' A widow (donor) and her daughter (one) have, by this second appeal, called in question the judgment and decree dated 25-5-66 passed by a learned Senior Civil Judge (affirmed in first appeal) whereby the suit filed by the respondent Ghulam Muhammad, brother of the widow's deceased husband, challenging the gift, was decreed to the extent of his 1/5th share.
2. The facts, briefly stated, are that Mehtab Din, the father of the respondent (plaintiff), obtained proprietary rights of about 200 kanals of land in Colony Chak in 1943. Ho died in January 1948 leaving two sons Ghulam Muhammad and Wall Muhammad the heirs of two pre-deceased sons Muhammad Shafi and Ali Muhammad and two daughters. The heirs of Muhammad Shafi, as it appears from the record, were Mst. Muhammad Bibi and Mit. Khurshid Bibi, his daughters, the two appellants (defendants). Regular proceedings were held by the Revenue Officer for sanctioning the mutation of inheritence of Mehtab Din as result whereof, in June 1960, a mutation was sanctioned, whereby and measuring 50 kanals left by Mehtab Din was mutated in the name of Mst.
Muhammad Bihi. She remained in possession thereof since then, till her death during the pendency of this appeal. In 1963, she gifted away this entire piece of land (50 kanals to Khurshid Bibi. In 1965, Ghulam Muhammad respondent filed a suit for declaration that the gift made by Mst. Muhammad Bibi was null and void against his rights of inheritance, as also, that of other heirs of Mehtab Din with further prayer that decree for possession of his share in the land be passed in his favour. The mainstay of the plaintiff's case was that by virtue of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the interest of Mst. Muhammad Bibi who under custom held only a limited estate, terminated ; therefore, any disposition of the property in 1963 was void and ineffective qua the rights of the heirs of Mehtab Din. The appellants' case was that Mat.
Muhammad Bibi was full owner of the land on account of her having represented her husband at the time of the devolution of the estate, and opening of the succession on the death of Mehtab Din, therefore, she had the right to dispose of the property in accordance with her own desire. It was also raised as an alternative plea that Mehtab Din had not obtained the proprietary rights in the land which was under occupancy tenancy with him, therefore, the aforementioned Act of 1962 did not terminate the rights of Mat. Muhammad Bibi.
3. On the pleadings of the parties, following issues were framed :-
(1) Whether Mehtab Din deposited the dues of the Government and became a full proprietor?
(2) Whether the plaintiff is entitled to inherit any share out of the suit land, if so, what is his share?
(3) Whether the defendant No, 1 was a limited owner of the suit land?
(4) Relief.
' Issue No, 1 was decided in favour of the respondent and it was held that Mehtab Din had deposited the dues and had become full proprietor during his lifetime, in 1943. On Issues Nos. 2 and 3 the learned trial Judge found that Mst. Muhammad Bibi was only a limited owner of the suit land and further that the gift made by her in favour of her daughter in 1963 was null and void and also that the respondent was entitled to 1/5th share of the said land and a decree, as noted above, was accordingly passed. The Judgment and decree of the learned trial Judge having been affirmed in all respects in the appeal the widow and her daughter thou filed this second appeal. It was admitted to consider whether by virtue of section 4 of the Muslim Family Law Ordinance VIII of 1961, the appellants were entitled to represent Muhammad Shafi deceased in relation to the matter of succession to the State on the termination of the alleged life interest".
4. It may be straightaway mentioned that the learned trial Judge did consider the effect of section 4 of the Muslim Family Laws Ordinance. The relevant part of the judgment is reproduced below :-- "In finding out the heirs, section 4 of the Family Laws Ordinance, 1961 has also to be kept in view. This section is as under. 'In the event of the death of any son or daughter of the porosities before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be would have received, if alive.
(9) In the present case Mehtab bad four sons and two daughters. All of them shall inherit the area of 50 Iamb in accordance with Muslim Personal Law. The share of the sons and daughters would be as under :- ' Pour sons-4/5. Two daughters-1/5.
(10) The share of the plaintiff comes to 1/5 only. He is entitled to have possession of the same.
