This civil revision was directed against the order dated 8-12-1993, of the learned Civil Judge, whereby the request to reject the plaint under Order VII, rule 11, C.P.C. was dismissed. The learned trial Court was of the view that without recording evidence true status of the plaintiffs cannot be ascertained, and without adjudication, of the plaintiffs' claim to inherit the estate of Mst. Karam Bibi, question of maintainability of the present suit cannot be decided.
2. The necessary facts for appreciating the respective contentions of the parties may be stated. Ch. Ghulam Nabi respondent and his two brothers' sons of Ch. Noor Muhammad filed a suit for declaration to the effect that they are owners of one-half share of land measuring 2,560 Kanals 17 Marlas described in the plaint left by Noor Din alias Noora and Ladha deceased, predecessor-in-- interest of the parties and the subsequent Mutation No. 142 dated 26-9-1927, due to death of Mst.
Karam Bibi widow, half of the land which was mutated earlier in favour of Mst. Karam Bibi widow of Noor Din, was also mutated in favour of Muhammad Ali; Mutation No. 503 dated 5-8-1969 and Mutation No. 542 dated 12-5-1971, and third mutation dated 22-3-1973 by which land was alienated by the sons and daughter of Muhammad Ali deceased, who died on 11-10-1970, be declared null and void and ineffective on their rights and that the defendants be directed to hand over possession of the land to the plaintiffs to the extent of their lawful shares. The aforesaid declarations were claimed on the averments that land in dispute measuring 2560 Kanals 17 Marlas was originally owned by Ladha, the predecessor-in-interest of the parties. The pedigreetable of the heirs of aforesaid Ladha, the original owner as given in the plaint is as follows:- LADHA Karam Elahi (died during lifetime of his father)
1.Muhammad Ali2. Noor Din alias3. Mst. Begum Noora (died just(died in 1964) a few days after the death of his grandfather).
1. Sardar Bibi2. Mst. Karam Bibi daughter, died onwidow, murdered 18-9-70on 18-3-1923.
1. Amana Bibi2. Ghulam Muhammad3. Muhammad Hussain (died in 1983)
1. Ghulam Nabi
2. Muzaffar Ali Khan
3. Ahmed Saeed Khan (Sons)
Mst. Nooran Bibi1. Muhammad Shari2. Liaqat Ali 3. Hussain Bibi 4. Hasan Bibi (widow)(son)(son)(daughter) (daughter)
1. Faqir Muhammad2. Wazir Ali3. Amir Ali4. Bashir Ahmed5. Amir
1. Khushi Muhammad1. Khizar Mahmood
2. Rashid Ahmed2. Tariq Zaman
3. Iftikhar Ahmed3. Ashfaq Ahmed 4.Safdar Ali
1. Muhammad Arif 2. Mushtaq Ahmed
3. Abbas Ali4. Muhammad Saleem
1. Muhammad Sadiq2. Ashiq Ai
3. Noor Ahmed4. Zahoor Ahmed
5. Manzoor Ahmed6. Ghulam Rasool 7.Liaqat Ali8.Akhtar Hussain.
According to para. 2 of the plaint read with the pedigree-table Ladha died in February, 1917, leaving behind Noor Din and Muhammad Ali, grandsons and Mst. Begum, granddaughter, of his predeceased son namely Karam Elahi., Noor Din alias Noora as per pedigree-table died a few days after the death of Ladha leaving Karam Bibi, wife and Sardar Bibi, daughter. Mst. Begum, grand-- daughter of Ladha died in 1964. The land left by Ladha was' mutated vide mutation of inheritance No. 56 dated 6-6-1917 in favour of Mst. Karam Bibi, widow of Noor Din alias Noora and Muhammad Ali in equal shares. Mst. Karam Bibi was treated as limited owner according to custom of Rajput family and Mst. Begum and Mst. Sardar Bibi were excluded and the entire share of Noor Din alias Noora devolved upon Mst. Karam Bibi widow as a limited owner. At this juncture it may be noted that according to the entries of Mutation No. 56 dated 6-6-1917 a copy of which was attached with the plaint, the report of death of Ladha was entered in mutation register on 23rd March, 1916, and as such the death of Ladha must have occurred before 23rd March, 1916, and not in February, 1917, as is being asserted. The other plea of the petitioners-defendants was that Noor Din had also died in the lifetime of Ladha though the assertion of the plaintiffs was that Noor Din had died a few days after the death of Ladha but as the averments in the plaint are to be taken as these are, even if Noor Din alias Noora is taken to have died just a few days after the death of his grandfather still the position remains that under mutation dated 6-6-1917 one-half of the land left by Ladha was mutated in the name of Muhammad Ali, the surviving grandson to the exclusion of Mst. Begum, the sister and Mst.
