1. ' These are four connected Second Civil Appeals Nos, 1289, 1291, 1292 and 1310 of 1970. These arose from a common factual matrix and involved identical points of law for determination. Appeals raised a dispute about inheritance to the land left by Ghulam Muhammad, who was its last male owner. Therefore, it shall be convenient to deal with them in a common judgment, as was done in the lower Courts.
2. ' First, a brief reference to the facts giving rise to the litigation shall be helpful. Ghulam Muhammad, an Awan, resident of Pind-Sultani, in Tehsil Pindigheb owned land measuring 209 Kanals, 7 Marlas situated in revenue estate Pind-Sultani. In matters of alienation and succession to it, he was governed by agricultural custom. He died on 25-1-1938. At the time of his decease, he was survived by his widow Mst. Bhag Bhari, four daughters namely, Mst. Noor Jahan, Mst. Roshnai, Mst. Fazal Noor, Mst. Bakht Noor; Mst. Gahr Bano, a widow of his predeceased son Nawab Khan; Mst. Aisha daughter of another predeceased son Gulab Khan and two collaterals, namely, Mehr Khan and Noor Khan.
3. Two sons of the deceased, Nawab Khan and Gulab Khan, had predeceased him in his life. By inheritance-mutation No, 1050, sanctioned on 5-7-1938, land owned by the deceased was distributed equally to Mst. Bhag Bhari, Mst. Gahr Bano, and Mst. Aisha. Each female was allocated a third share in the estate of the propositus. Daughters of the deceased were excluded from the inheritance.
4. ' Mst. Bhag Bhari died on 14-12-1941. By inheritance-mutation No, 1575, attested on 9-2-1942, her share of land was mutated to Mst. Gahr BaNo, Mst. Aisha married sometime in the year 1941. Her 1/3rd share was also mutated in the name of Mst. Gahr Bano, vide Mutation No, 1574 sanctioned on 9-2-1942. Thus, the total estate of deceased Ghulam Muhammad vested in Mst. Gahr BaNo, ' By Mutation No, 3142, sanctioned on 3-5-1955, Mst. Gahr Bano gifted the total land held by her (K1s.209-M1s.7) to her grandson, Zamir Muhammad Khan. After donation, Mst. Gahr Bano died in the year 1967.
5. ' Three separate civil suits were instituted for claiming share in the land in dispute once owned by Ghulam Mushmmad and which in course of time had fallen to Mst. Gahr Bano and gifted by her to Zamir Muhammad Khan. Mst. Bakht Noor and Mst. Noor Jahan, daughters of deceased Ghulam Muhammad claimed 104 Kanals, 13 Marlas from the estate left by him and brought a civil suit for its possession, against Zamir Muhammad Khan, Mst. Roshnai and Ghulam Haider. Defendant Mst.
6. Roshnai was daughter of Ghulam Muhammad deceased and Ghulam Haider was son of Mst. Fazal Noor, another daughter of said Ghulam Muhammad. The suit was instituted on 6-7-1967.
7. ' Mst. Roshnai alongwith Ghulam Haider instituted a separate civil suit for possession of 139 Kanals, 12 Marlas, out of the land left by deceased Ghulam Muhammad. Mst. Noor Jahan daughter of Ghulam Muhammad, Zamir Muhammad Khan, Fateh Muhammad and Ahmad Khan were impleaded as defendants to this suit. The suit was instituted on 19-4-1969.
8. ' Fateh Khan with Ahmad Khan brought another suit for possession of the entire land onced owned by Ghulam Muhammad deceased (Kanal 209Marlas 7) against Zamir Muhammad Khan, Mst.
9. Bakht Noor, Mst. Noor Jahan, Mst. Roshnai and Ghulam Haider. They claimed preferential right of inheritance under custom, on the ground of being near collaterals of the deceased. The suit was instituted by them on 5-10-1967.
