ZIA MAHMOOD MIRZA, J.---This appeal by leave of the Court is directed against the judgment of a learned Single Judge of the Lahore High Court, Lahore, dated 1-8-1992 dismissing the appeal (RSA No.965 of 1-967) filed by the present appellants. The leave in this case was granted-16 consider "whether the sale made in favour of the petitioners by Mst. Roshanaee, who was a limited interest- holder, couldbe considered valid to the-extent of her share".
2. Facts relevant for the disposal of this appeal, briefly, are that one Chaudhry Inayat Khan, a Rajput Chadhar of District Jhang (who is stated to have died somewhere in the year 1940) was the owner of about 50 squares of land. He was survived by two widows - Mst. Roshanaee respondent No.1 and Mst. Fateh Bibi, a son Ghulam Muhammad (from his wife Mst. Fateh Bibi), three daughters from Mst.
Roshanaee namely, Mst. Allah Jawai, Mst. Sahib Bibi (respondents Nos.9 and 10 herein) and Mst.
Sardar Bibi who is stated to have died before the year 1962. Mst. Roshanaee sold 112 Kanals 5 Marlas of land to Haider Shah and others, the appellants herein, for a sum of Rs.3,000 by means of a deed dated 4-8-1953. This sale was challenged in a suit by Sher Muhammad Khan and his brother - respondents Nos.3 to 8 (all sons of Ch. Baahie Khan, a brother of Ch. Inayat Khan) and Mst. Allah Jawai and Mst. Sahib Bibi - respondents Nos.9 and 10. Claim of the plaintiffs/respondents was that Mst. Roshanaee, being a sonless widow of Inayat Khan deceased was holder of a limited estate and the sale made by her was without consideration and legal necessity, and was, therefore, not binding on them. They also prayed for possession of the suit land in the following shares:--
(i) 14/240 share for plaintiffs Nos.1 to 6 (respondents Nos.3 to 8).
(ii) 168/240 share for other two plaintiffs namely, Mst. Allah Jawai and Mst. Sahib Bibi (respondents No.9 and 10).
3. The suit was contested by the vendees/defendants, who are the present appellants. Their plea was that if family of Mst. Roshanaee was governed by customary law, then the sale was for consideration and legal necessity in so far as Mst. Roshanaee needed the money for the marriage of her daughters and to install tubewell in the lands. Learned Trial Court, after framing the issues arising from the pleadings of the parties and recording evidence adduced by them decreed the suit of the plaintiffs/respondents holding that their family was governed by agricultural custom in matters of alienations and succession before the enforcement of Muslim Personal Law (Shariat)
Application Act, 1948 and that the prevalent custom was that "on the death of an owner of a land, his sonless widow (or widows) used to inherit his property as a limited owner till her death or remarriage and she had no authority to alienate the land by way of gift, mortgage or sale, and during her lifetime she could only enjoy its usufructs". It was accordingly held that Mst. Roshanaee had succeeded to the estate of her deceased husband as a limited owner and had no authority to alienate the land. It was further found by the learned Trial Court that the sale, though for consideration, was without legal necessity. The suit was thus decreed but the appellants were held entitled to receive Rs.3,000 from the plaintiffs and the two defendants Mst. Roshanaeel and Mst. Sahib Bibi according to their respective shares.
4. The decree of the Trial Court was assailed in an appeal by the plaintiffs and their only grievance was that they were not liable to pay a sum of Rs.2,275 which they were directed to pay to tie vendees/defendants. The appellants filed cross-objections contending that Ghulam Muhammad, to immediate reversioner of Ch. Inayat Khan, having identified the parties to the sale at the time of registration of sale-deed had consented to the said sale therefore, other reversioners could not challenge the sale in dispute. Learned Additional District Judge held that Ghulam Muhammad had identified the parties as Lambardar of the village; other reversioners did not inherit the property through him and as such they "were not debarred from bringing a suit after his death"; and in any case, the act of identification did not amount to waiver. It was further held by the learned Additional District Judge that the sale being without legal necessity, the plaintiffs were not liable to refund the amount in question to the appellants. He accordingly accepted the plaintiffs' appeal and dismissed the appellants' cross-objections.
