P L D 1963 (W (PLP)

ANWARUL HAQ, J.

‑This revision petition, originally filed as a regular second appeal before the promulgation of Ordi nance XLIV of 1962, is by the plaintiff Mst. Katorai, and is directed against the judgment and decree of Mr. Sher Bahadur Khan, Additional District Judge, Peshawar, dated the 20th of July 1959. Her suit for possession of one‑half share in certain properties had been decreed by the trial Court, but on appeal having been preferred in the District Court by the contesting defendants, the same was dismissed.

2. The property, in suit was owned by the plaintiff's father Dilawar, who died to 1910, and by inheritance it devolved on Dilawar's son Munawar. Munawar died in 1919, and the lands were mutated in favour of his widow Mst. Sofia. This lady remarried in 1922, with the result that she lost her life estate, and the property was then mutated in the name of Munawar's step mother Mst. Amro, his real mother Mst. Bakhtawara having died earlier. The mutation in favour of Mst. Amro is No. 4151, attested on the 14th of May 1922 (Exh. P. 17).

3. On the 26th of April 1929, Mst. Amro executed a deed of relinquishment, namely, Exh. D. 1, in favour of Hasham Khan, who was admittedly the only living reversioner of the last male holder Munawar; on that date. 7his deed was registered on the same day. After reciting that she was holding the properties mentioned therein as a limited owner for life, and that excepting Hasham Khan, son of Hazrat Shah Khan there was no other reversioner, she stated that she was relinquishing her rights in favour of Hasham Khan who will become the full owner of these lands. She reserved an area of 50 kanals and 9 marlas for her own maintenance, and stipulated that after her death even this land will revert to Hasham Khan. Finally she made a provision for giving 120 kanals out of the property held by her to her daughter Mst. Katorai, that is the present petitioner before us, who was married to one Qalandar.

4. On the same day Hasham Khan executed a deed Exh. D. 2 in favour of Mst. Katorai in respect of the 120 kanals intended to be given to her by her mother in accordance with the recital in the earlier deed Exh. D.

1. In the opening part of this deed he stated that he had become the owner of the entire land in question through a. relinquishment deed executed by Mst. Amro. Both the deeds Exh. D. 1 and Exh. D. 2 were registered on the same day, i.e. the 26th of April 1929. Mst. Amro died some time in 1942. It is stated that between 1929 and 1942 she made some other alienations as well, although these alienations were not specified in the plaint. Similarly Hasham Khan also made some alienations, out of which only two seem to have been specifically proved on the record by producing mutations Exh. D. 6 and Exh. D. 7, relating to the year 1935.

5. On the death of Mst. Amro in 1942 two mutations were entered with, regard to 50 kanals and 9 marlas of land, which Mst. Amro bad reserved for her maintenance at the time of relinquishing her rights in favour of Hasham Khan. One of the mutations was in favour of Hasham Khan, whereas the other was in favour of the plaintiff‑petitioner. The revenue officer rejected the one in favour of the plaintiff, and sanctioned the one in favour of Hasham Khan. Mst. Katorai appealed to the Collector, who ordered that she should get half share in this land, namely, 25 kanals 4 marlas as consanguine sister of the last male holder Munawar, in accordance with the law of Shariat. Hasham Khan went up in appeal to the Revenue Commissioner which was, however, dismissed. The result, therefore, was that besides the 120 kanals which Nst. Katorai got in 1929 under Exh. D. 2, she obtained an additional area of 25 kanals 4J marlas in 1942 on the death of her mother.

6. Mst. Katorai instituted the present suit on the 15th of September 1954, alleging that under the Muslim Personal Law, she was entitled to half the share in the entire property left by her consanguine brother Munawar, and that any alienations made by her mother Mst. Amro were of no legal effect, as Mst. Amro was only a limited owner under custom. She also alleged that similarly Hashim Khan had no power to make alienations out of the land falling to her share. As defendants to the suit she cited the heirs of Hasham Khan, namely, defendants 1 to 4 and 134 other persons, who were transferees of various portions of the land in suit, either from Hasham Khan or from the plaintiff's mother Mst. Arnro. In view of the large number of defendants an application was made for the adoption of the procedure contemplated in Order I, rule 8 of the Civil Procedure Code for suing these transferees in a representative capacity, and it was prayed that one Gul Rasul defendant No. 138 may be appointed as representative. This permission was granted by the trial Court.

7. The suit was contested by defendants 1 to 4 on a large number of grounds, the principal of which were that Mst. Amro having relinquished her rights in 1929, there was no property left by her on her death in 1942 which could be inherited by the plaintiff ; that the suit was time‑barred as it was brought more than 12 years after the deed of relinquishment in favour of the predecessor‑in‑interest of defendants 1 to 4 ; and that the plaintiff was estopped in view of the fact that she had benefited under the arrangement made between Mst. Amro and Hasham Khan by taking possession of 120 kanals of land out of the inheritance of her brother Munawar.