10. ' All the above three suits were consolidated for a joint trial by the trial Court. Common issues were settled at the consolidated trial. Upon review of evidence taken in the suits, the trial Court, on 6-2- 1970, decreed Suit No, 805 of 1967 for the total land to the collaterals--the plaintiffs of the suit, namely, Fateh Khan and Ahmad Khan. Other two suits by the female heirs were dismissed simultaneously by the same judgment. It was held that the land in dispute was ancestral; plaintiffs of Suit No, 805 of 1967 were 5th degree collaterals of the propositus, and, as such excluded his four daughters from inheriting him under custom; Mst.Gahr Bano was a mere maintenance-holder and adverse possession for acquiring full ownership rights in the land was not established. On the above legal premises, upon termination of the tenure of maintenance-holder, the land in dispute was deemed to have reverted to the deserving near collaterals who were entitled to it under rule of Custom.
11. ' Trial Court's decree was assailed in three separate appeals by the aggrieved parties. Appeal No, 62 of 1970, in Civil Suit No, 624 of 1967, was preferred by two daughters of the propositus, namely, Mst. Noor Jahan and Mst. Bakht Noor; Appeal No, 91 of 1970, in Civil Suit No, 317 of 1967, was lodged by Mst. Roshnai and Ghulam Haider, and Appeal No,77 of 1970, in Civil Suit No, 805 of 1967, was filed by Zamir Muhammad Khan. All the three appeals were heard together by learned District Judge of Attock. By a common judgment passed on 28-7-1970, appeal preferred by Zamir Muhammad Khan was dismissed and those filed by other appellants, namely, Mst. Noor Jahan with Mst. Bakht Noor and Mst. Roshnai with Ghulam Haider were allowed. It was found that Mst. Gahr Bano held the suit land as a limited owner. She put herself in possession of the land, in the first instance, to the extent of 1/3rd of share in 1938, and, remaining 2/3rd share as limited owner; adverse possession on the land held by her was not established to make her its full owner. Treating Mst. Gahr Bano as limited owner, succession was opened out upon her death in 1967 and the land held by her was distributed to Mst. Bagh Bhari widow--1/8th, four daughters of deceased Ghulam Muhammad--2/3rd and the remainder 5/24th share was allotted to two collaterals, namely, Noor Khan and Fateh Khan. Against this distribution of the land in dispute in the judgment of the lower Appellate Court, three Appeals Nos, 1289, 1291, 1292 of 1970 were preferred by Zamir Muhammad Khan and Appeal No, 1310 of 1970 was instituted by the two collaterals Fateh Khan and Ahmad Khan. These appeals were admitted to hearing on 6-4-1971. Zamir Muhammad Khan appellant was represented by Muhammad Munk Peracha, Advocate. Mian Inam-ul-Haq, Advocate represented Fateh Khan and Ahmad Khan appellants of Appeal No, 1310 of 1970. Respondents were assisted by Sh.Zamir Hussain, Advocate.
12. ' Seen in the above context, central point at issue in the appeals which shall govern course of distribution of the estate was the true status of the female heirs succeeeding to the deceased Ghulam Muhammad. There was no dispute that he was then governed by Customary Law and the land in his hands was of ancestral nature. It had come to him through inheritance from his forefatheRs, He died sonless. His two sons Nawab Khan and Gulab Khan had predeceased him.
13. Gulab Khan was survived by an unmarried daughter Mst. Aisha and Nawab Khan by a widow Mst.
14. Gahr BaNo, It was in evidence that Nawab Khan had also a daughter, Mst. Mehr Nishan. She was shown as such in the pedigree prepared on the plaint in the suit brought by Fateh Khan and Ahmad Khan. Further, Ghulam Muhammad was survived by four daughteRs, One of them, Mst.
