AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 24-3- 1992 of a learned Single Judge of the Lahore High Court passed in Civil Revision No.451/D of 1992, filed by the present appellants against the concurrent judgments/decrees dated 31-3-1988 and 25-2-1992 of the learned Civil Judge, Pasrur, and of the learned Additional District Judge, Sialkot, in Suit No.232 of 1985 and Civil Appeal No.136 of 1988, respectively, dismissing the same by affirming the above concurrent judgments/decrees.
2. The brief facts are that the respondents filed the aforesaid suit for declaration in respect of agricultural land measuring 409 Kanals 10 Marlas situated in village Shadipur, Tehsil Pasrur, District Sialkot, on the basis of averment that Mst. Fazlan Bibi, widow of Khair Din, was the limited owner of 1/2 share of the above land, which she received from her father-in-law, namely, Ali Muhammad. It was further averred that Mst. Fazlan Bibi died in December, 1984, and that the plaintiffs were entitled to get the inheritance of Mst. Fazlan Bibi through their predecessor, Nawab son of Jara, who was the only brother of Ali Muhammad deceased. Appellants Nos. l to 7 were impleaded as defendants Nos. l to 7, who claimed to be the heirs of Chiragh Din, allegedly son of Nawab; whereas appellants Nos. 8 and 9 were impleaded as defendants Nos.8 and 9 as the heirs of Mst. Daulat Bibi, one of the daughters of said Nawab, who died during the lifetime of her father in 1925. The aforementioned suit was contested by the present appellants and it was pleaded that appellants Nos. l to 7 are the legal heirs of Chiragh Din, who was the only son of Nawab. Whereas appellants Nos.8 and 9 pleaded that they were also entitled to inherit as the legal heirs of Mst. Daulat Bibi.
3. The learned trial Court, on the basis of pleadings of the parties, framed as many as seven issues.
After recording evidence and hearing the parties through the judgment/decree dated 31-3-1988, it decreed the suit. Against the said judgment, the appellants filed aforesaid Civil Appeal and Civil Revision without any success. After that, they filed a petition for leave to appeal in this Court, which was granted to consider the question, whether in presence of the pedigree-table forming part of the revenue record which indicated that Chiragh Din was the son of Nawab, the Courts below were justified in disregarding the above revenue record.
4. In support of the above appeal Malik Saeed Hasan, learned Advocate Supreme Court appearing for the appellants, has urged as under:--
(i) That the Courts below erred in holding that the judgment rendered on 1-8-1929 by the learned District Judge, Sialkot, in Civil Appeal No.92 of 1929 holding that Chiragh Din was not the son of Nawab, constituted res judicata, or that the same could negate the other evidence on record; and
(ii) That, in any case, the Courts below were not justified in holding that appellants Nos.8 and 9 were not entitled to inherit the suit land as the legal heirs of Mst. Daulat Bibi.
On the other hand, Mr. Bashir Ahmed Ansari, learned Advocate Supreme Court for the respondents, has contended as follows:--
(i) That since the above judgment dated 1-8-1929 of the learned District Judge, Sialkot, passed in Civil Appeal No.92 of 1929 was between the parties through whom the present parties are claiming the land, which was also the subject-matter of the above appeal, the aforesaid judgment constituted res judicata and that no amount of other evidence can render the above judgment/decree as inoperative or not binding; and
(ii) That leave was not granted by this Court specifically to consider, as to whether appellants Nos.8 and 9 could claim inheritance through Mst. Daulat Bibi and, therefore, the above plea is not sustainable.
5. In furtherance of his first submission, Malik Saeed Hasan, learned Senior Advocate Supreme Court appearing for the appellants, has contended that the above judgment dated 1-8-1929 of the learned District Judge does not constitute judgment in personam and, therefore, section 11 of the C.P.C. Is not applicable. According to him, above section does not cover judgments in rem, but it covers judgments in personem.
6. The above contention has no force. The controversy in aforesaid Civil Appeal No.92 of 1929 was, whether Chiragh Din as the son of Nawab was entitled to inherit his suit land to the extent of 1/3 and his to widows to the extent of, 2/3. It was held that Chiragh Din was not the son of Nawab and, therefore, he was not entitled to inherit the same. The above judgment had acquired finality, as no proceedings were filed against the same. It may be advantageous to reproduce the relevant portion of section 11 of C.P.C., which reads as under:-- "11. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanations I to VI .
7. A perusal of above-quoted portion of section 11 of C.P.C indicates that it prohibits a Court from trying any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such competent Court. Admittedly, the parties to the present litigation are the parties who are claiming through Nawab. It is also an admitted position that the present suit land is a part of the land left behind by said Nawab on his death. In our view, section 11 of the C.P.C does not make any distinction between a judgment in rem or a judgment in personam as was canvassed by the learned counsel for the appellants. In this view of the matter, the finding of the Courts below against appellants Nos. l to 7 as to their entitlement is in consonance with law and does not call for any interference by this Court.