' Not only that the effect of section 4 was considered but Muhammad Shafi the predecessor-in- interest of the appellant predeceased son of Mehtab, has also, been for purpose of succession to his share considered as entitled to 4/5 share alongwith his three other brothers, two alive and two deceased each one of whom similarly got 1/5th share. Thus in so far as the suit property is concerned on account of the termination of the limited interest of Muhammad Bibi appellant widow of Muhammad Shafi she herself would be presumed to have received her share as widow by virtue of the Muslim Personal Law (Shariat) Application Act, while the daughter would similarly be presumed to have received her share by virtue of section 4 of the Muslim Family Laws Ordinance. It Is the combined effect of both the laws which the learned trial Judge took into account while deciding Issue No, 2 and that is why the respondent-plaintiff was allowed only 1/5th share in the suit property. As the judgment of the learned trial Judge was affirmed in appeal therefore, obviously there does not appear to be any grievance left in so far as the application of section 4 is concerned. On this realization the learned counsel did not press the point any further.
Instead be raised two more contentions-firstly that of misreading of evidence with regard to the interest of Mst. Muhammad Bibi in the suit land, limited estate or full ownership ; and secondly that in any case of Mst. Muhammad Bibi had become owner by virtue of adverse possession.
5. With the help of the learned counsel I have gone through the evidence and have come to the conclusion that there has been no misreading. Before he read the evidence, learned counsel was under the impression that Ghulam Muhammad respondent had made an admission that at the time of the mutation, sanctioned qua the inheritance of Mehtab Din, the suit land was given to Mst.
Muhammad Bibi as full owner. The so-called admission relied upon appears in the cross- examination of Ghulam Muhammad respondent who appeared as P. W.
3. He made the following statement :- {{URDU TEXT}} ' This part of his statement, if read out of context, might be treated as an admission but in the very next sentence the witness explained that the land was not given by them on account of it being share in the inheritance of Shall deceased, under custom. Earlier, in examination-in-chief he had categorically stated that the parties belonged to a Zamindar family which was bound by custom and that their women received only a life interest in the inheritance. Not only this, he had also produced two witnesses, namely, Barkat All and Fazal Muhammad to prove that they were related to the parties who belong to Arain caste and further that they followed custom and their females were entitled only to a life estate, under custom. In these circumstances, I do not agree with the learned counsel that Chulam Muhammad made any admission in favour of the appellants that the land was originally mutated in favour of Mst. Muhammad Bibi as full owner. The learned Courts below carefully scrutinized the evidence in his behalf, and did not ignore any item and baring correctly appreciated the same found It as a fact that the parties followed custom and that Muhammad Bibi inherited only a lire estate. I may mention that the following factors, which support the respondent's case in this behalf, have duly been taken note of it has been clearly proved from the evidence produced by the respondent that the parties were governed by custom according.
(a) to which the females inherited immovable property u limited owners only ;
(b) no evidence was produced by Mst. Muhammad Bibi to rebut the evidence produced by the respondent in this behalf ;
(c) proceedings were taken before the Revenue Officer prior to the sanctioning of the mutation wherein detailed enquiry was made by him as to whether the question of inheritance of Mehtab Din was to be decided under the Muslim Personal Law (Shariat) Application Act, 1941 or under custom.
Had there been a concession or agreement from the other heirs including the respondent, in favour of the appellants, there was no need for such a detailed enquiry ;
(d) the Revenue Officer decided the mutation of inheritance in accordance with custom followed by the parties and it was on account of this finding that Mist. Muhammad Bibi was allowed to retain that much of land as a limited owner under custom which would have devolved on her husband if he would have been alive ;
(e) that Mst. Muhammad Bibi and/or her daughter felt satisfied with the mutation and did not call it in question either by way of appeal or revision in the hierarchy of revenue authorities or before a civil Court ;
(f) that under customary law (generally) there was sufficient authority to hold that "a female inheriting the landed estate (whether ancestral or self-acquired) from a male, holds the property on a life tenure and it is immaterial whether the female is a widow, a daughter or a mother". (first appellate judgment).
' I may add that if Mst. Mohammad Bibi would have been allowed to inherit the property as full owner in place of her husband Muhammad Shafi, there was no reason why Mst. Khurshid Bibi, her own daughter from the same husband, would net have been allowed to take her own specific share as daughter of Muhammad Shafi. It is obvious that miter Mst. Muhammad Bibi nor Mst.
