' Fazal son of Mehman was the owner of agricultural land measuring 3988 Kanals and 13 Marlas situate in the revenue estate of Gojra, Tehsil Phalia, District Gujrat. He died in the year 1916 and mutation of his inheritance No,2 was sanctioned on 25-11-1916 (Exh. P-10) and the aforementioned land was mutated in the name of Mahla and Ahman his sons and Mst. Fazlan widow of his predeceased son Rehman. On the death of Ahman who had no male issue, land inherited by him from his father, was mutated in the name of his unmarried daughter Mst. Mehro vide Mutation No,17 dated 17-1-1919 (Exh. P-11) in accordance with custom prevalent in the district, according to which, the unmarried daughter had a preferential right of succession as against the collaterals. Mst.
Fazlan widow of Fazal, remarried, hence Mutation No,22 was sanctioned on 25-6-1921 (Exh. P-12) and the land was mutated in the name of Mst. Mehro daughter of Ahman and Mahlan brother of Mst. Fazlan's husband. On the death of Mahla vide Mutation No,32 (Exh. P-13) Mst. Behashtan succeeded to Aim. All the aforementioned mutations were sanctioned in accord with Custom in matters of inheritance which was being followed by the family. Mst. Mehro (defendant No,1) was married in the year 1926, hence, vide Mutation No,118 dated 11-4-1926 (Exh. P-15) the land held by her was mutated in the name of Mst. Bhagay widow of Ahman deceased vide Mutation No,185 sanctioned on 12-10-1945 (Exh. P-19). Thereafter, out of the aforementioned and she gifted land measuring 763 Kanals and 8 Marlas and 942 Kanals and 14 Marlas, in the name of Mst. Mehro vide mutations of gift Exh. P-16 and P-17 land measuring 565 Kanals and 2 Marlas was gifted by her in favour of Mutalli (defendant No,3) son of Pallho vide Mutation No,301 dated 31-5-1962 Exh. P-18 land measuring 1047 Kanals and 14 Marlas, was gifted by her in favour of M/s. Ghulam Abbas and others, the defendants Nos.4 to 13 in the suit. Mutalli (defendant No,3) gifted the land which had been transferred in his favour vide mutation of gift Exh.P-18 referred to above, in favour of defendants Nos.15 to 19.
2. M/s. Sultan Ali and five others who are the appellants before this Court, and claim themselves to be the heirs of Mst. Began alleged to be a daughter of Fazal who was allegedly alive at the time of death of Rehman, Ahman and Mehla, filed a suit seeking a declaration to the effect that they are entitled to inherit the suit land as per provision of Muslim Personal Law (Shariat) Application Act, to the extent of 19/24th share therein and further seeking a declaration to the effect that transactions/mutations of gift, in favour of defendants Nos.1 and 3 to 13, referred to above are illegal void, as the same has been created without consideration, without legal necessity, against the Customary law prevalent at the relevant time and hence, are ineffective against their reversionary rights of inheritance under the provisions of Muslim Personal Law. The suit has been contested. The main contention on behalf of contesting respondents is that the suit land was self- acquired property of Fazal and had been inherited by Mst. Mehro as his sole heir under custom which was further transferred in the name of her mother, who held the estate in fact on her behalf as a full owner and not as a limited owner, therefore, the gifts in question are valid in law, and that the plaintiffs who are not even the heirs of Mst. Began, who was not the daughter of Fazal have no cause of action, hence, the suit is liable to be dismissed on the aforementioned amongst other grounds including the ground of limitation.