Sardar Bibi, daughter of Noor Din while the other half of the land was given over to Mst. Karam Bibi, widow of Noor Din as life estate. The other averment which was specifically referred to by the learned counsel for the respondents Nos.l to 3 was that Mst. Karam Bibi was murdered on 18-3- -1923 by Muhammad Ali and on her death Mutation No. 142 dated 26-9-1927 was attested in favour of Muhammad Ali and half of the land held as life estate by the widow was also conveyed to Muhammad Ali under custom as the surviving grandson of Ladha deceased, the original owner and thus Mst. Sardar Bibi, daughter of Noor Din was deprived of her legitimate share though under the Muslim Personal Shariat Law supplemented by Family Laws Ordinance, 1961, she was entitled to entire share of the land left by her father as well as to the share devolving upon her mother Mst.
Karam Bibi under Muslim Law i.e. 1/8th share of land left by Noora, her father. It was added that in this way Mst. Sardar Bibi was entitled to inherit half share out of the total land left by her father, the grandson of Ladha, predecessor-in-interest of the parties while Muhammad Ali was entitled to remaining one-half of the land left by Ladha. It was also asserted in the plaint that Mutation No. 142 is illegal, void and contrary to injunctions of Muslim Law of inheritance and Sharia. The other mutation challenged was mutation of inheritance sanctioned on the death of Muhammad Ali and mutations regarding transactions of alienations made by the heirs of Muhammad Ali.
3. The salient features which come out from the plaint are that the plaintiffs are sons of Mst. Sardar Bibi daughter of Noor Din alias Noora. Defendants 1--23 are the heirs of Muhammad Ali and heirs of Mst. Begum are defendants 24 to 30. Mst. Sardar Bibi, predecessor-in-interest of plaintiffs-- respondents Nos.l to 3 died on 18th September, 1970. She as per plaint was aged 10-12 years on 18- 3-1923 the date when Mst. Karam Bibi, her mother was statedly murdered. She thus attained majority in the year 1931 and since then no action was taken by her during her lifetime to challenge the mutation dated 26-9-1927 whereby half of the land which was held by Mst. Karam Bibi, her mother, was life estate., passed on to Muhammad Ali. It is also in the plaint that Muhammad Ali and 15 others were involved in the alleged murder case respecting the death of Mst. Karam Bibi but all of the accused were acquitted as the police had not been able to recover the dead body. The plaint containing these assertions was sought to be rejected by moving the application under Order VII, rule 11, C.P.C. but the application was dismissed vide impugned order.
4. Learned counsel for the petitioners-defendants argued that Muhammad Ali, their predecessor- in-interest is to be treated to have held the land received by him under custom as an absolute owner by virtue of section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, as amended by Punjab Muslim Personal Law (Shariat) Application Act (Amendment)
Ordinance, 1983, and ,as such the suit as filed is not maintainable; the plaint does not disclose any cause of action in view of the position obtaining under the law and is also barred by time and as such the plaint merited to be rejected, learned counsel for the petitioners added that one-half of the land which was received by Muhammad Ali on termination of the life estate of Mst. Karam Bibi, due to her demise on 18th March, 1923, the land which is being claimed in the suit, also vests absolutely in Muhammad Ali by virtue of section 2-A inserted by the Punjab Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance, 1983 (XIII of 1983) to the Muslim Personal Law (Shariat) Application Act, 1962. In support of this plea reliance was placed on Abdul Ghafoor v.
Muhammad Shafi (PLD 1985 SC 407).
