SYED JAMSHED ALI, J. - The brief facts giving rise to the present appeal are that one Noor Muhammad, who was last male owner, died in India leaving behind Mst. Muhammadi Begum, his daughter. She migrated to Pakistan and was allotted land (26 kanals) abandoned by her father in India and mutation No. 14 was attested in her favour on 11.7.1952. Mst. Muhammadi Begum acquired land measuring 28 kanals in the same revenue estate by way of a registered gift dated 23.9.1964 from Mst. Nazran. She, thus, owned 54 Kanals of land in the said revenue estate.
2. On 22.12.1965, the appellant filed a suit for declaration claiming title to suit land on the basis of the averments that six months prior to institution of the suit, Mst. Muhammadi Begum had orally sold the entire land measuring 54 kanals to him and had also delivered possession thereof but was avoiding entries in the revenue record.
3. On 16.3.1966, one Dilbar Hussain, general attorney of Mst. Muhammadi Begum, appeared before the learned Trial Court and confessed judgment. However, on the same date, one Abdul Hameed deceased made an application under rule 10 of Order I of the CPC for being impleaded as party on the ground that he was entitled to inherit 1/2 of the estate of Noor Muhammad. This application was allowed.
4. The suit was contested by said Abdul Hameed deceased and on the basis of the pleadings of the parties necessary issues were framed.
5. On consideration of the evidence produced before the learned Trial Court the suit filed by the appellant was decreed on 6.5.1969. It was held that Mst. Muhammadi Begum was foil owner and folly competent to alienate the land in dispute.
6. Respondents Nos. 1 to 3, successors-in-interest of Abdul Hamid and Rajab Ali respondent No. 4 took an appeal before the learned District Court which was partly accepted by learned Addl.
District Judge vide judgment and decree dated 14.11.1970. It was held that so far as land gifted to Mst. Muhammadi Begum is concerned there was no dispute while as to the land inherited by Mst.
Muhammadi Begum from her father (26 kanals) she was held to be a limited owner and entitled to one half only. Accordingly, it was held that she could alienate one half of the said land in favour of the appellant. Thus, the decree was modified.
7. The learned counsel for the appellant has contended that Mst. Muhammadi Begum being the only legal heir of Noor Muhammad was not only the foil owner of the property in dispute but was the sole heir of her father because there was no other heir of Noor Muhammad and in view of the doctrine of 'Radd', apart from her share, she will get the residue also. He further contended that there was no evidence on record that Abdul Hameed was related to Noor Muhammad. He further submitted that according to Parcha Zamindara, Ext. P-1 issued on 21.4.1965, Mst. Muhammadi Begum had been recorded as a foil owner.
8. He next contended that by virtue of West Pakistan (Shariat Application Act) (Amendment)
(Ordinance No. XIII of 1983) Noor Muhammad the father of Muhammadi Begum will be deemed to be foil owner thereby removing the customary restraints and eliminating reversionary rights of the collaterals.
9. Mirza Hafiz-ur-Rehman for respondent No. 5, has supported the appeal. The learned counsel appearing for respondents Nos. 1 to 4 has supported the judgment of the learned first Appellate Court.
10. I have heard the learned counsel and examined the record carefully. The facts which emerge from the record may be noted. On 11.7.1952 mutation No. 14 was attested in favour of Mst.
Muhammadi Begum. This is not on the record. At that time Mst. Muhammadi Begum was about 8 years old. In this mutation she was described as limited estate holder. On 6.5..1964 mutation No. 1334 (Ex.D-6/3) was entered purporting to terminate limited estate of Mst. Muhammadi Begum on her marriage and proposing 1/2 share to Abdul Hamid as collateral of Noor Muhammad. This mutation was not sanctioned.
11. Against mutation No. 14, dated 11.7.1952, Mst. Muhammadi Begum appealed before the learned Deputy Settlement Commissioner. Her appeal was dismissed on 25.7.1966 solely on the ground of limitation. A further appeal by her before the learned Settlement Commissioner was also dismissed on 12.10.1966 (Ex.P-6). It may be noted here that the question of the nature of estate held by Muhammadi Begum was not examined either by the learned Deputy Settlement Commissioner or by the learned Settlement Commissioner.
