QADEERUDDIN AHMAD, C.J.----These three second appeals were originally filed as revision petitions but have been treated, owing to an amendment of law, as second appeals. All of them arise from the same judgment.
2. The facts which form the background are that the ancestor of the parties was Mir Akbar Khan, who left two sons, namely, Akbar Khan and Mir Afzal Khan as well as property situated in three villages, namely, Jhandu Khel, Nar Najib and Waziran Sperka and a house in Bannu City. It was inherited by his two sons. In these proceedings, we are concerned only with the property which devolved on Akbar Khan. Akbar Khan died in 1912, leaving behind two widows, namely, Mst. Sherina and Mst. Balishta, and four daughters, three from Mst. Sherina, Mst. Maryama, Mst. Fatima and Mst.
Khudeja and one from Mst. Balishta, namely Mst. Malakzada. The property of Akbar Khan situated in Nar Najib was mutated on the 31st of March 1912, in favour of Mir Afzal Khan vide mutation No. 10 on the ground that according to the custom applicable to the Waziris, their women-folk did not even get life estate. His property situated in Jhandu Khel was mutated in favour of the six women vide mutation No. 1012. Similarly his property situated in Waziran Sparka was mutated in favour of the six women vide mutation No. 861 on the 15th of December 1912.
3. The women lost their interest in the property by marriage and death from time to time. Mst.
Fatima was married in 1919 and her share was mutated vide mutation No. 2272 and attested on the 4th of May 1919, in favour of the other five women. Mst. Khudeja married in the same year and her share of the property was mutated vide mutation No. 2273 attested on the 4th of May 1919, in favour of the surviving four women. Mst. Balishta died in 1920 and her share in the property was mutated vide mutation No. 2479 attested on the 13th of May 1920, in favour of the surviving three women. Mst.
Malakzada married in 1921 and her share in the property was mutated vide mutation No. 2687 and attested on the 2nd of March 1921 in favour of the two surviving women, namely, Mst. Maryama and Mst. Sherina. On the 9th of December 1921, the share of Mst. Sherina was mutated in favour of Mst.
Maryama vide mutation No. 2919. The correctness and effect of this mutation has been subjected to serious criticism before us and we shall refer to it later. Mst. Maryama married in 1921 apparently after the maturity of her entitlement to get share of Mst. Sherina. Owing to her marriage, her share which was the entire property left by AkSar Khan was mutated in favour of Mir Afzal Khan vide mutation No. 2920 attested on the 9th of December 1921. Mir Afzal Khan died in December 1922 and mutation of his inheritance in Jhandu Khel was made in favour of his children including the appellants. Mst. Sherina died in 1952. In April 1955 Mst. Fatima and Mst. Anwar Bibi filed a suit.
According to the amended plaint, the prayer was for a declaration that Mst. Fatima was entitled to 49/ 144th share and Mst. Anwar Bibi was entitled to 5/48th share in the property left by Akbar Khan.
The suit was filed against the descendents of Mir Afzal Khan and those who were co-sharers in the (land which were involved). The suit was contested by defendants Nos. 2 to 5, 7 and 9 to 12. Ten issues were framed on the pleadings of the parties which are as follows:
(1) Whether the plaintiffs have not impleaded all the necessary parties to the suit, if so, what is the effect?
(2) Whether plaintiffs have claimed a bigger share in the amended plaint than it was in the original plaint and if so, what is its effect?
(3) Whether the suit as laid is not competent?
(4) Whether the suit is within time?
(5) Whether the plaintiffs have remained out of possession of the suit land since 1912-13 and if so, what is its effect?
(6) Whether the suit is not properly valued for purposes of court-fee and if so, to what effect?
(7) Whether Mst. Anwar Bibi has lost all rights of succession to the estate left by Mst. Maryama, daughter of Akbar Khan deceased because of her marriage under the law of custom?
(8) Whether Mst. Anwar Bibi plaintiff is estopped from challenging the property in suit as being the sole property of Mir Afzal Khan and if so, to what effect?
(9) Whether plaintiff No. 1 is entitled to 49/144 share and plaintiff No. 2 to 5/48 share out of the property in-suit as sharai heirs of Akbar Khan and if so, whether they are entitled to the declaration sought for?