5. Learned counsel for respondents 1 to 3 and 10 to 15 in reply argued that section 2-A is to be read with section 3 and proviso to section 5 of the Muslim Personal Law (Shariat) Application Act, 1962, and the combined effect is that females are to get their share on the opening of succession on termination of limited interest as if Muslim Law was applicable in 1917. He added that section 2-A makes a male, heir full owner by applying Muslim Law if he had inherited the property under custom from last full owner subject to the proviso to clause (c) of section 2-A, section 3 and proviso to section 5. He added that male heir becomes full owner to the extent of his own Sharai share while the remainder reverts to the heirs according to Sharia which shall be deemed to be applicable retrospectively on the death of the last full owner or on the termination of the limited estate. He argued that in case there be any doubt on account of omission of females from section 2-A, the doubt is to be resolved according to the principles of Sharia as laid down in Abdul Ghafoor's case (supra). According to Ch. Hamid-ud-Din, Advocate, for respondents, even in case where life estate terminates before enforcement of Act V of 1962, such a case is governed by Muslim Law. In support of these submissions he referred to page 424 para. (o) and page 426. He also relied on Suba v. Mst. Fatima Bibi (1992 SCM R 1721) and Muhammad Malak v. Mst. Rabia Bibi (1987 CLC 1201). Rana Muhammad Sarwar, Advocate, for the petitioners, who was also supported by Mr. Azmat Saeed. Advocate, for respondents 4 and 6 to 9, relied on Abdul Ghafoor's case (supra) and specifically referred to facts of Appeal No.l at page 411 and the observations contained at pages 421, 424 and 426.
6. Ch. Hamid-ud-Din, Advocate, learned counsel for the respondents supported the impugned order with the contention that as the questions whether Noor Din alias Noora had predeceased his grandfather whether Mst. Karam Bibi was murdered by Muhammad Ali, for their determination need holding of an inquiry, the plaint cannot be rejected under Order VII, rule 11, C.P.C. Both these questions, in my view, do not require holding of any inquiry entailing recording of evidence in the context of the present suit and the pleas taken in the plaint. Mutation No. 56 was sanctioned on 6- 6-1917, on which date Noor Din alias Noora had also died. This factum is borne out from the averments of the plaint and the contents of the copy of Mutation No. 56 attached with the plaint by the plaintiffs-respondents themselves. In any case half of the land of the share of Noor Din was given to Mst. Karam Bibi, his widow as life estate. It will, therefore, be seen that precise date of death of Noora or whether he had died a few days after the death of Ladha in the circumstances makes no difference. The second plea that Mst. Karam Bibi was murdered again need not be inquired into as half of the land of Ladha is being claimed on the plea that Mst. Sardar Bibi, the mother of the plaintiffs was deprived of her legitimate Sharai share and that the Muslim Personal Shariat Law supplemented with the Muslim Family Laws Ordinance, 1961, entitles her to receive entire share of the land left by her father and the share that would devolve upon her mother Mst. Karam Bibi under the Muslim law of inheritance, hence Mutation No.142 dated 26-9-1927 is being dubbed as illegal and void being contrary to the Injunctions of Sharia. Thus half of the land is being claimed under Muslim Personal Shariat Law, and the Muslim Family Laws Ordinance, 1961. The admitted position is that half of the land in dispute was received by Muhammad Ali under Mutation No. 56 dated 6-6- 1917 and the other half after the death of Mst. Karam Bibi with which the life estate of Mst. Karam Bibi terminated. This termination of life estate of Mst. Karam Bibi was incorporated in the revenue record by sanctioning Mutation No. 142 dated 26-9-1927. This suit for declaration and possession through partition was filed on 23rd February, 1993, i.e. after lapse of almost 66 years.
7. The question of application of section 2-A in the light of the precedents cited by the learned counsel for the parties may now be examined. The cases other than Abdul Ghafoor's case (supra) do not apply as they proceed on entirely different facts. In those causes the life estate terminated after the enforcement of the Muslim Personal Law (Shariat) Application Act, 1962.
As regards the dictum of the Supreme Court in the case of Abdul Ghafoor the facts of the two out of four appeals which have some bearing to the facts of the instant case and will explain the application of the dictum of the Supreme Court, may be noted. In Appeal No.l, the facts were that suit filed in 1958 for a declaration to the effect that the suit property was ancestral and under the customary law its sale by defendant No.1 on 3rd February, 1958 to defendants 2 to 5 not having satisfied the conditions of alienation under the said law would not affect the rights of the reversioners-heirs after the death of defendant No.l, who in reply pleaded that alienation was an act of good management as permitted by customary law and that in any case he being full owner was competent to dispose of his property. He sought support from the provisions of the Muslim Personal Law (Shariat) Application Act, 1948 (Act IX, 1948). The defendants' plea regarding the effect of Act IX of 1948 on succession from a person who had inherited prior to its promulgation under the customary law from a person who was governed by that law was repelled with reference to the decision of the Supreme Court in Abdullah v. Mst. Bakhto Mai (PLD 1956 SC 321). It was held therein that: "The difference brought by the Act of 1948 is that while the powers of a limited owner to alienate the property without legal necessity are still governed by customs, the rule governing succession to the property, on the termination of a limited estate, has ceased to be a rule of custom and by statute had been replaced by the rule that the Muslim Personal Law shall given the succession."
