P L D 1961 (W (PLP)

Abdur Razzaq Mst. Zakriya (Died on 4‑8‑51) (Died on 19‑10‑51)

2. The subject matter of this appeal is the estate of Muhammad Ajmal who died in the year 1930 without a male issue. His land was mutated in the name of his two unmarried daughters Mst. Said Begum and Mst. Irshad Begum vide Exh. P. 13 dated the 16th November 1936. On Mst. Irshad Regum s marriage the revenue Authorities mutated her share of land in the name of her Sister Mst. Said Regum. This mutation was sanctioned on the 28th of December 1950. In the course of the mutation proceedings the Revenue Officer learned that Mst. Said Begum had also been married. Thereupon the whole of Muhammad Ajmal deceased's land was mutated in the name of his collaterals, Abdur Rehman and Sana Ullah, defendants Nos. 1 and 2, respectively, vide mutations Nos. 336 (Exh. P. 2) and 200 (Exh. P. 3), dated the 28th of December 1950. Mst. Said Begum died on the 16th of June 1951, leaving a son, Abdur Razzaq, who also died on the 4th of August 1951. Mst. Irshad Begum died on the 16th of September 1951, leaving a daughter, Mst. Zakriyya, who too died on the 19th of October 1951.

3. Abdur Rahman, husband of Mst. Said Begum, Khan Muhammad, husband of Mst, Irshad Begum, and Mst. Nazir Begum, mother of the aforesaid deceased ladies, plaintiffs Nos. 1, 2 and 3, respectively, instituted a suit for the possession of the suit land. They alleged that Mst. Said Begum and Mst. Irshad Begum had inherited the land left by their father as full owners under custom and that on their death, they (the plaintiffs) had inherited it under Muhammadan Law.

4. The defendants, who are the collaterals of Muhammad Ajmal them last‑male holder of the suit land, contested the suit and pleaded that Mst. Said Begum and Mst. Irshad Begum had inherited the land on the death of their father Muhammad Ajmal at limited owners under custom and, therefore, the suit land was mutated in their (defendants) names as the limited interest of Mst. Said Begum and Mst. Irshad Begum terminated on their marriages.

5. In view of the pleadings of the parties, the following issues were framed: ‑ (1) Whether the suit land is ancestral quo the defendants and Muhammad Ajmal deceased, and with what effect? (2) if issue is not proved, what is the share of the plaintiffs in the suit land ? (3) Relief. Issue No. 1 was decided in favour of the plaintiffs and it was held that the land in suit was non‑ancestral qua the defendants. Issue No. 2 was also decided in favour of the plaintiffs, holding that Mst. Said Begum and Mst. Irshad Begum inherited the land of their father as full owners and as they had died after the enforcement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948 (hereinafter referred to as the Act), the succession had to be governed according to Muhammadan Law. In view of the above findings, the learned trial Judge decreed the plaintiffs' suit. Aggrieved by this judgment and decree, the defendants went up in appeal which was dismissed by the learned Additional District Judge, Gujrat, by his order dated the 31st of May 1955. They have now come up to this Court in second appeal.

6. The sole question for determination in dais case is whether Mst. Said Begum and Mst. Irshad Begum Aeri6b the land on the death of their father as full owners or as limited owners. As the land was purchased by Fateh Muhammad, father of Muhammad Ajmal deceased; it is non‑ancestral. In the, case of non‑ancestral property, daughters generally exclude collaterals. Paragraph 23 (2) of the Rattigan's Digest on Customary Law may here be reproduced with advantage. It reads: ‑ "(2) But in regard to the acquired property of her father, the daughter is preferred to collaterals."

7. Answers to Questions Nos. 60, 61 and 63 of the Riwaj‑i‑am of the Gujrat District, complied by H. S. Williamson, (Revised Edition), deal with the succession of daughters. The relevant portions of the Questions and Answers may usefully be reproduced: ‑ Question 60‑Under what circumstances are daughters entitled to inherit? Are they excluded by the sons or the widows or by the male‑kindred of the deceased? If they are excluded by the near male‑kindred is there any fixed limit of relationship within which such near kindred must stand towards the deceased in order to exclude his daughters. If so, how is the limit ascer tained. If it depends on descent from a common ancestor, state within how many generations relatively to the deceased such common ancestor must come? Answer

60. All tribes: ‑ As regards acquired property they exclude collaterals however near. Question 61.‑Is there any distinction as to the rights of daughters to inherit (1) the immovable or ancestral (2) movable or acquired property of their father ? Answer 61.‑See Answer to. Question No.

60. Question 63.‑What is the nature of the interest taken by a daughter in the property which she inherits ? Define her rights of alienation, if any, by sale, gift, mortgage or bequest ? Answer

63. All tribes.‑The daughter who is full heir has power to alienate the property which she inherits, but ordinarily the rights of an unmarried daughter are like those of widows." Answers to Questions Nos. 60, 61 and 63, given above show that the daughter of a sonless proprietor in Gujrat District excludes collaterals and succeeds to the self‑acquired property of her father as a full owner as she has full power to alienate such property. Thus, Mst. Said Begum and Mst. Irshad Begum inherited the land of their father Muhammad Ajmal as full owners and not as limited owners.

8. The dates of the death of Mst. Said Begum and Mst. Irshad Begum are not in dispute. As already stated, the former died on the 16th of June and the latter on the 16th of September 1951. Thus, both the sisters died after the enforcement of the Act, and en their death the succession has to be governed by the Act. It was conceded by Qazi Att Ullah, learned counsel for the appellants, that his clients had no share in the estate of Mst. Said Begum who had left a son. As regards the estate of Mst. Irshad Begum, learned counsel for the parties agreed that the defendant‑appellants had 1/12th share in the estate of Mst. Irshad Begurri who was survived by a daughter, husband and a mother. In other words, the defendant‑appellants are entitled to 1/24th of the entire estate of Muhammad deceased.

9. In view of our findings, we decree the plaintiff's suit to the extent of 23/24ths in the proportion of their share as worked out by the learned trial Judge, and thus we passed the following decree in their favour :‑ (i) Abdur Rahman plaintiff No. 1 = 5112th of 23/24. (ii) Khan Muhammad plaintiff No. 2 = 13132nd of 23/24. (iii) Mst. Nazir Begum plaintiff No. 3. = 17196th of 23/24. and allow the appeal to the eKsent indicated above. In view of the partial success of the appeal and the relationship of the parties, we make no order as to costs of this appeal. K. M. A. Appeal partly accepted.