(10) Relief.
The suit was decreed by the trial Court on the 27th of May 1958, as follows: "As a result I grant to plaintiffs against the defendants a declaratory decree to the effect that plaintiff No. 1 owns 19/96 share and plaintiff No. 2 8/96 share in the estate of Akbar Khan described in the heading of the plaint."
4. Three appeals were filed against the judgment and decree; one by Mst. Fatima, plaintiff No. 1, the other by Mir Piayo Khan and Mst. Malakzada and third by the present appellant Saadullah Khan and others. They were heard together and were disposed of by the District Judge, Derajat, on the 22nd :of September 1962 as follows: "The result is that I accept the appeal of Mst. Bibi Fatima plaintiff with costs and give her a declaration that she is entitled to 279/864 share and Mst. Anwar Bibi entitled to 1/9th share in the suit property. The judgment and decree of the lower Court stand amended to this extent."
After arriving at the above conclusion, the learned District Judge has observed about the appeal of Mir Piayo and others as follows: "I, therefore, accept the appeal of Mir Piayo with costs and hold that he is entitled to 1156/16416 share and Mst. Malakzada entitled to 3/16 share in the entire property of Akbar Khan."
The appeal of Saadullah Khan and others that is the present appellants was dismissed.
5. Saadullah Khan and others have filed three appeals; one to question the decree granted to Mst.
Fatima and Mst. Anwar Bibi in their suit and the other to question the decree granted to Mir Piayo and Mst. Malakzada in their appeal and the third against the dismissal of the appeal of Saadullah Khan and others.
6. We have heard counsel for the parties on three days and have gone through the carefully written judgment of the learned District Judge. Mr. Peer Bakhsh, Advocate, appearing on behalf of Saadullah Khan and others informed us on the first day of the hearing of the contentions which he proposed to press in support of these appeals. They are as follows:
(1) Whether the N. W. F. P: Muslim Personal Law (Shariat) Act, 1935, as amended in 1950 and 1952 was applicable?
(2) Whether the suit was within time in view of the fact that the names of the six women were eliminated from the revenue record relating to the property situated in Nar Najib in 1912 and relating to the property situated in Jhandu Khel in 1921 together with the fact that possession remained throughout with Mir Afzal Khan and after him with his heirs?
(3) Whether the suit for declaration of the plaintiffs who-- admittedly were not in possession of the property, was com--petent?
(4) Whether in view of the Suit No. 38/1 decided on the 18th: of February 1953 for declaration by Mst.
Anwar Bibi plaintiff No. 2 and others against the present appellants that she was the donee of the land situated in Nar Najib from Mir Afzal Khan, the suit was barred by res judicata, estoppel and Order II, rule 2, C. P. C.?
(5) Whether the shares of the plaintiffs found by the learned. District Judge are correct and whether the District Judge should have determined the shares of the .Present plaintiffs also?
(6) What is the effect of the absence of any issue and, decision by the lower Courts on the plea of the present appellants raised by them in their written statement that the house situated in Bannu City did not belong to Akbar Khan but belong as exclusively to Mir Afzal Khan?
The first contention was not dealt with by counsel for the appellants who elaborately argued the second, third and fourth contentions. During the reply of Mr. Muhammad Yunas Shah, Advocate, we enquired from him, as to what was the effect of the alleged control and possession of the property by the opposite---side and non-payment to the appellants of the benefits which accrued from the property. Counsel for the appellants wanted -to refer to the amendment of the Shariat Act made in 1962 and thereby to urge the law as repealed but we thought that that was, an entirely new contention and inconsistent with counsel's stand throughout the case.
7. After hearing Mr. Muhammad Yunas Shah, we requested counsel for the appellants to enlighten us particularly about his objections to the determination of shares by the learned District. Judge which counsel for the appellants has addressed us.
8. We propose to dispose of the simpler contentions to begin with. The 6th contention that there was a plea of the appellants that the house which was situated in the Bannu City did not belong to Akbar Khan and yet neither any issue was struck on it for decision given in that respect, by the lower Courts cannot be considered to be of much weight. It was no doubt the duty of the trial Court to frame issues but it was also the duty of the parties interested in the plea to draw the attention of the Court to the omission and if not duly heard then to make: an application for a formal decision on it. No such action was taken and in spite of the omission of the trial Court to give any decision on this plea nothing was done to press this point before the appellate Court. Counsel for the appellants appeared to contend that omission of his side to follow up a plea entitled him to take up that plea and press it at any stage he liked but this is not correct according to law because a party who does not press a plea should in the ordinary course be taken to have abandoned it.
