' Through this single judgment I intend to dispose of C.R. No,41 of 1995 (Abdul Khaliq and another v..
Fazalur Rehman and others) and C.R. No,74 of 1995 (Fazhir Rehman and others v. Abdul Khaliq and others) as both arise out of the judgment and decree, dated 10-111994 passed by learned Additional District Judge-I, Mardan. Fazalur Rehman filed Suit No,31/1 on 23-12-1978 against Abdul Khaliq and others for possession of suit property fully described in the heading of the plaint: Perpetual injunction against defendants restraining them from further alienating the suit property was also prayed for in the plaint. The plaint was subsequently amended by the plaintiffs. The suit was contested by the defendants. The learned trial Court after framing as many as 20 issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree, dated 22-5-1993. Feeling aggrieved of the said judgwent and decree Fazalur Rehman and others (plaintiffs) filed Appeal No,31/13 on 4-7-1993 in the Court of learned District Judge, Mardan, which was entrusted to learned Additional District Judge-I, Mardan for decision/disposal, who vide judgment and decree, dated 8-11-1994 accepted the appeal and held plaintiffs entitled for 1/3rd share of the property in dispute. They were also held entitled to obtain the possession of 1/3rd share by partition under the law. Feeling aggrieved of the judgment and decree of the learned Additional District Judge Abdul Khaliq and Abdul Wahab have filed C.R. No,41 of 1995 against Fazalur Rehman and others whereas Fazalur Rehman and others have filed C.R. No,74 of 1995 against Abdul Khaliq and others.
2. Mr. Muhammad Aman Khan, the learned counsel representing the petitioners in (C.R. No,41 of 1995) argued that one Najo was original owner of the property in dispute, who died during the time when inheritance was governed by the customs. Therefore, property left by him devolved upon his son Abdul Ghafoor, who died issueless, and the entire property devolved upon his sister namely Mst.. Roshanai, who transferred the entire property through registered deed, dated 28-4-1964 Exh.D.W.1/1 in favour of petitioners, who further transferred some portion of the said property to defendants Nos.3 to 8 and 37. Mst. Roshanai was full-fledged owner of the property in dispute and she was not "limited owner", she could, therefore, transfer the property in dispute, which she validly transferred.
3. It was further argued that the transfers in favour of petitioners were made on 28-4-1964 vide Exh.D.W. 1/1 whereas the suit in hand was filed by the plaintiff on 23-12-1978, the same is, therefore, hopelessly barred by time.
4. It was further argued that even if for sake of arguments it is presumed that Mst. Roshanai was "limited owner", even then her "limited ownership" extinguished under section 3 of West Pakistan Muslim Personal Law Sharia Application Act (V of 1962). The plaintiff kept mum and filed the suit in the year 1978 which was barred by time from the date of extinguishment of "limited ownership" in the year 1962.
5. On the other hand Mr. Noorul Hakam Khan, the learned counsel representing the respondents in (C.R. Of 1995) and petitioners in (C.R. No,74 of 1995) argued that after the death of Najo, Abdul Ghafoor his son was recorded as owner of the entire property left by Najo and Mst. Roshnai, his sister was excluded under Riwaj. However, after the death of Abdul Ghafoor who died issueless, the entire property was recorded in favour of Mst. Roshanai as "limited owner" under customary law.
Mst. Roshanai could not sell or transfer the said property and on her death, the property devolved upon the legal heirs of Abdul Ghafoor, who have become owners to the extent of half share in the property in dispute and the transfer made by Mst. Roshanai vide deed, dated 28-4-1964 Exh.D.W.1/1 was illegal and ineffective upon the rights of petitioners (Fazalur Rehman and others).
6. It was further argued that since the petitioners had become the co-owners iu the property in dispute after the death of Mst. Roshanai, therefore, no limitation would run against co-owner. Even after the termination of limited estate in the year 1962, the petitioners had become co-sharers by the eflux. Of law and, therefore, the limitation would not run against them.
