' The facts of the case lie in a very narrow campus. Fazal Din was the original owner of the suit land who died in 1924. He had two wives namely Mst. Bhahishtan, the mother of Abdul Haq, the father of Muhammad Amir appellant, and. Mst. Ghulam Fatima, the mother of Mst. Noor Begum defendant/respondent and Noor Ahmad. Before marriage with Fazal Din, Mst. Fatima was the wife of Nizam Din. From the loins of Nizam Din she had two sons namely Ramzan defendant and Ahmad Din, the predecessor-in-interest of Qasim, Khadim, Aziz Begum and Kaneez Begum, the sons and daughters and Mst. Zahra, the widow, and a daughter Mst. Gaman Bibi respondent.
2. On the death of Fazal Din in the year 1924, the land devolved upon his son Noor Ahmad. He also died in the year 1925. On his death the land was mutated under custom in favour of the mother Mst.
Ghulam Fatima.
3. With the coming into force of the West Pakistan Muslim Personal Law (Shariat Application) Act, 1962, Mst. Gaman etc. Plaintiffs/respondents claiming to be the uterine brothers and sisters of Noor Ahmad filed the suit for declaration and possession with respect to their share which was contested and the following two preliminary issues were settled:--
(1) Whether the suit is barred on the principle of res judicata?
(2) Relief.
' The above issues were answered against the defendants vide order dated 27-11-1965 and the following issues on merits were settled:-
(1) Whether the suit property has been properly described.
(2) Whether the plaintiffs are entitled to share from the suit land? If so to what extent?
(3) Relief.
' Before the learned Civil Judge, issue No,1 was not pressed and on issue No,2 he concluded that on the termination of the life estate of Mst. Ghulam Fatima, the succession would open as if Noor Ahmad had died, so Mst. Ghulam Fatima would get 1/6 as mother, the uterine brothers and sisters of Noor Ahmad i,e, the plaintiffs would get 1/6, Mst. Noor Begum as a sister of Noor Ahmad would get 1/2 and the residue i,e, 1/6 would go to Muhammad Amir. In appeal the learned Distt. Judge concluded that there being more than ope uterine brothers and sisters to Noor Ahmad, they (uterine brothers and sisters) would get 1/3. He, however, maintained the shares of the mother i,e, Mst. Ghulam Fatima and the sister i,e, Mst. Noor Begum. This exhausted the whole of the estate, no residue was left for Muhammad Amir.
4. Thus Muhammad Amir has felt aggrieved and has come up in second appeal.
5. Learned counsel for the appellant tried to argue that under custom Mst. Ghulam Fatima was holding as widow of Fazal Din and not as mother of Noor Ahmad and thus after the Act of 1962, the estate would open as that of Fazal Din and not of Noor Ahmad. But when confronted with the dictum laid down in Mst. Bona's case PLD 1965 SC 33 he frankly conceded the legal position that the estate would be considered as that of Noor Ahmad, the last full owner and would open as such. He also frankly conceded that the shares worked out by the learned Addl. Distt. Judge were correct.
6. He, however, further raised the plea that the preliminary issue as to res judicata to the extent of Ramzan respondent required reconsideration. The learned counsel for the respondents pointed out that in the previous case, filed by Muhammad Amir and Noor Begum, the gift made by Mst. Fatima in favour of Ramzan was challenged being violative of custom, thus, according to him, the cause of action in the previous suit was entirely different than the one in the present suit. He also correctly pointed out that in that case all the parties to the present suit were not the parties. The principle of res judicata has therefore, no application.
7. Learned counsel for the appellant lastly contended that on the death of Noor Ahmad in the year 1925, under custom then prevalent, Muhammad Amir, the collateral, was the real owner while Mst.
Fatima as the mother of Noor Ahmad was only entitled to hold the estate for maintenance. His argument was valid if the customary law had been in the field. But to his misfortune the Muslim Personal Law (Shariat Application) Act opens the estate of the last full owner and from that angle the case has been properly appreciated by the two Courts below. No share falls for Muhammad Amir.
8. The upshot is that the appeal fails but in view of the complicated nature of the question involved, the parties are left to bear their own costs.