1988 PLP 1775 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to consider as to what were the exact shares to which the parties were entitled under the Muslim Law. The limited estate held by Mst.Rakhi, widow of Ditta terminated on her death in 1962. The question as to who was to inherit her and in what share, became the subject‑matter of litigation between the parties. The collaterals of Ditta instituted a civil suit against the daughter of Mst.Rakhi and others claiming that they were the sole owners of land measuring 385 Kanals and 19 Marlas in village Karhan District Jhelum. This claim they laid on the basis of a Will executed by Ditta the last male owner in favour of the plaintiffs. They also claimed the sole ownership of this land on the basis of a Compromise between the plaintiffs and the limited estate holder in which it was agreed that Mst: Khan Bano and Mst. Rakhi will remain in possession of the property in dispute till re‑marriage or death and that on termination of their limited estate, the property will devolve on Allah Dad and Nawaz to the extent of 3/5 shares and Nek Muhammad and 3hulam Muhammad to the extent of remainder. The suit was contested by the other heirs all admitting that Mst. Khan Bano anti Mst. Rakhi who held the suit property in interregnum for some time were in fact limited estate holders. However, the defendants disputed the claim of the plaintiffs on the basis of the Will of Ditta or the earlier compromise entered into between the parties. On the pleadings of the parties, the following issues were framed:‑ "(1) Whether Mst.Khan Bano got share in the land and haveli in dispute from her father a full owner? (2) Whether Ditta made any Will in favour of Ghulam Muhammad and Nek Muhammad and what is that Will? (3) Whether Mst. Khan Bano and Rakhi were limited owners of the suit property according to the compromise mentioned in para. No.4 of the plaint and what is its effect? (4) That if Issue .No.3 is decided in the affirmative then whether defendants are bound by it? (5) If issue No.4 is decided in favour of the plaintiffs what is their share in the suit property? (6) Have the plaintiffs no cause of action against the defendants? (7) Can the plaintiffs not sue in respect of the haveli because of any bar under Order II, Rule 2, C.P.C.? (8) Whether the suit is pre‑mature? (9) Whether the suit in the present form cannot proceed? (10) Whether Mst.Sudhi is the daughter of Ditta; if so, with what effect? (11) Did Ditta deceased profess Shia faith and what is its effect? (12) Relief." Pedigree table has been reproduced in .the judgment of the trial Court and placed on record by the learned counsel representing the parties at the hearing, and it has more details. The trial Court upheld the claim of the plaintiffs that there existed a Will and a compromise which entitled the plaintiffs to the relief sought for by them. Their suit was decreed with costs. An appeal filed by the defendants failed' before the District Judge. A Second Appeal was then filed in the High Court. The Will was rejected by the learned Judge on grounds which appear in the judgment of the High Court in the following words:‑

I am firmly of this opinion that in view of the limited nature of their interest in the suit land the aforesaid widows were not legally competent to deprive the heirs of the last male owner either on the basis of a Will or a compromise decree. Even otherwise the present defendants‑appellants had neither been a party to the aforesaid compromise no‑ they ever consented to the alleged Will. Moreover, note should have also been taken of section 3‑A introduced into West Punjab Muslim Personal Law (Shariat 'Application) (Amendment) Act 1951." The compromise relied upon by the plaintiffs was also found to be of little value to the plaintiffs by the learned Judge observing as hereunder:‑ "In the instant case as stated above the Will and consent decree based thereon were never acted upon. Therefore, in view of the enactment of Section 3‑A supra in 1.951 as we as the promulgation of West Punjab Muslim Personal Law (Shariat) Application Act, 1948 the alleged will or any‑ decree passed thereon could not have been enforced and the succession will be governed in accordance with the provisions contained in section 3 of Act IX of 1948." The learned Judge thereafter proceeded to settle the shares of the parties and denied any. share to the heirs of Mst.Saidan; sister of the last male holder on the following reasoning:‑ "Ghulam Muhammad, Fateh Muhammad and Chughata plaintiffs Nos.5 to 7 who are the sons of Saidan sister of Allah Ditta deceased being distant kindred are excluded from inheritance in the presence of the sharers and residuaries referred to above. Similarly Fateh Muhammad defendant‑respondent No.1 who is merely husband of Mst.Sudhi .being not related through blood to the deceased last full owner does not fall in any category of heirs of the deceased and as such cannot be allowed any share out of the inheritance in question. As the dispute was limited the settlement the exact share of each of the parties and the entitlement of Mst.Saidan we allowed an opportunity to the parties to come to an agreement with regard to the share of each of the claimants. There was an agreement between the appellant and respondents 4 to 12 but not so with respondents 13 to 16: The admitted position with regard to Mst.Rakhi and Mst. Khan Bano is that they were the limited estate holders and the last male owners in respect of the property in the hands of Mst. Allah Rakhi were Noora and Ditta in equal shares. As the limited estate terminated by the death of Mst.Allah Rakhi in 1962 before the promulgation of the Muslim Personal Law, Shariat Application Act, 1962, the exact provision of law applicable would be section of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, which is reproduced as hereunder:‑

