This civil revision is directed against the judgment and decree, dated 27-4-1992, by which a learned Additional District Judge at Gujranwala, accepting the appeal of Taj Muhammad and others, the plaintiffs (now respondents) and setting aside the judgment and decree, dated 26-1- 1989, whereby a learned Civil Judge at Gujranwala had dismissed their suit, decreed the same against Muhammad Sadiq (now petitioner) in respect of a piece of land measuring 86 kanals 11 marlas situated in the area of Village Kotli Shahbu, Tehsil Gujranwala.
2. The averment in the plaint were that the disputed land belonged to Moola, son of Jhanda, caste Jat Cheema, resident of Kotli Shahbu, Tehsil Gujranwala. He was a non-Muslim. He had died before the creation of Pakistan and the land owned by him had devolved upon his widow Mst. Kaser Kaur who became its limited owner under the customary law. Later, she embraced Islam and was named as Mst. Jiwan Bibi. As a result of the change in her religion, a fresh Mutation No.245 was sanctioned. In order to save the land from being treated as evacuee property, she took recourse first to the Deputy Custodian and then to Custodian of Evacuee Property and persuant to their respective orders, dated 19-7-1950 and 5-10-1951, Mutation No.245 was sanctioned on 5-4-1951. The plaintiffs-respondents being the collaterals of Moola, son of Jha_ nda, Mst. Jiwan Bibi started residing with Lal Khan plaintiff-- respondent, who is now represented by respondents No.2 to 4, and he helped her in getting her land saved from being treated as evacuee. However, her health deteriorated after the year 1960 and despite treatment, she became imbecile and ultimately died on 26-8-1973. Muhammad Sadiq defendant--petitioner, according to the plaintiffs-respondents, was a clever and greedy person and in order to grab the suit property, he fabricated her so-called will dated 17-1-1968 and later, on the basis of this false document, got Mutation No.45 sanctioned in his name on 7-9-1973 which was challenged on the revenue side by them but they remained unsuccessful. Hence they brought the suit as collaterals of her husband, describing her as a limited owner under custom having no authority to transfer the suit property even if the will was found to be a genuine one.
3. The defendant-petitioner resisted the suit. In his written statement he pleaded estoppel and asserted that his opponents had no relationship whatsoever with Mst. Jiwan Bibi or with her husband Moola, son of Jhanda and since she was a full owner, she had rightly transferred the suit property in his favour by means of the will. He denied the allegations that she had lost her health, had remained bed-ridden, and had lost her balance of mind at the time of executing the will.
4. On the pleadings of the parties the learned trial Judge, framed the following issues:-- Issues (1)Whether the plaintiffs are estopped by their words and conduct to file this suit? OPD (2)Whether the plaintiffs have no locus standi to institute the present suit? OPD (3)Whether the alleged will is false, forged and based on fraud and forgery and Jiwan was not full owner and she was not in a position to make any will? OPP (4)Whether the disputed property was not ancestral? If so, its effect? OPD (5)Whether the plaintiffs are the legal heirs of Jiwan deceased? OPP (5A) Whether the plaintiffs are the legal heirs of Moola deceased? OPP (6)Relief.
After recording the evidence of the parties and hearing their counsel, the learned trial Judge, vide his judgment, dated 26-1-1989, dismissed the suit after deciding issues No.l, 2 and 4 in favour of the defendants and issues No.3, 5 and 5-A against the plaintiffs. Aggrieved by these findings, the plaintiffs went up in appeal and the learned Additional District Judge, vide his judgment, dated 27- 4-1992, reversing the findings of the Court below on issues No.l, 2, 3, 4 and 5 and accepting the appeal, decreed the suit, after setting aside the judgment and decree of the trial Court. Dissatisfied with these findings, the defendant invoked the revisional jurisdiction of this Court.
5.It may be mentioned here that the learned Additional District Judge did not discuss issue No.5-A in his judgment now under challenge and this is a serious omission but in view of the protracted litigation, it is not considered feasible to remand the case.
6. The learned counsel for the defendant-petitioner called in question the findings of the learned Additional District Judge on all the issues. He contended that the plaintiffs-respondents could neither adduce any reliable evidence to prove their relationship with Mst. Jiwan Bibi, nor with her Hindu husband Moola son of Jhanda and as such they had no right to claim the ownership of the disputed property as heirs of the former under the Muslim Personal Law (Shariat) nor with the latter as his collaterals, and as such their suit was wrongly decreed by the learned Additional District Judge. According to the learned counsel, since Mst. Jiwan, the widow of Moola son of Jhanda, had accepted Islam after his death prior to the partition of India and she died as a Muslim, she had rightly transferred the disputed property by executing a valid will in his favour and the findings of the lower appellate Court on issue No.3 are liable to be reversed, after holding him entitled to the disputed property under her will.