7. It was also argued that the learned Additional District Judge has erred in granting 1/3rd share to Mst. Roshanai out of the property left by Najo, her father. The property as per Riwaj had devolved upon Abdul Ghafoor who died issueless, therefore, the entire property was transferred in the name of Mst. Roshanai who was not entitled to get any property, she was entitled only for 1/3rd share out of the legacy of Abdul Ghafoor. The judgment and decree passed by the learned Additional District Judge, dated 10-11-1994 be modified to that extent.
8. I have heard the learned counsel for the parties and perused the record.
9. The argument of the learned counsel for the petitioner (Mr. Muhammad Aman Khan) that Mst.
Roshanai was the full owner of the property in dispute and was not "limited owner" and she could transfer the property in dispute has no force at all. Najo was the owner of suit land and houses situated at Mauza Mardan, more particularly described in the heading of the plaint. He died during the period when the custom was the rule of inheritance, therefore, his entire estate left by Itim devolved upon his son namely Abdul Ghafoor. The property was mutated in favour of Abdul Ghafoor vide Mutation No,814 attested on 5-6-1903 Exh.P.W.4/1 and Mutation No,1.22 attested on 24- 5-1906 Exh.P.W.4/2. Abdul Ghafoor died issueless, therefore, the entire property was mutated in the name of Mst. Roshnai vide Mutation NO.488 attested on 23-7-1924 Exh.P.W.4/3. The property was mutated in her name as a "limited owner" under Riwaj because the property left by Abdul Ghafoor was not distributed as per mode of distribution of inheritance prescribed by Muslim Law. There is a strong natural presumption that she inherited as life estate-holder only under the customary law subject to the control by male reversionary. Being "limited owner" under Riwaj she could not transfer/alienate the entire property. In Aslam and another v. Mst. Kamalzai and others (PLD 1974 SC 207) it was held that:--- "According to the learned counsel, under these provisions, the succession has to open only in respect, of immovable property held by a Muslim female as a limited owner and not in respect of the entire property left by the last male full owner. The position, therefore, in the present case, according to the learned counsel, would be that only the 1/3rd share that was taken by Mst.
Roshani as a limited owner would go back to Karam Khan and be distributed amongst his heirs, as if Karam Khan had died on the termination of the limited estate. It would not involve the reopening of the shares, if any, taken by male heirs as an absolute estate.
' It seems to us that the contention of the learned counsel is correct, because, it does not appear that it could have been the intention of the makers of the Statute to reopen the inheritance, even in case where the heirs had taken an absolute vested estate under custom. Only the limited owner estates taken under custom, which were, in any event, to terminate on the death or remarriage of the female heir, were intended to be distributed according to Muslim Personal Law. The language of section 4 leaves no room for doubt that the intention was to provide for the distribution of such properties only which were nationally still the properties of the last male owner and would have otherwise gone to his reversioners on the termination of the life estate. We cannot, therefore, agree with the High Court that the share of Mst. Kamalzai had to be calculated in the entire estate left by Karam Khan but only in the estate which was taken by Mst. Roshani as a limited owner. The succession opened only in respect of this limited estate and not the entire estate. The learned Additional District -Judge, Mardan was, therefore, right in the view that he took, namely; that Mst.
Kamalzai was only entitled to 12/40 share in the 1/3rd of the estate of Karam Khan which was taken as a limited owner by Mst. Roshnai."
' Likewise in Mst. Zarina and others v. Munjawar and another (1975 SCMR 487) it was held that the limited estate taken under customs (such as were to terminate on death or marriage of female heir) alone intended to be distributed according to Shariat.
10. The argument of the learned counsel for the petitioner in (C.R. No,41 of 1995) that the suit filed by the respondents/plaintiffs was barred by time because "limited ownership" extinguished with the promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) and the suit was filed in the year 1978. Moreover, the land was gifted on 28-4-1964 vide Exh.D.W./1 but the suit was filed on 23-12-1978 and on both counts the suit was barred by time also has no force in it.
