2002 PLP 3209 (YLR)

(3) Whether the suit is bad for multifariousness? (4) Whether the suit is bad for non joinder of necessary parties? (5) Whether the plaintiff is estopped by his conduct of file the present suit? (6) Whether the property is not correctly described if so, what is the correct description? (6‑A) Whether Mst. Saro was holding the land as maintenance holder, if so its effect? (7) Whether the plaintiff is entitled to the possession of any share in the suit land? (8) Whether Mst. Bhari was daughter of Choohra and died after the latter's death? If so, its effect? (9) Whether the Mst. Mahri is daughter of Mst. Bhari if so, its effect? (10) Whether the Mst. Rajo and Mst. Saro were limited owners, if so its effect?. (10‑A) Whether the land in dispute was ancestral, if so its effect? (11) Relief. Evidence of the parties was recorded. Learned Trial Court decreed the suit vide F judgment and decree dated 4‑2‑1991.

4. Learned counsel for the appellants argues that in the first instance Kashu the husband of Mst. Saro had not predeceased Choohra rather was alive when Choohra died and in the second in any case Mst. Rajo having died before the promulgation of Muslim Personal Laws (Shariat) Application Act, 1948, she is neither to inherit her father nor her brother that so far as the respondent No. 1 is concerned, he is not proved to be the son of said Mst. Rajo. Additionally Mrs. Farzana Shahzad, Advocate, argues that provisions of Act IX of 1948 or for that matter of Act V of 1962 are not retrospective while Mr. Nasrullah Warriach, Advocate, has also pressed the objection of limitation relying upon the case of Muhammad Ali and 25 others v. Hassan Muhammad and 6 others (P.L.D 1994 SC 245) Learned counsel for respondent No.1 (decree‑holder) on the other hand argues that with insertion of section 2‑A in Act V 1962, the provisions take effect retrospectively from a point of time before the promultation of Act IX of 1948. Further contends that the relationship of his client with Rajo stands admitted in pleading as well as in course of evidence.

5. We have examined the Trial Court records with the assistance of learned counsel for the parties. There is no dispute at all that on the death of Choohra the land was mutated in favour of his daughter Rajo and widow of his son Kashu, namely, Mst. Saro vide Mutation 10 attested on 10‑6‑1907. This fact stands admitted in the written statement filed by Rehman appellant who in fact insists that Kashu had pre‑deceased Choorha. So far as Rehman appellant is concerned, he and his co‑defendants did not specifically deny the said fact in the written statement. It is also admitted fact that on marriage of Rajo her limited estate was also mutated in favour of Mst. Saro widow of Kashu. It is but obvious that the revenue officer dealt with matter of Mutation No.390 attested on 20‑11‑1965 on the assumption that Mst. Saro held the limited estate of her husband i.e. the estate was to be treated to be that of Kashu son of Choohra and not of Chophra. However, according to the death entry Exh.D.3 to Exh. D.7/3 Choohra is recorded to have died on 28‑2‑1907 while according to the death entry Exhs. D.3 to D.7/4 Kashu is stated to have died on 5‑3‑1907. These documents have been discarded by the learned Trial Court because these were not properly proved by producing the original records. To our minds, in view of. the other evidence on record the learned Trial Court has rightly refused to take into consideration the said documents. To begin with it is admitted on all hands that on the death of Choohra Mutation 81 was attested and land was mutated in favour of Mst. Saro as widow of Kashu and also Rajo daughter of Choohra. In case Kashu was alive when Choohra died, there was no question of land being mutated in favour of any of the said ladies on the death of Choohra. No gain saying the fact that Mst. Saro was given the land as widow of Kashu on the death of Choohra. This was also not possible if Kashu was alive when Choohra died. Learned counsel for the appellants argues that there was difference of few days in the date of death of father and‑son. Even if one concedes the said fact, then in the absence of any plea or proof of custom to the contrary Rajo sister of Kashu could not have been given any land alongwith the widow of Kashu. Then is the matter of transfer of limited estate of Mst. Rajo on her marriage in favour of Kashu. Above all the witnesses produced by the contesting defendants themselves have stated that Kashu predeceased Choohra. This is the statement made by Fateh Muhammad D.W.1 aged 90 years and, Lal Khan D.W.2. Rehmat Khan appellant of course stated that Kashu died after 5/7 days after the death of Choohra but he says his age on 20‑11‑1986 when they made the statement was 70/75 years. Both the persons thus died even before his death. Having thus considered the evidence on record we are in agreement with learned Trial Court that Kashu had predeceased Choohra and that it was succession to the estate of C Choohra which opened upon termination of limited estate of Saro widow, of Kashu. Thus Choohra was the last male owner of the land and by virtue of section 2‑A added to Act‑V of 1962 by the Punjab Ordinance XIII of 1983, it shall be deemed that he inherited the land under Muslim Personal Law. At this stage we deem it proper to deal with the said contention of Mrs. Farzana Shahzad, Advocate, the provisions of Act‑V 1962 are not retrospective. The contention is without force. On the very letter of said law it had been made applicable w.e.f. a point of time before the promulgation of Act IX of 1948 and it was so held in the case of (P.L.D. 1985 SC 407) that the provisions are to take effect retrospectively. Thus Mst. Rajo who was alive when Choohra died would be. entitled to inherit share in the estate of her father while the remaining share goes to the collateral i.e. Rehman appellant and his brother Gama.

