P L D 1974 Peshawar 7 (PLP)

5/24 Since Mst. Muntaha had sold to Ghulam Sarwar and Muhammad Akbar more land than that to which she was held entitled, Ghulam Sarwar and Muhammad Akbar were held to be entitled to her share which was described as 1/24. The two daughters of Abdul Karim, namely Mst. Bibi Rokhana and Mst. Awal Jana alongwith the other heirs of Abdul Karim were held entitled to 5/24 share mentioned above of Abdul Karim, The two appeals were thus disposed of.

12. Here I may mention that the ultimate findings of the learned Additional District Judge regarding the shares are very much confused. The decree of the lower Court in Suit No. 179/1 was regarding the 7/16th share of the whole property only in favour of Mst. Bibi Rokhana as the heir of Mst Awal Jana had been made defendant. When the learned Additional District Judge held one of the daughters entitled to 7/16th share in half of the property, the judgment and decree in Suit No. 179/1 should have been amended and a decree for 7/32th share in the whole of the Khasra Numbers granted in favour of Mst. Bibi Rokhana. The learned Additional District Judge, has, however, maintained the judgment and decree in Suit No. 179/1. In the Second Suit No. 181/1, the learned Additional District Judge has granted a decree for 2/3rd or 16/24th share of the Khasra Numbers in favour of the plaintiffs namely Mst. Bismillah Jan and others, the daughters of Abdul Qadeer, despite the fact that the Khasra Numbers belonged one-half to Abdul Qadeer and one-half to Abdul Karim. The plaintiffs in this suit could not, therefore, be granted a decree for more than 2/3rd of one-half share, that is to say, 1/3rd share of 8/24th share of the Khasra Numbers. The share of Mst. Muntaha in this," Suit No. 181/1 has been held to be l/24th to which Ghulam Sarwar and Muhammad Akbar have been held entitled but this share should have been 1/8 or 3/24 and not 1/24 and that too in one-half share of the Khasra Numbers as the widow of Abdul Qadeer. The heirs of Abdul Karim have been held entitled to 5/24th share the this Suit No. 181/1, where as they should have been held entitled to 5/24th share in one-half of the Khasra Numbers which belonged to Abdul Qadeer. Furthermore Mst. Muntaha was also one of the Muhammadan Law heirs of Abdul Karim in the property inherited by Abdul Karim from Abdul Qadeer and that share too should have been ordered to have gone to Ghulam Sarwar and Muhammad Akbar which has not been done.

13. Be that as it may, three appeals have been filed against the judgments and decrees of the learned Additional District Judge in both the suits, one by Mst. Bibi Rokhana questioning the granting of a decree for 16/24th share of the suit land in Suit No. 1:81/1, the second by Mst. Bismillah Jan and her two sisters praying for a decree for the whole of the land is this suit and a third by Mst: Bismillah Jan and her two sisters along with Ghulam Sarwar and Muhammad Akbar praying for the dismissal of Suit No. 179/1 of Mst. Bibi Rokhana. This order will dispose of all the three appeals. Mr. Peer Bakhsh Khan, Advocate for the appellants in Appeals Nos. 225 and 288 and Mr. D. M. Kamil, Advocate for the appellants in Appeal No. 244 heard and the record perused.

14. There is no dispute between the parties that the whole of the property in both the suits belonged to Abdul Karim and Abdul Qadeer brothers in equal shares. This is also evident from the revenue record on file reproduced in paras 1 and 2 of this judgment. There is also no dispute between the parties that Mst. Muntaha became the limited owner of the share of Abdul Karim and Mst. Bismillah Jan the limited owner of the share of Abdul Qadeer. This is also evident from the revenue record on file described in paras 3 and 4 of this judgment. The findings of the learned Additional District Judge to the effect that Mst. Fakhro wife of Abdul Karim was the full owner of the property of Abdul Karim is not correct. Mst. Fakhro died during custom and her husband Abdul Karim was her sole heir under custom and her property, therefore, rightly Went back to her husband Abdul Karim vide Mutation No. 58 attested on 30-8-1932. This position was also held to be correct by the Court of the Judicial Commissioner in a suit between the parties. (Certified copy of the judgment Exh. D. W. 1/1 in this connection is on file).

