1980 PLP 175 (CLC)

GUL MUHAMMAD KHAN, J.-The dispute in this case pertains to the property of one Samanda. Samanda sold land measuring 160 kanais to one Chanda Singh on 5th of November, 1900. Another area measuring 240 kanals was sold by him to Jaimal Singh on 27th February, 1901. Chanda Singh pre-empted the sale made in favour of Jaimal Singh and consequently became the owner of the entire area measuring 400 kanals.

2. In 1909 one Hussain Muhammad filed two suits for a declaration in his capacity as one of the reversioners of Samanda under Punjab Laws Act that the sales did not affect reversionary rights. Both the suits were decreed on 4th of May, 19!

0. The land, however, remained in possession of Chanda Singh as Samanda lived long after the partition of the sub-continent.

3. Chanda Singh migrated to India on account of Partition of the sub-continent. The land in dispute is said to have been allotted to the petitioners as refugees in 1953. Samanda died on 7th of March, 1961. The contesting respondents, therefore, filed an application under section 22 of the Pakistan Administration of Evacuee Property Act, 1957 for a declaration that the land had reverted to them. The Additional Custodian dismissed their application on 10th of March, 1964. Their appeal before the Custodian, however, succeeded on 15th June, 1968.

4. Feeling aggrieved, the petitioners filed W. P. No. 1211/R of 1968. Some other persons, not party to this petition, also filed W. P. No. 977/R 26 of 1968. Both these petitions succeeded and the case was remanded, vide dated 15th January, 1974 of this Court. The learned Custodian heard the once again. He accepted the appeal of the respon dents and restored the land to them as reversioners vide his order dated 22nd February. 1978. That order is assaile: in the present petition.

5. The learned counsel for the petitioner assails the order of the learned Custodian on the ground that the respondents who were not born at the time of the two transactions in the year 1900 and 1901 have no right to claim as reversioners on the death of Samanda, in preference to the evacuee purchasers. He relied on Full Bench judgment of Jowala v. Hera Slngh and others (55 P R 1933) wherein it was held that a transfer, by an owner under the Punjab Customary Law, who had no heir existing at the time competent to challenge it, cannot be contested by a son begotton of the owner, after the date of transaction unless there was in existence at the date of transfer, some one who would challenge it and such person did not ratify it before the after-born son was begotton.

6. The learned Counsel also challenged the locus stand of the female respondents 4 to 10 and 12. lie relied on Barkat Bibi and another v. Sardar Khan and others (P L D 1966 Lah. 47) to say that as the daughters and widows are rot entitled to inherit the land from the last male holder, they cannot challenge any sale under custom The standing of the private respondents to claim a right in the land was also assailed on the ground that having not filed a suit for declaration they were not entitled to inherit in view of Mst. Fattan Bi and 2 others v. Fateh Muhammad and 6 others (P L D 1974 Lah. 458) ?. Reference was also made to Firm Chuni Lal-Rali Rarr v. Altaf ul-Rahman and others (A I R 1939 Lab. 290) wherein ,it was held that alienation of an ancestral property cannot be challenged by a descendant who did not exist at the date of alienation. The plaintiff in that case had filed a suit for a declaration that his reversionary interest would not be affected. Same view was taken in Ranodip Singh and others v. Parmeshwar Persht7d and others (AIR 1925 P C 33). It was held in Kunwar Dharu Indar Pal Singh, minor, through Ranl Malwindar Kaur v. Firm Badrl Das Sohan Lal Bankers of Gujranwala through Jang Lal and others (A I R 1943 Lab. 281) that limitation applies to the after. born sons and that in the absence of another collateral existing at the time of sale, the after-born son had no right to challenge alienation. In that case no suit for a declaration was filed by any one within the prescribed period of limitation. The learned counsel also. referred to Syed All Abbas and others v. Vishan Singh and others (P L D 1967 S C 294) to argue that allottees had a right to be heard before the Custodian. Apart from the validity of objection in this case it is to be noted that the allottees/petitioners in this case were heard by this Court in the previous petition and then by the Custodian in :he impugned order.

8. The learned counsel for the petitioners had also relied on Mst. Rehmat Bibi and others v. Ibrahim (P L D 1966 S C 349) to submit that the decree obtained by one -reversioner ensures only for the benefit of those reversioners who mere entitled to impeach the transaction and that the females could not do so. In this view of the matter, it was argued that such a declaration cannot be utilized by the after-born son or those by who did not exist at the time of the sale. It is to be noted that the above case was dealt with under the Punjab Act II of 1920 and not the Punjab Laws Act. Secondly, the question to that case was whether a female could impeach a sale made by a limited owner.

