1. ' This second appeal by the successors of deceased Hakim Ali defendant No,2 in the suit instituted by Mst. Bakhtawar was against judgment and decree of learned Additional District Judge, Sheikhupura dated 18-11-1967 by which judgment and decree of learned trial Court passed on 19- 5-1966 dismissing the suit was reversed, and in turn, the suit for joint possession for an area of 42 Kanal, 5 Marlas was decreed in favour of successors of original plaintiff Mst. Bakhtawar.
2. ' Relevant facts bearing on the decision of the controversial points in appeal are briefly these: Abdul Ghani son of Allah Din was last male owner of the land measuring 92 Kanals, 4 Marlas situate, in revenue estate of Faizpur Khurd of Tehsil Ferozewala, in District Sheikhupura. He was an agriculturist and was an Arain by caste. He died in the year 1929. He was issueless. On his demise, land owned by him was mutated in favour of his surviving widow, Mst. Hakim Bibi vide Inheritance Mutation No, 870, sanctioned on 26-12-1929 Exht.P-4. She sold it to Hakim Ali through proceedings taken in Court culminating in a consent decree passed on 16-4-1964. Consent decree was not put in evidence.
3. ' Mst. Bakhtawar claimed that she was full sister of Abdul Ghani who was last male owner of land in dispute. She asserted that Mst. Hakim Bibi held the land as limited owner under Custom and her interest in it was terminated under section 3 of Punjab Act V of 1962 w,e,f, 31st December, 1962 and, therefore, she was incompetent to make disposition of the whole land in favour of Hakim Ali. It was further asserted that the consent decree and civil proceedings leading to it were fake and collusive and did not bind her from taking her half share in the land left by her brother. Suit was instituted on 9-5-1964. Successor-heirs of Ilam-ud-Din also instituted a similar suit for 1/4th share in the legacy of Abdul Ghani on the ground that Ilam-ud-Din was his consanguine brother and had survived him. Both the suits were consolidated for a joint trial. Further proceedings were taken in the suit instituted by Mst. Bakhtawar. Heirs of Ilam-ud-Din were impleaded as defendants in the suit filed by Mst. Bakhtawar. They were defendants Nos.3 to 13 in her suit. Mst. Bakhtawar died on 8-12-1965. Her heirs were substituted on record. Amended plaint after incorporation of their names was filed in Court. Except for Mst. Nazir Begum, all were arrayed as plaintiffs. Mst. Nazir Begum was joined as defendant No,
14. Mst. Hakim Bibi was defendant No,1 and Hakim Ali was defendant No,2 in the suit.
4. Rival claimants to the share in the estate of Abdul Ghani denied each other's claim. Heirs of Ilam- ud-Din did not admit that Mst. Bakhtawar was sister of Abdul Ghani. Likewise, Mst. Bakhtawar and her successors did not concede to the correctness of the relationship of Ilam-udDin to Abdul Ghani. Defendants Nos.1 and 2 contested the suits filed against them. It was averred in defence that Mst. Hakim Bibi was full owner of the land in dispute, and was competent to make an alienation of it. In the alternative, it was averred that the sale of the land was for consideration and legal necessity. Therefore, it bound the plaintiffs. It was also averred that decree of the Court passed on 16-4-1964 was valid, and it had merely affirmed a previous complete sale between the parties.
5. Dispute raised from different angles in the pleadings was reflected in the following issues settled by the trial Court on 10-6-1965:--
(1) Whether the plaintiff is a sister of Abdul Ghani deceased?
(2) Whether defendants Nos. 3 to 13 are widow and descendants of Ilamud-Din?
(3) Whether Ilam-ud-Din was a brother of Abdul Ghani deceased?
(4) Whether Ilam-ud-Din died after the death of Abdul Ghani?
(5) Whether defendant No,1 inherited the property in suit from Abdul Ghani as a limited owner under Custom?
(6) Whether defendant No,1 made a sale in suit in favour of defendant No,2 before passing of Act V of 1962, if not, what is its effect?
(7) Whether the decree in favour of defendant No,2 against defendant No,1 in respect of the said sale is collusive, illegal and void?
