P L D 1952 Lahore 230 (PLP)

M. KHURSHID ZAMAN, J.‑The suit out of which this second appeal has arisen was instituted by Mst. Khan Bibi to challenge the sale effected by her sister Mst. Munni in favour of Mst. Zado their third sister. The last male holder of the land in dispute was Ranjha, father of the parties. He died leaving surviving him his widow Mst. Bakhtan and four daughters Mst. Munni, Mst. Khan Bibi, Mst. Zado and Mst. Gullan. On his death his widow Mst. Bakhtan succeeded to his estate and on her remarriage the land was mutated in the names of Mst. Munni, Mst. Khan Bibi and Mts. Zado in equal shares. There is no explanation on the record as to how Mst. Gullan was excluded from succession, but this fact is not material to the disposal of this appeal. On the marriage of Mst. Khan Bibi, which took place in 1924, her share was also mutated in the name of Mst. Munni. Mst Munni transferred land measuring 107 kanals 3 marlas by oral sale in favour of her sister Mst. Zado for Rs. 4,

000. The mutation relating to this transaction was sanctioned on the 28th Sep tember, 1950. On the 29th October, 1950 Mst. Khan Bibi instituted a suit for a declaration to the effect that the sale effected by her sister Mst. Munni in favour of Mst. Zado should not affect her reversionary rights after the death of Mst. Munni. The plaintiff alleged in the plaint that under the custom governing the parties Mst. Munni was not com petent to alienate the land which was inherited from their father without consideration and, necessity, as she was only a life tenant, and that there was no consideration and necessity for the sale in question. Mst. Munni and Mst. Zado defendants filed written statements denying the allegation of the plaintiff that Mst. Munni was not competent to alienate the land inherited from their father or that Mst. Munni was only a life tenant. In the alternative it was pleaded that even if Mst. Munni did not inherit the land as absolute owner she had become owner of it by reason of her adverse possession for over 12 years. The allegation of the plaintiff that the sale was without necessity and consideration was also denied. It was further pleaded by the defendants that the plaintiff had no locus standi to ask for the declaration sought. The learned Judge framed the following two issues :‑‑

1. Is Mst. Munni defendant only a life tenant over the property in suit?

2. If the first issue is proved has the plaintiff any locus standi to seek for the declaration in suit? Issue No. 1 was decided against the defendants. The learned trial Judge held that the property in suit being self- acquired of the father of the parties, the daughters succeeded to it as absolute owners and not as life tenants. On issue No. 2 his finding was that since Mst. Khan Bibi was not the presumptive heir under custom she was not competent to challenge the alienation made by her sister. Having come to these conclusions he dismissed the plaintiff's suit with costs. On appeal by the plaintiff the learned District judge reversed the finding of the learned trial judge on both the issues and came to the conclusion that Mst. Munni was only a life tenant and not an absolute owner, and that the plaintiff was com petent to sue for a declaration under custom. He accepted the appeal and set aside the judgment and decree of the lower Court and remanded the case for the trial on the following issues :‑

1. Whether the defendant has been in adverse possession of the land in suit for over 12 years?

2. Whether the sale was made for necessity and, con sideration? Against this order of remand Mst. Munni alone has filed an appeal in this Court. The learned counsel for the respondents has raised a pre liminary objection that no appeal is competent against the remand order of the District Judge. The objection is based on two grounds, firstly, that the order purports to have been made under section 151 of the Code of Civil Procedure and an order made under that section is not appealable, and secondly, that Mst. Munni was only a proforma defendant and had no interest in the subject‑matter of the suit and, therefore, she had ho locus standi to maintain the appeal. So far as the first objection is concerned it is true that the learned District Judge has mentioned section 151 of the Code of Civil Procedure in his order as the provision of law under which he remanded the case for enquiry into the additional issues. In substance, however, the order is clearly one under Order XLI, rule 23 of the Code of Civil Procedure which reads as follows :‑ "Where the Court from whose decree an appeal is pre ferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re‑admit the suit under its original number in the register of civil suits, and proceed to determine the suit ; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand." To bring a case within the scope of the rule the following con ditions must exist :‑ (1) The disposal of the suit, i.e., the entire suit and not a portion of it by the lower Court ; (2) the disposal must be on a preliminary point ; and (3) the reversal of the decree by the appellate Court. In my opinion all these three conditions are present in this case. The learned trial Court disposed of the entire suit on a pre liminary point, namely, whether Mst. Munni defendant had only life tenancy in the property in suit. Lastly the appellate Court has reversed the decree of the trial Judge. I, therefore hold that the remand order is governed by Order XLI, rule 23 of the Code of Civil Procedure and is appealable under Order XLIII (1) (u) of that Code. Coming now to the second objection, the learned counsel for the respondents cited the following authorities in support of his proposition that a person who is not adversely affected by a decree cannot appeal against it Allahabad Bank Ltd Delhi v. Mrs. Lena MacDonald of Delhi, A I R 1921 Lah. 349, Shamas ud‑Din v. Allah Dad Khan, A I R 1925 Lah. 65, Nand Lal Pal v. Naresh Chandra Deb Goswami and others, A I R 1917 Pal‑. 585 and Seshayyar v. Pappuvaradayyangar, I L R (1883) 6 Mad.