8. The learned trial Judge found that as a limited owner Mst. Amro had no power to make the alienations in favour of Hasham Khan, that the cause of action arose to the plaintiff on the death of her mother in 1942 and, therefore, the suit instituted by her in September 1954 was within time, and that the plaintiff was not estopped from filing the present suit. The learned Additional District Judge, however, took a different view. He held that Mst. Amro had not alienated the property but in fact relinquished her rights, with the result that the limited owner ship came to an end, as the relinquishment amounted to an effacement of her interest in the land. In his view, the deed Exh. D. 1 only accelerated the right of the reversioner Hasham Khan to succeed to the estate of the last male owner, with the result that when Mst. Amro died in 1942, there was no property available for inheritance. On‑the question of limitation he came to the conclusion that the cause of action had accrued to the plaintiff not on the death of Mst. Amro but on the day when her life estate terminated due to relinquishment in favour of Hasham Khan, i.e., on the 26th of April 1929, and therefore, the suit brought on the 15th of September 1954, was barred by time. In the alternative, he observed that even if the starting point for limitation was regarded to be the death of Mst. Amro, it was for the plaintiff to slow as to what was the 4ctual date, so that her suit could be held within time. He observed that the mere allegation that Mst. Amro died in the year 1942 will not prove that she had died within 12 years of the institution of the suit. Finally, he expressed the view that Mst. Katorai having obtained possession of 120 kanals of land under the family settlement as far back as 1929, was estopped from challenging the same in the present suit.

9. As regards the representative nature of the suit, the learned Additional District Judge pointed out that the defendant Gul Rasul, who was selected to represent the transferees of Hasham Khan and Mst. Amro, had no interest in the matter for the reason that the khasra number said to have been purchased by him from Hasham Khan was not the subject‑matter of the suit, and he, therefore, considered that the requirements of Order 1, rule 8 had not been fulfilled. On these findings he dismissed the plaintiff's suit.

10. It will be seen that the first question to be decided in this case is whether Mst. Amro left any property which could be inherited on her death by her daughter Mst. Katorai and other heirs under the Muslim Law. In order to answer this question we have to examine the nature of the transaction entered into by Mst. Amro on the 26th of April 1929 under the registered deed Exh. D. 1 executed by her in favour of the only surviving reversioner Hasham Khan. It has already been stated that on the face of it the deed is in the nature of a relinquishment of her rights by Mst. Amro. It was however argued by Mr. Pir Bakhsh Khan, the learned counsel for the plaintiff petitioner, that even though the deed purports to be an act of relinquishment, it cannot be legally given that effect for the reason that it did not cover the entire estate held by Mst. Amro as a limited owner, inasmuch as she reserved 50 kanals and 9 marlas for herself and alienated 120 kanals in favour of her daughter, i.e., the present petitioner. In support of his contention the learned counsel placed reliance on Khushi Muhammad and others v. Mst. Fatima Bibi and others (P L D 1951 Lab. 88.). In this case Muhammad Sharif J., who wrote the leading judgment, observed as follows :‑ Two important conditions must be fulfilled before the "surrender" by a widow could operate. These are (a) the relinquishment of the entire estate of which she is in possession as a widow and (b) surrender to the next heir. It would follow necessarily, that where a widow is in possession of a part of the property, to which she has not succeeded on the usual life estate that could not form the subject‑matter of surrender. The "surrender" or "relinquishment" of an estate must be confined to that property which is in the posses sion of a widow as a limited estate and which on her death must go to the reversioners of her husband . . . . . . In coming to this conclusion the learned Judge relied upon a decision of the Privy Council reported as Behari Lal v. Madho Lal Ahir Gayawal and another (I L R 19 Cal. 236) as well as on Nobokishore Sarma Roy v. Hari Nath Sarma Roy and others (I L R 10 Cal. 1102).

11. In the present case 'there is no dispute about Hasham Khan being the next heir, and the only question, therefore, is whether the deed or act of relinquishment by Mst. Amro stands vitiated or invalidated, due to the reason that she reserved some area for her own maintenance, and also stipulated that 120 kanals out of the entire estate be given to her daughter Mst. Katorai.

12. We consider that as far as the stipulation of giving 120 kanals to the present plaintiff‑petitioner is concerned, it presents no difficulty, for the reason that no doubt in the deed Exh. D.

1. Mst. Amro mentioned that she was reserving 120 kanals for her daughter, but on that very day the transferee Hasham Khan executed a registered deed Exh. D. 2, giving these 120 kanals to Mst. Katorai. It has already been pointed out that in this deed it was clearly recited that he had become the owner of this land on the relinquishment of her rights by Mst. Amro ; he went on to say that he was now giving this area to Mst. Katorai who was his chachazad sister and would have been entitled to some share in the property of her parents under the Shariat Law. Reading the two documents together, no doubt is left in our mind that the area of 120 kanals was in fact given to Mst. Katorai by Hasham Khan, after he had become the owner of the property by virtue of the relinquishment deed executed in his favour by Mst. Amro, earlier the same day.