9. The fourth contention of counsel relating to res judicata, estoppel and the bar of Order II, rules 2, C. P. C. Was founded on the judgment which was given in Suit No. 38/1 on the 18th February 1953.
That suit was filed, as mentioned above by Mst. Anwar Bibi, one of the plaintiffs, and others for a declaration that she was .The owner of the land which was situated in Nar Najib. The ownership was claimed by virtue of a gift alleged to have been made by Mir Afzal Khan in favour of her father. That suit was decreed but on appeal was dismissed. Counsel for the appellants contended that in that suit she had taken the stand that the property was gifted by Mir Afzal Khan which mean that Mir Afzal Khan was admitted to be its original owner. Having taken that stand, she was now estopped from taking the different stand that the property did not belong to Mir Afzal Khan. According to counsel the bar of Order II, rule 2 was in her way because she ought to have taken her stand on all the causes of action and should have asked for that declaration that she was the owner by virtue of its inheritance. Counsel further contended that the rule of res judicata applied because the Court had found that she was not the owner of the property. We may point out that the bar of Order II, rule 2 of the Civil Procedure Code does not come in her way because, according to that rule she had only to "include the whole of the claim which" she was entitled "to make in respect of the cause of action." It is not a requirement of that rule that all independent causes of action should be joined at one time and in one suit. As to the pleasures judicata, we may mention that it is relevant to the claim of one of the plaintiffs only. It is obvious that the claim of the plaintiff that they were owners of the property by reason of inheritance was neither before the Court in that case nor can be said to have been either directly or indirectly decided. The subsequent suit from which this appeal has arisen being based on an independent cause of action is not hit by Order II, rule 2, C. P.
C. Nor barred by res judicata. There is no question of estoppel.
10. The fifth contention of counsel that the shares which have been determined by the first appellate Court are not accurate and that he should have determined the shares of the plaintiffs only, can be considered in two parts. The second. Part of it, namely, that the shares of defendants should not have been determined by the first appellate Court does not need discussion because counsel for the plaintiffs and for Mir Piayo do not insist that the shares of the defendants be determined beyond that which is necessary for the determination of the shares of the plaintiffs. In other words they are prepared to concede that the shares of the defendants, determined by the first appellate Court, need not be considered to be final to the extent that their determination was unnecessary for the purpose of determining the shares of the plaintiffs.
11. In support of the first part of the contention, namely, that the shares of the plaintiffs have not been correctly determined, by the first appellate Court, counsel for the appellants has taken the stand that the shares determined in Suit No. 96/53 should be considered to be final because the parties to that suit were the same as in this suit and the issue was the determination of their respective shares. A certified copy of that judgment has been produced by him to substantiate this contention. He has said that though the fact of the suit and its decision was mentioned during the proceedings of the suit from which this appeal has arisen yet a copy of the judgment was not produced. Mr. Muhammad Yunas Shah, counsel for the plaintiffs, concedes that the parties to this suit or their predecessor-in-interest were parties to the appellate judgment on which learned counsel for the appellant has relied and that the subject-matter of the litigation was also the same. The result of this concession is that the share of Mst. Fatima comes to 430/1968 and that of Mst. Anwar Bibi 1/12. This is slightly less than the share of these two women as determined by the first appellate Court but counsel for the plaintiffs derives an important advantage from relying on this judgment which is of much more advantage to him in respect of the second and third contentions which have been raised by counsel for the appellants.
12. The second contention of counsel for the appellant is that the suit, from which this appeal has arisen, was barred by time and that it was not maintainable because the plaintiffs, namely Mst.