Khurshid Bibi were entitled to inherit as full owner and that Mst. Muhammad Bibi under the general custom relating to the maintenance of female widows (in its original form, which later on developed in the form of life estate) came in the picture only as a limited owner. Furthermore ii will not be out of place to mention that if Mst. Muhammad Bibi would have inherited as full owner any share, in representation of her husband ; then there being a daughter, she would have obtained only her own share in 50 kanals and not the whole of it. Moreover, the mutation in question carries in the following pedigree table : {{URDU TEXT}} The fact that Muhammad Shafi's name is in a marked box while Ali Muhammad's name, who had also pre-deceased Mehtab Din like Muhammad Shafi, is not in such a box, would show that Muhammad Shafi was being treated as without a male issue and there being no hairs to inherit him under custom the name of his widow was mentioned to the exclusion of his daughter and further that she also, i,e,, the widow namely, Mst. Muhammad Bibi, was mentioned as {{URDU TEXT}} (widow) with a qualification of {{URDU TEXT}} The word heir ({{URDU TEXT}}) does not in the circumstances convey anything other than limited heirs.
' This analysis of the pedigree table when seen in the context of the proceedings recorded on the mutation clearly shows that everybody including Mst. Muhammad Bibi appellant understood that she was to hold the suit land as a limited estate. The ruling cited by the learned counsel, namely, Nawab and others v. Muhammad Fazil and another (1) does not in any way help the appellants. It was held therein that though originally widow's life tenure m the absence of male lineal descendants of the last male holder, originated in her right to maintenance, it generally, in the course of time, became a right to the enjoyment of the whole estate, whether it exceeded her needs or not. It was also held that a widow who succeeds in the absence of male lineal descendants, is a limited owner within the meaning of section 3 of the Punjab Muslim Personal Law (Shariat) application Act, 1948. Then the distinction was brought out between a widow succeeding as a limited owner in absence of male lineal descendants and a sonless widow surviving her husband in the presence of his male lineal descendants. In the former case the widow is entitled to a life estate while in use latter case she is entitled merely to maintenance. In the present case, Men Muhammad Bibi undoubtedly was a sonless widow and at the most she would have obtained a life tenure and would be a limited owner. The other case cited by the learned counsel in this behalf is Mst. Sahib Bibt v Muhammad and others (2). The ratio decidendi, in the circumstances of the case before the Division Bench, was that according to custom a 'mother' succeeded as a 'widow' of her deceased husband and not as mother of her deceased son. Reliance was placed in this behalf on Shiromani Gurdawara Parbandhak Committee v. Harcharan Singh (3). This proposition is in no way relevant in the facts of the present case, In other prospects also the case is clearly distinguishable.
After carefully considering all the aspects of the question involved I uphold the findings of the learned Courts below with regard to the nature of inheritance and estate held by Mst. Muhammad Bibi, in this case.
' The case of the appellants in this second appeal qua the claim of adverse possession appears to be an after-thought. It was not specifically pleaded before the learned trial Court nor was any contest (even indirectly) raised in the suit, on this basis. There was no issue on the question of adverse possession nor was it pressed during the arguments before the learned trial Judge. Same is the position with regard so first appeal. For the first time, the point was taken in the grounds of appeal in this Court. However, learned counsel has not been able to support the assertion in this behalf by any evidence. Be only relied on Abdul Ghani and other, v. Taleh Bibi and another (4). The question of limitation and thus adverse possession was put (1) PLD 1964 Lah. 334 (2) P L r 1961 Lah.
1036 (3) AIR 1934 Lah. 1 (4)PLD 1962 Lab. 531 In issue in that case and ii was decided by the trial Court in favour of the party raising this plea. From the side of the appellant in this case only one witness, namely, MIL Muhammad Bibi appeared to make statement to the effect that she remained in possession of the land but in the context of the mutation under which she had obtained only a limited interest and the fact that she was being allowed to enjoy the limited estate by the heirs of Mehtab C Din under the said mutation, cannot be ignored. She never asserted any right adverse to the rights and interests of the heirs. The conditions with regard to adverse possession, in law, are not at all satisfied in this case The reliance on the ruling cited by the learned counsel is misplaced. I find no force in the second contention of the learned counsel either.
7. No other point has been raised. There is no force in this appeal and the same is dismissed but there shall be no order as to costs.