8. Adverting to the above second submission of Malik Saeed Hasan, it may be pertinent to mention that one Jara had to sons; Nawab and Ali Muhammad, Ali Muhammad died on 1-11-1925. His son Khair Din pre--deceased him but at the the of Ali Muhammad's death, Mst. Fazlan Bibi, his daughter-in-law, was given half share of his land measuring 409 Kanals 10 Marlas i.e. The suit land, as the limited owner. Whereas above other brother Nawab had to widows; Mst. Roshan and Mst.
Bhagan Bibi. He had also to daughters; Mst Aisha Bibi and Mst. Daulat Bibi. Chiragh Din, who claimed to be the son of Nawab, was not accepted by the Court in 1929 in the aforesaid judgment.
It is also an admitted position that section 4 of the Muslim Family Laws Ordinance, 1961, hereinafter referred to as the Ordinance, came into force with effect from 15-7-1961. In other words, section 4 of the Ordinance was not in the field when Ali Muhammad died on 1-11-1925 and Nawab died in November, 1927. If their properties would have been finally inherited in the above years, the question of re-opening of their successions would not have arisen. Since Mst. Fazlan Bibi had acquired the rights of a limited owner, on her death in December, 1984, the questions of succession to Ali Muhammad and Nawab were re-opened. Since Mst. Daulat Bibi was one of the daughters of Nawab, she would be entitled to inherit the suit land alongwith the legal heirs of her sister, Mst.
Aisha Bibi, and the collaterals of said Ali Muhammad.
9. The above legal position has been affirmed by a Full Bench of this Court comprising five learned Judges in the case of Sardar v. Mst. Nehmat Bi and 8 others (1992 SCM R 82), wherein the facts were that the last male owner died in 1947, whereas life estate of the widow of deceased terminated in 1962. The question arose, as to whether on the termination of above life estate in 1962, section 4 of the Ordinance could be pressed into service though the last male owner had expired in 1947. The said question was answered as follows:-- "9. After hearing the learned counsel for the parties and perusing the precedents cited by them, we are of the view that while enforcing section 5 of the Muslim Personal Law (Shariat) Application Act, 1962 for the purpose of devolution of the estate of the last full owner we will have to apply Muslim Personal Law (Shariat) wherein is included the Muslim Family Laws Ordinance, 1961. The contention of the learned counsel for the respondents in this behalf is supported by the judgment of the Supreme Court (Shariat Bench) in Federation of Pakistan v. Mst. Farishta PLD 1981 SC 120 that Muslim Personal Law (Shariat) is a comprehensive term to cover all laws relating to personal matters of Muslims. Section 4 of the Muslim Family Laws Ordinance, 1961, allows inheritance to the children of the pre-deceased son or daughter to the extent that the son or daughter would have got. Section 3 of the latter Ordinance, 1961 also provides that 'The provisions of this Ordinance shall have effect notwithstanding any law, custom or usage'. Therefore, it appears to us that the learned Judge in the High Court was right in holding that by providing for devolution of the property under section 5 of the Muslim Personal Law (Shariat) Application Act, 1962 on termination of the life estate, the children of predeceased daughter of the last full owner will inherit the share which their mother would have got as if she were alive at the the of the opening of the succession, that is to say, on the demise of her father Ilam Din in 1947. "
10. The above case on all fours is applicable to the case in hand. However, Mr. Bashir Ahmed Ansari, learned Advocate Supreme Court for the respondents, has vehemently contended that since leave was not specifically granted on the above question, it would not be proper to grant any relief to appellants Nos. 8 and 9 on the above issue. The answer to the above submission is effectively provided in Article 187 of the Constitution of the Islamic Republic of Pakistan, 1973, which lays down that this Court shall have power to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an order for the purpose of securing the attendance of any person or the discovery or production of any document.
We may also observe that the cases which involve inheritance inter se among the legal heirs, the Courts should make efforts to ensure that no legal heir is denied of his legal share in the estate of the deceased concerned on a technical ground. The above approach will also be in consonance with the Injunctions of Islam.
11. The upshot of the above discussion is that we would maintain the judgments/decrees of the Courts below in respect of appellants Nos. 1 to 7. The appeal is dismissed to the extent of above appellants. Whereas appeal is allowed to the extent of appellants Nos.8 and 9. The matter is sent to the learned Trial Court for calculating the shares in the suit land as under: --
(i) 1/3 to the legal heirs of Mst. Aisha Bibi;
(ii) 1/3 to the legal heirs of Mst. Daulat Bibi and (i.e) 1/3 to the revisioners i.e. The respondents.
The above appeal stands disposed of in the aforesaid terms with no order as to costs.