P L D 1988 Peshawar 82 (PLP)

Zarina Mst. Padama Mst. Namnama Mst. IBibi Mst. Khanzada Safdar | Zar (P.2) Khan | | Mst. Mahal Mst. Hamdama. Sani (P.1) According to the plaintiffs, Safdar Khan owned 733 Kanals 12 Marlas of cultural land described in the plaint situated in Moza Muhammad Nari and some residential property, which is also described by the khasra numbers, mentioned therein. On his death the property of Safdar Khan was mutated in the name of his mother Mst. Shah Jehana vide mutation No.452 dated 16‑5‑1924. it was on 16‑10‑1950 that she gifted 152 Kanals 13 Marlas out of the inherited land in favour of Sultan Muhammad Khan, a collateral of Safdar Khan deceased, and 152 Kanals 3 Marlas in favour of Mst. Khanzada. However, when she died, her inheritance Mutation No.611 was, attested on 21‑7‑1967 in the name of Sultan Muhammad Khan, a collateral, Mst. Khanzada plaintiff No.2, and Mst. Mahal Sani, plaintiff No.1. Accordingly, the plaintiffs inherited 11/18 shares in the estate of Safdar Khan, which had devolved on Mst. Shah Jehana as limited owner. As 'Mst. Shah Jehana had, during her lifetime, transferred by gift and otherwise considerable land in favour of Sultan Muhammad Khan and Mst. Khanzada, the plaintiffs felt the necessity of filing the present suit claiming their Shari shares in the entire estate left by Safdar Khan at the time of his death and inherited by his mother as limited owner. All the alienations made by her during her lifetime were challenged to be ineffective on their rights.

3. Defendants 1 and 3 to 6 in their written statement resisted the plaintiffs' suit on various legal and factual pleas. However, the pedigree‑table given in the plaint was admitted to be correct and it was stated that Taj Muhammad, father of Safdar Khan, the last full owner, had in his lifetime sold considerable land to the predecessor‑in- interest of defendant No.1 and others but these sales had not been given effect in the revenue record till the property devolved on Mst. Shah Jehana as limited owner.

4. After recording evidence of the parties on the issues framed in the light of their pleadings, the learned Civil Judge on 7‑1‑1970 partly decreed the plaintiffs suit. The plaintiffs feeling aggrieved went in appeal in the Court of Additional District Judge, Charsadda and in that appeal the defendants moved an application for amendment of their written statement to raise the plea that the other two daughters of Safdar Khan viz. Mst. Hamdama and Mst. Padama had to inherit the property of their father on the opening of the inheritance on the death of Mst. Shah Jehana, their mother. The application was resisted by the plaintiffs but the learned Additional District Judge vide his order dated 3‑7‑1976 accepted the same and in consequence after setting aside the judgment and decree of the trial Court, remanded the case for the needful. After the remand, an amended written statement was filed on 8‑11‑1976 to which the plaintiffs also filed a rejoinder whereafter the learned Civil Judge in the light thereof recast the issues as follows:‑ (1) Whether the plaintiffs are entitled to the declaration or in alternative, possession of the suit property? (2) Whether the suit is within time? (3) Whether the plaintiffs are estopped to bring the present suit? (4) Whether the plaintiffs have become owners of the suit land by adverse possession? (5) Whether the plaintiffs have a cause of action? (6) Whether the suit is incompetent in its present form? (7) Whether the suit is properly valued for the, purpose of Court fee and jurisdiction? (8) Whether the defendants have made any improvement upon the suit property, if so, how much and to what effect? (9) Whether‑ the suit' is bad for non‑joinder of necessary parties? (10) Relief,