7. It is an admitted position that the disputed land belonged to Moola son of Jhanda who was a Hindu by faith and had died much prior to the creation of Pakistan. Being issueless, his estate was mutated in the name of his widow Mst. Kaser Kaur who later accepted Islam and got her property declared non-evacuee from the Custodian of Evacuee Property. Both the parties claimed that after her conversion to Islam she had been Fesiding with them and they cultivated the disputed land under her landladyship until it was allegedly bequeathed in favour of the defendant-petitioner whereafter he cultivated it as a owner.
8. The plaintiffs-respondents claimed their relationship with Moola son of Jhanda, the last male owner of the property, on account of their collateral--ship with him and also with his widow Mst.
Kaser Kaur later known as Mst. Jiwan Bibi, but, in my opinion, they could not prove their relationship with either of them. They produced four witnesses. Taj Din plaintiff-appellant appeared as P.W.3 and Muhammad Nawaz plaintiff-appellant as P.W.4. Both of them claimed collateralship with Moola son of Jhanda as also with his wife Mst. Jiwan. When cross-examined on this point, the former deposed that he did not know-the parentage of Jhanda, the father of Moola, while the latter in the cross-examination stated that he had no knowledge about the parents of Mst. Jiwan Bibi as she had been purchased by her husband from the mountains. The other two witnesses, namely, Muhammad Siddique P.W.1 and Muhammad Nawaz P.W.2 said nothing about the relationship of the plaintiffs --respondents with Moola son of Jhanda and his widow. The learned trial Judge gave no importance to the oral evidence, rather, he observed that they produced no evidence. However, the learned appellate Court, placing reliance on the copies of pedigreetables (Exh.P-4) and (Exh.P-6), which were brought on the file by the learned counsel for the plaintiffs in the trial Court, came to the conclusion that that plaintiffs-respondents were the collaterals of Moola son of Jhanda and they were entitled to the inheritance of property. In my opinion, the plaintiffs-respondents could neither proved their relationship with Moola son of Jhanda, nor with his widow Mst. Kaser Kaur who, after her conversion to Islam, was known as Mst. Jiwan, because they could not adduce any evidence, oral as well as documentary, of reliable character. The perusal of pedigreetables (Exh.P- 4) and (Exh.P-6) indicates that Jhanda, who was grandfather of Taj Muhammad plaintiff- respondent, and Lal Khan plaintiff (now dead) was a different person than Jhanda, the father of Moola, because he was son of Haveti and the pedigreetables indicated no connection between Haveli and Jhanda, the grandfather of the plaintiffs-respondents. The learned Additional District Judge therefore, recorded a wrong finding that the plaintiffs-respondents were collaterals of Moola son of Jhanda. Similarly, there was no relationship between the plaintiffs-respondents and Mst.
Kaser Kaur later known as Mst. Jiwan Bibi.
9. This being so, issues No.5 and 5-A are decided against the plaintiffs-- respondents.
Consequently issue No.2 is also decided against them as they had no locus standi to bring the suit giving rise to this civil revision. However, the findings of the appellate court on issue No.l which was decided against the defendant-petitioner are not interfered with.
10. Now I take up issue No.3. There seems to be no dispute between the parties that the disputed property was ancestral qua the Moola son of Jhanda. Though issue No.4 was struck on that point but no evidence was led thereon. On his death, Mst. Kaser Kaur had admittedly succeeded him as a limited owner under custom till her death or re-marriage. Her subsequent conversion to Islam did not bring about any change in her status vis-a-vis the disputed property which till her death continued to be governed by the customary law because Muslim Personal Law (Shariat)
Application Act, 1962 was relevant to a Muslim widow inheriting her Muslim husband as a limited owner under custom and it had nothing to do with the property of a non-Muslim and his widow who might have later changed her faith and become a Muslim. Under the customary law of the Punjab as contained in Rettigon's Civil Law Digest and also in Rawaj-e-Aam of District Gujranwala written by Daleep Singh, Mst. Kaser Kaur had succeeded to the property as a limited owner till her death or remarriage and she had no power of alienation by way of sale, gift, exchange or will.
Therefore, she could not bequeath any portion of the disputed land in favour of defendant- petitioner who claimed it as a legatee. Thus even if the will executed by her in his favour was genuine, even then it did not operate in his favour because she had no authority, right or entitlement to transfer the disputed property in this manner. Issue No.3 is, therefore, decided accordingly.
11. In view of the above, the revision is accepted, the judgment and decree of the appellate Court, dated 27-4-1992, are set aside and the suit of the plaintiffs-respondents is dismissed but at the same time it is also declared that the will dated 17-1-1968 made by Mst. Jiwan Bibi in favour of Muhammad Sadiq defendant-Petitioner in respect of the disputed property is against law and without lawful authority. As a result, since neither of the parties lips any right or entitlement in the disputed property and no one else is known to this Court to have any right or entitlement therein, it stands escheated to the State under Article 172 of the Constitution of Islamic Republic of Pakistan, 1973.
12. A copy of this judgment should be sent to the Deputy Commissioner/Collector, Gujranwala, for information and necessary action.