15. Bakht Noor died during the trial of the suit. Upon demise of Ghulam Muhammad, his land was equally divided among three females, his widow; widow of a predeceased son and an unmarried daughter of a predeceased son. Upon death of his widow and marriage of Mst. Aisha, their share devolved upon the surviving widow of predeceased son namely, Mst. Gahr BaNo, Till, she donated the land to her grandson on 3-5-1955, she held it and upon her death, a dispute arose about the distribution of the estate of the propositus. There was no dispute that under Custom, the widow of a sonless proprietor succeeded to his estate as limited owner to hold it till her remarriage or death.
16. Therefore, Mst. Bhag Bhari succeeded as a limited owner. As for her this status, no dispute was expressed at the hearing. Disupte was with regard to the status of Mst. Aisha and Gahr BaNo, It was asserted by Mian Inam-ul-Haq, Advocate that they were mere maintenance-holders and upon termination of this tenure, the land held by them shall be deemed to have reverted to the surviving near collaterals who, but for the interposition of maintenance estates, were entitled to it under the then prevailing rule of custom. In this behalf, cases in Nawab and others v. Muhammad Fazil and another PLD 1964 (W.P.) Lahore 334, Mst. Bakht Bano and another v. Allah Yar and others 1986 SCM R 1483 were relied upon. Rule laid down in the cases relied upon was dstinguishable. Here the sons of the propositus had predeceased him. Principle of representation was sanctioned by custom. Sex was not a bar to its application. Therefore, Mst. Aisha represented her deceased father for getting the share from the land of her paternal-grandfather. Similarly, Mst. Gahr Bano as a representative of her deceased husband took a thrid share in it. None objected to this mode of devolution. Initial succession and subsequent devolutions were never questioned. Had Mst. Aisha been a mere maintenance-holder, upon her marriage, her share would have taken a different course. Similar comments shall attract to the estate held by Mst. Bhag Bhari. Devolution of 2/3rd share upon Mst.
17. Gahr Bano reinforced the status of previous holders as limited owners of the land and gave strength to the status of Mst. Gahr Bano being a limited estate-holder. While in possession of the estate in the above capacity, she could not make a gift of it. Therefore, transfer of the land by her through a gift to Zamir Muhammad Khan was void and did not bind the estate. Having held that Mst. Bhag Bhari, Mst. Aisha and Mst. Gahr Bano were limited owners, succession shall be deemed to have opened out on the termination of life estate held by Mst. Gahr Bano, on 3Ist December, 1962, in terms of section 3 of Act V of 1962. Prior to the termination of life estate and opening out of succession, Muslim Family Laws Ordinance, 1961, came in force on 15th July, 1961. Section 4 of the Ordinance created a legal fiction for benefiting the hitherto deprived class of heirs, who independent of it were excluded from inheritance on rule of propinquity of relationship. Section 2 of Act V of 1962, operated subject to the legislative rule in section 4 of Muslim Family Laws Ordinance, 1961. It gave right to the children of predeceased son or daughter for inheriting the property of the propositus in the same manner as if their predecessor predeceased son or daughter was alive at the time of opening out of succession. There was yet another legislative development in section 2- A inserted in Act V of 1962 by Punjab Ordinance XIII of 1983 on 1st August, 1983. It retrospectively replaced custom by Muslim Personal Law. It virtually uprooted Customary Law with all its ramifications. Section 2-A commenced with a non obstante clause and provided that a male heir acquiring agricultural land under custom prior to commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, from the person who at the time of such acquisition was a Muslim shall be deemed to have become its absolute owner, as if it had devolved upon him under the Muslim Personal Law (Shariat). Though, actual devolution took place under Custom, yet by fiction of law it shall be deemed to have occurred under Muslim Law (Shariat). Result of it would be that the distribution of the land left by the last male owner shall be divided in accordance with the provisions of Islamic Law of Inheritance supplemented by section 4 of Muslim Family Laws Ordinance, 1961. Looked at the scenario in this perspective, upon termination of the life estate of Mst. Gahr Bano, the estate shall revert to its last male owner for its division in accordance with section 5 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 read with section 4 of the Muslim Family Laws Ordinance, 1961. In that eventuality, widow of the last male owner, his surviving daughters and daughters of two predeceased sons shall take their due share of the land.