3. On the basis of the pleadings of the parties, learned Trial Court framed the following issues:--
(1) Whether the suit can proceed-in the present form? OPP
(2) What is the value of the suit for the purposes of court-fee and jurisdiction? OPP
(3) Whether Mst. Fazlan widow of Rehma inherited the property left by Fazal as a maintenance holder? OPP
(4) If Issue No,3 is found in the negative. Whether Mst. Fazlan widow of Rehma had inherited the land left by Fazal son of Rehma as a limited owner? OPD
(5) Whether Mst. Mehro defendant No,1 inherited the property on the death of her father Ahman son of Fazal as an unmarried daughter and limited owner? OPP
(6) Whether Mst. Bhagay defendant N6.2 widow of Ahman was the limited owner of the land left by Ahman son of Fazal?' OPP
(7) Whether on the re-marriage of Mst. Fazlan widow of Rehma her property was mutated in the name of Mst. Mehro defendant No,1 in the presence of Mst. Bhagay widow of Ahman as a limited estate holder? OPP
(8) Whether on the death of Mst. Bahishtan widow of. Mahla the property of her husband Mahla son of Fazal was mutated in the name of Mst. Mehro defendant No,1 on the basis of collateral succession? OPP
(9) Whether on the marriage of Mst. Mehro defendant No,1 whole of his property was inherited by Mst. Bhagay defendant No,2 as a limited owner? OPP.
(10) If Issue No,9 is proved in the affirmative whether Mst. Bhagay defendant No,2 correctly got attested impugned Mutations Nos.185, 272, 274 and 301 under the Customary Law? OPP.
(11) Whether Mst. Began was the daughter of Fazal son of Rahman and was alive at the time of the deaths of Rehman, Ahman and Mahla? OPP
(12) Are the plaintiffs the legal representatives of Mst. Began? OPP
(13) Whether the suit has been instituted within time? OPP
(14) Whether the plaintiffs have properly instituted the suit after obtaining the permission of the Court subject to the payment of Rs,30 as costs? OPP
(15) Whether Mst. Bhagay defendant No,2 surrendered her right of succession in favour of Mst.
Mehro defendant No,1 as an act of Acceleration of succession? If so, with what effect? OPD.
(16) Whether defendant No,1 was in adverse possession of the disputed property for over a period of 12 years before bringing of the suit? If so, with what effect? OPD.
(17) Whether on marriage of Mst. Mehro defendant No,1 whole of her property has been wrongly mdtated in the name of Mst. Bhagay defendant No,2? If so, with what effect? OPD
(18) How much is the share of the plaintiffs in the disputed property? OPP
(19) Whether the plaintiffs Nos.4 to 6 are the legal representatives of Ghulam Ali? OPP
(20) Whether Ghulam Ali was the son of Mst. Began and died after her death? OPP
(21) Whether Gaman defendant No,14 is the brother of Mst. Bahishtan and entitled to inherit her share? OPD-14.
(21-A) Whether Mst. Satto defendant No,20 is the sister of Mst. Bahishtan and entitled to inherit her share? If so, how much share is to be inherited by her? OPD-15.
(22) Relief.
4. Aftg recording of evidence vide judgment and decree dated 18-6-1974,. Learned Civil Judge, Gujrat, dismissed the suit. Issues Nos.1, 2, 11 to 14, 16, 19, 21 and 21-A were decided in favour of the plaintiff whereas as other issues were decided in favour of the defendants. The appeal filed against the aforementioned judgment and decree by the plaintiffs was dismissed by the learned Additional District Judge, Gujrat vide judgment and decree dated 17-5-1979. Learned lower appellate Court reversed the findings rendered by the learned Trial Court on Issues Nos.1, 2, 11, 15, 17 upheld the findings on Issues Nos.3 to 9 and 14,16,18, 21 and 21-A decided issue ,No,10 against the plaintiff which had been left undecided by the learned Trial Court and conceded the findings rendered by the learned Trial Court on other issues, hence, this regular second appeal- has been filed by the plaintiffs.
5. Ch. Khurshid Ahmad, Senior Advocate, learned counsel for the appellants has addressed arguments orally and have also submitted in writing as well, and has contended that on promulgation of Muslim Personal Law (Shariat) Application Act, 1962, limited estate held by Mst.
