' The facts leading to this civil revision have a chequered history. The dispute between the parties had broken out on 16-5-1929 when Rehmat Khan, the owner of the land in question while in India had made a gift of the aforesaid property to his wife Mst. Karam-un-Nisa. The alienation of the land favour of Mst. Karam-un-Nisa was assailed by Sarfraz Khan, the predecessor-in-interest of the respondents/plaintiffs on the ground that the gift in question was fictitious and without any legal necessity as the land in question was ancestral qua the donor and was not liable to be transferred and that in any case, the reversionary Sarfraz Khan had legal right to inherit the land in question after the death of the real owner and that the allience Mst. Karam-un-Nisa could had no better status than of a limited owner. The aforesaid suit was decreed up to the High Court and the declaration to that effect was granted. As such, Mst. Karam-un-Nisa remained in possession of the property till Rehmat Khan died in India. After the partition, Mst. Karam-un-Nisa lodged a claim in respect of the land in question after arriving in Pakistan. The property which is the subject-matter of the present revision was transferred to Mst. Karam-un-Nis4 in lieu of claim of the property left in India. Mst. Karam-un-Nisa gifted the aforesaid property to petitioners Nos.1 and 2 vide registered sale-deed, dated 9-7-1960 (Exh.Dl). It was further sold by them to petitioner No,3 namely Habib Ullah. The respondents instituted a suit for declaration which was later on amended whereby, a prayer for possession to the extent of 3/4th share of the property was added. The amended plaint appears as Annexure All'. The petitioners/defendants raised the plea that Mst. Karam-un-Nisa was the full owner of the property in question which was acquired by her husband through his own sources. It was, therefore, contended that she had absolute right to transfer the property in question by making gift to her nephews and the latter having acquired proprietary rights were competent to alienate it further. It was accordingly contended that the reversionary had no right to the property in question. The learned Civil Judge, then seized of the matter, dismissed the suit vide judgment, dated 15-3-1978 (Annexure 'E'). The appeal against the said judgment and decree was also dismissed by the then learned Additional District Judge, Jhang vide his judgment, dated 18-11- 1967 (Annexure ' Ell ' ). The second appeal (R.S.A. No,243 of 1968) in the High Court was accepted on 22-4-1990 whereby, the case was remanded to the Appellate Court i,e, learned Additional District Judge, Jhang for decision afresh. The appeal was re-decided by the learned Additional District Judge vide his judgment, dated 29-1-1991, whereby, he accepted the appeal partly to the extent of 3/4th share of the property in dispute and decreed the suit of the respondents/plaintiffs to that extent in view of the provisions contained in section 2-A of the Muslim Personal Law (Shariat)
Application Act as amended in 1983, whereby a female limited holder had become full owner on the termination of her limited estate to the extent of her share to which she would have been entitled on the death of the last full male owner i,e, in this case, husband of the limited owner namely Rehmat Khan.
2. In the instant revision petition, the judgment of the lower Appellate Court is assailed mainly on the ground that the provisions contained in section 2-A of the Act (supra) have been grossly misinterpreted. In this context, it is contended that section 2-A of the Act (supra) would make the widow i,e, Mst. Karam-un-Nisa to be the full owner of the property in question on the termination of the limited estate, held by her. In this respect, it was contended that it was a transaction past and closed where the possession of the property in question had already been delivered to the donees and then to the purchaser after the gift in question. It was; therefore, alleged that the learned Appellate Court had wrongly interpreted section 2-A of the Act supra to allow the reversionary of' the real last male owner to the claim of their 3/4th share in the property in question measuring 85 Kanals and 15 Marlas fully described in the head note of the plaint. In support, reliance was placed on PLD 1985 Supreme Court 407 Abdul Ghafoor and others v. Muhammad Shafi and others 1986 MLD 1031 (Lahore), Mst. Mehri v. Palhu and others, 1986 CLC 1948 (Lahore), Ghulam Muhammad and another v. Muhammad Khan and another, 1989 SCMR 1632, Ilam Din and others v. Muhammad Bashir and others and PLD 1990 Supreme Court 816, Amir Din and 5 others v. Bahadur Hussain. In the light of the principle laid' down in the above referred authorities. , it was contended that the widow Mst. Karam-unNisa having become full owner, after the termination of her limited estate under the Shariat Act, was competent to alienate the land by means of gift in favour of her nephews and as such, reversionary had no legal right to claim 3/4th share of the property in dispute.