18. As for right of Mst. Gahr Bano, widow of a predecased son of Ghulam Muhammad to inherit, on the analogy of section 4 of the Muslim Family Laws Ordinance, 1961, the matter was not clear. As observed above, a legal fiction was devised to benefit the orphaned children. A predeceased son or a daughter of the propositus was resurrected for a limited purpose only for allowing his or her children to inherit their normal share. Upon plain reading of section 4 of 1961 Ordinance, widow of a predeceased son or husband of a predeceased daughter did not appear to be its beneficiary. A portion was carved out of the estate of propositus for allowing the children of a predeceased son or daughter their due share in it. In case, a predeceased son or daughter was survived by a lone daughter only and under Personal Law, she was entitled to a half share, the other half shall be deemed always to have vested in the propositus for distribution amongst his other Muslim law heiRs, Widow of a predeceased son or husband of a predeceased daughter shall not then be an heir to the property because Family Laws Ordinance did not intend to disturb Islamic Law of Inheritance, except to the extent indicated in section 4 of the Ordinance.However, the point was not res integra but was covered by a decision of the Supreme Court in Mst. Qabal Jan. v. Mst. Habab Jan and 9 others 1992 SCM R 935. In para. 6 of the judgment, their Lordships of the Supreme Court dealt with this point as:-- "However, the matter does not end here. The remaining 7/24th share of Muhammad Akram is also to be distributed amongst his other Shari heiRs, The learned counsel for the parties frankly conceded that Mst. Amir Jan being his mother will receive 1/6th share out of the same which comes to 7/144th share in the entire area and Mst. Habab Jan, sister, will get the residue i,e, 7/24th minus 7/144th equal to 35/144th in the entire area in addition to the area inherited by them as Shari heirs of Saadullah deceased."
19. ' In view of law declared at the apex of judicial hierarchy, the widow/widows of predeceased son/sons shall also inherit their due share and remainder shall revert to the collaterals. In taking the above view of sections 2, 2-A, 3 and 5 of Act V of 1962, section 4 of the Family Laws Ordinance, 1961, cases in Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 Supreme Court 407, Mst. Sunar Begum and 3 others v. Federal Government of Pakistan through Secretary, Ministry of Justice, Islamabad and another PLD 1988 Federal Shariat Court 1, Mst. Farida and 2 others v.
20. Rehmatullah and another PLD 1991 Supreme Court 213, Lal and 3 others v. Rehmat Bibi and another PLD 1991 Supreme Court 582, Sardar. v. Mst. Nehmat Bi and 8 others 1992 SCM R 82, Mst. Qabal Jan v.
21. Mst. Habab Jan and 9 others 1992 SCM R 935, Suba through his 8 L.Rs, v. Mat. Fatima Bibi through her L.Rs, and others 1992 SCM R 1721 and Mst. Fazal Nishan and others v. Ghulam Qadir and others 1992 SCM R 1773 were relied upon and found much assisting by me.
22. ' Principles regulating the succession and governing the division of the estate left by Ghulam Muhammad having been settled above, next question was about its actual distribution among the surviving heiRs, Evidence on record was insufficient for a final determination of all the 'true heirs to the deceased Ghulam Muhammad and their actual shares in the estate left by him. Therefore, to this limited extent the case required a remit for its reconsideration and decision on it.
23. ' In view of foregoing discussion, appeals are partially allowed on the lines indicated above and the impugned judgment and decree of learned District Judge are set aside to that extent and the case is remanded to him for his decision afresh on the point noted above. For the decision of the point remanded, it shall be open to the learned District Judge to take additional material from the parties.
24. ' There shall be no order as to costs in this Court. Records be returned. Parties shall appear in the Court below on 21-11-1992.