185. In the first case the facts were these : Mr. J. deposited Rs. 52,000 with the Allahabad Bank Limited, Delhi, for two years in the joint names of himself and one Mrs. D. About a year later he made a will devising the whole of his property of every description to his daughter Mrs. M. Shortly afterwards he died and probate of the will was granted to Mrs. M. Mrs. M. sued Mrs. D. and the Bank for a declaration that the amount of the deposit, Rs. 52,000 belonged exclusively to Mr. J. and that she was entitled to receive it on maturity. Mrs. D. did not appear and the suit was heard against here parte. The Bank resisted the suit, but Mrs. M. was granted the declaration sought. The Bank appealed. In the course of the judgment the learned judge, who decided that case, observed: "The decree binds no one but the parties to it, and adjudi cates on nothing but the rights of Mrs. MacDonald and Mrs. Davis in the Rs. 52,000 deposit made by Mr. Jackson. The Allahabad Bank would have had to pay the money to one or other of these persons, and it cannot matter to it directly which of the two receives the Rs. 52,000' by order of a competent Court." In coming to the conclusion that the Bank was not entitled to appeal, their Lordships relied on Seshayyar v. Pappuvaraday yangar, I L R (1883) 6 Mad.

185. In that case S. sued to redeem land mortgaged to N. joining P. as a defendant because he was in possession of the land in suit. P. disclaimed all per sonal interests and stated that he was in possession on behalf of N. and asserted the mortgage to be a forgery. N. did not appear. P. was not authorised to defend the suit on behalf of N. nor did he claim to do so. The plaintiff's suit was decreed and P. appealed in his own name and on his own account. It held that P. had no locus standi to appeal. In the second case one A. D. executed a deed of sale in respect of 26 kanals 5 marlas in favour of A. K. for Rs.