3. Learned counsel for the respondents defended the judgment of the learned Appellate Court on the ground that the refugee female holders were always considered as limited owners in the property which they got in lieu of their claims in India. Reliance was placed on PLD 1971 Supreme Court 791 Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others, 1991 SCMR 552 Muhammad Aslam and another v. Abdul Harbid and others, 1992 SCMR 1773 Mst.
Fazal Nishan and others v. Ghulam Qadir and others, 1992 SCMR 1721 Suba through his 8 L.Rs, v. Mst.
Fatima Bibi through her L.Rs, and others and 1996 SCMR 1393 (Supreme Court of Pakistan) Ghulam Haider through Legal Heirs v, Niaz Muhammad through Legal Heirs. It was also contended that the interpretation of section 2-A, has rightly been made by the learned Appellate Court, whereby, the widow was treated as limited owner in the estate inherited by her deceased husband. It was, therefore, contended that she had become the absolute owner in respect of her share under Shariat to the extent of 1/4th, whereas, she remained limited owner in respect of 1/4th of the property to which the reversionary would be entitled. In the instant case, the widow had made gift of the entire holding, of which she was not competent in view of the interpretation of section 2-A of the Shariat Act made in 1991 SCMR 2397 Muhammad Bakhsh and another v. Mst. Zainab Bibi and 6 others, 1995 SCMR 1014 Dost Muhammad and another v. Ranjha through Legal Heirs and 7 others, 1994 SCMR 1140 Ali Begum and 2 theft v. Zardad Khan and 4 others, 1996 SCMR 158 Suba through Legal Heirs v. Fatima Bibi through Legal Heirs and' others, 1991 SCMR 552 Muhammad Aslam and another v. Abdul Hamid and others, 1990 SCMR 1667 Ismail and another v. Ghulam Qadir and others and 1996 SCMR 901 Haider Shah and 5 others v. Mst. Roshanee and 9 others. In the light of interpretation of law made in the above authorities, it was contended that it was not a matter past and closed as basically the widow remained limited owner throughout even after the application of Shariat Act (supra) except to the extent of her own share under the Shariat Law. The alienation beyond her own share was, therefore, alleged to be illegal and void and would not affect the right of the reversionary. More so, because in the instant case, the dispute in respect of the land in question having been opened in 1929 was decided in the first round of litigation between the parties that the property in question was ancestral property and the wife of Rehmat Khan i,e, Mst.
Karam-un-Nisa had limited interest in the estate gifted to her which only granted the right of subsistence ensuring till her life. The position was, however, modified after the application of Shariat Act through the insertion of section 2A in 1983, whereby, she was made absolute owner in respect of her share which she would inherit from the last male landowner on the opening of inheritance at the time of his death as if it had opened under the Shariat Law. It was, therefore, contended that the judgment of the learned lower Appellate Court was in line with the interpretation of section 2-A, persistently made by the Supreme Court of Pakistan in the authorities referred to above and as such, was liable to stand.
4. I have taken into consideration the points raised above during the arguments addressed at the Bar from both the sides.
5. It is clear from the analysis of the facts stated above that the last full owner of the property in question namely Rehmat Khan was, governed by the custom and the property being ancestral, he could not dispose it of without legal necessity as would be clear from the first round of litigation between the parties before the partition of the sub-Continent. He had, however, gifted the property in question to his widow and as such, the latter would be considered as a limited owner of the same and would hold it during her lifetime. Admittedly, after partition and upon her migration to Pakistan, she was allotted the land in question in lieu of the land which she left in India. Now it is to be seen if she had become full owner of the land in question on the promulgation of the Muslim Personal Law (Shariat) Act, 1962. The authorities relied upon by the learned counsel for the petitioners and referred to above would show that after the promulgation of the aforesaid Act, the widows or the limited owners were considered to be the full owners upon the termination of the ' limited estate' acquired under the customary law. Likewise the last male holder was considered to be complete owner and the gift made by such owner even under custom would be deemed to be perfectly valid under Personal Law which would be applicable by virtue of the amended Ordinance XIII of 1983. So, the gift in favour of the females holding limited estate were held to be valid which would consequently vest them with absolute ownership and the heirs of such females would be entitled to inherit such property after their death. On this point, 1986 MLD 1031 (Lahore) Mst. Mehri v.
Palhu and others may be referred. Likewise, it was held in 1989 SCMR 1632 Ilam Din and others v.
