' This judgment will dispose of R. S. A. No, 565 of 1966 filed by Amanat Hussain appellant-plaintiff (who did not succeed in the two Courts below) against Mst. Bibi, his step-mother and her maternal grand-son, Abdul Ghafoor.
2. On 8th of April, 1964, suit was filed praying for a declaration that the appellant was in possession of the suit land and that the registered gift dated dth of February, 1964, made by respondent No, 1 in favour of respondent No, 2 is unlawful and will have no effect on the proprietary rights of the appellant-plaintiff. Furthermore, permanent injunction was prayed restraining the respondents from interfering with his possession.
3, The claim of the appellant was controverted by the defendants whereby the civil Court framed four issues, the first issue being "whether the suit was maintainable in its present form"? On Issue No, 1 both the Courts below found that the appellant is not in possession. It appears that the learned counsel for the plaintiff-appellant had requested for an adjournment to apply for amendment of the plaint. The adjournment was given but the learned counsel later on changed his mind regarding amendment. The request for amendment was repeated before the learned District Judge without success. In his grounds for appeal before this Court, in Paragraph 11, the appellant made a grievance of that. Before me, the learned counsel has relied upon Karamat Ali v.
Muhammad Yousaf (1). It was held in that case that in a suit for declaration if a prayer for possession is allowed to be included, it will not basically transform the nature of the suit and, therefore, such a request for amendment should ordinarily be granted. In that case for the first time the Supreme Court granted request for amendment in a suit for declaration to include the prayer of possession as well. Respectfully relying on the above ruling of the Supreme Court, I allow amendment to the appellant to the effect that he may include in the body or the plaint a prayer for possession as well. Any difference in the amount of court-fee to be paid in this connection will be paid by the plaintiff-appellant. The appellant would pay to the respondents appearing in this appeal their costs both in this Court as well as in the Courts below as a condition precedent.
4. The first contention of the learned counsel for the appellant before me is that under section 20 of the Colonization of Government Lands (Punjab Act, 1912) a widow is excluded from inheritance in presence of the male lineal descendants. Therefore, it may be deemed that she did not inherit anything under section 20 of the Act. The learned counsel has relied on section 30-A of the Act which reads as follows :- "30-A. Right of alienation in respect of and rule of succession to certain proprietary rights acquired by a female.-(t) Noth withstanding any custom and the provisions of any law to the contrary, when after the commencement of the Colonization of Government Lands (Punjab) (Amendment) Act, 1944, proprietary rights in any land are acquired by a female tenant, her rights of alienation of any such land shall be the same-
(a) if she succeeded to the tenancy directly or indirectly from a male
(1) PLD 1963 SC 191 tenant, as if the proprietary rights had been acquired by the last male tenant, and she had succeeded to such rights as his heir.
' From the language of the above section it is obvious that after the coming into force of the Amendment Act, 1944, any acquisition (apart from inheritance) by a female will be deemed to be succession and it will be deemed as if last male tenant had acquired the proprietary rights, and her rights to succeed as an heir will be determined accordingly.
5. The factual position in this case is that the suit land was allotted as an occupancy tenancy under section 8 of Act XVI of 1887 Punjab Tenancy Act) to Said Ahmed (propositus). On 29th of December, 1944, Said Ahmed died. At the time of his death, he had not paid the Zar-i-Malikana and continued to be an occupancy tenant only without acquiring the proprietary rights. It appears that Said Ahmed left behind the plaintiff-appellant, his son, and a widow, defendant No, I. On 2nd of February, 1915, mutation No, 99 of inheritance was entered by the Paawari in the names of the appellant and defendant No, 1 in equal shares. It was also recorded that defendants No, 1 was only the holder of life-estate. In the year 1950, Zar-i-Malikena was deposited regarding the entire land and on 21st of February, 1950, mutation No, 165 was entered into wherein the appellant and defendant No, I were entered as owners in equal shares. On 31st of December, 1962 the West Pakistan Muslim Personal Law (Shariat) Application Act, 19o2 was enforced. Section 3 of the Act terminated the life estate held by Muslim female under the customary law. Tao provisions of section 30-A of Act V of 1912 are applicable in the case of defendant No,
1. She is subject to its provisions. The patties are residents of Tehsil Kahuta, District Rawalpindi. Under question 49 of Kitchen's Riwaj-i-Aam of Rawalpindi District for the Third Settlement, it is provided (all tribes agree) that a female who has succeeded to her husband as a limited owner cannot make any alienation except under pressure of urgent necessity. Payment of land revenue, discharging of her husband's legal debt and the payment of funeral expenses or tire charges accidental to the marriage of the daughter are instances of such urgent necessity. In the present case, no such circumstances has been brought on the record. The making of a gift can never come under the ambit of such alienations.
6. In this case, the suit was filed on 8th of April, 1964. The period of limitation may be counted either from 31st of December, 1962, the date of enforcement of the Shariat Application Act or the data of registered gift-deed which is 6th of February, 1964. Whichever date may be taken for the purposes of accrual of cause of action, it is within a period of two years. According to the learned counsel, whichever may be the Article of the Limitation Act applicable in this case, the period of limitation is more than three years. Therefore, the suit was filed within the period of limitation.
7. I remand the suit to the trial Court for enabling the appellant to make necessary amendments in the plaint and thereafter for the disposal of the suit in accordance with the law and in the light of the observation made above. If the respondents wish to put in any ad additional written statement, they will also be at liberty to apply to the trial Courts for permission to do so. Additional evidence on this issue alone may also be led, if the respondents seek to challenge the right of the appellant to claim possession even on the date e f the institution of the suit.
8. For the reasons given above, I allow this appeal, set aside the judgments and decrees of the Courts below and remand this suit to the trial Court. . Case remanded,