Bhagay which stood terminated and the succession having opened, the suit filed by the appellants who claim themselves to be the co-heirs/co-sharers in the suit land, a simple declaratory suit is maintainable as held in case "Lt.-Col. Safdar Ali Malik v. Khadim Hussain (PLD 1970 Lahore 629); that valuation of the suit for the purpose of court-fee and jurisdiction as fixed by the plaintiffs is correct and the finding of variance rendered by the first appellate Court in this behalf are illegal as case of Balwant Singh v. Jagjit Singh, vendee and another (AIR 1947 Lahore 210) is distinguishable on facts, hence, reliance thereupon by the learned first appellate Court is inapt; that the findings of the two Courts below on issues Nos.3 and 4 are illegal and are based upon misreading and wrong appreciation of evidence as Mutation No,2 sanctioned on 25-11-1916 (Exh.P-10) clearly proves that on the death of Fazal, the land in question was mutated in the name of Mst. Fazlan widow of Rehman a predeceased son of Fazal Rehman and Mahman in equal shares as per Customary law followed by Tarrars of District Gujrat and not under the Personal Law; that it is clearly established from copy of the mutation Exh. P-11 that Mst. Mehro defendant No,1 inherited the suit property as a limited owner; that it is established on record that Mst. Bhagay succeeded under the custom law, therefore, it shall be presumed that she inherited the suit land as a limited owner and not as a full owner, that Mst. Bhagay who was a limited owner could not have alienated the suit land by gifts as she was governed Custom according to which she did not enjoy the power of transfer of property by gift without consideration and legal necessity, so as to disinherit the plaintiffs who have a right to inherit; that the findings of the two Courts below to the effect that Mst. Baigan was not the daughter of Fazal son of Mehman and that the plaintiffs are not her heirs, is based upon misreading or non-reading of evidence on the record. Exh. P-33 clearly proves that a daughter was born to Fazal. Documents Exh. P-28 and Exh. P-29 further establish that she was alive at the time of death of Ahman, Rehman and Mahla. Document Exh. P-24 which is the death entry of Mg. Began proves beyond doubt that she was daughter of Fazal and died on 13-3-1954. This fact is further corroborated by the documentary evidence consisting of Exhs. P-11, P-13 as well as oral testimony of P.W.1 to P.W.7. The evidence in rebuttal which consists of statement of D.W.4 to D.W.12 besides being of no intrinsic value stands belied by Exh. P-33 which clearly proves that Fazal had a daughter and further that there is absolutely no evidence on record that Mst. Began was daughter of Haku, therefore, findings of the two Courts below on the above issues are not lawful; that the suit is filed within time. The limited estate terminated in 1962. Suit for possession could be filed within 12 years with effect from the date of termination of limited estate under Article 141 of the Limitation Act and as the alienations in question were void qua the plaintiffs, the suit has wrongly been held to be barred by time; that the findings of the learned appellate Court on issue of adverse possession are based upon no evidence. Even otherwise, the plea is self-contradictory and at any rate no relief can be granted on the basis thereof due to deletion of provisions of sections 28 from the Limitation Act, therefore, findings rendered by the first appellate Court in this behalf are illegal. In support of his contentions learned counsel has placed reliance on the following cases: ' Federation of Pakistan v. Muhammad Ishaq (PLD 1983 SC 273), Amir Din v. Bahadur Hussain (PLD 1990 SC 816), Mst. Zeenat Begum v. Mst. Iqbal (PLD 1991 SC 427), "Abdul Ghafoor v. Muhammad Shafi (PLD 1985 SC 407) Murad v. Karam (1987 SCMR 2008), Hakim Ali v. Barkat Bibi (1988 SCMR 293), Ilam Din v. Muhammad Bashir (1989 SCMR 1632), Allah Rakha v. Nawab and others (PLD 1967 Lahore 613), Akbar and others v. Mst. Rabia Bibi (PLD 1957 Lah. 588), Safdar Ali Malik v. Khadim Hussain (PLD 1970 Lah. 629), Ahmad Din v. Mst. Fatima Bibi (AIR 1928 Lahore 290), and Rehmat Ali and others v. Ahmad Bakhsh and others (AIR 1931 Lahore 609).
