One Ramzan, last male-holder of the property in dispute, died in India in 1945 leaving behind two widows Mst. Sagheeran and Mst. Siddiqan. They are stated to have succeeded Ramzan to equal shares vide mutation No. 937. In 1946 mutation No. 955 was entered on a Report No. 299 dated 15th May 1946 made by Babu Khan, petitioner, saying that as Mst. Sagheeran had remarried, her share in the inheritance of Ramzan be cancelled. Another Mutation No. 968 with regard to the sale of the half share of Mst. Sagheeran measuring 112 Bighas 16 Biswas on the basis of a sale-deed dated 3rd September 1946 was also entered in favour of respondents Nos. 5 to 28. A third mutation No. 969 with regard to 18 Biswa s as a gift on behalf of Mst. Sagheeran in favour of respondents Nos. 5 to 28 was also entered in 1946. All the three mutations referred to above were rejected in the year 1949 in the absence of the parties who had already migrated to Pakistan due to Partition of the sub- continent.
2. Respondents Nos. 5 to 28 submitted claim No. 2306 regarding the share of Mst. Sagheeran on the basis of registered sale-deed referred to above. That claim was returned as no land was verifiable thereon. Claim No. 813 submitted by Allah Dia petitioner, which is with regard to the property of Mst.
Sagheeran was verified. Consequently two Fard Haqiats (Annexs. A/1 and A/2) were issued but were kept pending without any allotment. Meanwhile respondents Nos. 5 to 28 filed two applications before Malik Muhammad Yar Khand, the then Officer on Special Duty, Central Record Room, claiming the area relevant to mutations Nos. 968 and 969. Mr. Khand vide his order dated 13th February 1962 (Annex. A/3) provi--sionally allowed an area measuring 18 Biswas included in mutation No. 969 and asked for its border comparison as well. Regarding mutation No. 968 file No. 1938 dated 12th January 1952 was prepared but nothing is stated to have been done about the same. The matter was taken up by the Central Record office on 7th June 1956 when mutation of Sale No. 968 was sanctioned.
On coming to know that Babu Khan petitioner No. 1 made an application dated 31st January 1958 inquiring the fate of Mutation No. 955 about the remarriage of Mst. Sagheeran in 1946 the applicant was informed that no decision had as yet been taken on that mutation.
3. Respondents Nos. 5 to 28 made an application to Malik Muhammad Yar Khand, the Additional Settlement Commissioner (Annex. 'C') requesting that the area sold to them vide Mutation No. 968 should be allowed to them. This application was considered by Mr. Khand on Ist April 1959. The respondent applicants were not present on the said date. He rejected the claim of the respondents under the sale-deed but observed that as they could get the land as heirs, there was no question of implementation of the mutation of sale. The respondents were further directed to be informed that they may resort to the remedies in order to get the land in question. Clearly this order denied the claim of respondent Nos. 5 to 28 as vendees under mutation No. 968 but they did not challenge that order further and the same, therefore, shall be considered to have become final so far as they are concerned. The petitioners, who were not a party to the proceeding before Mr. Khand filed an appeal against his order before Mr. Ziaullah Khan who vide his order dated 14th February 1962 observed as follows :- "In this appeal the prayer is that this declaration that Sabar Ali etc., were the legal heirs of Mst.
Sagheeran, should be vacated.
About the heirs of Mst. Sagheeran in respect of property other than 18 Biswas of land, passed on, through a registered deed to the respondents, there is no such declaration of the Addl. R. C. In the challenged order and this issue has to be decided on a mutation after necessary inquiry between the parties. The appeal is thus dismissed."
The petitioners, therefore, made an application to the Officer on Special Duty requesting that the mutation received from India be decided and implemented. Their application was, however, rejected by the Central Record Office on 3rd September 1962 on the ground that the mutation proceedings contemplated in the order dated 14th February 1962 should be pursued with the District Authorities, as the Central Record Office was not the proper forum. The petitioner filed a review application but the same was also rejected on 13th September 1962 saying that as the Central Record Office had incorporated mutation No. 968 of sale in the revenue record in accordance with para. 49 of the West Pakistan Rehabilitation Settlement Scheme in 1956, the petitioners may get settled the question of heirs in accordance with the order dated 14th February 1962 by the District Authorities. The petitioners went up in revision and then in the second revision but were not successful in getting any relief. They have, therefore, come to this Court in the present writ petition.