(8) In case of proof of issues Nos. 5 and 6, whether defendant No,1 was competent to make a sale in suit?
(9) Whether the sale in suit is for legal necessity and consideration?
(10) Whether the valuation of both the suits is correct, if not what should be the valuation?
(11) Relief.
6. ' After settlement of issues, parties produced evidence in support of them. Mst. Hakim Bibi did not appear in the witness-box nor gave evidence in support of her case. As far defendants Nos.3 to 13, they relied upon two Mutations Nos. 2476 Exh.D-1, 269 Exh. D-2 and closed their evidence. Oral evidence was mostly adduced by the plaintiffs-successors of Mst. Bakhtawar and Hakim Ali defendant No,2. In addition to the oral evidence, copies of revenue papers consisting of Jamabandis, inheritance-mutations and an extract from birth-register were produced by the plaintiffs-successors of Mst. Bakhtawar.
7. ' Upon analysis of the evidence brought on record, learned trial Court found that Mst. Bakhtawar was sister of Abdul Ghani; Ilam-ud-Din was a brother of Abdul Ghani and defendants Nos. 3 to 13 were his widow and descendants; Mst. Hakim Bibi had not inherited the land in suit from Abdul Ghani as a limited owner. Instead she was its full owner; sale of the land in dispute in favour of Hakim Ali was hat complete till 16-4-1964 and that it was made after passing of Punjab Act V of 1962; the decree was not collusive, illegal or void; Mst. Hakim Bibi was full owner of the land and was competent to make its sale; the sale was not proved for consideration and legal necessity and lastly, the suits were correctly assessed for purposes of court-fee and jurisdiction. Consequent upon the above conclusions, both the suits were dismissed by learned trial Court on 19-5-1966.
8. ' Against the judgment and decree of the trial Court, plaintiffs-successors of Mst. Bakhtawar alone filed an appeal before learned District Judge, Sheikhupura. Heirs of Ilam-ud-Din were impleaded as respondents in the appeal. They did not file any appeal or cross-objections from the judgment and decree of the trial Court. In course of appeal, appellants submitted an application under Order XLI, Rule 27 of Civil P.C. For taking of additional evidence in the form of copies of Jamabandis for the land in suit pertaining to the years 1927-28 and 1931-32. By order dated 18-10-1967, petition for additional evidence was allowed and the two Jamabandis were taken on record as additional piece of evidence. At the instance of Hakim Ali, copy of Mutation No,861 dated 27-12-1929 was also taken on record and read in evidence vide an order of learned Additional District Judge dated 31- 10-1967. It may be observed that Hakim Ali died on 11-8-1966, and his successor was substituted for him on record.
9. ' Upon review of the evidence afresh in the light of additional evidence taken in appeal, learned lower appellate Court reversed the decision of the trial Court and gave decree for the land in dispute to the plaintiffs-successor of Mst. Bakhtawar. It was held that Mst. Bakhtawar was entitled to a half-share in - the land left by Abdul Ghani, Ilam-ud-Din as consanguine brother of Abdul Ghani was entitled to 1/4th share and the remainder 1/4th shall devolve on issueless widow Mst.
10. Hakim Bibi. Consequently, the appeal was allowed on the above lines. 7 Kanals, 14 Marlas of land comprised in Khasra Nos.1611, 1394, 1819/2, 1355, 1350, 3260/356, 109 and 2843 were excluded from the decree, as personal property of Mst. Hakim Bibi. This judgment of the lower appellate Court that was being assailed in second appeal by the successors of Hakim Ali. Appeal was admitted to hearing on 17-4-1968.
11. ' Ch. Muhammad Hassan, Advocate, learned counsel for the appellants urged four points in seriatim. These were:--(1) Whether Hakim Bibi was a limited owner holding the estate under Custom or was a full owner of it; (2) whether, Mst. Bakhtawar was sister of Abdul Ghani; (3) whether Ilam-ud-Din was consanguine brother of Abdul Ghani; (4) whether Hakim Ali or his successors could retain 1/4th share fallen to Mst. Hakim Bibi in inheritance from the estate of her late husband.