The facts of Appeal No. 2 were that Musa Khan, predecessor-in-interest of the respondents instituted a declaratory suit in 1954/65 seeking share in the suit property on the ground that he was collateral of Taj Muhammad, the last male holder thereof, who died in 1920, and also because Mst.
Phapho Bibi, the deceased widow of Taj Muhammad, was his sister. He also challenged the gift made by the widow on 23-6-1953 in favour of her two daughters from Taj Muhammad. She died within a few days after making the gift. His plea was that she was limited owner under custom when Act IX of 1948 was promulgated but by virtue of amendment by Act of 1951, she was entitled to inherit only 1/8 share from her late husband but she was not entitled to gift more than 1/8th share. The observations relevant in the present context read as under:-- "Section 2-A has several implications. It would, amongst others, also lead to the following results in so far as these four cases are concerned:-- (a)Wherever a male heir had acquired by way of inheritance (if there is other acquisition also it is not relevant here) agricultural land from any Muslim before 15th of March, 1948, he shall be deemed to be an absolute owner having the power of alienation as enjoyed under the Muslim Law.
(f)The questions of retrospectivity in ordinary technical sense is not relevant as this provision itself relates to a period prior to 15-3-1948 and is being enacted nearly half a centrury later. Such an operation of this provision would come only in a seeming conflict with section 6 of the 1962 Act but there can be no hurdle in reading section 6 in its own context and not affecting the retrospectivity inherent in section 2-A. When both are put in juxtaposition to each other the following two important re-arranged positions of section 2-A would emerge: (1)If `a male heir had before the commencement of the Punjab Muslim Personal Law (Shariat)
Application Act, 1948...acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim'
(2)he `shall be deemed to have become .... an absolute owner ....as if such land had devolved on him under the Muslim Personal Law (Shariat)'.
(h) Same is the effect of sub-clause (c) which provides that all suits or other proceedings including the execution proceedings seeking possession of land under such decrees shall abate forthwith:
(i) Notwithstanding the foregoing reading of section 2-A visualising it in substance as having application prior even to 15th March, 1948, as well and in this sense being retrospective, the proviso to sub-clause (c) thereof clearly excludes its operation in so far as the past and closed transactions are concerned. They, as explained therein would include only those cases where possession of the land has already been delivered under such decree as is referred to in sub- clauses (b) and (c). To this limited extent, therefore, the inherent retrospectivity of section 2-A has been controlled by the proviso to clause (c)."
While noting the effect of law on the facts of Appeal No.l it was observed that: "This appeal must fail on two grounds; One, the purview of newly-added section 2-A in the 1962 Act read with its clause
(a) provides that any owner who as a `male heir' had inherited agricultural land before 15-3-1948 under custom shall, by virtue of the new statutory command, be, deemed to have inherited it under the Muslim (Shariat) Law and was thus absolute owner enjoying full power over it under the said law. And that being so, no restriction as visualised by custom would annul the alienation. Therefore, the appeal merits to be dismissed on that ground alone. Not only this, sub-clause (c) of section 2- A provides that all suits and `other proceedings' of the nature visualised in clause (b) as interpreted and discussed above, shall abate forthwith. Other proceedings would also include appeals, wherever pending. This appeal, therefore, shall also be hit by clause (c) and is accordingly, declared as having abated."
In Appeal No.2 it was held that Taj Muhammad had acquired the land under custom before 15th March, 1948. 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. In the instant case Muhammad Ali held the entire land as last male owner under custom since 1927 and as such under section 2-A of the Act is to be deemed to be the absolute owner. The plea that proviso to section 5 of the Act of 1962 entitles the female to inherit the share under the Sharia in the present context is not relevant as section 5 comes into play where the life estate terminated under section 3. Section 3 provides for termination of life estate with effect from 31st December, 1962. In the present case the life estate of Mst. Karam Bibi admittedly terminated on her death which took place on 18th March, 1923. The property by virtue of section 2-A of the Act vested absolutely in Muhammad Ali, predecessor-in-interest of the petitioners-defendants and this suit as such in the presence of section 2-A is not maintainable. It is well established that a still born suit must be brought to an end in the very beginning.
For the reasons given above it is apparent that the learned trial Court acted illegally and arbitrarily in rejecting the application under Order V1I, rule 11, C.P.C. The said application is, therefore, accepted with the result that the plaint stands rejected under Order VII, rule 11, C.P.C. The revision in the above terms is accepted. The parties are left to bear their own costs.