"In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any such person before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat). Provided that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at ‑the time of the death of the last full owner, shall devolve on her if she loses her limited interest in the property on account of her marriage or re‑marriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death." In the case of Muhammad Hussain and 3 ‑others v. Alam Din and 5 others P L D 1955 Lah. 420 the implications of this provision of law were examined in the ‑following words:‑ "According to that section if a female holding a limited estate under custom dies the estate held by her is to devolve on all those persons who would have been entitled to inherit the property at the time of the death of the last full owner according to Shariah.

I may point out here that there is no indication in the Muslim Personal Law (Shariat) Application Act as to the reason why the heir who has died in the meantime is supposed to have died as the termination of limited interest of the female though in fact he died much earlier. One would have expected this Act to provide that on the termination of the limited interest of a female the property would go to all the persons who would inherit it if inheritance was governed at the time of death of the last male holder and in all subsequent stages by Muslim Law. That, however, is not the effect of section in cases where the heirs who existed at the time of his death have died in the meantime. The death of such persons is presumed to have taken place at the termination of the limited interest. The devolution of property is affected by this supposition in cases where the heirs of such persons have died in the meantime. I am unable to think of any reason for this interference with the devolution of property. We have, however, to take the law as it stands." Applying the law to the facts of this case, the devolution of shares will be as hereunder:‑ DEVOLUTION OF NOORA'S SHARE‑TAKING TOTAL NUMBER OF SHARES TO BE 4608 Noora's share in property in dispute devolves on his heirs as under:‑ (i) Mst. Khan Bano (daughter). of 1/2 = 1/2=1/4 of the entire property= 1152/4608 (ii) Mehr Khan (brother). of = 1/8 of the entire property= 576/4608 (iii) Khan Muhammad (brother). of = 1/8 of the entire property=576/4608 On the death of Mehr Khan his 57614608 share devolves on his son Ghulam Muhammad. Whereas Khan Muhammad's 576/4608 share devolves on his son Bahadur. On the death of Bahadur his 576/4608 share devolved on his heirs as under:‑

(i) Mst. Khan Bano 576/4608 = 72/4608 (widow). 118 (3/24) of (ii) Allah Ditta 576/4608 =336/4608 (son). 14/24 of (iii) Mst.Saidan 576/4608=168/4608 (daughter).7124 of Ghulam Muhammad had also died and his 576/4608 share devolves on the following persons: ‑ (i) Allah Dad (son) of 576/4608 =288/4608 (ii) Mowaz (son) of 576/4608=288/4608 The sum total of devolution of Noora's share as detailed is as follows: (i) Mist. Khan Bano 1152/4608+72/4608=1224/4608 (ii) Allah Ditta ‑‑‑‑‑‑‑‑‑ =336/4608 (iii) Mst. Saidan ‑‑‑‑‑‑‑‑‑‑=168/4608 (iv) Allah Dad ‑‑‑‑‑‑‑‑‑‑=288/4608 (v) Mowaz = 288/4608 DEVOLUTION OF ALLAH DITTA'S SHARE‑TAKING TOTAL NUMBER OF SHARES TO BE 4608. Allah Ditta's I share in the property devolves on his following heirs: ‑ (i) Mst. Allah Rakhi (widow) 1/8 of =1/16 =288/4608 (ii) Mst. Sudhi (daughter) of = =1152/4608 (iii) Mst. Khan Bano (mother) 1/6 of = 1/12 =384/4608 (iv) Mst.Saidan (sister) (as residuary) 5/24 of = 5/48,= 480/ 4605 336/4608 share inherited by Allah Ditta as heir of Bahadur from Noora's estate devolves on his heirs as under:‑