12. The learned Trial Court while decreeing the suit held that there was "not a single document" to indicate title of Abdul Hamid. However while interfering learned Addl. District Judge placed reliance on two documents:-
(a) Ex.D-6/3 unattested mutation No. 1334 entered on 6.5.1964.
(b) Ex.P-6, the order of the Settlement Commissioner dated 12.10.1966.
13. Abdul Hamid, could defeat the claim of the appellant if he could prove that he was a collateral of Abdul Hamid, because even if Mst. Muhammadi Begum was held to be a limited owner, she would be entitled to the residue after satisfaction of her Quranic share by application of doctrine of "Radd" in the absence of any other heir of Noor Muhammad in the categories of Sharer, residuary or distant kindred. Abdul Hamid went into the box as DW-1. No other evidence was produced by him to establish that he was Noor Muhammad's collateral. The recital in mutation No. 1334 (Ext. D-6/3) that Abdul Hamid was entitled to 1/2 share in the absence of proof of relationship with Noor Muhammad, could hardly defeat the claim of Muhammadi Begum or her successors-in-interest, the plaintiff-appellant. I may add that no presumption of correctness is attached to the entries in the mutation register. Particularly when it remains unattested.
14. As far as Ext. P-6, the order of the learned Settlement Commissioner is concerned, it at the most recites that Mutation No. 14 attested on 11.7.1952 described Mst. Muhammadi Begum as a limited estate holder. This also does not establish that Abdul Hamid was the collateral of Noor Muhammad. I have noticed that neither in the application nor in the written-statement. Abdul Hamid, had asserted that he was collateral of Noor Muhammad. Neither any pedigree-table was placed on the record nor Abdul Hamid even described the pedigree when he appeared as DW-1.
He only asserted that he was " Yakjaddi" of Noor Muhammad.
15. That the two documents i.e. Ex.D-6/3 (mutation No. 1334) and Ex.P-6 are not sufficient to hold Mst. Muhammadi Begum as limited estate holder. Mutation No. 1334, Ex.D-6/3) was not attested while in the appeals before Deputy Settlement Commissioner and the Settlement Commissioner the issue raised by Mst. Muhammadi Begum, was not adjudicated. Except the recitals in the aforesaid documents, no independent evidence was brought on the record by the respondents to establish that Mst. Muhammadi Begum was a limited estate holder. On the other hand, Ex.P-1 described Mst. Muhammadi Begum as an owner, without any indication that she held a limited interest.
16. I may refer to Mst. Zeenat Begum Versus Mst. Iqbal and another (PLD 1991 S.C. 427). In this precedent case one Mst. Iqbal Begum widow of Bostan sold the land. This alienation was challenged by Mst. Zeenat Begum step sister of Bostan on the ground of customary restraints. The suit was dismissed. The appeal of Mst. Zeenat Begum was allowed. This Court, however, restored the decree of dismissal of the suit by holding that it was not proved that Bostan was governed by custom. The Hon'ble Supreme Court while upholding the judgment of this Court held:- "However, after the commencement of the process of Islamisation of Laws in Pakistan, the situation has changed further. Thus, in Federation of Pakistan Vs. Muhammad Ishaq (PLD 1983 SC 273) it was held that restrictions placed on the power of alienation of persons inheriting the agricultural land under the Customary Law (as prevailing in the Punjab before 16.3.1948, namely before the coming into force of the West Punjab Muslim Law (Shariat) Application Act, 1948) were opposed to the injunctions of Islam. It was, accordingly, directed that amendments be carried out for removing all such restrictions, which has since been done. In view of this approach of the Law Maker in regard to the existing laws, we consider that the impugned judgment of the High Court wherein the prayer for setting aside the sale was refused a view taken which is consistent &with the spirit of the judgment subsequently delivered by this Court, referred to above and in consonance with which all law- making is being done, does not need any interference."
17. The above observations, although in the nature of obiter dictum, are entitled to greatest respect.
18. In view of the above, the learned first Appellate Court erred in law in setting aside the judgment and decree of the learned Trial Court. Resultantly, this appeal is allowed and the suit filed by the appellant is decreed. The parties are left to bear their on costs.