5. After recording some fresh evidence, both the parties relied on the pre‑remand evidence recorded earlier in the case, and argued their case. The learned Civil Judge decided issues Nos.2,4,7 and 9 against the plaintiffs and in favour of the defendants. While giving his decision on issue No.1, it was held that the plaintiffs were entitled to inherit the property left by Safdar Khan, in accordance with their Shari shares, on the termination of the limited estate on the death of Mst. Shah Jehana which had reverted to the last full owner. It was, however, held that the plaintiffs failed to prove that the houses in dispute situated in village Utmanzai was owned by Safdar Khan With regard to the houses situated in Panirak Muhammad Nari, the plaintiffs were held entitled to their shares accordingly. In view of these findings, the suit of the plaintiffs was partially decreed on 30‑9‑1978 for 11/18 shares in the property situated in village Panirak. Muhammad Nari. The plaintiffs were further held entitled to joint 'possession to the extent of 11/18 shares in the houses mentioned in para. (2) of the plaint, and were directed to bring suit for‑its partition if needed. Aggrieved by the judgment and decree of the learned Civil Judge, the defendants filed an appeal against it in the Court of Additional District Judge, Charsadda. The learned Additional District Judge agreed with the finding of the trial Judge that on the termination of the limited estate the legal heirs of Safdar Khan would inherit the property in accordance with their Shari shares. It was further held that Safdar Khan, the last full owner having died prior to the settlement of 1926‑27, the property which devolved on his mother and which was mutated in her name and shown in the settlement record of 1926‑27 as such would be deemed to be property of Safdar Khan and the plaintiffs entitled to their shares in it. The land owned by Safdar Khan was not specially worked out. The learned Judge further observed that Sultan Muhammad Khan, the reversioner, would be entitled to 3/18 shares, in accordance with Mahomedan Law, 'in the presence of the mother and more than one sister of Safdar Khan. The finding of the trial Court regarding the built‑up property was affirmed. Accordingly the appeal was dismissed on 10‑5‑1981. Dissatisfied with the judgments and decrees of both the Courts below, the heirs of Sultan Muhammad Khan have challenged these in the present second appeal.

6. The learned counsel for the appellants contended that at the time of his death Safdar Khan was the owner of 305 Kanals of land and not 733 Kanals 12 Marlas as mentioned in the plaint. That Safdar Khan and his father viz. Taj Muhammad Khan had in their lifetime alienated the rest of the land through various deeds but the same had not been given effect in the revenue record in their lifetime. That subsequently in the year 1929 these transactions were given effect .in the revenue record. Reference was made to Mutations Nos. 5 and 6 attested on 3‑2‑1929 whereby out of the suit land considerable land was excluded from the inheritance of Safdar Khan. It was further contended that the Courts below were wrong in working out the shares of the parties and particularly holding the plaintiffs entitled to 11/18 shares: It was also contended that Mst. Shah Jehana had already transferred her share rather more than that in favour of Sultan Muhammad and Mst. Khanzada. She was, therefore, left with no land of which her inheritance mutation could be attested. The learned counsel also reagitated that Mst. Shah Jehana by her act of transferring half of the property in favour of Sultan Muhammad Khan, the reversioner and the other half in favour of Mst. Khanzada, her daughter, had impliedly surrendered her life estate interest in the land in the year 1950, hence the present suit brought on 31‑7‑1968 was clearly barred by time.

7. The learned counsel representing the respondents, however, argued that the plaintiffs would be entitled to inherit the land which was entered in the name of Safdar Khan at the time of his death and which was mutated in favour of Mst. Shah Jehana, his mother under the customary law. The learned counsel also pointed out that by transferring 1/2 of the land measuring 305 kanals 1 marla in favour of Sultan Muhammad Khan by way of gift and the other half of it in favour of her daughter, during the period when she was holding it as limited owner under the customary law, would not amount to accelerated inheritance. The plea of adverse possession raised by the defendants/ appellants was also rebutted on the ground that Sultan Muhammad Khan being a co‑sharer in the property and also entitled to inherit as a collateral of Safdar Khan, his possession would be deemed to be permissive and would be for the benefit of all the co‑sharers and riot adverse to them.

