Petitioners' suit for declaration claiming the share of inheritance in the suit-land, was dismissed by the learned trial Court on the issue of limitation and that the suit is barred under Order 23, rule 1, C.P.C., however, the issue whether Mst. Allah Jawayee was limited owner of the property was decided in their favour against the above, petitioners preferred an appeal, but not only that they remained unsuccessful, however, the learned Court also reversed the findings of the trial Court on the issue of limited ownership.Hence this petition.
2. Briefly stated the facts of the case are that Shahmand who died inthe year 1926, was the owner of the land measuring 707 Kanals and 19 Marlas, situated in Mouza Joya, Teshil and District Okara; he was survived by Mst. Allah Jowayee, widow and Mst. Nawab Bibi, his daughter. As per Mutation Exh.P-5, dated 13-5-1926, the said land of Shahmand was mutated in the name of his widow Mst.
Jowayee; however, there is no mention in the mutation, if it was under the customary law. Anyhow, Mst. Jowayee, vide Mutation No,6 dated 6-8-1959, divided the aforesaid estate in three equal shares and gifted one-third to his daughter Mst. Nawab Bibi, whereas one-third was given to Ahmed Ali son of Shara Khan, nephew of Shahmand; likewise, one-third was given to Shahnawaz and Muhammad Nawaz, sons of Ghulam Farid, other nephew of Shahmand; this position continued till 1981 when the parties allegedly entered into some kind of agreement, whereby Ahmed Ali surrendered his share gifted to him by Mst. Allah Jowayee, in favour of Mohsin, one of the petitioners, the son of Mst. Nawab Bibi. Anyhow, Mst. Nawab Bibi, mother of the petitioner, died in the year 1984, while Mst. Allah Jowayee died in 1986; Before the death of Mst. Allah Jowayee, the petitioners who are the legal heirs of Nawab Bibi in the year 1982, filed a suit in the title, it was claimed that they are entitled to the share of Ahmed Ali, on account of the surrender instrument of the year 1981. However, in paragraph No,2 of the plaint, they took up the plea that the property, which had gone to Mst. Allah Jowayee, on account of the estate of Shahmand was due to custom and she was only a limited owner thereof, resultantly, on the promulgation of section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the limited ownership of Mst. Allah Jowayee terminated and that had reverted back to Shahmand for its distribution according to the Mohammedan Law. Muhammad Nawaz and Shahnawaz did not contest the matter and conceded the case while Ahmed Ali, resisted the claim of the petitioners by alleging that the surrendered document of the year 1981, is a forged. In reply to paragraph No,2 of the plaint, he however, did not specifically controvert that Mst. Allah Jowayee, was not a limited owner of the property. Reply in this behalf, is an evasive in nature. Out of the pleadings of the parties, learned trial Court framed the following issues:--
(1) Whether Mst. Jewai was the limited owner of the suit property and the Mutation No,6, attested on 16-12-1950, in favour of the defendant is illegal, wrong and ineffective upon the rights of the plaintiffs? OPP
(2) Whether the defendant has executed lqrarnama dated 23-12-1981 in favour of plaintiff and he has withdrawn his ownership in respect of the suit property measuring 180 Kanals? OPP
(3) Whether the plaintiffs are in possession of the suit property? OPP
(4) Whether the suit is not maintainable in its present form?
(5) Whether the suit is time-barred? OPD
(6) Whether the plaintiff has got no cause of action? OPD
(7) Whether the suit has been incorrectly valued for the purpose of court-fee and jurisdiction? If so, what is its effect?
(7-A) Whether the suit is barred under Order 23, rules 1 and 3 of C.P.C.? OPD (7-B) Whether the suit is bad for non-joinder of necessary parties? OPD
(8) Relief. After conclusion of the trial, learned trial Court, decided Issue No,1 in favour of the petitioners; Issue No,2 was decided against them and while returning its findings on Issues No,5 and 7-A, against them, petitioners were non-suited. Against the above, petitioners preferred an appeal, which has been disallowed. The findings of the trial Court, on Issues Nos.2, 5 and 7-A have been sustained, whereas the findings of the trial Court on Issue No,1, have been reversed, holding that Mst. Allah Jowayee, was not the limited owner, because in the mutation Exh.P-5, it is not mentioned that she was acquiring the property under the customary law. Hence this petition.
3. Learned counsel for the petitioners has argued that notwithstanding the mention whether Mst.
Allah Jowayee was acquiring the estate of her deceased husband on account of customary law, the mutation itself proves that it is under the custom and that estate had gone to her as a limited owner. Because she could-either get the property under custom or under the Mohammedan Law; under the Sharia, she was only entitled to 1/8th share and the remaining had to gat Nawab Bibi and the collateral of Shahmand. Therefore, when the Mohammedan Law of Inheritance was not followed, necessarily the mutation Exh.P-5 was under the custom, conferring upon Allah Jowayee the rights of limited ownership therefore, the view of the Court- of appeal on Issue No,1, is erroneous. Learned counsel has not addressed this Court on Issue No,2, and the finding of the Courts below have been conceded. As regards Issue No,5 is concerned, it is submitted that the petitioners were co-owners of the property and are also in possession, they seek the enforcement of their right of inheritance, therefore, no limitation runs against them. Reliance in this behalf has been placed upon PLD 1990 SC 1 (Ghulam Ali and others v. Mst. Ghulam Sarwar and others).