12. In order to support his contentions on the aforenoted points, record was read out to show that Mst, Hakim Bibi was full owner of the land; she was competent to alienate it and neither Mst. Bakhtawar nor Ilam-ud-Din were proved to be related to late Abdul Ghani. It was argued that in any case, on the doctrine of feeding the estoppel, Hakim All or his successor could not be denied 1/4th share in the land in dispute fallen to the share of Mst. Hakim Bibi which she had sold to Hakim Ali and received consideration for it.
13. ' As against it, A.B. Malik, Advocate, learned counsel for respondent No,1 argued that she had not sold the land in dispute to Hakim Ali, nor had she received any consideration for it from him. It was argued that the Court decree was result of collusive and fake proceedings and the written statement attributed to her in the present proceedings was also not filed by her and it was at the instance of Hakim Ali that some person impersonated her and filed a false written statement on her behalf. Therefore, she was not bound by it. It was further argued that she was totally unaware of the proceedings taken in the present suit as also the proceedings in the previous suit culminating in the consent decree dated 16-4-1964. Learned counsel invited my attention to an order of the trial Court passed on 28-4-1993 by which the plaint in the suit filed by her to question the Court decree dated 16-4-1964 and the mutation attested on its basis was rejected under Order VII, Rule 11, Civil P.C. A copy of the order rejecting the plaint has been kept on file of this Court.
14. ' Learned counsel for respondents Nos.2 to 6 submitted that on record, there was sufficient evidence to establish that Mst. Hakim Bibi was limited owner of the land in dispute; she had taken it under Custom on the death of her husband and was incompetent to make a sale of it without consideration and legal necessity and after enforcement of Act V of 1962 was totally debarred from dealing with the land in dispute except her own share in it; consent decree was collusive and fraudulent and that Mst. Bakhtawar was proved to be real sister of Abdul Ghani. Heirs of Ilam-ud- Din who were respondents in the appeal were proceeded against ex parte and, therefore, I have had not the advantage of hearing arguments from them in support of their version of the case.
15. ' Having set out the contention of the parties above, I shall now proceed to examine them in the seriatim in which they were put-forth. There was no dispute that Mst. Hakim Bibi was an issueless widow surviving her husband Abdul Ghani son of Allah Din. On the death of Abdul Ghani, his land was mutated in favour of his surviving widow. Mutation No, 870 Exh. P-4 was an ample proof of it. In the mutation, only Khata numbers of the land were given. Naturally, Khasra numbers of the land were not mentioned in it. In order to determine the identity of the land which was subject-matter of dispute in the suit with the land inherited by Mst. Hakim Bibi from her husband at the time of his death, two Jamabandis for the years 1927-28 and 1931-32 were taken as additional piece of evidence. On a combined reading of inheritance Mutation No,870 with Khatas and Khasra numbers mentioned in them as also the alteration of entries in the column of ownership, it was clear that the land in dispute was received by Mst. Hakim .Bibi as widow of Abdul Ghani from him. It was significant to observe that in the Kaifiyat-column of Jamabandis for the year 1927-28, reference to Mutation No, 870 pertaining to inheritance of Abdul Ghani was recorded in red ink. Further, in the Jamabandi for the year 1931-32, in place of Abdul Ghani, name of Mst. Hakim Bibi was substituted.
16. Therefore, learned Additional District Judge correctly read the record for holding that the land in dispute was held by Mst. Hakim Bibi under Custom as its limited owner. Further, Abdul Ghani belonged to a notified tribe of agriculturists and was then governed by Agricultural Customs in matters of alienation of his land and succession to it. Under Muslim Law, issueless widow could not inherit the whole of her husband's land, more particularly, when a real sister and a consanguine brother were in the field. In my opinion, the record sufficiently established the identity of the land and the status of Mst. Hakim Bibi as limited owner holding the estate under Custom. Under that system of law, she could not alienate the land without consideration and legal necessity. Neither consideration nor necessity was proved. Antecedent's oral sale was also not established.