4. Before proceeding with the merits of this case the learned counsel for the respondents raised a preliminary objection that as Mst. Batool had died about 10 years before and Mst. Sardar Begum about 5 years before the filing of the writ petition, this petition be dismissed as having abated. It is to be noted that an abatement takes place only with regard to such persons dying during the pendency of writ petition, whose legal heirs have not been brought on record within the prescribed time. With regard to the two women the question is only of impleading their legal heirs and the question arising will be only of laches. As this omission seems to be innocent and no prejudice caused to the case of the respon--dents I do not accept this objection and, therefore, the legal heirs already brought on record shall continue.
5. The second objection was that the legal heirs of Mst. Siddiqan respondent and Allah Dia petitioner No. 6 were also not brought on record within time and hence the petition may be dismissed as having abated. It is to be noted here that an application to bring on record the legal heirs was not filed beyond reasonable time. The law applicable at the relevant time about abatement to writ petitions was based on a judgment of a Division Bench of this Court. According to that the petitions did not abate and, therefore, everybody acted with slackness in bringing on record the legal heirs. 1t was for the first time in 1970 when by virtue of a judgment of the Supreme Court the penal provisions of abatement were applied. There can, therefore, be no serious objection to bringing on record the legal heirs after the prescribed period but within a reasonable time. I, therefore, proceed to decide this petition on merits.
6. The main question arising in this case is as to who is to decide the mutation entered in India before the Partition of the sub-continent and reject it thereafter when the parties had migrated to Pakistan. Para. 50 of the Rehabilitation Settlement Scheme is of some help in the situation and is, therefore, reproduced below for ready reference; "50. Mutations decided ex parte in India after 15th August 1947, relating to Muslims.-Adverse orders passed on pre-Independence mutations ex parte after the 15th August 1947 by the Revenue authorities in India in which Muslims, who have since migrated to Pakistan, were parties should be ignored and treated in the same manner as mutations on which no orders have been passed."
In the present case there are three mutations which had been entered in India prior to Partition.
Mutation No. 955 had been entered to get cancelled on her re-marriage the mutation of inheritance in favour of Mst. Sagheeran as second widow of Ramzan deceased. Second mutation No. 968 was apparently entered after her remarriage with regard to the sale of land of her share in favour of respondents Nos. 5 to 28. In case Mst. Sagheeran is found to be governed by custom, under which she could no longer hold on to the property of late husband after remarriage, this sale would be ineffective. Similar is the case with regard to the third mutation in which she gifted 18 Biswa s of land to respondents Nos. 5 to 28. In case after the determination of these mutations it is found that Mst. Sagbeeran bad remarried and lost the estate of her deceased husband before Partition the entire property would evolve on the then surviving widow Mst. Siddiqan and on her death in 1965 the inheritance s hall reopen in favour of the heirs of the last male---holder according to Shariat.
7. It is to be noted that at the time when this case came up in motion, my Lord the Chief Justice (as he then was) who was seized of the case, recorded a statement of Mr. Ayub Ali Shah, Naib Sadar Qanungo, Central Record Room on 27th April 1964. As reproduction of the whole statement in this order will be of advantage, the same is given below:- "Statement of Ayub Ali Shah, Naib Sadar Qanungo, Central Record Room, Lahore, on S. A. :- On account of the second marriage of Mst. Sagheeran, mutation No. 955 was entered in the name of her co-widow, Mst. Siddiqan, on the 13th of Harr 2003 before Partition. This was cancelled subsequently by the order of the authorities in India on the 26th of Besakh 2005.
(2) There was another mutation entered on the 7th of Katak 2003 at serial No. 968 in India before Partition on the basis of a registered deed dated the 19th of Bhadon 2003 to the effect that Mst.
Sagheeran had sold her half share in the estate of Ramzan, her husband, to Ali Nawaz, Ali Muhammad Khan, Sabir and Abdul Ghani. This mutation was also cancelled on the 25th of Besakh, 2005. It is clear from these dates that the sale effected by Mst. Sagheeran was after she had remarried and her share had been entered through the process of mutation in the name of Mst.