6. So far as the controversy as to whether or not Muhammad plaintiff/ respondent was the son of Mst. Rajo is concerned, we do not find much dispute thereto in the course of evidence as also pleadings. So far as Rehman appellant is concerned, he has admitted the correctness of pedigree‑table drawn in the plaint wherein Muhammad respondent has been shown to be son of Rajo. The only objection taken is that there was another daughter of Choohra as well who had not been shown in the pedigree. However, this latter plea appears to have been given up in the course, of evidence. Muhammad appeared as P.W.3 and has stated that Mst. Rajo was his mother who was daughter of Choohra; that he had only one uncle Kashu who predeceased his grand father. He has then stated that Gama son of Boora (defendant No.1 in the case) is his father. He was cross‑examined by the learned counsel for Rehman appellant and said statement was not questioned. On behalf of Rehmat appellant and his co‑defendants it was suggested that his mother was Philan. This suggestion of course was denied. Now the said Gama appeared as P.W.4 and stated that he is 100 years of age (his statement was recorded on 3‑9‑1986); that Rajo was his wife and that Muhammad plaintiff is his son. He was cross‑examined on behalf of his brother Rehman appellant but this portion of his statement was not questioned. Then he was cross‑examined on behalf of Rehmat appellant and his co‑defendants. Not a single question was put to question the said statement. Fateh Muhammad D.W.1 has admitted that the plaintiff is son of Gama. He, however, stated that the mother of plaintiff/respondent was Philan. As stated by us above Gama appeared in the witness‑box and it was not even put to him that he was married to some Philan when admittedly the plaintiff is the son of said Gama. So far as Lal Khan D. W.2 is concerned he stated that Gama is father of the plaintiff but he floes not know about his mother. Rehman Khan appellant has opted to remain silent in this matter while appearing as D.W. It thus stands established on record rather admitted that Muhammad plaintiff was son of Mst. Rajo the daughter of Choohra. This being so he was entitled to share in the estate of Choohra in terms of section read with section 2‑A of Act V of 1962.

7. So far as the objection of Mr. Nasrullah Warriach, Advocate, as to the suit being time‑barred is concerned, suffice it to say that Mutation No. 390 attested on 20‑11‑1965 and consequent Mutation 61 attested on 28‑8‑1971 are wholly void. There is thus no question of any limitation running against the said mutation. Be that as it may, this is, suit for possession. The succession opened on 31‑12‑1962 and suit having been filed on 16‑10‑1974 is well within time. Objection is accordingly rejected.

8. Learned counsel have addressed us on Issues Nos. 7 and 2, other issues have not been questioned. Accordingly findings of the learned Trial Court on all issues are confirmed. Resultantly both the R.F.As. are dismissed, leaving the parties to bear their own costs. H.B.T./R‑142/L Appeal dismissed.