17. ' As far the second contention, whether Mst. Bakhtawar was sister of late Abdul Ghani, there was not much doubt or dispute on record. Apart from oral evidence led in this behalf of which there was no effective rebuttal, there was an extract from register of birth showing that a daughter was born to Allah Din, on 24-2-1894. Both the lower Courts upon critical examination of oral and documentary evidence had found in her favour. Slight discrepancies existing in oral evidence here and there were insufficient to dislodge the agreed finding on question of fact pertaining to the relationship of Mst. Bakhtawar to Abdul Ghani. I would accordingly uphold the concurrent finding of fact recorded on this point and hold that she was real sister of Abdul Ghani. The question of her relationship was properly concluded by a final Court of fact.
18. ' As regards relationship of Ilam-ud-Din to Abdul Ghani, in addition to oral evidence led on the point, there was an important piece of evidence of convincing nature to show his relationship to Abdul Ghani. Undisputedly, Allah Din son of Charagh Din was father of Abdul Ghani. He died somewhere in the year 1918. He had two wives namely Mst. Jewan and Mst. Jawai. Abdul Ghani was from the womb of Mst. Jawai and Ilam-ud-Din from Mst. Jewan. On the death of Allah Din, land owned by him was mutated in favour of his two sons Abdul Ghani and Ilam Din, in equal shares, vide inheritance Mutation No, 269 sanctioned on 9-6-1919. Certified copy of it was Exh. P-3 on the file of the trial Court. It was true that some doubt was expressed about the legitimacy of Ilam-ud- Din in the proceedings before the Revenue Officer but eventually, the dispute was resolved in his favour. Abdul Ghani was then a minor but his mother Mst. Jawai accepted the share in inheritance to Ilam-udDin. Eversince the date of aforesaid mutation, Ilam-ud-Din was recorded a co-owner in the land in dispute. Jamabandis for the years 1927-28, 1931-32 and subsequent revenue records bear ample testimony to it. Abdul Ghani neither doubted nor questioned his relationship to Ilam- ud-din in his lifetime. This was a strong circumstance and an important piece of evidence to greatly probablise the relationship of Ilam-ud-Din to Abdul Ghani. In my opinion, this factor alone was sufficient to hold that Ilam-ud-Din was consanguh brother of Abdul Ghani. Otherwise, he would not have allowed him to share patrimony with him. Upon this view of the record, I feel little difficulty for upholding of the finding on relationship of Ilam-ud-Din. As a consanguine brother, he was entitled to inherit his share of land. It came to 1/4th. It was true that upon dismissal of the suit, heirs of Ilam-ud-Din had neither preferred appeal nor filed cross-objections. Nonetheless, learned Additional District Judge found them entitled to a fourth share in the estate of deceased Abdul Ghani. This course was rightly adopted by him under Order XLI, Rule 33 of Civil P.C. And I propose to maintain it.
19. I shall now advert to the last contention, whether 1/4th share of Mst. Hakim Bibi could be retained by Hakim All as having purchased from her. Ordinarily, there would have been no hitch for allowing him to retain the share in the land owned by Mst. Hakim Bibi on the principle of feeding the estoppel. Nonetheless, in view of doubts expressed at the hearing by the learned counsel for Mst.
20. Hakim Bibi about the genuineness of the Court decree dated 16-4-1964 and the written statement presented on her behalf in the present proceedings in which sale of the land in dispute was admitted by her, I am reluctant to express a final opinion on it by leaving the parties to thrash it out in other appropriate proceedings. Copy of the plaint of the suit instituted by Hakim Ali against Mst.
21. Hakim Bibi; written statement; consenting or otherwise submitted by or on her behalf; the statement made by her, if any, admitting the plaint; copy of the decision and the decree passed in the suit were not tendered in evidence. No good reason was forthcoming for withholding them from the Court. Similarly, it was to be seen whether Mst. Hakim Bibi filed the consenting written statement in this suit. Except for the written statement ascribed to her, she was not shown to have appeared in the proceedings in the two Courts below. In the above context, further inquiry on her stance relating to sale of her share of the land to Hakim Ali was not only necessary to establish it but shall be conducive to fair administration of justice also. These and other reasons dictated for the above course.
22. ' Having regard to the aforesaid, there is little merit in the second appeal, which is hereby dismissed by leaving the parties to bear their own costs of it.
23. Records be returned.