6. M/s Najamul Hassan Kazmi and Khan Muhammad Bajwa, Advocates learned counsel for the respondents, who have addressed oral arguments, have submitted notes in writing have conceded that plea of adverse possession is not available to the respondents and contended that findings of fact rendered by the two learned Courts below are not liable to be interfered with in second appeal as there is no misreading or non-reading of evidence by the two Courts below and that it stands established on record that the suit is not maintainable in its present form which is also barred by time; that Mst. Bhagay was holding the land not in a limited owner but as a full owner as she had acquired the estate from Mst. Mehro who had inherited land as full owner under the Customary law of Gujrat followed by the last male holder; that it is not established on record that Mst. Began was the daughter of Fazal or that the plaintiffs are her heirs; and that the questioned alienations are not challengeable as being violation of the limitations placed by the Customary Law as per provisions of section 2-A of Ordinance XIII of 1983, hence the suit has rightly been dismissed by the two Courts below. In support of their case, learned counsel placed reliance on the following cases: "Lal v.
Rehmat Bibi (PLD 1991 SC 582), Abdul Ghafoor v. Muhammad Shafi (PLD 1985 SC 407), Atta Muhammad v. Mst. Khurshid Begum (PLD 1964 Lahore 224) and Khudadad v. Rabia Bibi (AIR 1930 Lahore 724), as well as Customary Law of Gujrat compiled by Mr. H.S. Villiam, Settlement Officer and the Digest of Customary Law by Rattigan.
7. I have considered the arguments addressed by the learned counsel for the parties, have perused the record, have examined and compared the two judgments and have gone through the relevant case-law cited at the Bar. The alienations of gift have been challenged as being violative of the limitations placed under the customary law followed in the district of Gujrat, according to which, females who were holding a limited estate, had no authority to transfer the property by gift. The suit has been filed by the plaintiffs in a declaratory form claiming themselves to be co-sharers/co- heirs in the suit property. Consequently, claim of the plaintiffs being that of co-heirs/co-sharers, it cannot be said that the same is barred by time as in case the plaintiffs succeed in establishing that they are co-heirs/co-sharers the bar of limitation will not operate against them as the defendants-respondents who are in possession of the land shall be deemed to be holding the possession on their behalf as well. Therefore, suit as framed is neither defective in form nor is barred by time nor plea of adverse possession is available to the defendant No,1 and, hence, the respondents cannot be said to be defective. Refer case of "Ghulam Ali v. Mst. Ghulam Sarwar Naqvi"
(PLD 1990 SC 1), therefore, findings of the learned lower/appellate Court on Issues Nos.1, 2, 13 and 16 as such set aside. And are decided in favour of the plaintiffs-appellants.
8. The plaintiffs claim themselves to be the heirs of Mst. Began who is alleged to be the daughter of Fazal deceased, who was entitled to inherit thF land in question as being the heir of last male holder, and therefore, they have prayed for grant of a decree on the basis of their right of inheritance under the provisions of Muslim Personal Laws. In order to succeed in this behalf, the plaintiff shall have to prove:--
(1) that Mst. Began was the daughter of Fazal deceased and was alive at the time of his death;
(2) that the land was held by Mst. Bhagay as a limited owner which according to them stood terminated in the year 1962;
(3) that the alienations of gift are violative of the customary law wherein she had inherited as a limited owner, and therefore, are void and hence, are inoperative against the right of inheritance;
(4) and that the questioned alienations can be set aside as being violative of Customary limitations and restriction, after the enforcement of section 2-A of Ordinance, XIII of 1983.
9. On the first two points, two Courts below after going through the evidence produced by the parties, have concurrently held that Mst. Began is not proved to be the daughter' of Fazal, and therefore, have held that the plaintiffs have no right of inheritance. Similarly, it is held that Mst.
Bhagay was not holding the land in question as limited owner, and therefore, estate being held by her as full owner, alienations of gift are not challengeable nor the plaintiffs can claim of right of inheritance by virtue of provision of Muslim Personal Law (Shariat) Application Act (Amendment)
Ordinance, XIII of 1983. It is well-established a legal proposition that unless and until it is a case of mis-reading or non-reading of evidence, in second appeal, no interference is possible with a finding of fact even if different view could be taken after appreciation of evidence by this Court.