(i) Mst.Allah Rakhi (widow) = 3/24 of 336/4608 =42/4608 (ii) Mst. Sudhi (daughter) = 12/24 of 336/4608 =168/4608 (iii) Mst.Khan Bano.(mother) = 4/24 of 336/4608=56/4608 (iv) Mst.Saidan (sister) = 5/24 of 336/4608=70/4608 The grand total of the shares of heirs. of Allah Ditta comes to:‑

(i) Mst. Allah Rakhi (widow) 288/4608+42/4608=330/4608 (ii)Mst.Sudhi (daughter) 1152/4608+168/4608=1320/4608 (iii) Mst. Khan Bano (mother) 384/4608+56/4608=550/4608 (iv) Mst.Saidan (sister) 480/4608+70/4608=550/4608 Mst. Khan Bano and Mst.Saidan also inherit 1224/4608 and 168/4608 from the estate of Noora. Their total share in the property comes to: ‑

(i) Mst. Khan Bano 1224/4608 +440/4608 =1664/4608 (ii) Mst.Saidan 158/4608+550/4608=718/4608 On the death of Mst.Khan Bano on 1‑11‑1921 her 1664/4608 share devolves on her heirs as under:‑

(i) Mst. Saidan 832/4608 (daughter). (ii) Sudhi (son's 278/4608 daughter) 1/6 of (iii) Allah Dad 554/4608 (Collateral). 2/6 of Mst. Khan Bano's share devolves on Allah Dad because according to pedigree table. produced . by respondents Nos. 13 to 16, alongwith their statement of shares, Allah Dad died in 1936 after the demise of Mst. Khan Bano while Mowaz, his brother died in the year 1914 i.e. prior to the death of Mst. Khan Bano. Allah Dad therefore, excludes the heirs of Mowaz. Mst.Saidan's total share thus comes to 1550/4608 share. Mst.Saidan died on 2‑6‑‑1924; and is ultimately succeeded by the appellants, who would inherit her entire share i.e.1550/4608. Mst.Allah Rakhi died on 1‑2‑1962 and her 330/4608 share as per above, devolves on her following heirs:‑ (i) Mst. Sudhi 330/4608=165/4608 (daughter) of (ii) Mirza (brother) 2/3 of = 216 of 330/4608=110/4608 (iii) Mst.Mukhan 1/3 of (sister). 1/6 of 330/4608 = 55/4608 Mst.Sudhi inherited 1320/4608 share and 27814608 and 16514608 shares. Her total share thus comes to 176314608 which devolves on Mst.Irshad Begum and others respondents Nos.l to

5. Mirza inherited 110/4608 share. He died during the pendency of suit and his share would devolve on his heirs namely respondents Nos.6 to 8, 11 and

12. Mst.Mukhan inherited 55/4608 share under above. She also died during pendency of the suit and her share would devolve on her heirs namely respondents Nos.9 and

10. Allah Dad inherited 288/4608 share under above from the estate of Noora and 55414608 share from the estate of Mst.Khan Bano. His total share comes to 842/4608 which would devolve on respondents Nos.13 and

14. Mowaz inherited 28814608 share from the estate of Noora. The said share would devolve on his heirs namely respondents Nos.15 and

16. In nutshell the respective shares of the parties to the present appeal are as under (1) Appellants = 155014608 (2) Respondents No.1 to 5 = 176314608 (3) Respondents Nos.6 to 8 and 11 and 12. = 110/4608 (4). Respondents 1‑4os.9 & 10 =5514608 (5) Respondents Nos.13 & 14 = 84214608 (6) Respondents Nos.i5 & 16 =288/4608 'total: = 4608 shares In view of the above calculations, the shares of the parties. The appeal is allowed. The judgment under are declared according1y appeal is set aside and the modified shares of the parties are settle as above. No order as to costs. M.I . / K‑64/ S Appeal allowed.