Muhammad Bashir and others that the legislature by enacting section 2-A of the Ordinance XIII of 1983 had rendered the decree or judgment obtained under the customary law as void. The execution and other proceedings arising out of such void decree or judgment were held to have been abated. So, was the position in PLD 1990 Supreme Court 816 Amir Din and 5 others v. Bahadur Hussain. However, a different but persistent view was taken in the rulings referred to by the learned counsel for the respondents. The pronouncement favouring the view that the property acquired under the customary law would remain as limited estate was made in PLD 1971 Supreme Court 791 Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others wherein earlier view contained in PLD 1968 Lahore 234 Sher Muhammad v. The Additional Settlement and Rehabilitation Commissioner was overruled. It was held:--- "In order to ascertain the true nature of the capacity under which a widow holds the lands of the last male owner under custom and receives lands in Pakistan on migration the concept of a female's estate under custom is to be borne in mind. Merely saying that she is the present owner of the estate having absolute power of enjoyment over it, that she is not accountable to anyone as long as she is alive or her estate is not terminated and that no one else has any vested interest in it till then is not enough. It is now well-settled that a female's estate under custom is analogous in nature to a widow's estate under the Hindu Law. If so then under Hindu Law the true concept of a widow's estate is that she notionally represents her husband, as if, her deceased husband is, for the purpose of the management and user of his properties, kept alive in her, and it is for this reason that it is said that during the time the widow is alive or does not re-many, the whole estate of her husband vests in her absolutely as if the husband is for all intents and purposes alive in her. The distinctive feature of the estate is that, at her death, it reverts to the heirs of the last male owner.
She never becomes a fresh stock of descent. If this be the true position then the claim that is filed by a widow, under the Punjab Refugees (Registration of Land Claims) Act, 1949, is a claim for the loss or damage suffered by her in respect of the properties left behind by her in India. Now she leaves behind no property of her own but only the properties which she has inherited from her husband as a limited owner. Therefore, if her claim is in lieu of what she has left behind then it is in lieu of her estate in her husband's properties, which, according to the concepts of Hindu Law, she holds as a representative of her husband. The claim filed by her, therefore, is also in her capacity as representative of her husband or, in other words, as if the husband who is alive through her is notionally filing a claim in respect of his properties left behind in India, for, no one else has the right to file any claim in respect of the said properties. It is important to remember that the loss or damage which she has suffered is the loss or damage arising by reason of the fact that she has been deprived of the user of the inheritance which she received from her late husband and held as an owner not in her own right but rather as a representative of her husband."
6. The same view was later on followed in the subsequent rulings of the Superior Courts referred to above by the learned counsel for the respondents. The more clear picture about the matter in issue is obtained in 1996 SCMR 901 (Supreme Court of Pakistan) Haider Shah and 5 others v. Mst.
Roshanaee and 9 others, wherein, it was held that female holding limited interest in land in question was, thus, entitled (on termination of limited estate) to her Personal Law share in the estate of her deceased husband; that the vendees from such limited owner could, therefore, retain land in question, to the extent that it fell within the share of that limited owner. The same was the view expressed earlier in 1995 SCMR 1014 (Supreme Court of Pakistan) Dost Muhammad and another v. Ranjha through Legal Heirs and 7 others, wherein, it was held as follows:--- "Sardar, the last full owner, admittedly died during the time when custom was generally the rule of inheritance in the area where the suit land is situated. He was, admittedly, issueless and the attestation of his inheritance mutation exclusively, in the name of his widow per se suggests that it did not confer full proprietary rights on her but vested her as a life estate holder to enjoy the usufruct of the property till death or marriage and the ownership of the property vested in the reversionaries, admittedly, the plaintiffs/ respondents. On the termination of the limited estate, succession to the property of the last full owner opened and the same was legally to be divided among the Shari heirs of Sardar living at the time of his death. Since Mst. Fatima Bibi, his widow, was also living at the time of his death she too, is entitled to inherit 1/4th share and the learned High Court; following the latest law on the subject, rightly modified the judgment of the Trial Court as well as the Appellate Court and decreed the suit of the plaintiffs/ respondents to the extent of 1/4th share of Mst. Fatima widow of Sardar deceased."
7. The latest view of the Supreme Court as expressed in the above referred authorities would show that the alienation made by a widow to the extent of her share under Shariah would remain valid, whereas, the rest of it would become invalid as it would revert to reversionary of the last full male holder. In the instant case also, Mst. Karam-un-Nisa an issueless widow of Rehmat Khan being a limited owner would become full owner to the extent of her share under Shariah .i,e, 1/4th of the total property. The alienation made by her to the extent of 1/4th of the property in question would remain valid, whereas, the rest i,e, 1/4th would revert to the reversionaries of the last full male owner i,e, her husband. As such, the judgment of the learned Appellate Court following the above dictum would remain unexceptionable. The revision petition being meritless is dismissed. Cost to follow the event.