'As per section' 3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 the limited estate in respect of immovable property held by Muslim females under customary law were terminated on promulgation of the said Act. On enforcement of the said Act the limited estates held by Muslim females under customary law were terminated and the estate in question, opened for succession amongst Shariat heirs of last full owner. The respondents/plaintiffs are reversionaries. With the application of Act V of 1962, they became entitled for inheritance of the property left by Abdul Ghafoor. Being real sister of Abdul Ghafoor, Mst. Roshanai was also entitled to inherit 1/4th share in the estate left behind by her brother Abdul Ghafoor. Being owner to the extent of 1/4th share, she could only gift/alientate property to the extent of 1/4th in the names of the petitioners The reversionary on enforcement of West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962 became co-sharers by efflux of the said law to the extent of 3/4th share, therefore no limitation would run against them. If an authority on this proposition is required, reliance can be safely placed on Ghulam Ali and 2 others v. Ghulam Sarwar Naqvi (PLD 1990 SC 1)
Muhammad Hussain alias Muhammad Yar v. Sardar Khan (PLD 1993 Lahore 575) and Allah Ditta and 7 others v. Hussain Bibi (1993 CLC 228).
' Another important factor is that the petitioners/defendants claim to be the donees of the property in dispute through gift, dated 28-4-1964 they cannot claim title through adverse possession and no period of limitation would start against the rights of legal heirs, unless and until it was proved on record that defendant had acquired title by adverse possession. Since the defendants claim their title on the basis of the gift deed mentioned above, therefore, they could not claim through adverse possession. Reliance in this regard is placed on Abdur Rashid alias Muhammad Rashid and 5 others v. Muhammad Boota (1993 CLC 214).
11. So far as the execution of gift deed, dated 28-4-1964 Exh.D.W.1/1 in favour of petitioners by Mst.
Roshanai is concerned, she was at the time of gift i,e, in the year 1964 owner of I/4th share in the estate left behind by her brother Abdul Ghafoor and the residue has to go to residuaries (plaintiffs), therefore, gift by her in excess of her Shari share was illegal and not binding on residuaries i,e, plaintiffs. Wisdom in this regard has been sought from Mst. Ali Begum v. Zardad Khan and 4 others (1994 SCMR 1140), Suba through Legal Heirs v. Mst. Fatima Bibi through Legal Heirs and others (1996)
SCMR 158) and Haider Shah and 5 others v. Mst. Roshanai and 9 others (1996 SCMR 901). Since the gift, dated 28-4-1964 Exh.D.W.1/1 was illegal, therefore, no limitation would run against the plaintiffs.
12. The outcome of the above discussion is that Mst. Roshanai was "limited owner" under Riwaj and on termination of limited estate held by her under customary law with the application of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 the estate of original owner would be considered as estate of Abdul Ghafoor deceased as last full owner and would open for inheritance as such. Mst. Roshanai as per Muhammadan Law would inherit 1/4th share in the property left by Abdul Ghafoor and the reversionaries (plaintiffs) would be entitled to inherit 3/4th share. The gift, dated 28-4-1964 made vide Exh.D.W.1/1 would be valid only to the extent of 1/4th share left by Abdul Ghafoor.
' Resultantly the Revision Petition No,41 of 1995 is dismissed, whereas C.R. No,74 of 1995 (Fazalur Rehman and others v. Abdul Khaliq and others) is partially allowed. Judgment and decree passed by learned Additional District Judge, dated 8-11-1994 (wrongly mentioned as 10-11-1994 in the heading of Appeal No,'31/13 of 1993) is modified to the extent that Fazalur Rehman and others plaintiff are held entitled to 3/4th share in the property in dispute. Parties are left to bear their own costs.