Refer case Abdul Majid and others v. Khalil Ahmad (PLD 1955 FC 38) at page (41) whereof it has been held as under:-- "It is obvious that what the learned Judges intended to say was that for the reasons stated by them the Courts below should not have accepted the evidence which they did, and they seem to have assumed that a fallacious method of approaching the evidence is, in second appeal, a good ground for upsetting a finding of fact based on such evidence. With great respect, I am unable to agree with this view, because a fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal. I had the occasion to examine this question recently in the Lahore High Court in Nadir Shah v. Lal Shah and others PLR (1954) 595'PLD 1954 Lah. 447 where referring to the leading authorities of the Privy Council on this subject I held that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits. I adhere to that opinion which was based on the Privy Council decisions in Durga Chowdhrani v. Jewahir Singh Chowdhri ILR 18 Cal. 13 and Wali Muhammad v. Muhammad Bakhsh 11 Lah. 199 which lay down this proposition in clear and unmistakable terms. It is not suggested that there was in the present case any 'error in the procedure provided by law', nor that there is any rule of law prescribing the manner in which evidence in such cases has to be judged which was contravened by the Court of First Appeal which is the final Judge of facts."
10. After going through the evidence myself I do not find any illegality in the findings rendered by the two Courts below on the aforementioned two points. The birth entry Exh. P-33 which shows that a daughter of Fazal was born in village Gojra on 14-5-1899, has rightly been discarded, on the basis of other evidence, besides original death entry Exh. P-4 wherein originally Mst. Began is mentioned as widow of Fazal but during the pendency of suit on 14-4-1964, a correction has been made in the said entry at the instance of the appellant without associating the respondents. The oral evidence has also been discarded for valid reasons. The requirements of section 50 of the Evidence Act for making the said evidence admissible have not been fulfilled and, therefore, it has rightly been held by the learned first appellate Court that there being absolutely no evidence of assertion/allegation of special knowledge of the witnesses regarding the relationship in question, the oral evidence could not be accepted. Therefore, it is held that the findings rendered by the two Courts below on the issue of alleged relationship Mst. Bhagay with Fazal and the petitioners is not established on record.
' As regards the nature of the estate of Mst. Bhagan, answer to the question No,60 as given by the Customary Law by H.S. Williamson which is as follows:-- "As regard acquired property, a daughter excludes collaterals however near." proves beyond doubt that Mst. Mehro who was unmarried daughter inherited the suit property as a full owner under Custom of District Gujrat which was being followed by her family. Above fact is further established by the ratio of case of "Ata Muhammad and others v. Mst. Khurshid Begum" (PLD 1964 Lahore 224) wherein question arose as to whether Khurshid Begum daughter of a deceased owner of self-acquired property could have a right of inheritance.? It was answered in the positive.
At page (229) of the report it has been held as under:- "8. We may now take up the third point raised by the learned counsel for the appellants, namely, that the relevant custom has been wrongly interpreted by the Trial Court. It is conceded by Raja Said Akbar Khan that the case is governed by clause (b) of section 21 of the Colonization of Government Lands Punjab Act. For facility of reference the whole section may be reproduced here: 'When, after the commencement of this Act, any male tenant, who is not an original tenant, dies, or any female tenant dies, marries or remarries, the succession to the tenancy shall devolve-
(a) in the case of a female, to whom the tenancy has been first allotted, on the successor nominated by the Collector from the issue of such female tenant, or from the male agnates of the person, on account of whose services the tenancy was allotted to her;
(b) in all other cases, on the person or persons, who would succeed if the tenancy were agricultural land acquired by the original tenant.'
' It will be seen that according to clause (b) above, the question of inheritance is to be determined on the assumption that the tenancy was the self-acquired property of the original tenant Ahmed Khan, the father of Jalal and grandfather of the plaintiff-respondent. It is not disputed that the male of custom applicable in the case is contained in the answer to question 60 of the Customary Law of Gujrat District by H.S. Williamson Settlement Officer (1922 Edition). This rule is in the following terms:- ' As regards ancestral immovable property, daughters inherit in the absence of male lineal descendants through males, the widow and the collaterals of the 5th degree.'
' As regards acquired property they exclude collaterals however near."