Fatima and Mst. Anwar Bibi were not in possession of the property in dispute. The main reasons for pressing this point of view, as elucidated by learned counsel for the appellants, is that the property of Nar Najib was mutated in the name of Mir Afzal Khan in 1912 and that the property of Jhandu Khel was mutated in his name in 1921. This contention is effectively rebutted by the fact that the mutation of the property of Nar Najib made in the name of Mir Afzal Khan in 1912 was obviously wrong because if the reason that the custom of the creation of life estate in favour of women was not prevalent amongst the Waziris then the names of the six women could not be entered in the revenue record with respect to the property of Jhandu Khel. Evidence has been brought on record to show that their names were entered as holders of life estate with respect to the other property of Mir Akbar Khan situated in Waziran Sperka and Bazan Khel. The contention of counsel that the property of Mst. Sherina was mutated in favour of Mir Afzal Khan in 1921 has been supported by counsel for the appellants by relying on mutation No. 2919 attested on 9-12-1921 by which the life interest of Mst. Sherina was mutated in favour of Mst. Maryama on the alleged ground that Mst.
Sherina had remarried. It was on account of this mutation that the life estate of Mst. Maryama in the entire inheritance was mutated in favour of Mir Afzal Khan vide mutation No. 2920 attested on the 9th of December 1921. The foundation of this argument, therefore, is the allegation that Mst.
Sherina had remarried. Counsel for the appellants has argued that the learned first appellate Court did not realize that the foundation of the above two mentioned mutations was the allegation of remarriage of Mst. Sherina and not her death. The learned District Judge has rejected the mutations on the basis of his findings that Mst. Sherina was alive up to 1952. We have referred to the evidence of the Patwari and find that it does not support the view taken by the learned District Judge but the finding given by the appellate Court in Appeal No. 80-13/70, which was preferred from Original Suit No. 96/53, which has 'been found by us by agreement of counsel to be res judicata amongst the parties, it was held that Mst. Sherina was not remarried. Mr. Peer Bakhsh says at this stage that he admits the judgment to be res judicata between the parties with respect to the shares but not with respect to the other relevant decisions. Counsel is not at liberty to do so.
The relevant and substantial decision which was made in that case was that the attestation made in mutation No. 2919 fn 1921 on the basis of the alleged remarriage of Mst. Sherina was not correct because this fact was not established. Here we may also mention that there is evidence on the record to show that the property situated in Waziran Sperka was mutated in the name of Mst.
Sherina after the death of Mst. Maryama in 1940. This could not have happened if she had remarried. Our conclusion, therefore, is that the life estate of the six women continued up to the death of Mst. Sherina in 1952 and that mutation No. 10 of the 31st of March 1912, attested in favour of Mir Afzal Khan and mutation No. 2920 attested on the 9th of December 1921, in his favour are without foundation.
13. If the life estate intervened and continued to subsist up to 1952 then it was in that year that on the death of Mst. Sherina the inheritance should be taken to have opened from the point of the death of Akbar Khan which took place in 1912. On the opening of inheritance from that year in 1952 we have to calculate and trace the devolution of property according to the Shariat. Counsel for the appellants, however, contended that in spite of this legal position the suit should be considered to be barred by time because the plaintiffs were out of possession from 1912 of the property situate in Nar Najib and from 1920 of the property situated in Jhandu Khel. The suit was filed in 1955. Mr. Abdur Samad, Advocate, counsel for Mir Piayo Khan has in reply referred to Mst. Waair Begum v. Mst. Noor Jehan Begum etc. (PLD 1961 Kar. 165), and contended that the right to inherit property commences from the point of time when the life interest terminates. When this happened even he who had life interest only became entitled to inherit property according to Shariat. This means that all heirs who are entitled to inherit the property according to Shariat, should be treated to be entitled to claim inheritance from the point of time on which life interest ceases, and their claim in these circumstances is to be considered as that of co-sharer. It is a well-known proposition of law that the possession of one co-sharer ensures for the benefit of other co-sharers also unless there is an ouster. Leaving out of consider--ation for a moment the consideration of ouster, we find that the judgment of the Karachi Seat to which Mr. Abdus Samad has referred helps him fully.