8. After hearing the learned counsel for the parties, I find no merits in the contentions raised by the learned counsel for the appellants. By making gift of 1/2 of the land mentioned in the registered gift deed by Mst. Shah Jefiana, the limited owner, in favour of Sultan Muhammad Khan ant' other 1/2 to Mst, Khanzada, when the former happened to be the reversioner and the latter sister of Safdar Khan, would not be suggestive of the fact 'that she wanted to accelerate the succession. The defendants have placed on file copy of the registered gift deed, which is Ex. P.W.1/2. wherein she has clearly claimed to be the owner in possession of the land and has in unambiguous words expressed that in order to avoid expected litigation after her death she was making the gift. If her, intention was to transfer the property in their favour in recognition of their entitlement as heirs of Safdar Khan, there was no hurdle in her way in expressing her intention in that manner. Even otherwise if there had been any such express intention, the other legal heirs of Safdar Khan could not be deprived of their rights and interest in the land on the termination of the life estate on the death of Mst. Shah Jehana. Both the Courts below, therefore, have rightly held that the gift made by the limited owner was subject to all the incidents of transfer by .a limited owner i.e. such transfers were ineffective on the rights of the lawful heirs of the last full owner. Admittedly Mst. Shah Jehana died somewhere in the year 1968 and her inheritance mutation attested on 16‑3‑1968 which gave cause to the plaintiffs to file the present suit. The suit having been instituted on 31‑7‑1968 i.e. within twelve years of the accrual of cause of action was well within time. The parties being co‑sharers in the suit land, the question of adverse possession would not arise in the circumstances.

9. The contention of the learned counsel for the plaintiffs that the shares of the parties have not bean properly worked out has, however, got some force. Two sisters of Safdar Khan viz. Mst. Padama and Namnama died issueless before the inheritance opened. On their death, therefore, their shares in the inheritance were to be inherited by their legal heirs including Sultan Muhammad Khan, their residuary, which fact has not been taken into consideration in working out the shares of the parties. The learned counsel for the parties have prepared the schedule consisting of eight pages in which they have worked out the shares of all the legal heirs in the inheritance of Safdar Khan i.e. that of Mst. Zarina, Mst. Hamdama, Mst. Bibi Zada. Mst. Padama and Mst. Shah Jehana, which is exhibited as Ex. CH/1 and has been placed on the file. Both the learned counsel have agreed that this schedule may be read as part of this judgment. The learned counsel for the plaintiffs/ respondents has, however, pointed out that the name of Fazal Rahim Khan does not figure in the revenue record, therefore. Fazal Rahim mentioned in the schedule, may be read as husband of Mst. Zarina. Accordingly, the share of Mst. Mahalsani, plaintiff No.1, in the property left by Safdar Khan comes to 539/6480 and that of Mst. Khanzada 11319/3880 shares. The plaintiffs are, therefore, entitled to 43659/116640 shares.

10. The learned counsel for both the parties agreed that the land Alienated by Safdar Khan or his predecessor‑in‑interest in their lifetime is to be excluded and the rest of it be deemed as the land to be inherited by the legal heirs of Safdar Khan. As these alienations have been given effect to in the revenue record subsequent to the attestation of the inheritance mutation in favour of Mst. Shah Jehana, there would be no difficulty in finding out the actual land so inherited. The learned counsel for the appellants has, after deducting the alienated land, worked out the remaining land owned by Safdar Khan as 305 kanals and not 733 kanals 12 marlas as given in the plaint. Both the learned counsel for the parties have agreed that after deducting the area transferred by the last full owner, in the rest of it the plaintiffs would be entitled to the shares stated above. In this view of the matter, this regular second appeal is accepted, tree judgments and decrees of both the Courts below are modified and the plaintiffs are held entitled to 43659/116640 shares in the property left by Safdar Khan deceased. The schedule may be read as part of this judgment. Parties are left to bear their own costs. A.A./616/P Appeal accepted.