1. ' Zamin All Shah, and Taj Ali Shah were real brotheRs, They jointly owned lands in revenue estates of Babu Sabu and Shera Kot of Tehsil and District Lahore. In revenue estate Babu Sabu, they owned 78 Kanals 18 Marlas of land, whereas in Shera Kot 1 Kanal and 14 Marlas only. Each held a half share in the joint land. Taj All Shah died on 12-2-1948. He was survived by a widow Mst. Wazir Begum, two daughters, namely, Mst. Ghulam Sakina and Mst. Balqees Zohra and a real brother Zamin Ali Shah.
2. By inheritance Mutation No,392 sanctioned on 11-6-1958, Revenue Officer distributed his land situated in Shera Kot in favour of his widow and two daughters in proportions of 1/8th and 2/3rd respectively. Mst. Wazir Begum died on 29-5-1965. Revenue Officer, by Mutation No,516 mutated the land of Taj Ali Shah in her name. Zamin Ali Shah filed two appeals before Collector, Lahore, against orders passed on inheritance Mutations Nos,392 and 516. On 18-6-1966, appeal was allowed in respect of Mutation No,516 and the case remanded with a direction that missing Khatas relating to the land held by Taj Ali Shah deceased in village Shera Kot should be added to the Khata already entered in the inheritance mutation by a separate order. With regard to inheritance Mutation No,392, no interference was made. In post-remand, by entry of a fresh Mutation No,628 sanctioned on 28-6-1971, the Revenue Officer mutated the omitted Khata of the land in favour of the widow and two daughters of the deceased on the lines indicated in the inheritance Mutation No,392 already sanctioned on 11-6-1958. Zamin All Shah died on 24-6-1968. Plaintiffs are his successoRs, They brought a suit on 29-7-1971 against the daughters of the deceased Taj All Shah and claimed whole of the land left by him in the revenue estate of Shera Kot. It was stated that deceased was governed by custom and on his death on 12-2-1948, when custom ruled the field, Zamin All Shah as sole surviving brother was entitled to inherit his land to the exclusion of his widow, and daughteRs, ' Defendants submitted a joint defence, They took up three preliminary objections to the suit. It was stated by them that the suit was not maintainable in its present form; that it was barred by res judicata; that it was barred by limitation. On merits; it was submitted that in regard to his agricultural land, deceased was governed by custom in matters of its alienation and succession, but with regard to the suit property which did not bear agricultural character, he was ruled by Shariat Application Act of 1937. It was further submitted that deceased professed Shia faith, and, his brother under that system of law could not share inheritance in presence of a widow and two daughteRs, It was also submitted that previous judgments rendered by the Courts between the same parties in regard to the land left by deceased in the revenue estate Babu Sabu operated as res judicata between them.
3. ' On 17-2-1972, the trial Court framed as many as nine issues including that of relief. These issues are:--
(1) Whether the suit is not maintainable in its present form. If so, its effect? OPD.
(2) Whether the suit is barred by res judicata. If so, its effect? OPD.
(3) Whether the suit is barred by time? OPD.
(4) Whether no mutation was sanctioned in the name of the widow Wazir Begum as life estate during her lifetime. If so, its effect? OPP.
(5) Whether the widow ever waived her right available to her under the customary law. If so, its effect? OPP.
(6) Whether the suit property contains houses and is not agricultural land. If so, its effect? OPD.
(7) Whether the plaintiffs are entitled to inheritance of Taj Ali Shah deceased under customary law.
4. If so, to what extent and its effect? OPP.
(8) Whether mutation of life estate can again be sanctioned in the name of the widow after the death of the widow and the application of-Shariat Act, 1948. If so, its effect? OPP.
(9) Relief.
