1972 PLP 267 (SCMR)

HAMOODUR RAHMAN, C. J.‑In this appeal, by special leave, the question which arises for decision is as to whether a female limited owner acquires an absolute right to property allotted and confirmed in her name on her migration to Pakistan in lieu of the estate inherited by her from her husband in India. In the present case hlst. Mehtab Bibi, the widow of one Nawab Khan, was allotted 270 kanals and 4 marlas of land in Jhang District in lieu of lands mutated in her name on her husband's death in India. She made a gift of these lands in favour of Muhammad Hussain, Ali Hussain and Fazal Hussain, the sons of one Haider Mohammad Shah. The appellants filed a suit in the civil Court at Jhang on the 1st of October 1959 as collaterals of the last male owner, Nawab Khan, for a declaration that the gift was void as against custom and that it would not affect their reversionary rights in the said property. The suit was decreed by the learned Civil Judge in that form holding that Mst. Mehtab Bibi had inherited the property from Nawab Khan as his widow and, therefore, took only a limited estate. She went up on appeal to the Additional District Judge, Jhang, who concurred with the trial Court and dismissed the appeal. On revision, however, which was filed in the High Court after the demise of Mst. Mehtab Bibi, the High Court, relying on the Full Bench decision in the case of Sher Muhammad v. The Additional Settlement & Rehabilitation Commissioner (P L D 1968 Lah. 234), set aside the judgments of the Courts below on the ground that Mst. Mehtab Bibi obtained an absolute interest in the lands allotted to her on migration to Pakistan, and, therefore, the collaterals had no locus standi to challenge the alienation by Mst. Mehtab Bibi in favour of Muhammad Hussain and his brothers. A Letters Patent appeal against the said decision was also dismissed in limine. Leave was granted in this case as leave had been granted in a number of similar cases to consider the validity of the decision of the Full Bench. The decision of the Full Bench has now been set aside by this Court in the case of Additional Settlement Commissioner (Land), Sargodha v. Mohammad Shaffi and others (P L D 1971 S C 791). Learned counsel appearing for the appellants, therefore, contends that this appeal must be allowed and the decision of the trial Court restored. The learned counsel appearing on behalf of the respondents 1 to 6, on the other hand, contends that since the Deed of Gift was executed in this case on the 10th of January 1957 the civil Courts had no jurisdiction under the Punjab Refugees (Registration of Land Claims) Act (V of 1949) and the Rehabilitation Schemes framed under the Pakistan Rehabilitation Act, 1956 to try such a suit and, as such, the entire proceedings before the civil Court were without jurisdiction, null and void. The learned counsel appearing for the appellants contends that this question of jurisdiction was not taken at any stage in any of the Courts below nor has it been taken in the concise statement in this Court. This question should not, therefore, be allowed to be raised for the first time in this Court, particularly, since it needs investigation into facts also. We are unable to agree with the learned counsel for the respondents that the gift was complete on the execution of the Deed of Gift. Under the Mohammadan Law, a simple gift is only completed on the transfer of possession and this took place on the 30th of July 1959 when the mutation was attested. On this date the civil Courts had jurisdiction in the matter. In any event since no such objection was taken at any earlier stage it cannot be raised now for the first time. This appeal is, accordingly, allowed and the judgment and decree of the High Court are set aside and those of the trial Court restored. Since the widow has died during the pendency of the appeal, the gift will be valid only to the extent of the legal share which was inherited by her under the Shariat law as from the date of her demise. The gift will, therefore, be valid only to the extent of 1/4 share in the lands in dispute. There will be no order as to costs. Appeal accepted.