5. Feeling aggrieved, the present appellants filed an appeal (RSA 956 of 1967) in the Lahore High Court contending, inter alia, that if Mst. Roshanaee was a limited owner under custom, they were entitled to retain the land in suit as Mst. Roshanaee was entitled to 1/8th share in the estate of her deceased husband Inayat Khan. The learned Judge in the High Court took the view that the appellants were not entitled to raise the question being canvassed before him as they had not agitated it before the lower Appellate Court. Nonetheless, it was held that whatever was the capacity of Mst. Roshanaee, "she had no power to alienate without legal necessity" and that the question of legal necessity stood concluded by a concurrent ending of fact recorded by the two Courts below. As regards the appellants' contention that they were entitled to retain the land in dispute to the extent of the 'Sharai' share of Mst. Roshanaee, learned Judge relying upon a judgment of this Court reported in Said and others v. Fazat Hussain and others (PLD 1959 SC (Pak)
356), held that the appellants could have retained the share of Mst. Roshanaee, if her interest had terminated ot4rwise than by her death but the interest of Mst. Roshanaee did not so terminate and "the appellants, therefore, were not entitled to retain any part of the property".
6. We have heard the learned counsel for the parties. The short question requiring determination in.
This case is whether the sale made in favour of the, present appellants by Mst. Roshanaee who was holder of a limited estate could be considered valid to the extent of her share. It appears to be implicit in the question that Mst.
Roshanaee being the widow of the last male owner had succeeded to his estate under Muslim Law and if that be so, there can be no question -that the alienees from her namely the present appellants would be entitled to retain the suit land to the extent of her share by virtue of the principle of "feeding the estoppel". The learned Judge in the High Court has, however, taken the view relying on the case of Said v. Fazal Hussain (supra) that the appellants would have retained the share of Mst. Roshanaee if her limited interest had terminated otherwise than by her death and since her interest had not so terminated, the appellants would not be entitled to any part of the property. It may be pointed out with respect that the decision in Said's case relied upon by the learned Judge was based on the proviso to section 3 of Punjab Muslim Personal Law (Shariat)
Application Act IX of 1948. Section 3 of the said Act provided that on the termination of the limited interest held by a Muslim female, succession shall be deemed to open out to all persons who would have been entitled to inherit under the Muslim Law at the time of the death of the last full owner. Proviso to section 3, however, declaled that the share which the female limited owner would have inherited if the Muslim Personal Law (Shariat) had been applicable at the time of the death of the last full owner, shall devolve on her if she loses her limited interest on account of her marriage or remarriage but if her interest terminates because of her death, her share shall devolve on her Muslim Law heirs. Relying on this proviso, it was held in the precedent case that as the limited interest of the Muslim female involved in that case had terminated because of her death, the share which she would have inherited devolved on her heirs under the Muslim Personal Law and since she herself never became vested with full ownership in any part of the property, "no part of the property can be retained by the alienees".
Now in the instant case, limited interest of Mst. Roshanaee terminated neither on account of her remarriage nor because of her death but under section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act V of 1962 which Act had in fact repealed Punjab Act IX of 1948. Section 3 of Act V of 1962 declared in express terms "The limited estates in respect of immovable property held by Muslim females under the Customary Law are hereby terminated". Section 5 of the said Act which is in pan materia with section 3 of Punjab Act IX of 1948 laid down that the life estate terminated under section 3 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner and as regards the Muslim females holding limited estate under Customary Law like Mst. Roshanaee, provision was specifically made in the proviso to section 5 stating that the share to which holder of limited estate would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her. In this view of the matter, the ratio in Said's case was not applicable to the present case and Mst. Roshanaee was quite clearly entitled to her Muslim Law share in the estate of her deceased husband and the appellants could, therefore, retain the suit land to the extent that it fell within the share of Mst. Roshanaee.
7. Apart from what has been said above, the right claimed by the respondents in their suit which has been decreed by the Courts below namely, the reversioners' right under Custom to challenge the alienation made by a limited owner was clearly hit by section 2-A of Muslim Personal Law (Shariat) Application Act V of 1962, Clause (b) whereof provided that "any decree, judgment or order of any Court affirming the right of any reversioner under Custom or usage, to call in question such an alienation or directing delivery of possession of agricultural land on such basis. Shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act". This provision quite clearly nullified the judgments/decrees of the Courts below based on the customary right of reversioners but it appears that it was not brought to the notice of learned Judge in the High Court even though section 2-A was added by Punjab Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983) during the pendency of the second appeal in the High Court.
8. Upshot of the above discussion is that this appeal is allowed, the impugned judgments and decrees of the Courts below are set aside and it is held that the appellants are entitled to retain the suit land to the extent of the share of Mst. Roshanaee in the estate of her deceased husband Chaudhry Inayat Khan. No order as to costs.