13. With regard to the 50 kanals and 9 marlas reserved for her own maintenance by Mst. Amro, we consider that the matter is covered by a decision of their Lordships of the Privy Council in the case of (Vytla) Sitanna v. Marivada Viranna and others (A I R 1934 P C 105). That was a case where a Hindu widow had conveyed her pro perties to her daughter on the occasion of her marriage, reserv ing only 6 acres odd for her own maintenance, i.e., an area almost equivalent to 50 kanals, as in the case before us. On page 108 of the report their Lordships made the following observations :‑ ..it is not disputed that the conveyance by the widow of the rest of the property, reserving only a few acres for her own maintenance, would have amounted to a surrender of her estate and accelerated the succession of her husband's next heir if he had been a man as held by the Board in Bhagwat Koer v. Dhanukdhari Prasad Singh . . . . . Further on they observed :‑ "But though the doctrine of surrender by a widow has undergone considerable development in recent years, it must be remembered that the basis of it is the effacement of the widow's interest, and not the ex facie transfer by which such effacement is brought about. The result is merely that the next heir of the husband steps into the succession in the widow's place. There is in their Lordships' opinion, nothing in the Hindu Law which would exclude the succession of a female heir in such cases, and no reason for differentiation accord ing to the nature of the estate she would take It follows therefore that the widow's conveyance to her daughter Nagamma in 1888 was a surrender of her estate and an acceleration of her daughter's succession . . . . . ."

14. It will be seen that in the opinion of their Lordships of the Privy Council the reservation by the widow of a few acres for her own maintenance did not detract from the surrender of her estate, and the transaction was regarded as t9 accelerating the succession of her husband's next heir.

15. We think that the decision of the learned Judges of the Lahore High Court in the case of Khushi Muhammad and others v. Mst. Fatima Bibi and others, and the authorities relied upon by them are distinguishable.

16. In the case of Khushi Muhammad and others, the question was whether the relinquishment by a widow of her limited interest could take effect even though a house, which had not come to her as a life estate, was not included in the relin quishment. The learned Judges expressed the view that it was not necessary to include property which had not come to the widow as a life estate, but the relinquishment should include the entire estate which was in her possession as widow. The attention of the learned Judges was not directed to the question whether the relinquishment would still hold good even if the widow were to reserve a small part of the estate for her maintenance. We think, therefore, that this decision does not cover the instant case.

17. In I L R 10 Cal. 1102 the question before the Full Bench was whether according to the law current in Bengal a transfer or conveyance by a widow upon the ostensible ground of legal necessity, such transfer being assented to by the person who at the time is the next reversioner, will preclude another person not a party thereto, who is the actual reversioner upon the death of the widow, from assenting his title to the property. While answering this question, the learned Judges observed that "what is usually called a "surrender" of a Hindu widow's estate is more properly a relinquishment of it in favour of her husband's heirs . . . . ." The question was not present to their minds as to whether a surrender or relinquishment would be defective or invalid if the widow were to retain some portion of the property for her own maintenance.

18. Similarly in the case reported as I L R 19 P C 236, their Lordships were dealing with an ikrarnama executed by a Hindu widow in favour of her daughter's son, then apparently the heir who would ultimately succeed, but adding that she would retain possession for her own life. They observed that "it was essentially necessary to withdraw her own life estate, so that the whole estate should get vested at once in the grantee". These observations again, it will be appreciated, are directly related to the facts of that case, namely, a case in which the widow had not effaced her life interest.

19. For these reasons, we are of the view that, as observed by their Lordships of the Privy Council in A I R 1934 P C 105, the essential thing to determine is whether the widow is effacing her own limited interest in favour of the next heir, and if so, A her act would amount to surrender or relinquishment, leading to an acceleration of the reversioner's succession, irrespective of the fact that she is, incidentally, reserving a small part of the estate purely for her maintenance. On this view of the matter, it is clear to us that in the present case Mst. Amro effected a valid relinquishment of her life estate in favour of the reversioner Hasham Khan in the year 1929, thus making him an absolute owner of the property in question. That being the case, she did not leave any property at the time of her death, which could be inherited by the plaintiff ‑petitioner (i.e. apart from 50 kanals odd which are not in dispute in this suit).

20. On the conclusion reached above, the suit of the plaintiff was bound to fail, and has been rightly dismissed by the learned Additional District Judge. In the circumstances it does not appear to us to be necessary to examine the other issues which arose at the trial.

21. The result is that the present petition fails and is hereby dismissed, but in view of the circumstances of the case and the relationship of the parties we would leave them to bear their own costs throughout. K. B. A. Petition dismissed.