' This is a Second Appeal filed by Mst. Safia Begum and Mohammad Bibi daughter and widow of Muhammad Hussain challenging the judgment and decree dated 21st of December 1964, of the learned District Judge, Gujraawala, who set aside the judgment and decree dated 31st of March 1964, passed by the learned Civil Judge, Wazirabad.
2. Mehr Dad is porosities in this case. He had two sons, Mohammad Hussain and Sardar Khan.
Sardar Khan bad a son Riasat Ali, whereas Muhammad Hussain had a daughter Mst. Safii Begum, appellant No, 1 and Mohammad Bibi appellant No, 2 is his widow.
3. On 30th of October 1935, Mehr Dad sold 173 kanals 9i marlas of land in village Dhaunkal, Tehsil Wazirabad, to Qasim, father of Ghulam Rasnol and Khushi Muhammad (present respondents) for a sum of Rs, 5,000. Eight or nine months after the see he died. On 1st of December 1942, Riasat Ali a minor son of Sardar Khan filed a suit which was decreed. Qasim filed an appeal before the learned District Judge. On 20th of March 1944, the appeal was disposed of by a compromise and the following consent decree was passed holding that- "The reversioners will be entitled to take possession of the land after the death of Mohammad Hussain and Sardar Khan on payment of Rs, 3,400 "
' On the 20th of February 1950, Mohammad Husain died (death certificate is Eah. P. 4). On 20.h of January 1932, the appellant plaintiffs tiled the prevent suit for possession against the sons of Qasim who in the meantime had died. The suit was controverted by the respondents.
4 As a result of the pleadings the following seven issues were framed
(1) Is this suit within time? 0. P. P.
(2) Is the value of the suit for court-fee and jurisdiction correct? 0. P. P.
(3) Whether the suit does not lie in the presence of Sardar Khan? 0. D.
(4) Whether the plaintiffs have lest their rights because of Mohammad Husain's failure to bring the suit in his lifetime? 0. D.
(5) Whether the plaintiffs are not entitled to the benefit of the declaratory decree, not being male descendants of Mohammad Hussain? 0. D.
What share and on what terms are the plaintiff entitled to in the lafld in dispute?
(7) Relief.
5. It was held by the learned Civil Judge that since right is not being claimed under Customary Law, therefore, limitation under Punjab Limitation (Custom) Act I of 1920 will not apply and since the right is being claimed under Muhammadan Law the ordinary period of limitation as contained in the Limitation Act of 1908 will apply which in this ease happened to be a period of 12 years. Muhammad Hussain died on 20th of February 1950, and the suit was filed on 20th of January 1962. Therefore, it was in time.
6. On issue No, 2 the respondents' case was that since the land is under mortgage with the respondents and any attempt to recover the property will be deemed to be a redemption of mortgage, therefor; the court-fee should be paid on the entire mortgage money. The Court held that the appellants had to pay pro tanto court-fee.
7. Regarding issue No, 3, it was said that presence of Sardar Khan could not affect the suit of the plaintiff-appellants. Regarding issue No, 4 it was said that the disability of Muhammad Hussain was personal and did not affect the right of plaintiff-appellants to claim the land.
8. Issue No, 5 was decided in favour of the appellants. Reliance was placed on Shahzadan Bibi v.
Ameer Hussain Shah (1). As regards issue No, 6, the share of the appellants was determined at 5/16 of the land.
9. The respondents filed an appeal which was accepted on 21st of December 1964, by the learned District Judge, Gujranwala, on the ground of limitation ; and that since Muhammad Hussain had no right or interest in the property, therefore, he was not able to bequeath any.
10. The learned counsel for the appellants has raised the following contentions ' That according to the decree of 1944 (Exh. D. 1) the rights of the appellants accrued in the year 1950 when their father died. Shariat Act had been enforced in the year 1948 and the rights of the appellants are governed under the Muhammadan Law and not under the Customary Law, as such, the period of limitation will be governed according to the Limitation Act of 1908 and not according to the Punjab Limitation (Custom) Act I of 1920.
I am unable to accept the above contention. Shariat Act would be relevant only if it can be shown that a definite estate or any property in the land had vested in Muhammad Hussain at the time of his death, or at the time of enforcement of the Shariat Act. Since no property in this case had been vested in Muhammad Hussain, therefore, nothing can be inherited by the appellants under the Shariat Act and, therefore, the question of attracting the provisions of Limitation Act of 1908, does not arise.
' It has further been contended that by virtue of the decree of the civil Court Exh. P. 4 (of 1943) it was declared that the land will be deemed to be a mortgage with possession to the extent of Rs, 2,900, therefore, this would be deemed to be a mortgage decree and the appellants' suit will be deemed to be a suit for redemption of mortgage, so the suit is within time.
The argument is in error. To begin with, the main decree was regarding the declaration of the customary right of the reversioner and not regarding mortgage. Secondly, the decree in the field is the appellate decree of the learned Additional District Judge and not the decree given by the learned Civil Judge, since the decree of the lower Court is merged into the decree of an appellate Court. If any authority is needed, F. A. Khan v_ The Government of Pakistan (1) and Laxamandas v.
Chunnilal and others (3), are the authorities for the above point of law.
11. The appellants do not fall into the category of reversioners for whose benefit the earlier decrees were obtained. Under section 8 of the Punjab Limitation (Custom) Act I of 1920, a declaratory decree obtained by a C reversioner enures only for the benefit of those who are entitled to impeach alienation. Under section 6 of the Punjab Custom (Power to Contest) Act II
(1) PLD 1956 SC (Pak.) 227 (2) PLD 1964 SC 520 (3) AIR 1931 Nag. 17 of 1920, the only person claiming descent through a male lineal descendan frem the great-grand- father of the persons making alienation can contest the alienation. In Malkha Singh v. Ram Kishan and others (1), it was held that daughter not being an agnate, cannot contest alienation by her father. If a collateral has obtained a declaratory decree she cannot take advantage of it on the ground that such a decree, being of a representative nature, is to protect only the interest of those who are within the category of reversioners. Moreover, a daughter derives her title from her father and not from the common ancestor, therefore, she cannot be considered to be an agnate. In Rehmat Bibi and others v. Ibrahim (2), it was held that a declaratory decree obtained against alienation enures only for the benefit of persons entitled to impeach alienation. Since daughters or widow cannot impeach alienation, therefore, they cannot derive any benefit from the decree obtained by another reversioner. The promulgation of the Shariat Act of 1948, does not in any way change or improve the situation of such a daughter or widow. Similar view has been taken in Birkat Bibl and others v. Sardar Khan and others (3).
12. In the alternate, if the appellants are deemed to be reversioners, the question is what law would govern the period of limitation. Article 2-B of the Punjab Limitation (Custom) Act I of 1920 which provides a period of three years, will apply (the period of limitation is three years from the accrual of cause of action). This being the case, the suit of the appellants is hopelessly time-barred.
Notwithstanding the enforcement of Shariat Act of 1948, the rights acquired under a custom can be enforced only within the four corners of the Customary Law. As a result of subsequent enforcement of Shariat, the status of the appellants cannot be improved. Reliance is placed on Ghulam Hussain and others v. Fatima Bibi (4), wherein it is held that suit for possession by reversioners on the basis of a previous declaratory decree is governed by Punjab Limitation (Custom) Act I of 1920 and not by Limitation Act of 1908.
13. For the foregoing reasons, this appeal is dismissed. Costs will follow the event.
(1) AIR 1934 Lah. 725 (2) PLD 1966 SC 349
(3) PLD 1966 Lah. 47 (4) PLD 1975 Lah. 95