect factual foundation. Learned counsel were agreed on it. Before the lower appellate Court, appeal was mainly argued on issue No,5 only. Decision on sect was not agitated. Nor a decision was given on it, in appeal. In second appeal, the point was reagitated. It was argued that the learned lower Appellate Court wrongly assumed it not to have been urged for decision. Learned counsel for the respondents disputed the statement and argued that the statement about abandonment of the point was correct and could not be discredited.
15. There was no dispute that the point was of some importance and since the appeal was being decided on different premises, the lower appellate Court may not have attached much importance to it. Therefore, it required reconsideration by a final Court of fact.
16. ' There was not enough material on record to finally determine as to the heirs to the land-in- dispute and extent of their shares in it. Therefore, the matter required a remit for their determination. In view of aforesaid, appeal is allowed; impugned judgment and decree of learned Additional District Judge dated 7-4-1981 are set aside and the appeal is remanded to learned District Judge, Gujranwala, for its decision afresh in accordance with law and the observations made above. There shall be no order as to costs in this Court.
17. ' Records be returned to the Court below. Parties shall appear before it on 9-1-1993.