11. It is contended by Raja Said Akbar Khan that as the property was not acquired by Jalal, but by his father Ahmad Khan, it has to be treated as ancestral for the purposes of inheritance, and if that is done, then Jalal's daughter would stand excluded. This argument of the learned counsel, however, overlooks the meaning which has all along been assigned to the word "ancestral" as used in rules of Customary Law. On page 664 of Rattigan's Digest of Customary Law, the following definition of ancestral property is given:- "Ancestral property means, as regards sons, property inherited from a direct male lineal ancestor, and, as regards collaterals, property inherited from a common ancestor. Property which has never been held by the common ancestor cannot be regarded as ancestral in any sense. Under the Customary Law the word ' ancestral' carries a peculiar signification and even if the land be ancestral of the last male holder it cannot be held to be ancestral 'qua the party unless it is proved that the common ancestor of the parties had ever held it. Land to be ancestral must have been held by the common ancestor of the parties."
10. From the definition of the term 'ancestral' reproduced above, which is based on leading authorities on the subject, it would be seen that in order to succeed in their claim the present appellants have to show that the property was ancestral qua them, i,e,, it was held that by a common ancestor of themselves and the plaintiff. That certainly is not the case here as Ahmad Khan was not the common ancestor of the parties. The lowest common ancestor of the parties was Ahmad Khan's father Fateh Din who, however, never held this property. It is clear, therefore, that the property cannot be treated as ancestral qua the defendants and for that reason the daughter will have a preferential right to succeed as compared with the defendant".
In the case in hand, there is no evidence on record that the property in dispute was ancestral, therefore, the land in dispute shall be presumed to be self-acquired property which was inherited by Mst. Mehro before it was mutated in the name of Mst. Bhagay, a full owner as per custom prevalent in district Gujrat. Therefore, estate held by Mst. Bhagay will also be of the same nature as was held by Mst. Mehro, therefore, findings of the lower Court on this issue as well are unexceptionable and are not liable to be interfered with and, hence, are upheld.
12. The questioned alienations even otherwise are not challengeable under Custom after 1983 and unless the same are washed away, the plaintiffs cannot be granted any relief, even if they prove their contentions as raised in the suit and before the Court. Introduction of section 2-A in the Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance, XIII of 1983, has brought about a complete change and custom which was dying by inches, has completely died with effect from the date of enforcement of the said .Ordinance. Consequently, Customary restrictions regarding land held even by female owner which was inherited by them prior to the enforcement of Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance, XIII of 1983, stand completely vanished and so the right to challenge the same. The right to challenge an alienation arises out of right of succession. A similar question came for decision before their Lordships of Supreme Court of Pakistan in case "Mst. Zeenat Begum v. Mst. Iqbal and another" (PLD 1991 SC 427), wherein their Lordships have held that alienations made even by female Customary estate holders, are not challengeable on the ground of being violative of customary laws, after the enforcement of provision of section 2-A referred to above. At pages 429 and 430 of the report it has been held as under:-- "Leave was granted in this case to consider whether it was not common ground between the parties that Mst. Iqbal respondent No,1 had succeeded to the estate of her husband under the Custom and, if so, whether she became full owner without usual restraints imposed by the Custom.
' On behalf of the Appellant it is submitted that Mst. Iqbal respondent No,1 succeeded to the estate of her deceased husband Bostan under the custom and, therefore, the interest thus acquired by respondent No,1 was usual limited estate under custom, and, therefore, she could not transfer any part of her inheritance, except on the grounds of necessity for consideration. It is submitted that the finding has been wrongly reversed by the High Court, as it was common ground between the parties that Mst. Iqbal respondent No,1 had succeeded to the whole of her husband's estate and the only disputed question between the Court was whether she had become full owner without the usual restraints imposed by custom or could only alienate for necessity and consideration.
' It was an admitted position between the parties in the lower Courts that the whole of the property of Bostan deceased namely 28 Kanals, 19 Marlas bearing Khasra Nos. 228, 247, 212, 249 in Khata Nos.64/101, 72/112 and 84/128 situate in village Borgi Karam Chand was transferred to Mst. Iqbal, respondent No,1, widow to the exclusion of his real sister and step-sister, as is shown by copy of the Mutation No,1693 (Exh. P-2) and in this background leave to appeal was granted to consider whether respondent No,1 (Mst. Iqbal) who inherited the estate under custom could become the full owner without the usual restraints imposed by custom?