5. ' Parties gave evidence in support of the issues. Their evidence consisted of oral statements and number of documents. Trial Court separated issue No,2 for its decision first and held that suit was barred by res judicata and, dismissed it on 21-9-1974. Plaintiffs filed an appeal. It came to be heard by an Additional District Judge who did not agree with the trial Court on the application of res judicata and on 9-4-1978, after setting aside its judgment and decree remanded the suit for deciding of it on merits. Against the remand, defendants came up in appeal to this Court. It was admitted on 2-7-1978.
6. ' Upon hearing the learned counsel and examination of the record, in my view, the fate of the suit and the appeal was effectively sealed by a binding determination given in the previous suit between the parties. In Suit No,266/1 of 1966, fought out on merits between the parties in respect of the land left by deceased Taj All Shah in revenue estate Babu Sabu, the trial Court decided on 24- 114969 that the deceased was Shiite and the plaintiffs as successors of his deceased brother were not entitled to take any share in the land left by him. Judgment and decree of the trial Court are Exhs.D1 and D2. Copy of the plaint in that suit is Exh.D4. Appeal filed against the decree of the trial Court was dismissed on 4-12-1970. Judgment given in appeal is Exh.D5. Second appeal registered as RSA No,21/71 filed in the High Court was dismissed on 2-3-1971 in limine by late Mr. Justice Ghulam Safdar Shah as his Lordship then was in the High Court. The judgment of the High Court is Exh.D2 on record. In it, the High Court observed:-- "In regard to the merits of he case, the only question involved in this appeal is whether late Taj Ali Shah had died as Shia? The impugned judgment of the first appellate Court shows that the respondent had produced a number of witnesses to prove that Taj All Shah was born as Shia, lived his life as Shia, all his relatives were Shia, died as Shia and was buried in the graveyard of the Shia Community. As against this the appellant examined himself and produced 8 witnesses. In cross- examination he admitted that his father Zamin Ali Shah was a Shia but his uncle Taj Ali Shah was Sunni as he used to offer his prayers in the form which is observed by Sunnis. He further stated that Taj Ali Shah after his death was buried in Sunni graveyard and his Janaza was also performed by a Sunni Imam. He further stated that since he came of age he found his own father practising Shia faith but he pleaded ignorance whether his father was born as Shia. He also stated that when Taj Ali Shah was placed in his grave his shoulders were shaken according to the Shia custom. He went on to state that the son-in-law of late Taj Ali Shah was Shia, his own wife was a Shia and so was the brother of his wife. This being the evidence on record I do not see as to how could it be ever contended that the concurrent finding of the two Courts below that Taj All Shah had died as Shia was perverse and, therefore, open to question. On the contrary, I agree with these findings, based as they are upon the evidence produced by the parties, which were properly analysed."
7. ' Seen from the judgment of the High Court rendered in previous litigation between the parties, it was clearly established that deceased Taj All Shah professed Shia faith, and, his brother in presence of his widow and daughters was not entitled to share his property. Basis of the previous suit like the present was application of custom to the succession of the land/property of deceased Taj Ali Shah. It was not denied, and, in fact it could not, in view of the case set up in the plaint that the deceased was governed by custom. It was admitted that deceased was survived by a widow and two daughteRs, Under customary law, a widow is entitled to succeed to the property of her husband on a usual life tenure and this must have happened in this case also, absence of a mutation notwithstanding. The widow died on 29-5-1965. But before that event, Act V of 1962 had taken the field which terminated life estates held by females for opening out of succession and distribution in accordance with section 3 of the Act. As last male owner was Shia, his widow and daughters were his only heirs and his brother had no place in them. The matter can be looked at from another point also. By section 2-A inserted in West Pakistan Act V of 1962, by Ordinance XIII of 1983, by a fiction created by law, the deceased shall be deemed to have taken the land under Muslim Personal Law (Shariat). If his source of acquisition was Shariat, its devolution must also be governed under the same system of law. Therefore, the deceased being Shia, plaintiffs in presence of his widow and daughters could not succeed to him. In this view of the matter, appeal succeeds, and, is allowed with costs. Impugned order is set aside and the judgment and decree of the trial Court restored.