Saddiqan. She. Therefore, had no right to transfer this property on the 19th of Bhadon 2003. Ali Nawaz, Ali Muhammad Khan, Sabir and Abdul Ghani, therefore, could not claim any interest in the property on account of the sale-deed executed and registered in their favour by Mst. Sagheeran. I submitted a report to the same effect, a copy of which I present.
(3) Since no effect had been given to Mutation No. 955 entered in the name of Mst. Siddiqan and also to the subsequent Mutation No. 968 entered in the name of the vendees, the jamabandi received from India indicated the property in the name of both Mst. Siddiqan and Mst. Sagheeran.
(4) Mst. Siddiqan had submitted her claim for the entire estate of Ramzan. It included the share of Mst. Sagheeran to which she succeeded after the remarriage of Mst. Sagheeran. The claim was confirmed. The entire claim was verified on the claim of Mst. Siddiqan and it was sent to Gujranwala for which district she had submitted her claim form. Subsequently an objection was raised by the vendees who claimed the share of Mst. Sagheeran on the basis of the sale-deed referred to above. The objection was accepted, the sale-deed was given effect to and the land was mutated in their name on the 7th of June 1956 through Mutation No. 968. An intimation to this effect was given to Gujranwala as well so that there should not be duplicate confirmation of this land in the name of Mst. Siddiqan.
To Court;-- Q.Was it not the duty of the authority dealing with the case of the vendees to have referred to the register of mutations received from India ?
A.Yes.
Q.If he had referred to the two mutations, one No. 955 entered in the name of Mst. Siddiqan on the remarriage of Mst. Sagheeran and second Mutation No. 968 entered in the name of the vendees having purchased the property of Mst. Sagheeran, should they be sanctioned the mutation to favour of the vendees when the sale-deed was executed after the said Mst. Sagheeran had remarried ?
A.As a matter of principle it should not have been done.
Q.Did Raja Ziaullah observe in his order that the question of inheritance of Mst. Sagheeran was still to be determined ?
A.Yes.
Q.Has the question of succession of Mst. Sagheeran been decided so far by any of the Rehabilitation authorities ?
A . No. Q.Has any of the Rehabilitation authorities dealt with the question of sale in favour of Ali Nawaz, Ali Muhammad, Sabir and Abdul Ghani and also the question of succession of Mst. Sagheeran together at anytime ?
A. No."
Subsequent to this statement his Lordship observed that the question of succession of Mst.
Sagheeran after her remarriage and the effect of the sale---deed executed by her in favour of Allah Nawaz and others prima facie had not been finally decided by the Rehabilitation authorities.
It was observed that the case was being shuttle cocked by one authority to the other without knowing as to where the remedy lay. In view of the situation the then Settlement Commissioner (Legal) was sent for and apprised of the situation. He, however, came back to report that as quite a few orders had been passed by the Rehabilitation Commissioner, the matter may be decided by this Court itself.
8. After hearing the learned counsel for the parties I have come to the conclusion that none of the Rehabilitation authorities including the Central Record Office paid any attention to the case it deserved. It is admitted at all hands that the last full owner in the case was Ramzan. It is further clear that the two widows Mst. Sagheeran and Mst. Siddiqan have since died. The questions to be decided in the case, therefore, are about the factum of the three mutations and their effect with regard to the inheritance. The orders dated 7th June 1956 passed by the Central Record Office (Annex. `J'), the order dated 1st April 1959 of Malik Muhammad Yar Khand (Annex. `D'J and the order dated 14th February 1962 of Raja Ziaullah Khan (Annex. 'E') have also to be considered. The order dated 3rd September 1962 passed by the Central Record Office casting away the responsibility of the District authorities is also in the field. A perusal of all these orders and mutations would go to show that none of the authorities tried to resolve the questions involved therein. It is, therefore, desirable in the circumstances of the case . That all the orders passed by the Settlement and Rehabilitation Authorities be declared to be without lawful authority and of no legal effect. This case shall now go back to the authority appointed under the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1.975, to summon all the parties interested in the case as well as the record of the Central Record Office and decide the effect of the mutations and the rights of the parties as heirs of Ramzan or the widows, as the case may be. In view of the complicated situation involved in the case, there will be no order as to costs.