1. Facts briefly are that Mst. Fatti a refugee widow, second wife of the petitioner's father inherited property from her husband Rahim Bukhsh in India under the custom as a life estate. She died in Pakistan after migration, getting allotment against the land which she inherited from her husband.
2. She expired issueless and was survived by her two daughters namely Mst. Rajjo and Mst. Bukhshi from her previous husband namely Nabia. One-half of her estate was mutated in favour of the petitioner being the only daughter of her husband from first wife and one-eight being the personal share of her (Mst. Fatti) was mutated in favour of the surviving daughter Mst. Rajjo and Muhammad Iqbal the surviving son of the second daughter namely Mst. Bukhshi. The remaining three-eighth of it was mutated in favour of one Gulzar, grandson of Rahim Bukhsh's brother. The present petitioner challenged the order of Assistant Collector 11 Grade dated 12-8-1967 (Annex A) through which the property in dispute was given to the heirs of Mst. Fatti. The Collector through his order dated 1-8- 1968 (AnneX.A/1) set aside the order of the Assistant Collector-II dated 12-8-1967 and remanded the case to him for decision afresh. The respondents filed an appeal and the Additional Commissioner (Revenue) relying upon Sher Muhammad v. Addl. Rehabilitation Commissioner, etc. (PLD 1968 Lahore 234) (since overruled) accepted the appeal of the respondents against remand order and restored the earlier order of A.C-11 vide Annex-B on 8-3-1969. The petitioner went in revision and through impugned order dated 18-2-1971 learned Member Board of Revenue declined to interfere. Hence, this Constitutional petition., This writ petition was admitted to regular hearing as far back as on 4th of March, 1973. Learned counsel for the petitioner has argued that in view of the law laid down by the Supreme Court in Addl. Settlement Commissioner Land v. Muhammad Shafi (PLD 1971 SC 791) the impugned orders cannot be maintained. The Hon'ble Judges in the aforesaid case have held as under: "It is now well-settled that a female's estate under custom is analogous in nature to a widow's estate under the Hindu Law (vide Rattigan's Digest of Customary Law, 13th Edition, Page 787). If so then under Hindu Law the true concept of a widow's estate is that she notionally represents her husband, as if, her deceased husband is, for the purposes of the management and user of his properties, kept alive in her, and it is for this reason that it is said that during the time the widow is alive or does not re-marry, the whole estate of her husband vests in her absolutely as if the husband is for all intents and purposes alive in her. "Hindu Law", according to J.D. Mayne, "Knows nothing of estates for life, or in tail, or in fee. It measures estates not by duration but by use ... The restriction upon the use of an estate inherited by a woman are similar in kind to those which limit the powers of a male holder, but different in degree. The distinctive feature of the estate is that at her death, it reverts to the heirs of the last male owner. She never becomes a fresh stock of descent:" (vide Mayne's Hindu Law and Usage, 1922 Edn., p.886.)
3. Accordingly Mst. Fatti was only a limited owner and on her death the property would have reverted to Rahim Bukhsh, the predecessor-in-interest and would A have devolved upon his heirs. The learned counsel appearing for the respondents has not refuted this principle but said that since the matter involves disputed question of fact, as such, the Revenue Courts would not have any jurisdiction to entertain .it. This objection was not taken throughout the proceedings and has been taken for the first time in the writ petition. The petitioner is running from pillar to post for the redress of her grievance for the last more than 26 years. At this late juncture I would not non-suit the petitioner simply on the ground that question of inheritance is to be decided by the Civil Courts.
4. The order of the Collector Pakpattan was very fair and just when he remanded the case to the A.C- II Pakpattan for fresh decision. Consequently, I hold that the orders of the AC. as well as the Member, Board of Revenue have been passed in clear violation of the law laid down by the Supreme Court. Accordingly these orders are set aside as having been passed without any lawful authority and parties are directed to appear before the AC/Collector, Pakpattan, who shall decide the matter in accordance with law.
5. During the course of proceedings an application was also moved by one Gulzar Ahmad claiming to be the collateral which application was allowed by this Court through order dated 27-4-1986.
6. The learned counsel for the petitioner has got no objection for his impleadment. Accordingly, it is directed that the AC-II shall give an opportunity of hearing to all the parties and decide the matter expeditiously. There shall be no order as to costs in the circumstances of the case.