P L D 1966 Supreme Court 349 (PLP)

Sheikh Mahboob Elahi Advocate Supreme Court instructed (by Amir 4hmad Attorney for Appellants. Syed Ghulam Haider Shah Advocate Supreme Court instructed by M. B. Khizar Tamimi Attorney for Respondent. Date of hearing: 22nd November 1965. B. Z. KAIKAUS, J.‑The property in dispute in this appeal by special leave is 9/16th share of an area of 209 kanals and 13 marlas which was owned by one Allah Ditta a resident of village Naukhar, Tehsil and district Gujranwala. In 1937 Allah Ditta had sold the whole of this 209 kanals and 13 marlas to Ibrahim defendant‑respondent by a registered deed for a sum of Rs. 3,

200. Allah Ditta who was governed by agricultural custom in matters of succession died on the 2nd December 1948, that is after the coming into force of the West Pakistan Muslim Personal Law (Application) Act. His heirs were a son Muhammad Yusuf and the present appellants, that is, Mst. Rahmat Bibi widow and two daughters Mst. Iqbal Begum and Mst. Mehraj Begum. In 1951 Muhammad Yusuf filed a suit for possession of the land sold on the allegation that the land was ancestral qua him and that the sale was contrary to custom not being for consideration and necessity. The trial court found that the land was ancestral and that the sale was for necessity and consideration only to the extent of Rs. 3,000 which was the amount of a previous mortgage. Muhammad Yusuf was granted a decree for possession of the land on payment of Rs. 3,

000. Ibrahim defendant‑respondent filed an appeal against the decree and in appeal there was a compromise between the parties in accordance with which Muhammad Yusuf was granted a decree for 7/16th share on payment of a proportionate share of Rs. 3,

000. The present appellants filed on the 29th November 1954, the present suit for possession of 9/16th share of the property sold, on payment of a proportionate amount out of the sum of Rs. 3,

000. It was alleged in the plaint after recital of the facts mentioned above that in their capacity of the heirs of Allah Ditta under Muslim Law the plaintiffs were entitled to a 9/ 16th share of his estate and therefore they were entitled to redeem the land on payment of the proportionate amount of what they called the mortgage money. Two issues were framed the first as to whether the plaintiffs had a locus standi to sue and the second as to whether the suit was in time. The trial Court found against the plaintiffs on both the issues and dismissed the suit. On appeal the District Judge decided in favour of the plaintiffs on the simple ground that the sale had been converted into a mortgage and the plaintiffs as the legal heirs of the deceased could redeem the mortgage. The District Judge was of the opinion that the trial Court had not properly appreciated the question involved and that there was no question of locus standi or limitation. On appeal to the High Court the judgment of the District Judge was reversed and it was held that the suit was liable to be dismissed on both the issues. Leave to appeal had been granted in this case because it was urged that the appellants were entitled to succeed in view of the decision of this Court in Said v.; Fazal Hussain (1) P L D 1959 S C (Pak.)

356. For the elucidation of the point in dispute it is necessary to refer to the nature of the restriction placed by custom on alienation of ancestral land by a male holder. In accordance with what is called the agnatic theory the male holder for the time being of property which had descended from the common ancestor could not alienate it so as to defeat the right of succession of other descendants of the common ancestor except in circumstances in which an alienation was permitted by custom. The descendants of the common ancestor were regarded as deriving their right to succeed to ancestral property from the common ancestor which right could not be adversely affected by the descendant in enjoyment of the property. But this restriction on the power of alienation was intended only to protect the interest of descendants of the common ancestor qua whom the property was ancestral and such descendants alone could impeach the alienation which remained otherwise a good and valid alienation not only between the alienor and the alienee but also as against the whole world except those entitled to impeach it. Even when a declaratory decree was obtained the transaction remained good between the alienor and the alienee and against every person except those who had 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 reversioner for the declaration was only intended to protect the reversionary right if and when it did accrue. For illustration one may usefully refer to the case reported as Bhola Singh v. Babu (2) A I R 1921 Lah.

