1. MIAN MUHAMMAD AJMAL, J.---This appeal, by leave of the Court, is directed against the judgment of the Peshawar High Court, Peshawar dated 29-5-1993, whereby R.S.A. No,2 of 1973 of the respondents was allowed, the judgment and decree passed by the First Appellate Court was set aside and that of the trial Court restored.
2. Brief facts of the case are that on 15-4-1969, Mirza Khan, the predecessor-in-interest of the petitioners and 19 others instituted a suit for possession of land measuring 105.5/12 Kanals i.e, 20/48 share in the landed property measuring 253 Kanals, 6 Marlas situated in village Garhi Ismailzai, Tehsil and District Mardan against Wali Muhammad Khan and others. It was averred in the plaint that the land in dispute was originally owned by Qalandar Khan. He was governed by custom and on his death the property was transferred to Mst. Mehtaba, his widow as a limited owner, who allegedly gifted it to Wali Muhammad Khan defendant No,1 in the year 1940 through a registered deed, but she being a limited owner was not competent to gift it, hence it was void and ineffective qua the plaintiff's rights. The registered will dated 29-7-1926 of Qalandar Khan in favour of Mst.
2. Mehtaba on the basis of which she claimed to be the owner of the property, was also void and invalid as Qalandar Khan could not will the ancestral property in favour of his wife when the customary law was in vogue. Mst. Mehtaba died about 3-1/2 years before the institution of the suit.
3. The suit was contested by Wali Muhammad Khan defendant No, 1 . He while denying the limited ownership of Mst. Mehtaba over the suit-land, asserted that by a registered will deed dated 29-7- 1926 Qalandar Khan had bequeathed the suit-land to Mst. Mehtaba, whereby she had become its full owner. It was further averred that the bequest was confirmed by attestation of Mutation No,221, dated 13-10-1929. The suit was also resisted on the pleas of limitation, estoppel and non-joinder of necessary parties. It was also averred that the suit was not properly valued for the purpose of court-fee and jurisdiction. On the divergent pleadings of the parties, the trial Court framed necessary issues, recorded evidence of the parties and after hearing their learned counsel vide its judgment dated 30-7-1970 dismissed the suit. The appeal filed by the plaintiffs was accepted by the First Appellate Court vide its judgment dated 27-10-1972, the relevant portion whereof is reproduced hereinbelow:-- "In conclusion, I hold that the suit was within time, the succession of the estate of Qalandar Khan had been opened in 1966, the suit was within time in the year 1966 under Article 141 of the Limitation Act. I, therefore, hold that the will made by Qalandar Khan in favour of Mst. Mehtaba was invalid, both under Mahomedan Law and also under Custom and in spite of the transfer, the land did not lose its ancestral character, which continued till the year 1966, when Mst.Mehtaba died. The plaintiffs in the plaint have claimed 20/48 or 5/12 share although according to the calculation of Mian Abdul Majid Khan, Advocate, the learned counsel for the appellants the correct shares are as follows: Total 36 shares Mst. Mehtaba widow = 9 shares Mst. Malko = 8 shares Mst. Ainashoora Predecessor-in-interest of plaintif fs 11 to 20 = 8 shares Mst. Atta Jan Mother of Mst. Suba Jan defendant No,12 = 8 shares Residuaries = 3 shares The plaintiff would thus get 16/36 share and it was also argued for the appellants that they are also entitled to inherit four of 4 shares of Mst. Atta Jan, as her heirs through the sisters of Mst. Atta Jan. In the plaint also half of the share of Mst. Atta Jan was claimed by the plaintiffs. Out of the 8 shares of Mst. Atta Jan four shares will go to her daughter, Mst. Suba Jan and the other four shares to the descendants of her two sisters who figured as the appellants. The share of the appellants, therefore, comes to 16 + 2 = 18 shares out of 36 shares. In the plaint, the share claimed appears to be wrongly calculated as 20/48 share, but the plaintiffs were careful to state in the plaint in para. 11, that the share claimed by them or whatever share found to be proved be decreed in their favour.
4. The overall conclusion, therefore, is that I accept the appeal and grant the plaintiffs-appellants decree for possession of 20/36 share out of the land in suit measuring 253 Kanals, 6 marlas, but in view of the whole circumstances of the case, I direct that the parties shall bear their own costs throughout."
5. Feeling aggrieved, the respondents filed R.S.A. No,2 of 1973 before the Peshawar. High Court, Peshawar, which was accepted vide judgment dated 29-5-1993 as stated in para. 1 above. Against this judgment, the appellants filed C.P. 239-P of 1993, wherein leave was granted on 18-9-1994 as under:-- "The learned counsel contended that the suit was barred by time under Article 120 of the Limitation Act. It was further pontended that the properties were governed by the customary law and according Co the custom and usage, Qalandar Khan could not have transferred the property through a will to Mehtaba, his wife. It was further contended that even otherwise the will made by Qalandar Khan was invalid and illegal and no valid transfer could be made in favour of Mehtaba.