14. In order to be clear whether ouster took place in this case or not we called upon counsel for the parties to address us arguments specifically on this question. Mr. Muhammad Yunas Shah took the stand that the devolution of property on the termination of life interest from the date of the death of the original owner by virtue of the introduction of life interest is analogous to reversionery rights and that reversioners cannot be held to have been ousted unless adverse possession commenced during the lifetime of the original owner and continued during the continuance of the life interest. In support of this proposition he referred to Ayyakutti Mankondan v. Periasaml Koundan (AIR 1916 Mad. 709), Mt. Jaggo Bai v. Utsava Lal (AIR 1929 P C 166), Kali Pratap Misir v. Amla Pat Tewari (AIR 1930 All. 307) and. Hamendra Nath Roy Choudhury v. Jnanendra Prasana Bhaduri etc. (AIR 1935 Cal. 702). On the basis of the above judicial pronouncements, he argued that in this case there is no allegation that adverse possession commenced during the lifetime of Akbar Khan and there is no question of its continuance during the subsistence of life interest; therefore Article 141 was applicable and the period of limitation commenced from the death in 1952 of the last holder of life interest. Since the suit was filed in 1955, it was within time.
15. Mr. Peer Bakhsh, counsel for the appellants has criticised the above stand of Mr. Muhammad Yunas Shah by saying that it was Article 144 of the Limitation Act and not Article 141 of that Act, which is applicable.. To this case. He referred to Article 141 and said that it was not independent of Article 140; therefore should be interpreted on the same terms as are the terms of Article 140. The two Articles are as follows: --- Description of suit.
Period of limitation.
Time from which period begins to run.
140. By a remainder man, a reversioner (other than a landlord) or a devisee, for posses--sion of immovable property.
Twelve years.
When his estate falls into possession.
141. Like suit by a Hindu or Muhammadan entitled to the posses--sion of immovable property on the death of a Hindu or Muhammadan fe--male.
Twelve years.
When the female dies.
Counsel explained that the opening words of Article 141 i.e., "like suit" refer do not only to a suit for possession but also to the institution of such a suit by a remainder-man, a reversioner or a devisee.
In support of this contention he referred to the commentary of H. C. Mitra on Limitation Act (1968 Edition) at page 737 as follows: "The expression like suit means not, only a suit for the possession of immovable property but it is to be read with Article 140 so as to mean a suit for the possession of immovable property by a remainder-man or reversioner mho is a Hindu or Muhammadan entitled to the possession on the death of a Hindu or Muhammadan female."
"Article 141 is restricted to suits by plaintiff whose title and right as the heir of the last full owner to sire for possession accrues upon the death of a female holding a woman's qualified estate. To claim the benefit of this Article the plaintiff must prove, first that there was a qualified estate in the Hindu female, and secondly, that he was entitled to posses--sion after the death of the female as the heir of the last male holder; and further it must be shown that having regard to the existing law the plaintiff was entitled to the possession of the properties in dispute at the date of the suit Maharaja Kesho Prasad v. Madho Prasad 3 Pat. 880 (AIR 1950 Pat. 821). All that the plaintiffs need prove to bring the case within this Article is that they are Hindus or Muhammadans entitled to the estate on the termination of a limited interest or a Hindu or Muhammadan female. Once that is established they have made a prima facie case that this Article applies and to take the case out of this Article the defendants must show that the time had begun to run as against the full owner and that it was actually running when the limited interest came into effect Ashutosh v. Narendra AIR 1950 Mad. 506, Hemandra v. Manmotha 43 C W N 772 and Hemandra v. Jnanendra 63-Cal. 155 (AIR 1935 Cal. 702)."
We think that Article 141 is applicable to the facts of this case and that the period of limitation began to run with respect to this case from the death of Mst. Sherina in 1952 It is unnecessary in view of the above discussion to refer to Article 144 of the Limitation Act.
16. The argument of counsel for the appellants that the suit was not maintainable because the plaintiffs were out of possession in terms of section 42 of the Specific Relief Act did not strike us as sound. The need of a prayer for possession does not in our view hold good in the above-mentioned circum F stances, namely, that the claimants being co-sharers and entitled to the privileges of co- sharers can claim to have been in possession of the property through the other co-sharers. We have explained that- there is nothing on the record to show that there was any ouster.
17. The over-all conclusion is that the appeal succeeds only to the extent that the share of Mst.
Fatima is altered from 279/864 to 430/1968 and the share of Mst. Anwar Bibi from 1/9 to 1/12. The parties are left to bear their own costs.
S. Q.