P L D 1970 Lahore 730 (PLP)

Malik Saeed Hassan for Appellants. Respondents Nos. 1 and 2: Ex parte. Sardar Ata Ullah for Respondent No.

3. Dates of hearing: 9th and 16th January 1970. K. E. CHAUHAN, J.‑--The land in dispute is situated in village Tarkwal, Tehsil Gujarkhan, District Rawalpindi. It belonged to Mehmad son of Abdullah who was a Mughal by caste and was governed in matters of succession and alienation by Customary Law. He died in the year 1908 without an issue. One‑half of his estate was mutated in the name of his mother Mst. Ghulam Bi and the other half in the name of his widow Mst. Sharfo (defendant No. 1) in lieu of maintenance. Mst. Ghulam Bi (the mother) died in year 1946 and the portion left by her was also then mutated in the name of the widow Mst. Sharfo. In this way, Mst. Sharfo succeeded to the entire estate of her husband under Customary Law. By means of Mutation No. 1, dated 29‑1‑1958, the widow gifted away one‑fourth share of the land aforesaid in favour of defendants Nos. 2 and 3, namely, K hudadad and Nawab sons of Fateh Muhammad. The plaintiffs (i) Ghulam Abbas, (ii) Ghulam Hussain, sons of Jahana and (iii) Noor Khan son of Samand Khan, claiming to be the collaterals of the last full owner, namely, Mehmad, filed a suit on the 26th of February 1958, for a declaration that the alienation made by Mst. Sharfo defendant No. 1, in favour of the other defendants was against law and custom; without consider ation and necessity and was ineffectual against the rights of the plaintiffs after the re‑marriage or death of the donor Mst. Sharfo.

2. The defendants filed a joint written‑statement in which it was admitted that Mst. Sharfo had succeeded to the land in question in the manner hereinbefore mentioned under custom. It was also admitted that plaintiff No. 3 Noor Khan was a collateral of Mehmad. On merits, it was pleaded that the alienation in dispute was, as a matter of fact, in the nature of acceleration of succession whereby the widow had surrendered her rights in favour of the donee‑defendants and was, therefore, valid under Custom. On the pleadings of the parties the following issues were framed by the learned Civil Judge, Rawalpindi:- (1) Is the gift valid under custom? (2) Does the gift operate in acceleration of succession and what is its effect? (3) Relief.

3. Holding that no evidence had been led by the defendants to prove that Mst. Sharfo could, under Custom, alienate the property of her husband in the way she had done, the learned Civil Judge found Issue No. 1 against the defendants. On Issue No. 2, he held that the alienation in dispute did not amount to acceleration of succession inasmuch as it pertained only to a part of the property and was not in favour of heirs. After giving these findings, the learned Civil Judge, by means of his judgment and decree, dated 9‑12‑1958, decreed the plaintiffs' suit with costs.

4. The defendants filed an appeal but without any success as the same was dismissed by the learned District Judge, Rawalpindi, on 30‑5‑1959. The defendants have come up in second appeal to this Court.

5. During the pendency of the appeal, Mst. Sharfo died and on an application (C. Misc. No. 594‑C/59), her legal representatives (a) Khudadad; (b) Nawab and (c) Mst. Amiran, wife of Ghulam Hussain, were brought on record by order of the Deputy Registrar, dated 18‑11‑1959, subject to all just exceptions.

6. In the course of arguments, findings on the issues, hereinbefore mentioned, have not been challenged before us and it has been conceded that the alienation in question neither amounted to acceleration of succession nor was it otherwise valid according to custom. The point which was raised by the learned counsel for the appellants was that Mst. Sharfo, the alienor, having died on 7‑10‑1959, her succession was to be regulated according to section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act IX of 1948 (hereinafter called the Act). It was contended that the alienation in dispute should be held valid at least to the extent of the share which had to go to the alienor after the termination of her estate in this case on the principle of "feeding the grant by estoppel". A perusal of the section, hereinbefore mentioned, would show that when the life estate of a widow terminates by death, then her notional share is to go to her heirs and cannot be utilised for the purpose of invoking the principle of "feeding the grant by estoppel". The point is concluded by a decision of the Supreme Court in Said and others v. Fazal Hussain and others (P L D 1959 S C (Pak.) 356) and the discussion, therefore, need not be carried any further.