6. Leave is granted, inter alia, to consider the above contentions."
3. Learned counsel for the appellants basing his arguments on the judgment of the First Appellate Court, submitted that Qalandar Khan, last male owner of the property in dispute willed the entire landed property measuring 253 Kanals, 6 Marlas to Mst. Mehtaba, his wife, when the customs was in vogue. He, under the customary law, could not will the property in favour of his wife who could only get the property on his death as limited owner for her .Lifetime. Likewise, gift of the property made by Mst. Mehtaba to Wali Muhammad Khan was without any foundation as the will itself was void ab initio and no transfer on the basis thereof could be made. According to him, both these documents are void, therefore, the appellants would inherit the property as collaterals and reversioners of Qalandar Khan.
4. Conversely, the learned counsel for the respondents, contended that Qalandar Khan, legator, the full owner of the property could transfer his property in his lifetime to his wife and thereafter the legatee, Mst. Mehtaba could gift that property to anybody according to her wishes. He referred to Questions Nos.92 and 93 and their answers from the Customary Law of Peshawar District by J.G.
7. Lorimer, Political Officer, TOCHI, Vol. XVII, published by Government Stationery and Printing, North- West Frontier Province, Peshawar, 1934, the said questions and their answers are reproduced hereunder:-- Question 92.--Power of a proprietor to make by word of mouth or in writing a disposition of his property to take effect after his death?
8. Answer.--The Khawajas, Saiyads of Peshawar Centre, Gigianis, Muhammadzais, Duranis and Khattaks all stated that a proprietor has power to dispose of his property by oral or written testament. The Kamalzai, Amazai and Yusufzai representatives, except Khan Bahadur Muhammad Ibrahim Khan, Mukarrab Khan and Khushal Khan and the Utmannama and Razzar representatives, except Majid Ullah Khan of Beka held the same opinion: no clear instance of a contrary custom were brought forward by those who differed from the majority. The Bara Mohmands, Khalils and Daudzais were inclined to refer all questions of will to the test of Shariat, but an instance of absolute freedom of testamentary disposition was quoted among the Mohmands of Kotla, while Khalils and Daudzais were unable to quote any instance of a will being upset or disregarded. The Halimzai and Tarakzai Mohmands restricted the power to make a will by two conditions, first that the will should not favour strangers and second that it should not pass over heirs.
9. Question 93.---Limitations of the power of bequest.
10. Answer.---The Gigianis, Muhammadzais, Duranis, Kamalzais, Amazais, Yusafzais, Khattaks, Urmurs, Uriya Khels, Besuds, Awans and Khands acknowledged no restrictions on the power of bequest. The.
11. Khawajas, Bara Mohmands, Khalils and Daudzais stated that bequests can only be made in favour of persons who are not heirs, and that no will can be made merely to affect the shares of heirs as among themselves, except with the consent of the heirs concerned: these tribes also stated that a moribund person cannot dispose of more than one-third of his estate by bequest. The Saiyads of the Naushera circle stated that a proprietor has power to disinherit a son or any other heir, and that he can also vary the natural shares of the different heirs by testament. The Kaka Khels, on the other hand, asserted that a proprietor was incapable of entirely disinheriting his natural heirs, but that for good cause he might vary their respective shares. Both Naushera Saiyads and Kaka Khels stated, after great hesitation, that a man might not by will dispose of a larger portion of his estate than is permitted by the Share .
5. After hearing the learned counsel for the parties and going through the record, we are of the opinion that during the currency of the customary law the last full owner could not will the entire ancestral property in favour of his wife as under the custom the widow would be entitled to possession of the property for her maintenance till her lifetime. The answers given above to the questions do not spell out that Yousafzais had a consensus or collective opinion about the custom regarding power of the owner to make a will for the disposition of his property in favour of his wife.
12. In case of Mst. Niazmana and others v. Mir Sadda Khan and others (Civil Judgment No,8, Judicial Record 1903 p.30), it was held by Judicial Commissioner, N.-W.F.P. That a proprietor of landed property was not entitled according to customs, to make a will in favour of his wife and it was further held that widow was entitled to maintenance and not to a life interest in the presence of sons. In another case, Mir Baz v. Shah Pasand (Civil Judgment No,87, Judicial Record 1917, page 413), the Judicial Commissioner N.-W.F.P. Held that the property gifted to a woman for some special purpose, either as marriage portion or 'Haq Mahrreverts to the family from which it was derived, if the woman dies without male issue. In yet another case Ghulam Khan v. Ghulam Haider Khan (Civil Judgment No,121, Judicial Record 1923, page 670), it was held by Judicial Commissioner, N.-W.F.P.
13. That when the general principle has been firmly established, that landed property gifted to a woman by her father reverts to the line of the father when the woman dies without male issue, the onus lies heavily upon the petitioner to show that, nevertheless, a special custom exists in the tribe now concerned under which a husband intervenes before such reversion takes place.
