P L D 1965 Supreme Court 33 (PLP)

B. Z. KAIKAUS, J.‑This appeal raises a question of inheritance with respect to the estate which was held by a female under customary law. For an appreciation of the point involved it is necessary to refer to the pedigree‑table of the parties which is as follows: GUL __________________________|_______________________ | | | Allah Yar Hashu Massu | | | Sada Changu | | | | Mahlo Muhammad | | | Mst. Bakho | (married 1910) | _________________________| ________________________|______________________ | | Mst. Bego‑Mada Jada‑Mst. Khatun (died 1917) (died 1907) | | |____________________ | ______________|______________ | | | | Qadri Bahaduri | (died about 1904) | ______________________| ________________________|____________________ | | Taja Raja ‑ Mst. Rahmon (died 1904) (died 1904) - (died 1949) | Mst. Bano The dispute relates to the property which was originally belonged to Gul and had been inherited by his descendants. It is situate in village Deowal, Bhalwal Tehsil of Shahpur district. The parties were before the Muslim Personal Law (Shariat) Application Act (IX of 1948) came into force governed in matters of succession by agricultural custom. In 1904 in an epidemic Taja, raja, Bahaduri, Qadri and Muhammad shown in the pedigree‑table died. The pro perty of Taja who died childless and without a widow went to his mother Mst. Khatun, the property of Raja went to his widow Mst. Rehmon, the land of Qadri and Bahaduri was inherited by Mst. Bego their mother and the land of Muhammad was inherited by Mst. Bakho his unmarried daughter. The estate held by these female heirs was the life estate of a widow under customary law in 1907 Mst. Khatun died and her share went to fist Rehman the widow of Raja. Mst. Bakho was married in 1910 and the land it her possession was inherited half by Mst. Rehmon and half by Mablo son of Sada. Mst. Bego died in 1917 and the land in her possession went to Mst. Rahmon alone. In this way Mst. Rehmon became possessed though only in life estate of the whole of me land which belonged to the line of Massu and half of the land which belonged to the line of Hashu. Mst. Rehmon died in 1949, after the coming into force of the Muslim Personal Law (Shariat) Application Act (IX of 1948). A dispute then arose between Mahlo son of Sada the respondent in this appeal and Mst. Bano the daughter of Raja, the appellant, with respect to inheritance to the property which was in the possession of Mst. Rehmon. Mst. Bano claimed that as Mst. Rehmon had come into possession of property as the widow of her father Raja, the whole of the property should be regarded as the property of her father and she should have her share under Shariat in the whole of this property. Mahlo son of Sada contended on the other hand that it is only with respect to property which actually belonged to Raja that Mst. Bano could lay claim as a daughter. The Collector decided the mutation in favour of Mahlo at which Mst. Bano filed the suit out of which this appeal arises for a declara tion of her right. The trial Court decreed the suit, but on appeal the High Court set aside the decree and held that Mst. Bano was to be given the share of a daughter under Muslim Law only with respect to the land actually owned by her father. Although we have referred to the facts in detail the point for decision is a simple one. Mst. Rehmon had succeeded to the land which did not belong to her husband in collateral succession, that is, she had succeeded as the representative of her husband though she received only a life estate. On the termination of her estate should the property which she inherited by collateral succession be regarded for further succession as the property of her husband or should it be regarded as the property of the last full owner from whom it had passed to the females. The answer to this question depends on the interpretation of section 3 of the Muslim Personal Law (Shariat) Application Act which is reproduced below: "

3. 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 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 of such persons 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 remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death." Mst. Rehmon was admittedly a "limited owner under the customary law" within the meaning of this section, and on the termination of her interest the property has to devolve on the persons who would be entitled to inherit it if the kiuslim Persona Law (Shariat) Application Act was applicable at the time of the death of the last full owner. We are concerned here not with the property left by Raja, there being no dispute with respect to it, but with the property which was owned by Taja, Qadri, Bahaduri and Muhammad and prima facie they were the last full owners and it is their heirs at the time of their death in accordance with Musli law that have to be determined. The Courts below have decide the case on this basis. The contention, however, of learned counsel for the appellant is that the last full owner in section 3 should be regarded not as referring to the person who actually was the last full owner, but to the person with reference to who inheritance would be reckoned at the death of the limited owner if inheritance was governed by custom. It is urged teat whateve was inherited by Mst. Rehmon became an accretion to the estate of Raja her husband and reliance is placed on the rule of customary law that when a widow who had collaterally succeeded dies or remarries then the estate devolves not on the heirs of the last male holder, but on the heirs of her husband. The Legislature has used the words "last full owner" in section

3. These words would ordinarily refer to the person who in fact was the last full owner. The Legislature, which was applying Muslim Law to cases of succession to persons who were previously governed by customary law had to provide for the situation that there was a large number of females with limited estates whose estate could terminate by death or marriage and they did not possess any heritable estate. The wording of section 3 shows that the Legislature allowed inheritance to take place on the termination of the limited interest as it would have taken place if the Muslim Law was applicable when the last person who left a heritable estate died. Learned counsel for the appellant, however, asks us to take two steps in order to reach a conclusion in his favour. The first step is that we should in place of the words "last full owner" read "last male holder". The second step is that we should accept the words "last male holder" as a phrase which has a special connotation in customary law and includes the person with reference to whom inheritance is to be reckoned. No good ground exists for taking either of these steps. Had the intention of the Legislature been that on termination of the limited interest property was to devolve on the heirs of the person inheritance was to be reckoned if customary law was applicable, it would have been easy to say so. It may be pointed out that even if we were to read "last male holder for the words "last full owner" the situation would not be improved in favour of the appellant. It, is not correct that in customary law the words "last male holder" refer to the husband of the widow who has succeeded collaterally. In this connection one may usefully refer to the case Mst. Gango and others v. Mst. Hukam Kaur and others (A I R 1938 Lah.111) wherein the rule of succession under customary law propounded by the appellant was accepted. The learned Judges said in that case : "But assuming that this was so, the next question that arises is whether on Mst. Hukam Kaur's death it is the heirs of her husband who have to be traced or the heirs of the last male holder Bur Singh. On the point which is by no means free from difficulty, we have fortunately two authorities to guide us. One is Civil Appeal No. 1090 of 1912 (Ramal Devi's case) where the same point arose for decision, namely, whether .in a case where a widow ha succeeded collaterally as it is called after her death, the heir of her husband are to be brought or the heirs of the last male holder of the property." It will be observed that the distinction is between the "last male holder" and the "husband". The words "last male holder" definitely refer in this passage only to the person who actually held the land and not to the husband. In the head note of this case also it is said that on the death of a widow who has succeeded collaterally property passes to the heirs of the husband and not to the heir of the last male holder. The paragraph which we have reproduced above was quoted with the approval by another Division Bench of the Lahore High Court in a case reported as Akhtar Abbas v. Nazar Abbas (A I R 1946 Lah.10). So it is not an accepted proposition o the customary law that the words "last male holder" include reference to the husband of the widow who has succeeded collaterally. This appeal is dismissed but there is 4 order as to costs. A. H. Appeal dismissed.