300. The reversioners of Sudut Singh had in that case obtained a declaratory decree that an alienation by Sudut Singh would not affect their reversionary rights. When Sudut Singh died they filed a suit for possession, but were met by a plea that the daughter of Sudut Singh was alive who was a preferential heir and the decree itself did not grant a right of succession, but only protected. it if it did arise. The plea was accepted and the suit of the reversioners was dismissed. The daughter of Sudut Singh then filed a suit for possession of the same property contending that the alienation had been set aside and she was the person entitled to succeed to the property. Her suit was dealt with by the judgment of the High Court in Milkha Singh v. Ram Kishen (3) A I R 1934 Lah. 725 . It was held that the benefit of the decree could only go to a person entitled to challenge the alienation and the daughter was not entitled to challenge the alienation. The learned Judges said: "The learned counsel for the appellant admitted that he could not cite a single decision wherein a declaratory decree of this kind was held to enure even for the benefit of a female heir who is not entitled to challenge the alienation in question and I see no good reason to hold that the law in 1915 was different to what is laid down in section 8, Punjab Limitation (Custom) Act of 1920. The reversioners' right to contest an alienation according to custom is based on the agnatic theory as propounded in 107 P. R. 1887 (4). But a daughter derives her right to succeed from her father and not from the common ancestor and hence it was held in 1918 Lah. 325 (5), that she cannot be considered to be an "agnate". This view was adopted by a Division Bench of this Court in 1925 Lah. 8 (6). Not being an agnate, it would seem to follow that she cannot contest the alienations of her father from whom she derives her title. It was indeed admitted in this case, as stated above that Mst. Santi, as a daughter, could not have sued to challenge her father's alienations; but it was contended that she could all the same take advantage of the declaratory decrees obtained by the collaterals. This contention seems to me to be wholly illogical and I am not prepared to accept it in the absence of any clear authority to that effect." In accordance with custom the person entitled to impeach an alienation by a male was. the male agnatic qua whom the property was ancestral. Punjab Act It of 1920, the Punjab Custom (Power to Contest) Act further limited the category of persons entitled to impeach an alienation by providing that (apart from descendants) only collaterals within the fifth degree would be entitled to impeach the alienation. Another provision added in that Act was that a declaratory decree would enure only for the benefits of a person entitled to impeach the alienation. The result therefore is that in accordance with the law as it stood after the passing of Act 11 of 1920 the only person whose right to succeed was not affected by an alienation by a male was the male agnate within five degrees qua whom the property was ancestral. It will be proper to clarify here that so far as the benefit of a decree is concerned no change was effected by Act 11 of 1920 in the law as it stood. Even previously, (as will appear from Milkha Singh v. Ram Kishen (1) P L D 1956 S C (Pak.) 227 which relates to a case before Act II of 1920) the law was that the declaratory suit, though not a suit for possession, was a representative suit and the decision in it bound as well as benefited the reversioners qua whom the property was ancestral. Having regard to what is stated above the case before us would be quite simple. The daughters and the widow are not persons entitled to impeach an alienation by the male holder. They derive their right of succession from, the male holder and not from any common ancestor. If they are not entitled to c impeach the alienation they can neither get the benefit of the decree obtained by the son nor can they claim succeed to property which has been alienated. As a matter of fact the decree in the present case was not declaratory at all but it is not necessary to place the decision on that ground. However, learned counsel for the appellants refer Mst. Shahzadan Bibi v. Amir Hussain Shah (1), Abdullah v. Mst Bakhto Ma(2) P L D 1956 S C (Pak.) 321 and Said v. Fazal (3) P L D 1959 S C (Pak.) 356 for the proposition that even an heir who is entitled to succeed under Muslim Law can file a suit for a declaration of the invalidity of an alienation. The cases cited all relate to widows and it will be proper to explain the difference between the position of a widow and a male holder of ancestral land under custom. The widow had only a life estate in the property which she inherited. She held no interest transmissible to her own heirs and when she died the inheritance went not to her own heirs, but to the