6. In this case, Wali Muhammad Khan, defendant No,1 did not appear himself as a witness and on his behalf, his attorney appeared as D.W.1 as sole witness, who did not say even a word about the custom prevailing in 1926 regarding will that a husband could will his landed property in favour of his wife. The onus to prove the existence of custom to this effect was on the defendant which he failed to discharge. On the contrary, plaintiff has brought sufficient evidence on record that according to Riwaj nobody could transfer the ancestral property to any body. In view of the above- quoted judgments, of the Judicial Commissioner, N.-W.F.P., it is manifest that the husband could not will his landed property in favour of his wife, hence the will made by him was invalid and void..
14. Consequently, after the death of Qalandar Khan, she succeeded as a limited owner of the property.
15. It would be appropriate to reproduce Questions Nos.41 to 51 with their answers from Customary Law, supra with regard to succession which read as under:-- Question 41.--Rights of widows, sons, daughters, brothers and other relatives.
16. Answer 41.--Sons, grandsons or others male lineal descendants exclude all other heirs. In the absence of male lineal descendants, widows, after widows, daughters, after daughters, sisters and after sisters, mother, are entitled to possession of property for life or till marriage or re-marriage.
17. After the abovenamed, the succession passes to the collaterals.
18. Question 51.--Interest of the widow where she succeeds to the estate. Her power to alienate, and by what conditions restricted.
19. Answer 51.-The interest of the widow in the estate to which she succeeds continues only till her death or re-marriage. Most tribes are agreed that she may only alienate for necessity, thus recognising alienation by mortgage and sale in certain circumstances, but not alienation by gift or bequest. In case of necessity she must first seek help of the heirs and only if they refused the required assistance will her alienation be valid. Also, if the necessity can be met by mortgage she should abstain from sale and mortgage should not be for any fixed time."
20. The above answers show that under Custom the widow would succeed to the estate of her late husband to the extent of possessory rights which would remain with her till her death or till her remarriage and she would not inherit as absolute owner.
7. The will having been held to be invalid, the gift deed executed by Mst. Mehtaba in favour of Wali Muhammad Khan, defendant No,1 automatically falls to the ground being without any lawful foundation and secondly; she being a customary widow could not alienate the property through gift in favour of anybody.
8. Now, we come to the question of limitation to see whether the suit was within time. It is now settled law that the right of the heirs to claim inheritance commences from the date when the life interest of the widow in the property terminates and thereafter the heirs as co-sharers can claim inheritance. The said question has been answered by this Court in Ghulam Ali v. Ghulam Sarwar
(PL) 1990 SC 1) as under:- "The questions of limitation, adverse possession and ouster may, in one way, be disposed of with reference to recent decisions of this Court.
21. The main argument of the learned counsel in this behalf is that the mutation sanctioned in 1963 against the respondent and her failure to challenge it for a long period would constitute such a conduct which would render the petitioners possession as adverse to her. In answer to the query that she having become a co-sharer immediately on the death of her father the plea of adverse possession against such a co-sharer would not be available to the petitioners, learned counsel further contended that the mutation which was sanctioned against her interest together with her conduct of not challenging the same for a very long term, would constitute her ouster and that being so the plea of co-sharership in this behalf would stand repelled.
22. This controversy now stands finally settled by a recent judgment of this Court. It was held in 'Haji v.
23. Khuda Yar(PLD 1987 SC 453) that a. Similar adverse entry and non-participation in the profits of the property would not amountto an ouster. While taking note of the earlier case of 'Anwar Muhammad and others v. Sharif Din and others(1983 SCM R 626) in extenso, it was observed that "wrong mutation conferred no right in property as Revenue Record is maintainedonly for purposes of ensuring realization of land Revenue.
24. The suit, in the said case was treated as having been 'based on title and not for correction of Revenue Record'. Accordingly it was not held to be a case of adverse possession and the suit was found to be within limitation."
25. Similar view was taken in a latter judgment reported as Mst. Namdar and 3 others v. Mst. Sahibzada and 2 others (1998 SCM R 996), wherein it was held:- "The customary law which was in vogue in Punjab as well as in areas of N.-W.F.P. Also provided for exclusion of females from inheritance. Considering the purpose of the Revenue Laws and nature of the entries of Revenue Record the Court expressed the view that mere omission of the name of a female proprietor in the Revenue Record and even attestation of a wrong mutation confers no right in property as Revenue Record is maintained only for the purposes of ensuring realisation of land Revenue. The purpose and legal nature of the entries incorporated in the Revenue Record was highlighted by the Privy Council in (Thakur) Nirman Singh and others v. Thakur Lal Rundra Partab Narain Singh and others (AIR 1926 Privy Council 100). The superior Courts keeping in view the true nature of the rights vesting on the heirs automatically on the death of a Muslim under the Shariah in the estate left by the deceased, have 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. In this context it was held that a brother cannot legally claim adverse possession against his sister and much less 'ouster'.
26. See cases of Ghulam Ali PLD 1990 SC 1) and Mst. Fazal Jan (PLD 1992 SC 811)."
27. In view of the above, we hold the suit filed in 1969 after the death of Mst. Mehtaba in 1966, to be within period of limitation. We consequently, allow this appeal, set aside the impugned judgment of the learned High Court and restore that of the Additional District Judge, Mardan dated 27-10-1972.
28. No order as to costs.