1. ' Suit of the plaintiffs-petitioners for declaration that they and the pro forma-defendants Nos.3 to 11 (as legal heirs of Mir Jan Khan) are owners of 2/3rd share, coming to 78 Kanals, 10 Marlas, out of land Khata No,100, Khasras Nos,1/415, 416, 1/430, 1/603, 429, 1/438, 1/593 and 1/715 (8 plots), measuring 117 Kanals, 15 Marlas and also owners of 2/3rd share coming to 78 Kanals, 10 Marlas in the said Khata, Khasras Nos.2/415, 2/430, 2/603, 2/438, 2/593, 594, 604, 2/725 and 738 (9 plots), equivalent 117 Kanals, 14 Marlas situate in village Ihsanpur. Tehsil and District Lakki Marwat and that mutation No,1625 regarding inheritance of Mir Jan in favour of Mst. Banata attested on 15-12-1921 is void, illegal and ineffective on the rights of the plaintiffs and pro forma-respondents and is liable to cancellation, was decreed by the judgment and decree, dated 7-3-1996 of the Senior Civil Judge, Lakki Marwat in Civil Suit No,6/1 of 1995. Aggrieved by the said judgment and decree Mir Baz, defendant (now deceased and represented by his legal heirs) filed an appeal in the Court of the District Judge. Lakki Marwat and by his judgment and decree, dated 26-10-1998, the Additional District Judge, Lakki Marwat, who was seized of the appeal by his judgment and decree. Dated 26- 10-1998, set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiffs: Dissatisfied with the findings of the Appellate Court, Hashim Khan, plaintiff and others have come to this Court in the revision petition in hand under section 115, C.P.C.
2. According to the plaintiffs, the suit land was owned by Mir Jan son of Sher Dil on whose death vide Mutation No,1625 attested on 15-12-1921 it devolved upon his mother Mst. Banata as a limited owner under the customs then prevailing. It has been averred that at the time of death of Mir Jan, his two maternal-uncles, namely; Muhammad Afzal and Mir Afzal were alive and that upon promulgation of the Shariat Application Act, 1935, the said maternal-uncles of deceased Mir Jan were entitled to the 2/3rd share in the disputed property. The plaintiffs allege that through Mutation No,5271 attested on 17-1-1954, Mst. Banata.Sold the suit property to defendants 1 and 2,'namely, Mir Baz and Gul Baz, whereas under the Shariat Application Act. 1935, she could inherit only 1/3rd in the property in dispute as the mother of the last male owner Mir Jan while the rest 2/3rd share was to devolve on Muhammad Afzal and Mir Afzal, the last male surviving legal heirs of Mir Jan (deceased) and, as such Mst. Banata could not sell the property beyond I/3rd share and as such Mutation No,5271 attested on 17-1-1954 is wrong, against law, based on fraud as such void and ineffective on the rights of the plaintiffs and the pro forma defendants and is liable to cancellation.
2. From the evidence of Afnan Shah, Patwari, appearing as P. W.1 it is clear that through Mutation No,1625 attested on 15-12-1921 the inheritance of Mir Jan, deceased. Devolved upon Mst. Banata. The contention that there is no evidence to suggest that Mst. Banata inherited the property of her deceased husband Mir Jan as limited owner under the customs. Carries no weight because under no law either prevalent at the time of death of Mir -Jan or subsequently, Mst. Banata could inherit the entire property left by Mir Jan except under the customary law as limited owner. In Muhammad Shafi v. Ibrahim PLD 1955 FC 102, it was held that:-- "The property of a man who dies without issue first reverts to the ancestors and then descends to the male lineal descendants of that ancestor. Thus, a brother succeeds a sonless brother, not as a brother, but because the estate reverts to the father and descends again to his sons. So too a mother succeeds not as a mother but as the widow of the father to whom the estate has ascended. This also explains .What is called the principle of representation'. The same principle holds good in the case of a female holding a life-estate. On her death, the property would revert back to the last male owner from whom she got it and then his heirs have to be discovered."
3. ' Besides, from the statement of Faridullah Khan, plaintiff who appeared as P.W.2 on the suggestion of the defendants stated in cross-examination that the inheritance of Mir Jan on his death was attested in favour of Mst. Banata under the custom then prevailing.
3. In this case upon the death of Mir Jan, the original owner of the estate, under the custom then prevalent the property was to devolve on the male heirs of Mir Jan. It is not disputed that at the time of death of Mir Jan, two brothers of his father: namely, Muhammad Afzal and Mir Afzal were alive and in the ordinary course. They were entitled to get inheritance of their deceased nephew, Mir Jan, but for the custom under which the property devolved upon his mother as a limited owner.
4. It is well-settled that a limited owner holds no interest transmissible to either her own heirs or to sell it to somebody else because upon her death or on 'contracting. Marriage the property which she inherits as a limited owner reverts to the heirs of the last male holders as such -she was not authorised to dispose.Of the property so as to affect the rights of inheritance of those .Who would inherit the property upon the termination of the limited ownership of the lady. In Rehmat Bibi v.
5. Ibrahim PLD 1966 SC 349 it was held that:-- "There is difference between the position of a widow and a male holder of ancestral land under custom. The widow had only a life estate in the property which she inherited. She held no interest to her own heirs and when she died the inheritance went not to her own heirs, but to heirs of the last male holder. Having only a life estate the widow was not entitled to deal with the property so as to affect the rights of inheritance of those who would succeed to the property but for the alienation.
