2006 PLP 1188 (YLR)

MAULVI ANWARUL HAQ, J.

On 23-7-1984 Haji Allah Bakhsh, predecessor-in-interest of respondents Nos.l to 4 filed a suit against the petitioners and the remaining respondents. In the plaint it was stated that the suit-land mentioned in the plaint was owned by Mian Shams-ud-Din, who was father of Haji Allah Bakhsh and Mst. Khadija (wife of petitioner No.l and mother of petitioner No.2). On 31-1-1944 he executed a Will stating that Mst. Khadija will enjoy the usufruct of the said land for her maintenance in her lifetime and thereafter it would revert to the said Allah Bakhsh deceased plaintiff. Mutation No.2655 was attested on 15-10-1945 whereby land was mutated in favour of Mst. Khadija. She died on 1-5-1980 at Karachi. The present petitioners being husband and daughter of Mst. Khadija are claiming to be owners of the land. He accordingly sought a declaration that he is owner is possession of the suit-land and that the petitioners have nothing to do with it. In their written statement the petitioners stated that since Mst. Khadija was the daughter of Mian Shams-ud-Din. She was entitled to inherit her entire estate. However, it was stated that her ownership is correctly recorded in the revenue papers. Following issues were framed by/the learned trial Court:-

1. Whether the plaintiffs are owners in-possession of the suit property and is entitled to the relief prayed for? OPP

2. Whether the suit is not properly valued, if so, what is the correct valuation of the suit for the purposes of court-fee and jurisdiction? OPD

3. Whether the suit is time-barred? OPD

4. Whether the plaintiff is estopped by his words and conduct to file the present suit? OPD

5. Whether the suit is based on mala fide intention? OPD

6. Relief. Evidence of the parties was recorded. The suit was decreed by the learned trial Court vide judgment and decree dated 15-12-1992. A first appeal filed by the petitioners was dismissed by a learned Additional District Judge, Chiniot, on 28-6-1995.

2. Learned counsel for the petitioners contends that apart from the fact that there is no evidence of custom, admittedly a limited estate stood created by means of the said Will pleaded by the respondents/ plaintiffs and consequently upon termination of the same succession would open and Mst. Khadija would become entitle to her share in the said estate. Learned counsel for the respondents has tried to support the impugned judgments and decrees.

3. I have examined the copies of the records. There is no dispute that the Will Exh.P.7 was executed by late Shams-ud-Din creating limited estate in favour of Mst. Khadija and I further find that Mutation No.2655 (Exh.P.4) was attested in favour of Mst. Khadija on the basis of the said registered document dated 31-1-1944. The mutation was attested on 15-10-1945. Now the learned Courts below have more or less correctly interpreted the Will to have created limited estate in favour of Mst. Khadija till her death. However, they have lost sight of the provision of Muslim Personal Law (Shariat) Application Act, 1962. Now according to the said Will the suit property was to remain vested in Mst. Khadija till her death and thereafter it was to vest in Allah Bakhsh. Now this will, to my mind, squarely falls within section 4 of the said Act, 1962 and its further operation ceased upon the death of legatee in-enjoyment. It is an admitted position that the legatee-in-enjoyment was Mst. Khadija till her death on 1-5-1980. At the point of time section 5 of the said Act, 1962 would come into play and since further operation of the Will ceased under section 4 of the said Act upon the death of Mst. Khadija, the property is to devolve upon the last person as would have been entitled to succeed under Muslim Personal Law (Shariat) upon the death of the last full owner or the testator Although he had died in testate. According to proviso the share to which Muslim female holding limited estate under customary law would have been entitled under Shariat upon the death of last full owner shall devolve on her.

4. Thus by operation of the said law the operation of the said will Exh.P.7 ceased on the death of Mst. Khadija and succession to the estate of Shams-ud-Din pertaining to the suit property open accordingly. Thus the said deceased plaintiff/Allah Bakhsh would inherit 2/3rd while the said Mst. Khadija inherit 1/3rd. Out of this 1/3rd, 1/2 vests in her daughter petitioner No.2 and 1 /4 vests in her husband petitioner No.1 and residue 1/4 revert to Allah Bakhsh. Thus the said deceased plaintiff and the present petitioners are entitled to the following shares in the suit-land:-- i. Allah Bakhsh (deceased) son of Shams-ud-Din or L.Rs. 7/12 ii. Mst. Khadija daughter of Shams -ud-Din or the petitioners L.Rs.5/12

5. The civil revision is accordingly allowed. The impugned judgments and decrees of the learned Courts below are set aside and instead decree is granted declaring that Allah Bskhsh deceased or his L.Rs. are entitled to 7/12 share in the suit-land while the petitioners are entitled to 5/12 in the suit land. No order as to costs. F.M./B-33/L Petition allowed.