The admitted facts of this case are that the suit-land was owned by Karam Ali son of Zaida who died on 29-3-1947. The petitioner is admittedly his daughter while respondent is brother. The present suit was filed on 3-5-1992. She stated in the plaint that on the death of her father the respondent represented that he was issueless and got the land mutated in his favour vide Mutation No,350 attested on 19-7-1959. With these averments she sought a declaration that she being the daughter of late Karam Ali is entitled to half share in the suit-land. In his written statement the respondent took the plea that Karam Ali died before the promulgation of Muslim Personal Law Shariat (Application), Act 1948, and as such the petitioner was not entitled to inherit him and that even under the provisions of section 2-A of the Muslim Personal Law Shariat (Application), he is lawful owner of the land. Issues were framed in the case. Relevant being Issues Nos,5 and 6 which are reproduced here: (5)Whether the plaintiff has no cause of action to tile this suit as the "Karmali" father of plaintiff died before enforcement of Shariat Act, 1948 and his property was rightly distributed according to customary law? OPD (6)Whether the plaintiff is entitled to the 1/2 share of deceased's property and the impugned Mutation No,350 dated 19-7-1957 is illegal, void and being based on fraud is ineffective in the eyes of law hence is void? OPP Evidence of the parties was recorded. The learned trial Court decreed the suit vide judgment and decree dated . 17-2-1994. Feeling aggrieved respondent filed a first appeal which was heard by a learned Additional District Judge, Mandi Bahaudin who allowed the same on 16-2-1995 and dismissed the suit tiled by the petitioner.
2. Mr. Allah Bakhsh Gondal, learned counsel for the petitioner argues that the learned Additional District Judge has failed to take note of the factual position emerging from the evidence on record while passing the impugned judgment and decree. According to the learned counsel it stands admitted on record that deceased was survived by a widow who re-married 2 1/2 years after the death of Karam Ali. According to the learned counsel the succession opened on the said event and as such petitioner was not only entitled to 1/2 share but she was entitled to get share of her mother as well. Learned counsel for the respondent on the other hand has supported the impugned judgment and decree of the learned Additional District Judge.
3. I have examined the records of the case, copies whereof are appended with this civil revision.
Ghulam Ali respondent appeared as DW-1. He admitted that the petitioner is the only daughter of Karam Ali. He admitted that she was aged 3-1/2 years when her father died. He further admitted that mother of the petitioner. namely. Rasoolan Bibi was alive when Karam Ali died and that she died after independence of the country. He then stated that the said widow had re-married and that she so re-married 2-1/2 years after the death of Karam Ali. He further stated that mutation of inheritance was attested 15 years after the death of Karam Ali. It was so attested on his statement.
4. Copy of impugned mutation is Exh.P.6. Patwari's report dated 20-3-1957 states that at the time of Girdawari he has come to know that Karam Ali has died. The mutation was taken up on 19-7-1959 by the Revenue Officer before whom Ghulam Ali respondent appeared and stated that Karam Ali died 15 years ago. Thereafter the Revenue Officer confirmed the date of death of Karam Ali and proceeded to attest the mutation in favour of respondent.
5. It is but evident on the face of record that the parties are Jatt by caste. General custom is applicable and as such on the death of Karam Ali land had to be mutated in favour of his sonless widow as limited estated. Of course this could not be done as the mutation itself was taken up after about 13 years of death of Karam Ali. Be that as it may, since admittedly the agricultural custom was applicable, the land had to be mutated in favour of the widow and the limited estate would then terminate upon the remarriage of widow which took place 2-1/2 years after the death of Karam Ali, according to the respondent himself. This means that at the time succession opened. the said Act of 1948 was already in force. This being so at the time of opening of succession the Rule of inheritance applicable was Muslim Personal Law. Thus the widow would get 1/8th share while the petitioner would get 1/2 and the residue 3/8th share would go to respondent.
6. Learned Additional District Judge obviously, was obvious of the said factual position coming right from horses mouth i,e, respondent while holding the succession opened immediately upon the death of late Karam Ali. Had he been aware of the said factual position, he would according to his own argument in para-19 of the judgment would have certainly come to the conclusion that widow inherited the limited estate and succession was to open in case of her on death or re-marriage.
This is what in fact has happened.
7. As a result of the above discussion, I allow this civil revision. The judgment and decree dated 16- 2-1995 of the learned Additional District Judge. Mandi Bahaduddin is set aside while decree is passed in favour of the petitioner declaring her to be owner of 5/8th share in the suit-land (1/2 as daughter from Karam Ali and 1/8th as daughter from widow of Karam Ali). No order as to costs.