' This Regular Second Appeal is by the aggrieved defendant. Siraj Din respondent, an adopted son of Mian Noor Din filed a declaratory suit praying that the gift made by Mehtab Bibi in favour of Mst.
Hameeda Begum, her daughter was ineffective against his rights. Learned trial Court decreed the suit. Aggrieved by the judgment and decree of the trial Court Mst. Hameeda Begum preferred an appeal which was dismissed by the learned Additional District Judge, Lahore. Against the impugned judgments Mst. Hameeda Begum has preferred this Regular Second Appeal.
2. Briefly the facts, necessary for the decision of this appeal, are that one Sadar Din, an Arain of village Fateh Garb, Tehsil and District Lahore died in the year 1922 leaving behind a daughter Mst.
Hameeda Begum by his widow Mst. Mehtab Bibi and a son Noor Din by a pre-deceased wife. On his death his property was divided in equal shares among Noor Din and Mst. Mehtab Bibi according to the Choonda Wand custom. Noor Din died issueless in the year 1941 and his property was mutated in the name of Siraj Din respondent as his adopted son. In the year 1948, Mehtab Bibi and Mst.
Hameeda Begum brought a suit for possession of the land mutated in the name of Noor Din on the ground that Siraj Din had not been adopted by Noor Din deceased, as such he could not succeed to his property. In June, 1948 Siraj Din also filed a suit against the mother and daughter for the possession of the land gifted by Mst. Mehtab Bibi in favour of Mst. Hameeda Begum. Both the suits were consolidated by the trial Court. On the pleadings of the parties following issues were framed :- "(I) Was the defendant validly adopted as son by Noor Din deceased ?
(2) Does the custom of adoption obtain amongst the Arains of Lahore.
(3) If case issues 1 and 2 are found against the defendant are the plaintiffs entitled to inherit Nur Din under the custom ?
(4) Are the mortgagees necessary parties ?
(5) Is the suit time barred ?
(6) Are the plaintiffs estopped by their words or conduct from suing ?
(7) Relief.
3. The trial Court decreed the suit filed by Mst. Mehtab Bibi and Hameeda Begum and the suit instituted by Siraj Din was dismissed. Siraj Din preferred two appeals against the judgments of the trial Court. The Additional District Judge, Lahore vide order dated 27-11-1950 reversed the finding in adoption case and the adoption of Siraj Din by Noor Din deceased was held valid. In other appeal i,e, Siraj Din challenging the gift, learned Additional District Judge accepted the appeal and remanded the case to the trial Court for fresh decision. While remanding the case, learned Additional District Judge directed the trial Court to consider as to whether Siraj Din, who is an appointed heir of Noor Din is entitled to question the gift in respect of the land, which was never mutated in favour of Noor Din and can claim its possession from Mst. Hameeda Begum. Because, on this issue no evidence was available on the file, so as to enable the Court to pronounce judgment under Order XLI, rule 24, C. P. C., therefore, learned Additional District Judge had no option but to remand the case. In the remand order it was also observed that as this aspect of the case has not been considered, the trial Court may take whatever evidence the parties may choose to produce in this connection and adjudicate it afresh according to law. It appears that after remand the suit remained pending with the trial Court till the question of adoption was finally determined in favour of Siraj Din, by the Supreme Court. After remand learned trial Court did not frame any fresh issue nor recorded any evidence and the judgment of both the Courts below are based on the evidence recorded prior to the remand.
4. Mr. M. B. Zaman, learned counsel for the appellant contends that Mst. Mehtab Bibi had inherited the suit property under Choonda Wand custom as a limited owner, Noor Din in his life time never challenged the right of Mehtab Bibi to retain this property as a limited owner, now Siraj Din who is an appointed heir, cannot challenge the same as this property was never mutated in favour of Noor Din. On the strength of Ali Muhammad v. Mughlani etc. (1), it is argued that the estate of a widow under the customary law of the Punjab is anologous to that of a widow under the Hindu law.
Under both the laws she holds the estate for life for the purpose of maintenance with certain powers of disposition which are necessarily incident to her position. The contention of the learned counsel is not devoid of force. In the instant case it appears that Noor Din allowed Mst. Mehtab Bibi to retain possession of half of his father's land in lieu of maintenance. This conduct throughout his life time in not claiming possession of 1/2 held by widow clearly proves that she held the land with his consent for the purpose of maintenance. She thus held widow's limited estate in that j share of the land and her status was in the eye of law not different from the widow who holds the estate of her deceased husband dying without a male issue.
5. In fact this was the sole question on which the case was remanded to the trial Court but strangely enough, both the Courts below have not adverted to this important question of law. The question formulated by the learned Additional District Judge, while remanding the case, was a material question for the determination of the issues involved in this case. In my view, the Jurisdiction of the Court trying a remanded case depends entirely on the order of the appellate Court who remanded the case. In these circumstances 1 have no option but to remand the case to the trial Court.
(1) AIR 1946 Lah. 180
6. There is yet another aspect of the case that after the enforcement of Muslim Personal Law (Shariat) Application Act, which came into force during the pendency of the suit, Mst. Mehtab Bibi's limited estate became subject to the incidents of the Muslim law. On her death the limited estate terminated and the property reverted to the last male holder i,e, Sadar Din, succession to whom shall be deemed to have opened on the death of the widow so far as the land held by her is concerned. Now the property will devolve on the heirs according to the Muslim law and it will have to be seen whether Siraj Din will get any share out of the widow's estate.
7. Another question that arises is that since on widow's death succession shall be governed by the Muslim law, will Noor Din's share, if any, devolve on Siraj Din ? In such like situation, in my view, Muslim law must prevail over the customary law and Noor Din's share on his death must go to the sharie heirs and not to the heirs under the customary law. Noor Din in the eye of Muslim law would be deemed to have died issueless and so far as his share from Mehtab Bibi's land is concerned it will devolve on her share heirs. Mst. Homeeda Begum appellant as a sister should get one-half out of his share and the rest must go to the widow if any or to his collaterals. On these basis even Mst.
Mehtab Bibi who survived Noor Din shall get a share.
As a result this appeal is accepted and case is remanded to the trial Court for taking whatever evidence the parties may choose to produce in this connection and adjudicate it afresh according to law. Parties are, however, left to bear their own costs. . Case remanded.