7. The next point argued was that the plaintiffs were not rue collaterals of Mehmad the last full owner. The contention has no force. So far as plaintiff No. 3 Nur Khan is concerned, it was specifically admitted in the written‑statement that he was a vakjaddi of Mehmad. As regards the others plaintiffs, it was admitted by Khudadad defendant No. 2, who appeared as D. W. 1 that they and the plaintiffs were collaterals of the father of Mst. Sharfo and that after the death of the father of Mst. Sharfo his estate was divided between them and the plaintiffs. Defendants Nos. 2 and 3 in their statements, dated 9‑12‑1958, admitted that Mehmad was phuphizad of the plaintiffs and that the father of Mehmad was their mother's maternal uncle. In the face of this evidence on the record, and in view of the fact that neither any specific issue was claimed by the defendants on such a point and nor was it advanced during the course of arguments in the two Court below, the plea raised by the learned counsel cannot be given any serious credence 18 at this stage. Learned counsel, however, argued that the plaintiffs were remote reversioners and, therefore, were not entitled to the declaratory relief prayed for by them. It is well settled that in case of alienation by females, the remoteness of a reversioner is of no significance. See Syed Khadam Hussain and others v. Syed Muhammad Hussain and another (A I R 1941 Lah. 73), Mandir Gita Bhawan Shiri Kurukhsetra Jiran Uddar Kuru Khsetra v. Sadhu Ram and another (A I R 1939 Lah. 554), Lehna and II others v. Kishan (78 P R 1888), Prem Singh and others v. Mt. Ramon and another (11 P R 1888) and Kutb‑ud‑Din and 3 others v. Mst. Umri and another (18 P R 1887).

8. It was then argued that the Customary Law collateral could not file a suit for declaration regarding alienation of the present kind that is of a post Shariat Act Period) by a female who had succeeded under Custom, and that a right to challenge alienations now vested only in the Muslim Law heirs. Then objection was repelled in Mst. Shahzadan Bibi and others v. Amir Hussain Shah (P L D 1956 S C (Pak.) 227), where at page 237, the following, observations were made:- "It might be that a person entitled to challenge under custom the alienation by a female with `Limited rights', might himself cease to be the immediate heir under personal law. This should not make any difference. His action to preserve the property or to clear away the cobwebs sought to be created by unauthorised alienation would be for the advantage of all those who would take a share on the termination of the `Limited interest'. It is needless to point out that a suit for a declara tion is of a representative character and the decree granted in the suit simply ensures that on the termination of the interests, of the alienor, the reversionary interests shall not suffer at all or only to such extent as the decree directs. The peculiar nature of the `Limited ownership' of a female under custom, carries with it its own inhibitions." To the same effect is Muhammad Asghar Shah v. Muhammad Gulsher Khan and another (P L D 1949 Lah. 116) where it was held, that the West Punjab Muslim Personal Law (Shariat) Application Act IX of 1948, did not have the effect of destroying the right of the Customary-Law‑Collaterals to obtain a declaration with regard to alienation made by persons who had succeeded under Customary Law as Limited owners. In view of the above authorities of high value, contention raised by the learned counsel cannot be accepted.

9. The last point argued was that since during the pendency, of this appeal, Mst. Sharfo, the alienor, has died and as the actual succession has opened out, therefore, the present suit, which was confined to a mere declaration, has become infructuous and should be dismissed as such. The contention has no force. It was held in Hurmat Ali Shah v. Tufail Muhammad and others (A I R 1935 Lah. 332) that opening out of succession during the pendency of a suit, was no bar to grant a declaratory decree inasmuch as causes of action for obtaining declaration or for obtaining possession as an heir were altogether different. The aim of the present suit is to obtain a declaration and if a subsequent suit is filed to obtain possession as an heir that will be decided on its own merits. Also see Said and others v. Fazal Hussain and others (P L D 1959 S C (Pak.) 356).

10. No other point was argued before us.

11. The upshot of the above discussion is that this appeal has no merits and is dismissed with costs throughout. A.E./S. A. H. Appeal dismissed.