15. Now so far as the half share of the property in dispute belonging to Abdul Karim is concerned, counsel for the parties could not dispute the position that Mst. Muntaha was its limited owner and that on her death in 1959 it was to be divided according to Muhammadan Law as the property of Abdul Karim. Now Abdul Karim on his death left behind the following heirs:-- Mst. Bibi Rokhana and Mst. Awal Jana daughters. Mst. Muntaha and Mst. Firdaus Jana widows. His property was, therefore, to be inherited by his heirs as follows:- Mst. Bibi Rokhana daughter 32/96=(10/96 by return)=42/96 Mst. Awal Jana daughter 32/96=(1.0/96 by return)=42/96 Mst. Muntaha widow 6/96 and Mst. Firdaus Jana, widow 6/96 The share of Mst. Muntaha is to go to Ghulam Sarwar and Muhammad Akbar as she had sold to them more land than that to which she was entitled.

16. Now coming to the half share of Abdul Qadeer in the property in dispute, there is a serious contest between the parties. Mst. Bismillah Jan was the limited owner of this share in 1933 when she got married. On her marriage her limited interest came to an end and this property was mutated in the name of Mst. Muntaha vide Mutation No. 114 attested on 24-4-1933 again as a limited owner. The dispute between the parties starts at this stage. The contention of Mr. Peer Bakhsh Khan, Advocate is that this property was mutated in the name of Mst. Muntaha as the widow of Abdul Qadeer, while the contention of Mr. D. M. Kamil, Advocate is that this property was mutated in the name of Mst. Muntaha as the widow of Abdul Karim. Elaborating his contention Mr. Kamil alleged that when the limited interest of Mst. Bismillah Jan came to an end, Mst. Muntaha was no longer the widow of Abdul Qadeer having already married Abdul Karim and the property reverted to Abdul Karim as the heir of Abdul Qadeer under custom, as Abdul Karim was alive at the time of the death of Abdul Qadeer, and that as such the property was mutated in the name of Mst. Muntaha in 1933 as the widow of Abdul Karim. The only point in dispute between the parties, therefore, is as to whether the said property was mutated in the name of Mst. Muntaha as the widow of Abdul Qadeer or Abdul Karim. Incidentally for this purpose it is essential to determine whether, on the termination of the limited interest in 1933 on the marriage of Mst. Bismillah Jan, the property of her father in her name could be inherited by her uncle Abdul Karim under custom when he was dead by that time, but when he had been alive at the time of the death of Abdul Qadeer.

17. In this connection Mr. Peer Bakhsh Khan, Advocate referred to a number of authorities of the various High Courts, but I need not mention these here as these were with respect to the application of the Muslim Personal Law (Shariat) Application Act. One of them namely that reported in Mst. Amiran and another v. Nadara and 2 others (P L D 1958 Lah: 448), had some relevancy but then on going through it, it transpired that it too had no relevancy. There Mehdi for whom status as last male owner was claimed was not at all a customary heir of his father Chughatta, as he had pre-deceased his father. In the instant case, however, Abdul Karim was alive at the time of the death of the last male owner Abdul Qadeer. The said authority is, therefore, of no avail.

18. No direct authority on the point could be cited by counsel for the parties and reliance has, therefore, to be placed on the interpretation of Answers to Questions 41, 50 and 61 of the Lorimer Customary Law of the Peshawar District, which was referred to by both the counsel. These Questions and Answers are reproduced here for convenience:- Q. 41.-Rights of widows, sons, daughters, brothers and other relatives. Ans. 41.-Sons, grandsons or others male lineal descendants exclude all other heirs. In the absence of male lineal descendants, widows, after widows, daughters, after daughters, sisters, and after sisters, mother, are entitled to possession of property for life or till marriage or re-marriage. After the above named, the succession passes to the collaterals. Q. 50-Devolution of the inheritance where there are no male lineal descendants, but a widow or widows, and either a daughter or daughters or brothers or their descendants, or uncles or their descendants, or grant uncles or their descendants. Ans. 50.-The Halimzai and Tarakzai Mohmands stated that women could not in any circumstances inherit, but would only receive a subsistence allowance from the heirs. The other tribes stated that in the absence of male lineal descendants the inheritance would pass to the widow or widows, or failing a widow to the daughter or daughters. In these cases the interest would be one for life or till re-marriage of widow or marriage of daughters only. In the case described in the question, failing widows and daughters, the estate would pass to brothers or their descendants; failing those to uncles or their descendants; failing these to grand uncles or their descendants. Only among the Saiyads of Peshawar city there appeared to be doubt as to whether widows or daughters could inherit. or could merely clam to be supported by the heirs. Q. 61.-Devolution of inheritance in absence of male lineal descendants, widows and daughters. Ans. 61.-In the absence of male lineal descendants widows and daughters the inheritance passes to the father, or if there is no father to the mother, or in the absence of both parents to collaterals through the father, i.e. to brothers, nephews, etc. In the absence of parents and collaterals through them, the estate passes to the grandparents and collaterals through them. The succession of an ancestor or distant collaterals in the absence of near collaterals is regulated by the same principle, viz., the nearer (those connected with the deceased through a less distant ancestor) exclude the more remote.