6. Therefore, every person who was heir to the husband had the right to impeach alienation by a widow. Whereas the persons entitled to' impeach the alienation in the case of a male holder are only descendants and collaterals within the fifth degree qua whom the property is ancestral, the persons entitled to impeach the alienation in the case of a widow are the persons who would inherit it from the husband at the termination of the widow's estate. The result is that in the case of widow, all that is needed for establishing the locus standi to sue for declaration is that the plaintiff should be one of the widow's state and also the' declaratory decree 'obtained ensures for the benefit of every heir. As such a decree ensures for the benefit of whosoever is the heir its effect should be that the estate is absolutely free of the alienation whereas in the case of the alienation by a male the declaratory decree only benefits a limited class, and apart from the rights of that class the alienation remains good and valid. What has been said about the widow applies to all other females holding limited estates under custom 'the last male holder' being substituted; in their case for the husband,"
7. Under the custom Mst. Manata. Widow of deceased Mir Jan, could not alienate/inherit any property in the estate of. Her deceased son but under the A Shariat Application Act.
8. 1962. Since. Mir Jan, deceased, had died issueless, she was entitled to inherit 1/3rd of the property left by Mir Jan and rest 2/3rd was to devolve on the other legal heirs of said Mir Jan, who. As observed earlier, were his two uncles, namely, Muhammad Afzal and Mir Afzal. As such Mst, Banata .Was not entitled to dispose of the property by way of sale beyond her legal share coming to 1/3rd in the estate of her deceased son.
4. Learned .Counsel for the defendants-respondents contended that the suit of the plaintiffs is hopelessly barred by limitation in that under Article 120, the suit was to be brought within six years of accruing the right to sue i,e, the sale Mutation No,5271 attested on 17-1-1954. In this connection it may be pointed out that the property in dispute is situated in the joint Khata and both the parties are co-sharers. In such a situation question of losing title or remedy on account of influx of time hardly arises. In Allah Wasaya and 3 others v. Rahim Bakhsh and another 1991 SCM R 1369 it was observed that:- "Even if question raised by defendants was held to be entertain able plaintiffs being co-sharers could not be held to have lost their title or remedy on account of influx of time "
9. ' Similarly in Mst. Namdara and 3 others v. Mst. Sahibzada and 2 others 1998 SCM R 996 is was held that:-- "A co-sharer holds the property for and on behalf of all the co sharers and any adverse entry in the Revenue Record and mere non-participation in the profits of the property would not amount to ouster of a co-sharer. A brother cannot legally claim adverse possession against his sister and muchless ouster' ."
10. ' In Nazir Ahmad and others v. Abdullah and others 1997 SCM R 281 it was held 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. ' On this view I am not inclined to hold that the suit of the plaintiffs is, barred by limitation,
5. The next question that falls for determination is whether the alienation made by Mst. Banata in favour of defendants Nos.1 and 2 is a valid one and if so to what extent. In a. Case reported as Haider Shah and 5 others v Mst. Roshanaee and 9 others 1996 SCM R 901, a similar question was resolved by their Lordships of the Supreme Court holding that the vendees were entitled to retain the suit land to the extent of the share of lady limited owner in the estate of the deceased. The relevant observations are reproduced as under:-- "Now in the instant case, limited interest of Mst. Roshanaee terminated neither on account of her remarriage nor because of her death but under section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act V of 1962 which Act had in fact repealed Punjab Act IX of 1948. Section 3 of Act V of 1962 declared in express terms "The limited estates in respect of immovable property held by Muslim females under the Customary Law are hereby terminated". Section 5 of the said Act which is in pari materia with section 3 of Punjab Act IX of 1948 laid down that the life estate terminated under section 3 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner and as regards the Muslim females holding limited estate under Customary Law like Mst. Roshanaee, provision was specifically made in the proviso to section 5 stating that the share to which holder of limited estate would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her. In this view of the matter, the ratio in Said's case was not applicable to the present case and Mst. Roshanaee was quite clearly entitled to her Muslim Law share in the estate of her deceased husband and the appellants could, therefore, retain the suit land to the extent that it fell within the share of Mst. Roshanaee.
12. ' Apart from what has been said above, the right claimed by the respondents in their suit which has been decreed by the Courts below namely, the revisioners' right under custom to challenge the alienation made by a limited owner was clearly hit by section 2-A of Muslim Personal Law (Shariat)
13. Application Act V of 1962. Clause (b) whereof provided that "any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery of possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat)
14. Act". This provision quite clearly nullified the judgments/decrees of the Courts below based on the customary right of reversioners but it appears that it was not brought to the notice of learned Judge in the High Court even though section 2-A was added by Punjab Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XII of 1983) during the pendency of the second appeal in the High Court."
15. ' The crux of my discussion above is that Mst. Banata was entitled to inherit only 1/3rd out of the estate of her deceased son Mir Jan and rest 2/3rd was to devolve on the legal heirs of said Mir Jan, namely. Muhammad Alzal and Mir Afzal. In the circumstances, the trial Court was correct in holding the plaintiffs and pro forma defendants, the legal heirs of Muhammad Afzal and Mir Afzal, entitled.
16. To 2/3rd share in the property of Mir Jan. Consequently, while accepting this civil revision petition, I set aside the judgment and decree of the Appellate Court and restore that of the trial Court with the result that suit of the plaintiffs and the pro forma defendants for inheritance of 2/3rd share in the property of Mir Jan (deceased), is decreed in their favour and all the transactions made pursuant to Mutation No,5271 attested on 17-1-1954, beyond 1/3rd share, are declared as void as such ineffective on the rights of the plaintiffs and pro forma defendants. Parties are left to bear their own costs.