MALIK MUHAMMAD QAYYUM J:- This judgment shall dispose of Writ Petition Nos. 660, 661, 662 of 1968 and 420, 421 and 422 of 1978, which arise out of similar controversy and involve same question.
2. These cases have chequered history but as I propose to remand the matter to the Rehabilitation Authorities, it is not necessary to detail all the facts. Suffices it to say that the dispute relates to the inheritance of Sultan Bakhsh son of Jangu Khan who died in 1898. The case of the petitioner is that on the death of Sultan Bakhsh, a dispute arose between the two widows, namely, Mst. Ismat Bibi and Mst. Dallah on the one side and his father, Jangu Khan, and Mst. Barkat Bibi widow of Sonay Khan, brother of Sultan Bakhsh on the other. This dispute is stated to have been settled through arbitration of certain arbitrators who made their award on 24.8.1898, which was registered on 25.8.1898.
3. According to Ch. Qadir Bakhsh, Advocate, learned counsel for the petitioner, the inheritance of the property followed the course set out in the award and ultimately in 1934 came to Mst. Ismat Bibi the only surviving widow of Sultan Bakhsh. After the partition of Sub-continent, the land in dispute was allotted to Mst. Ismat Bibi in lieu of the land abandoned in India. She died in the year 1961 and the dispute arose as to the devolution of the property.
4. The claim of the petitioner, Muhammad Rafique, was that he being the collateral and legal heir of Sultan Bakhsh, was entitled to the entire estate under the award to. The exclusion of legal heirs of Mst. Ismat Bibi. On the other hand, it was asserted by the learned heirs of Mst- Ismat Bibi before the Rehabilitation Authorities that Mst. Ismat Bibi being the only transferee of the land was its full owner.
On 8.11.1961, the Assistant Rehabilitation Commissioner attested the Mutation in the name of the petitioner, Muhammad Rafique. The appeal filed by Mst. Nawab Bibi before the Collector, however, succeeded and she was held entitled to the entire land. The revision filed by the petitioner having been dismissed, he has come to this Court by filing W.P. Nos. 660, 661 and 662 of 1968.
5. There are three other constitutional petitions filed by Ch. Muhammad Nazir Ahmad, Advocate. On behalf of Mst. Allah Rakhi and others, who claim to be the legal heirs of Maula Bakhsh to whom under the Arbitration Award the entire land would have reverted. Their grievance is that they were not associated with the proceedings before the Rehabilitation Authorities and the orders have been passed behind them.
6. These petitions have been resisted by Rana Abdul Hareem, Advocate, who has appeared on behalf of Mst. Nawab Bibi. His contention is that Mst. Ismat Bibi had succeeded to the estate of Sultan Bakhsh under the customary law then prevalent in the Province of the Punjab and she was limited owner. According to the learned counsel, in view of the promulgation of the Muslim Personal Law (Shariat) Application Act, 1983, it is to be deemed that Sultan Bakhsh the last full owner died when the death of Mst. Ismat Bibi took place in 1961 and as at that time the Muslim Personal Law (Shariat) Application Act, 1983 had become the law of the land, Mst. Ismat Bibi, one of the two widows, would be entitled to l/16th share and 1/2 share would devolve upon Mst. Nawab Bibi daughter of Mst. Ismat Bibi and Sultan Bakhsh.
7. From a perusal of the orders passed by the Rehabilitation Authorities, it appears that the real questions and controversy were not adverted to by them in great detail, presumably for the reason that at the time when the dispute was decided by them it had been ruled by this Court that the land allotted to widow and other female limited owner would be their absolute property and would devolve on their death on their own heirs and those of the last male holder. This view was, however, later on reversed by the Supreme Court and it was held tri. Additional Settlement Commissioner (Land), Sargodha V. Muhammad Shaft and others (PLD 1971 S.C. 791) that the widows or other limited owners in India would retain the same character in respect of the land allotted to them in Pakistan and cannot claim to be the full owners.
8. In view of above pronouncement, it becomes necessary to find out as to whether Mst. Ismat Bibi had succeeded to the estate of Sultan Bakhsh in India as a limited owner under custom or under a family settlement and further as to what would be law applicable for determining the entitlement of the parties. Learned counsel for the petitioners as also the respondents agree that since there is no positive decision on these, the matter deserves to be remitted to the Rehabilitation Authorities.
9. Rana Abdul Hareem, Adv. Learned counsel for respondent No. 1, is, however, of the view that these petitions should be dismissed and the petitioners should be directed to have recourse to civil Courts where they can prove their title. Learned counsel for the respondent has also submitted that the arbitration award relied upon by the petitioners has no legal value for the reasons that it was not made the rule of the Court and also because neither Mst. Nawab Bibi nor her predecessor had entered into any arbitration agreement.
10. From the respective contentions of both the parties, it is evident that none of them are supporting the impugned order, which even otherwise it liable to be set aside for the reason that the petitioners in W.P. Nos. 420, 421 and 422 of 1978 were not associated with the proceedings before the Rehabilitation Authorities and in view of the latter pronouncement of the Supreme Court in Muhammad Shafi's case supra.
11. The course suggested by Rana Abdul Hareem, Advocate, learned counsel for respondent No. 1 that the parties should be directed to have their title decided by the civil Court does not appear to be in the interest of justice. Already the matter has remained pending for a large number of years.
The question of inheritance of a right holder is a matter which should be decided by Rehabilitation Authorities.
In view of what has been stated above, these petitions are accepted, the impugned order of the Member (Judicial) Board of Revenue dated 26.8.1967 is declared to be without lawful authority and of no legal effect and the matter is remitted to the Member Board of Revenue, Incharge of the Settlement and Rehabilitation for decision afresh after hearing the parties.
The parties shall appear before the Member concerned on 6.11.1993.
As the matter has remained pending in different Courts for the last about 30 years, it is directed that the same shall be decided within four months from today.