' On his death Atta Hussain was succeeded by his widow Mst. Fatima Bibi and 2 daughters, namely, Ghulam Zohra and Rashidan Begum. The suit property devolved upon his widow as a limited owner. Respondents Nos.1 to 6, who are successors of Mst. Rashidan (the daughter of Atta Hussain), filed a declaratory suit that Mst. Rashidan and now her successors were entitled to share of inheritance and that mutation No,560, dated 13-5-1989, whereby Mst. Fatima Bibi had alienated the property in favour of Mst. Ghulam Zhora, the other daughter was illegal, result of fraud, collusion and was inoperative qua their rights and that consent decree was result of collusion and also of no effect. The suit was contested by the petitioner. Issues were framed by the trial Court. Evidence was led by the parties in support of their respective pleas, where after the suit was dismissed by the learned trial Court on 26-6-1998. The respondents-plaintiffs filed an appeal there-against, which was accepted by the learned Additional District Judge, Wazirabad on 28-7-1999. This is revision petition against the same.
2. As has been mentioned above, there was a consent decree, dated 9-3-1994 obtained by the petitioners, herein. The respondents, successors of Rashidan Begum, daughter of Atta Hussain deceased, filed an application under section 12(2), C.P.C. That the same was the result of fraud, misrepresentation, collusion and was inoperative qua their rights. The said application was tried by the learned trial Court, in which issues were framed. The parties produced evidence in support of their respective pleas. By the same judgment, referred to above, the learned trial Court dismissed the said petition on 26-6-1998, where against a revision was filed by the respondents, which was decided along with the appeal, arising out of declaratory suit, mentioned above, vide judgment, dated 28-7-1999, and was accepted. Writ Petition No,19170 of 1999 is directed against the aforesaid judgment of the learned Additional District Judge. As the parties, the subject-matter and the controversy is almost the same as in the civil revision and that the two Courts below have also decided the matter through common judgments, the civil revision as also the writ petition shall stand disposed of through this judgment.
3. It is contended by the learned counsel for the petitioners that it was not proved on record that Mst. Fatima Bibi, the widow of Atta Hussain and the predecessor of the parties was a limited owner so as to attract the provisions of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, as to the termination of limited estates. It is further contended that a declaratory suit, as also application under section 12(2), C.P.C. On the same subject-matter was not competent and that in any case the suit was barred by time, therefore, the judgment of the learned Additional District Judge is illegal and liable to be set aside.
4. There is no dispute that Atta Hussain was succeeded by his widow Fatima Bibi and two daughters, namely Rashidan Begum and Ghulam Zohra. There is nothing on record to indicate that on his death the two daughters had also inherited the left-over of Atta Hussain, their father. The suit land was mutated in the name of his widow Mst. Fatima Bibi, who purported to alienate the whole of it in favour of Mst. Ghulam Zhora, her daughter, to the exclusion of the other daughter Rashidan Begum, and her successors. The rule of limited owner came to an end with the enforcement of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, and thus, disposition of the suit land by Mst. Fatima Bibi to the deprivation of successors of other daughter of Atta Hussain could not be done. The mutation of gift, as also the consent decree, thus, to the extent of share of Rashidan Begum was illegal and inoperative qua her right in the property.
5. The contention of the learned counsel for the petitioners that it was not proved from record that Mst. Fatima Bibi succeeded as a limited owner is not tenable and is liable to be repelled for the reason that in case (assumed) she had not succeeded as limited owner, even then the two daughters Mst. Ghulam Zohra and Rashidan Begum would have inherited from the left over of their father. She in any case was a co-sharer in the property and no limitation would have run against her or her successors in the matter.
6. That the declaratory suit was not competent in view of application under section 12(2), C.P.C. Is also misconceived in the facts and circumstances of the present case, inasmuch as seeking declaration as to their entitlement from which they had illegally been deprived of and seeking the setting aside of the consent decree, which had been obtained by misrepresentation and collusively, by filing application under section 12(2), C.P.C. Both these remedies were independently available to the respondents.
' In view of the above, the approach of the Additional District Judge in the matter was quite consistent with the factual and legal Position obtaining in the matter. I do not find any valid justification to interfere with the same. As a result of the above, this petition has no merit and is dismissed.