heirs of the last male holder. Having only a life estate the widow was not entitled to deal with the property so as to affect the rights of inheritance of those who would succeed to the property but for the alienation. Therefore every person who was an heir to the husband had the right to impeach an alienation by a widow. That is the important distinction for the purpose of the present discussion between the case of a male holder and that of a widow. Whereas the persons entitled to impeach the alienation in the case of a male holder are only descendants and collaterals within the fifth degree qua whom the property is ancestral, the persons entitled to impeach the alienation in the case of a widow are the persons who would inherit it from the husband at the termination of the widow's estate. The result is that in the case of a widow, all that is needed for establishing the locus standi to sue for declaration is that the plaintiff should be one of the heirs entitled to succeed to the husband at the termination of the widow's estate and also the declaratory decree obtained enures for the benefit of every heir. As such a decree enures for the benefit of whosoever is the heir its effect would be that the estate is absolutely free of the alienation 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 not "affect the reversionary right". In the case of a, male no person is a reversioner unless the property is ancestral qua him. The conception of a reversioner is that he 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 enjoyment of it. In the case of a widow all heirs are reversioners for they take their right not from the widow but from the husband. They succeed because when the life estate of the widow comes to an end the estate reverts to the husband. It may be explained that what we have said about the widow applies to all other females holding limited estates under custom the "last male holder" being substituted in their case for the husband. This was the position with respect to a female holding a limited estate before the passing of the Muslim Personal Law (Shariat) Application Act, 1948. Section 3 of that Act in the words of Muhammad Munir, C. J. in Abdullah v. Mst. Bakhto Mai made the following difference: "The difference brought about by the Act of 1948 is that while the powers of a limited owner to alienate the property without legal necessity are still governed by custom, the rule governing succession to the property, on the termination of a limited estate, has ceased to be a rule of custom and by statute has been replaced by the rule that the Muslim Personal Law shall govern the succession. Therefore, in considering the question of locus standi the first question to consider still remains whether on the termination of the limited estate the claimant for a declaration will have the right to succeed if things remain as they were at the time of the alienation. " It should be clear that the fact that there is a statutory provision now instead of custom as to who will inherit the estate of the last male holder, does not make any difference to the right of the heirs to challenge an alienation for the powers of the female. to alienate the estate are not enhanced. She still is unable to defeat the rights of those who are to succeed at the termination of her estate. Even now she has only a limited estate on the termination of which the property goes to heirs of the last male holder. All heirs of the last male holder have al right to impeach the alienation. It is not necessary to refer in details to the facts of all the three cases relied upon. All that need be stated is that they are cases where an alienation by a female with a limited estate was sought to be impeached by the heirs entitled to succeed under section 3 of the Act of 1948 and it was held that a suit did lie. If all that is needed for impeaching an alienation by a female is that a person should be a heir to the last male holder the cases are of no assistance to the appellants. It may be pointed out that in one of these cases, that is, Mst. Shahzadan Bibi v. Amir Hussain Shah it was pointed out that "there is between the estates of .a male and that of a female with a life tenure a fundamental distinction". This appeal is dismissed, but there is no order as to costs. S. A. RAHMAN, J.‑I agree and would only like to add the replacement of custom by Islamic Law in the matter of succession, by statute, has neither enhanced nor diminished the powers of alienation possessed by a holder under custom. The restrictions imposable on such power must be found within the scope of custom under which he inherited the property and their context cannot be widened in favour of eventual Muslim Law heirs of a male holder (on whose death succession opened under Islamic Law) if they had no locus stand under the customary rules, to control the alienations by such holder. K. B. A. Appeal dismissed.