9. Their Lordships of the Supreme Court noted in the above cas e that prior to 1920, the person entitled to impeach an alienation was the male agnate qua whom the property was ancestral. Punjab Act II of 1920 further limited the category of persons entitled to impeach the alienation. Another provision added was that a declaratory decree world enure only for the benefits of a person entitled to impeach the alienation. Some of the observations, relevant to the case in hand, made by the Supreme Court may be reproduced hereunder to show that the case cited by the learned Counsel .for the petitioners in fact helps the respondents. While discussing the import of alienation by a male, at pages 353 and 355 the Court observed :

"

Even when a declaratory decree was obtained the transaction remained good between the alienor and .the alienee and against every person except those who bad the right to impeach it. The decree which was passed in such cases did not say that the alienation was set aside but only that it would not affect the reversionary right. It did not avail even the person who has obtained the decree unless he became the actual revisioner for the declaration was only intended to protect the reversionary right if and when it did accrue

It will use proper to clarify here that so far as the benefit of decree is concerned no change was effected by Act II of 1920 in the law as it stood. Even previously, (as will appear from Milkha Singh v. Ram Kishen A I R 1934 Lab. 725 which relates to a case before Act II of 1920 the law was that the declara tory suit, though not a suit for possession, was a represen tative suit arid the decision in it bound a. well as benefited the reversioners qua whom the property was ancestral. ...............whereas in the case of alienation by a male the declaratory decree only benefits a limited class, and apart from the rights of that class the alienation remains good and valid. The decree only provides that the alienation will riot "affect the reversionary right". In the case of a male no person is a revesioner unless the property is ancestral qua him. The conception of a reversioner is that be does not derive his right to succeed from the person who dies, but on account of reversion of the property by death of the person in enjoy ment of it."

10. The phrase `all persons entitled to impeach the alienation' as used in Punjab Act of 1920 was considered and interpreted in Rehman v. Suraj Mal (A I R 1945 Lah. 76) by a Full Bench of this Court. Their Lordships found that section 8 merely, gave statutory recognization to the long settled rule of law that the right to control an' alienation is not coextensive with the right to succeed and that a declaratory decree enures for the benefit of those persons only who themselves have the right to control the aileron s alienation of ancestral property but that such a decree does not enure for the benefit of female heirs. Their Lordships also approved Muhammad Din v. Fatteh Muhammad (24 P R 1906) and held all persons given benefit in that judgment remain the beneficiaries. The following obser vation at page 79 sets at rest the controversy :

The whole object of S. 8 is to give the benefit of a declaratory decree to those descendants of the common ancestor who would eventually inherit his estate when succession opens out. It may be that person who inherits is a very remote reversioner and 'was not in existence at all within even 20 years of the decree yet he is entitled to the benefit of that decree because the suit brought by the presumptive reversioners is to be considered to have been brought to a representative capa city and not for his own benefit."

11. In the case in hand there was a declaratory decree obtained by a reversioner Hussain Muhammad as referred to in para. 2 above. No question of another declaratory decree would, therefore, arise. The suit for a declaration by a reversioner is a 'representative suit and the decision in it bound as well as benefited the reversioner qua whom the property was ancestral' as observed by the Supreme Court in the above case. The fact that Muhammad Nawaz respondent No.11 was born, after the sale will, therefore, make no difference as held by a Full Bench of this Court referred to above. The decree holder and any other heirs living at the time did not ratify the sale before Muhammad Nawaz respondent was born. Muhammad Nawaz, respondent No. 11, who is a son of Samanda, was the actual and the only reversioner when the succession opened on the death of the last male-holder, his father in 1963.

12. The petitioners as allottees held only such right in the land as had been taken, over by the Custodian under the Pakistan (Administration of Evacuee Property) Act, 1957. The same rights subsequently vested in the Central Government under section 4 of the Displaced Persons (Land Settlement) Act, 1958. Reference be made to the Supreme Court judg ment in the case of Muhammad Khan (P L D 1960 S C 384). These rights were confined only to hold the evacuee's right of possession in the property till the life time of Samanda.

13. The property thus reverted to the reversioners without any encumbrance, on the death of Samanda. How the property was to be further divided by the reversioners or heirs of Samanda, is no concern of the petitioners. The objection to the inclusion of females at their instance is, therefore, unwarranted and baseless and may not be gone into in this case. In view of the above, there is no merit in this petition and the same is dismissed. As the question involved was not free from difficulty there will be no order as to costs. S.A.H Petition dismissed