P L D 1978 Lahore 1318 (PLP)

9. I have gone through the Customary Law of Sialkot District. Question and Answer No. 38 of this book reads as follows : "Question 38.

Where a deceased leaves sons and a widow of a deceased son, has the widow of the deceased son the right to succeed to a share ? Answer 38.-Yes, for life or till re-marriage to the share to which her husband would have been entitled had he been alive."

10. It is clear from the above paragraph that the principle of representation under custom has been applied with full force in the Sialkot District and the widow of a pre-deceased son is entitled to succeed to the property to which her husband, if alive, would have succeeded in spite of his other brothers surviving the father. It is not, therefore, correct do say that this devolution was not, as a matter of inheritance under custom an conferred upon the widow, a right greater than conferred upon her by the general custom prevailing in the province. In fact, it is further clarified b this very answer that the widow holds only a limited interest in the property for life or till re-marriage. In these circumstances, there is no escape from the finding arrived at by the learned Additional District Judge.

11. The Muslim Personal Law (Shariat) Application Act, 1962, was enforced on the 31st of December 1962, to terminate inter alia the limited estates held by Muslim females under custom by its section

3. Section 5 of the Act provides that

"The life estate terminated under section 3 . . . . . shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner . . . . . and if any such heir has died in the meantime, his share shall devolve in accordance with Shariat on such persons as would have succeeded him if be bad died immediately after the termination of the life estate . . . . .; Provided that the share to which a Muslim female holding limited estate under customary law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her." The devolution of inheritance, therefore, had already taken place after the termination of the interest of Mst. Hussain Bibi on the 31st December 1962, more than two years before the sale deed was executed.

12. The next question is whether Mst. Hussain Bibi had inherited any portion of the property under section 5 of the above Act. If it is held that she did inherit, the share inherited by her would not exceed 1/4th to which the widow of a childless deceased can succeed.

13. Section 5 provides that after termination of the life interest the property shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) Application Act upon the death of the last full owner. The point, therefore, is whether the last full owner was Khushhal Beg husband of Mst. Hussain Bibi or his father. It is now established that the last male-holder is only a person who actually held land as a heritable estate. Amir Bakhsh and others v. Allah Yar and others (PLD 1974 SC 124) and Khan and another v. Humayun and another (PLD 1975 Lah 83). It was observed in the above case by their Lordships of the Supreme Court: "In support of his contention that for purposes of the devolution of the property in suit, succession must be traced to Phullu as the last full owner and not his son Allah Bakhsh, the learned counsel has placed reliance on Hamira and others v. Ram Singh and others 1907 P R 134 ; Mst. Gango v. Mst. Hukam Kaur A I R 1938 Lah. I I1 ; Akhtar Abbas v. Nazar Abbas A I R 1946 Lah. 10 and Mst. Fatima Bibi v. Nur Muhammad Shah P L D 1951 Lah. 1.47. We find, however, that in all these cases the decision rested on the general principle of agricultural custom that the property of a person who dies issueless, first reverts to the ancestor who left issue and then descends to his lineal descendants. The line that left no descendants is deemed not to have existed at all, and therefore on the termination of the life estate of a widowed mother, inheritance has to be traced to her husband and not to the last male-holder. It is significant that even in these cases a distinction was made between the husband of the widowed mother and the last male-holder, this latter term obviously referring to her issueless son. These decisions are, however, of no assistance to the appellants before us, for the reason that in the present case the question of succession to the widow's limited estate is governed by the specific provisions contained in section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act of 1948, and not by the principles obtaining under the agricultural custom of the Punjab. This precise question was considered in Muhammad Hussain v. Alam Din P L D 1955 Lah. 420 ; Mst. Amiran v. Nadra P L D 1958 Lah. 448 and Bano v. Mahlu P L D 1965 S C 33 ; it was held that the words 'last full owner' as used in section 3 of the Act, would ordinarily refer to the person who in fact was the last full owner. It was added that; 'The Legislature, which was applying Muslim Law to cases of succession to persons who were previously governed by customary law, had to provide for the situation that there was a large number of females with limited estates whose estate could terminate by death or marriage and they did not possess any heritable estate. The wording of section 3 shows that the Legislature allowed inheritance to take place on the termination of the limited interest as it would have taken place if the Muslim Law was applicable when the last person who left a heritable estate died '."

14. Applying this principle, it would be evident that the last male-bolder was Ghasita and not Khushhal Beg since the latter never actually held the property in dispute. Mst. Hussain Bibi had succeeded to his interest on the fiction of law created by the principle of representation as applied to the case in hand in the Sialkot District.

15. Now Mst. Hussain Bibi would have succeeded to th share in the property if the last male-holder had been her husband but though she ha a right to succeed to the interest of the pre-deceased son of Ghasita, she could not succeed if Ghasita had been governed by Shariat since a pre deceased son is excluded under the Shariat by the surviving sons.

16. Even if it is held that section 4 of the Family Laws Ordinance, which had been enforced before the Act, 1962, on the 2nd March 1961, applied, that would not-be helpful to Mst. Hussain Bibi. Under that section only the children of the pre-deceased son or daughter have been given the right to E receive a share equal to the share which such son or daughter, as the case may be, if alive. This section does not permit any other heir, e.g. the widow) or husband respectively of the pre-deceased son or daughter to inherit any of the share.

17. According to law, as stated above, it is obvious that Mst. Hussain Bibi had no share left in the property after the termination of her limited interest as on the 31st December 1962.

18. Even if the limited interest had not terminated, I agree with the finding of the learned Additional District Judge that the defendants who are the sons of the two surviving sons of Ghasita would have been entitled to inherit the entire property on the death of Mst. Hussain Bibi. This would leave the plaintiff without any right of pre-emption since no part of the) property was likely to devolve upon him.

19. The learned counsel laid emphasis on the purchase of the same property by the two defendants despite the termination of interest of Mst. Hussain Bibi.

20. The learned counsel for the respondents, on the other hand, submitted that there is no evidence of estoppel on the record and moreover this is a case of acceleration of succession.

21. The principle of acceleration of succession does apply to sale) favouring a person ordinarily entitled to succession apart from such sale. In such a case the character of the property transferred is not changed. Said Muhammad v. Talib Hussain and others (PLD 1976 SC 386).

22. This principle would have, therefore, applied if the limited interest H held by Mst. Hussain Bibi had not been terminated by the Act of 1962. But in view of my finding this principle cannot be invoked by the respondents.

23. Estoppel arises only when a person has, by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. If such person acts upon such belief, the person causing the belief cannot be allowed in any suit or proceedings between himself and such person, to deny. (Section 115, Evidence Act). There is no evidence of any such intentional representation by the defendants or of the plaintiff having acted on any belief caused by such representation. Mere filing of a suit on the basis of sale, which but for the statutory termination of the life interest would have attracted the principle of acceleration of succession, does not attract the principle of estoppel. This principle cannot, therefore, be relied upon by the appellant.

24. Another principle is that there is no estoppel against a statute. There being a statutory termination of the life interest, it must be given full effect.

25. It appears to me that the defendants had acted in ignorance of the law about their own right to the property in dispute. The argument on the basis of estoppel is not of any merit for this reason also.

26. I find no force in this appeal and dismiss it. Since some important points of law are involved in it, I leave the parties to bear their own costs. S. A. H. Appeal dismissed.