Learned counsel has also relied upon the cases reported as Manzoor Ahmed Khali v. Nasrullah Khan 1999 YLR 27; Ghulam Zohra and others v. Faisal Farooq and others 2000 YLR 1971; Mst. Faiz Elahi v. Muhammad Anwar 2001 YLR 2174 and Mst. Noor Fatima v. Shah Ji 2002 CLC 689, to support his contentions mentioned above particularly that the property on the enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, would revert backto the last male owner and that the question of limitation, would not be involved in the matter. On Issue No,7-A, it is submitted that the respondents have failed to bring on record any document, such as plaint or the order of the Court, through which, the earlier suit filed by the petitioners was unconditionally withdrawn, thus could attract the bar of Order 23, Rule 1, C.P.C.
4. Conversely, learned counsel for the respondents has stated that because it has not been mentioned in the mutation. Mst. Allah Jowayee acquired the estate of the deceased under custom, therefore, she would be deemed to be full and absolute owner for all intents and purposes. It is also submitted that the mutation of gift was effected in the year 1959 and the petitioner slept over the matter for 21 years, resultantly, even by applying the provisions of Article 120 of the Limitation Act, the suit brought beyond six years, would be out of limitation. He has also submitted that irrespective that the plaint or order in the earlier suit filed by the petitioner was not tendered in evidence, yet Mohsin, one of the petitioners, appearing as P.W.4, has conceded that the petitioner filed earlier suit challenging the Mutation No,6, which was withdrawn, therefore, such admission by itself would be sufficient to attract the provisions of Order 23, rule 1, C.P.C. Lastly, it is submitted that the findings of the Court of appeal, on Issue No,1, are absolutely in accordance with law, because- Mst. Allah Jowayee, had acquired the property being the only heir of Shahmand.
5. I have heard learned counsel for the parties. According to law, at the demise of Shahmand, in the year 1926, Mst. Allah Jowayee could have either taken his estate as a whole under the customary laws as limited owner or her share under the Mohammedan Law which could only be 1/8th but when the mutation has been effected in her name, she was given the whole of the estate, which necessarily and essentially means that she was getting the property not under Mohammedan Law, rather as per custom. Had it not been under the custom, she would not have got the whole estate mutated in her favour, therefore, there is no doubt in my mind, that Mst. Allah Jowayee was not the limited owner. Therefore, the findings of the Court of appeal on Issue No,1 are set aside and those of the trial Court are upheld.
Now considering the question and the effect of section 3 of the Act 1962, the limited ownership of Mst. Allah Jowayee terminated on the enforcement thereof and property for all intents and purposes vis-a-vis inheritance would revert back to the last male owner, who in this case is admittedly Shahmand. As per law laid down in 1987 SCM R 2008, if Mst. Allah Jowayee had made any gift of the property even before the above law that would be absolutely illegal and void for the reasons that she herself was not the absolute owner of the property, which could be alienated by her in that capacity, therefore, had to be ignored altogether, with the result that distribution of the share in the estate left by the deceased Shahmand, the last male owner, would be on the basis of Mohammendan Law. According to the principles of inheritance under the Shariah, Mst. Allah Jowayee, would get 1/8 share out of the total estate, whereas one-half excluding 1/8 would go to Mst. Nawab Bibi and remaining one-half to the collateral.
6. As regards the question, whether the suit is within limitation, it is settled law that there is no limitation for a co-owner of the property, particularly in possession and seeks the share of inheritance. Besides, as per view enunciated in PLD 1990 SC 1, the limitation would not apply where the person seeks to enforce a right of inheritance in the estate of a deceased predecessor.
7. Now attending to the question, whether the petitioners were barred to file the suit, as earlier they did challenging the Mutation No,6 dated 6-8-1959 and withdrew their claim, suffice it to say that onus to prove Issue No,7-A was on the shoulder of the respondents, but they have not adduced any evidence to strictly establish if the earlier suit was based upon the same cause of action and was withdrawn without the permission of the Court.
The argument of learned counsel for the respondent that because Mohsin had admitted in his cross-examination that earlier the suit was filed and withdrawn, it may be held that no further question was put to him if such withdrawal was with or without permission of the Court, therefore, it cannot in the absence of the plaint of the earlier suit and the order of the Court be safely and definitely held that the suit was hit by Order 23, rule 1.
8. It may be pertinent to state here that the counsel for the parties have in writing (Mark-A), duly signed by them placed on the record the proportion in which the legal heirs of Shahmand shall be entitled to inherit. Allah Jowayee 1/8, Nawab Bibi 7/16 + Ahmed All 7/64, Dara (the other nephew of Shahmand) 7/64, Muhammad Nawaz and Shahnawaz 7/64 each. It may further be added that though Dara was not a party and Muhammad Nawaz and Shahnawaz did not contest the suit, yet the counsel for the parties have stated that they have no objection, if the estate of Shahmand is distributed on the basis of the shares specified by them in writing Mark-A. And further that as Allah Jowayee and Dara had died, therefore, their respective shares shall be given to their legal heirs. In the light of above, I set aside the findings of the Courts below on Issues Nos.5 and 7-A and finding of the Court of appeal on Issue No,1, the judgments and decrees of the Courts below are set aside and the suit of the petitioners is decreed in the share proportion as specified in paragraph No,8 of this judgment. The petition is accordingly allowed.