500. Subsequently A. K. brought a suit for possession impleading A. D. the vendor and his brother F. D. who was joint owner in that khata, as defendants. A. D. did not put in appearance and ex parte pro ceedings were taken against him. F. D. appeared and pleaded that the sale was without consideration and necessity and asserted that the sale was void, being in contravention of the Punjab Alienation of Land Act. On these facts it was held that F. D. was not a necessary party nor was he entitled to contest the suit. It was pointed out that the land sold belonged exclusively to A. D. and‑ that the only question which arose for the determination of the Court was whether the sale deed had or had not been duly executed by the latter in favour of the plaintiff. In the third case it was held that a person, who was impleaded as a defendant in a suit for a declaration of title to and recovery of possession of certain landed property, on the ground that he had in his favour a contract to sell the property in consideration of a sum of money, which was alleged to have been received by the plaintiffs, had no such interest in the property in suit as to entitle him to maintain an. appeal. The facts of the cases cited by the learned counsel for the respondents in support of the proposition he contended for are clearly distinguishable from the facts of the present case. In each of those cases the party, who was held not to possess the right of appeal, had no personal interest either in the property, in dispute or in the result of the suit. In Krishna Chandra' Goldur v. Mohesh Chandra Saha, 9 C W N 584, Woodroffe, J.J who delivered the judgment, observed that the question whether a party is aggrieved by a decree is a question of fact to be determined in each case according to peculiar circum stances. In the case before us the decisive issue was whether Mst. Munni appellant was only a life tenant of the property in suit, and it cannot be seriously urged that Mst. Munni would not be adversely affected if this issue is answered, as it has been in the affirmative. The finding of the lower appellate Court that she holds only a life interest in the property in dispute is, an attack on her legal character which she is entitled to repel and she can only do so by preferring an appeal to this Court. The learned counsel for the respon dent also referred to pre‑emption cases in which the vendor is not regarded as necessary party to the suit. But in pre emption cases the power of the vendor to alienate the property is never in question. The learned counsel for the respondent was unable to cite any authority of this Court in which the vendor in the usual declaratory suits under custom has been denied the right of appeal. There is no force in the preliminary objection and I overrule it. On the merits, the learned counsel for the appellant con tended that in coming to the conclusion that Mst. Munni was only a life tenant, the learned District judge ignored the answers to Questions Nos. 16 and 19 of the Customary Law of the Mianwali District. Question No. 16 is in the following terms :‑ "Under what circumstances are daughters entitled to inherit? Are they excluded by the sons or by the widow, or by the near male kindred of the deceased? If they are excluded by the near male kindred, is there any fixed limit of relationship within which such near kindred must stand towards the deceased in order to exclude his daughters? If so, how is the limit ascertained? If it depends on descent from a common ancestor, state within how many generations relatively to the deceased such common ancestor must come? Answer: All tribes‑ In the presence of sons or their male descendants through males or of a widow or widows, daughters do not inherit any share. Collaterals up to 6 (among Pathans and Awans), 4 (among Jats and Biloches) and 5 (among Sayyads and Hindus) generations upwards exclude daughters, except for tenure till marriage. In the absence of collaterals within the above mentioned degrees the daughters and their descendants inherit the property absolutely." Question No. 19 reads as follows :‑ "What is the nature of the interest taken by a daughter in the property she inherits? Define her rights of alienations, if any, by sale gift mortgage or bequest. Answer: All tribes‑ When a daughter inherits her father's property‑she has full powers of alienation over it. The Hindus impose the res triction of the daughter obtaining her guardian's consent to alienation made by her." The parties are Pathans of Kamar Mushani in the tahsil of Isa Khel, District Mianwali. According to the rule of custom as laid down in answer to question No. 16 the daughters inherit the estate of their father absolutely in the absence of collaterals up to sixth degree. The learned counsel for the respondents objected to the frame of issue No.

1. He urged that the general custom in this Province being that females generally succeed as life tenants, the pups of issue No. 1 ought to have been placed on the defendants to prove that Mst. Munni was absolute owner of the property in dispute. The learned counsel, however, has overlooked the fact that the land in suit has been found to be self‑acquired property of Ranjha, and in the case of self- acquired property the general custom of the Province favours the succession of daughters in preference to collaterals. It is true that answer to Question No. 17 states that there is no distinction between ancestral and self‑acquired property so far as succession of daughters is concerned, but the value of this rule of custom, which is to be found in the riwaj‑i‑ams of almost all the districts of this ‑Province, has been completely destroyed by a number of judicial decisions in which, notwith standing the rule of custom stated above, daughters have been held to be preferential heirs in respect of self‑acquired property of their father. I am, therefore, of the opinion that the onus of issue No. 1 was rightly placed on the plaintiff. Moreover it is not open to the respondent to object to the frame of the issue at this late stage. The learned counsel for the respondent also laid stress on the fact that on the marriage of Mst. Khan Bibi plaintiff the land standing in her name was mutated in favour of Mst. Munni, vide mutation (Exhibit P. 2). He relied on this cir cumstance as showing that the sisters succeeded to the land of their father on the usual life tenure; but in my opinion if the rule of custom regarding the succession of daughters is correctly stated in answers to Questions Nos. 16 and 19, and there is no material on the record that it is not, then the fact that Mst. Khan Bibi in ignorance of her rights allowed her share to be mutated in the name of her sister on her marriage does not affect the legal position. The only thing that stands in the way of succession of daughters to the estate of their fathers as absolute owners is the existence of collaterals within the sixth degree. In the absence of any evidence to show that any such collaterals existed the daughters of Ranjha succeeded to his estate as absolute owners with unrestricted powers of alienation on the remarriage of their mother. It may be stated here that Mst. Munni is shown to be in possession of 321 kanals 8 marlas out of which she has sold only 107 kanals 3 marlas which represents her, own share in her father's estate. The plaintiff has, in my opinion, failed to prove that Mst. Munni was only a life tenant. I, therefore, hold that Mst. Munni appellant was absolute owner of the property in dispute and enjoyed unrestricted powers of alienation over it. In this view of the matter I accept the appeal, set aside the order of remand of the learned District Judge and restore the judgment and decree of the learned trial Court dismissing the plaintiff's suit. In the circumstances of the case the parties are left to bear their own costs throughout. A. H. Appeal accepted.