' This question was considered by the High Court in Amir Hussain Shah v. Mst. Shahzadan Bibi and others (PLD 1953 Lahore 247) and it was held that where a female has inherited under custom the power of alienation shall also be controlled by custom i,e, she would not have the power to alienate the property at her own free will.
' However, after the commencement of the process of Islamisation of Laws in Pakistan, the situation has changed further. Thus, in Federation of Pakistan v. Muhammad Ishaq (PLD 1983 SC 273) it was held that restrictions placed on the power of alienation of persons inheriting the agricultural land under the Customary Law (as prevailing in the Punjab before 16-3-1948, namely before the coming into force of the West Punjab Muslim Law (Shariat) Application, Act, 1948) were opposed to the Injunctions of Islam. It was, accordingly, directed that amendments be carried out for removing all such restrictions, which has since been done. In view of this approach of the Law Maker in regard to the existing laws, we consider that the impugned judgment of the High Court wherein the prayer for setting aside the sale was refused a view taken which is consistent With the spirit of the judgment subsequently delivered by this Court, referred to above and in consonance with which all law- making is being does; does not need any interference."
13. Above-referred judgment subsequently come up for consideration before their Lordships of Supreme Court of Pakistan, in case Ali Begum and 2 others v. Zardad Khan etc. (1994 SCMR 1140) in which case gift having been created by a widow holding a limited estate after the termination of the said estate in the year 1962, was challenged, their Lordships distinguished the aforementioned judgment and held that as the gift in question was created after the termination of the limited estate it could be challenged by the heirs. The view in Mst. Zeenat Begum's case (supra) has not been dissented from as is clear from the following observations at page 1141 of the report:-- "Nadir Ali, predecessor-in-interest of the parties, was admittedly owner of the suit land and on his demise on 19-4-1933 Mst. Ali Begum (petitioner No,1) his widow succeeded to his estate as limited owner and a Mutation No,998 to this effect was duly sanctioned on 20-5-1933. She gifted the land in question through Mutation No,143 attested on 26-5-1964 in favour of Ghazan Khan deceased petitioner No,2 represented by Mst. Maqsood Begum and others and Ali Asghar petitioner No,
3. This alienation gave rise to the filing of the present suit by Allah Ditta, predecessor-in-interest of the respondents, claiming 3/4 share in the estate of Nadir Ali being the residuary at the time of his death. The suit after hot contest was decreed by the Trial Court and the appeal and second appeal were also dismissed by the appellate Court and the High Court. It was vehemently argued by the learned counsel for the petitioners relying on the judgment of this Court in case Mst. Zeenat Begum v. Mst. Iqbal and another (PLD 1991 SC 427) that Mst. Ali Begum petitioner No,1 had become full owner of the property left behind by her deceased husband and was competent to alienate the same.
' In 1933 when Nadir Ali died custom was the rule of inheritance and in the absence of male lineal descendant petitioner No,1 being the widow succeeded to the estate as limited owner which was terminated on the enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (Act V of 1962) on 31-12-1962 and the estate opened for succession amongst the Shari heirs of the last full owner; namely, Nadir Ali. Thus, at the time of the impugned gift in 1964 Mst. Ali Begum petitioner No,1 was owner of the residuaries. Consequently, the gift in excess of her Sharai share was illegal and not binding on the residuaries. Besides the authorities quoted in the impugned judgment we have also discussed the legal controversy involved herein in our judgment in case Suba v. Mst. Fatima Bibi (1992 SCMR 1721) and have held that gift by a life estate holder during the continuance of the life estate is void ab initio and not binding on the reversioner entitled to inherit after the termination of the life estate. The judgment relied upon by the learned counsel for the petitioners is not applicable to the facts of the present case as the impugned gift was made after the termination of the life estate."
Therefore, the alienations in question cannot be challenged by the plaintiffs as per law declared in the aforementioned cases as well and, as such on this account as well, the suit is liable to be dismissed.
14. Resultantly, I see no force in this appeal, hence, the same is dismissed. Keeping in view the complicated legal questions involved' in this matter, it is ordered that parties shall bear their own costs.