19. There could be no serious dispute regarding the fact that in 1933 when the limited estate of Mst. Bismillah Jan daughter of Abdul Qadeer came to an end Mst. Muntaha was not the widow of Abdul Qadeer. Her status as widow of Abdul Qadeer had terminated on her marriage with Abdul Karim in 1920. That status was not and could not be revived. In 1933 Mst. Muntaha could, therefore, only be treated as the widow of Abdul Karim. The property belonging to her former husband Abdul Qadeer could not, therefore, be legally inherited by her as a limited owner. There is no doubt that Abdul Qadeer died in 1920 when his brother Abdul Karim was alive, but the inheritance of Abdul Qadeer did not open in 1920 as limited interests intervened. In fact it opened in 1933 when all the limited interests which intervened, came to an end and in 1933 Abdul Karim was not the heir of Abdul Qadeer under custom as he had by then died. The property of Abdul Qadeer did not, therefore, go to Abdul Karim and it could not therefore, be inherited by Mst. Muntaha as a limited owner, even of Abdul Karim. This property was, therefore, mutated in the name of Mst. Muntaha as a limited owner by a mistake. It is, however, not clear as to whether it was mutated in her name by a mistake as the widow of Abdul Qadeer or Abdul Karim. It is a pity that certified copy of mutation No. 114 has not at all been placed on file.

20. Answer to Question No. 50 mentioned above shows that in the absence of male lineal descendants and after the death of a widow or daughter the inheritance passes on to brothers or their descendants. Now it could be argued that since the word "descendants" includes both males and females and not merely males and since Abdul Karim brother of Abdul Qadeer on his death had left two daughters, namely. Mst. Bibi Rokhana and Mst. Awal Jana, the property of Abdul Qadeer was to go to them as his heirs under custom as full owners, because there was no mention of limited interest in the case of the descendants of brothers and uncles. I am, however, of the opinion that the word "descendant" in Answer to Question No. 50 refers to male descendants only and not to female descendants. This can be gathered from a collective reading of Answers to all the three Questions, coupled with the fact that under custom no female could inherit as a full owner. Answer to Question No. 41 shows that in the absence of male lineal descendants, widows, daughters, sisters and mother, the property had to go to the collaterals and the word "collaterals" does not include females. Answer to Question No. 61 shows that in the absence of male lineal descendants, widows, daughters, father and mother, the inheritance was to go to "collaterals", that is to say, brothers and nephews". Nieces have specifically been excluded and collaterals have been explained as including brothers and nephews. The daughters of Abdul Karim could nor, therefore, inherit the property of Abdul Qadeer as his customary heirs. For arguments sake even if it be assumed that they could inherit, they did not in fact inherit, as the property was mutated in the name of Mst. Muntaha as a limited owner and since the limited interest came to an end in 1959, the property was to be distributed according to Muhammadan Law and not custom.

21. There is no doubt that the property was wrongly mutated in the name of Mst. Muntaha as a limited owner as mentioned above, but since she had remained in possession as a limited owner for more than 12 years, she therefore perfected her title to the property as a limited owner by prescription in view of the authorities reported in Abdul Aziz and another v. Muhammad Khan and others (P L D 1960 Lah. 427) and Vishavanath Haibatrao Deshpande v. B Ranganath Dhondo Deshpande and others (A I R 1942 Bom. 268), and was to be treated as a limited owner. The only point that now remains to be determined is as to who was to be treated as the last full owner of this property. There is no dispute that Abdul Qadeer was the owner of this property and it has been held above that Abdul Karim never inherited this property under custom. In the circumstances Abdul Qadeer was to be treated as the last full owner of this property and it has to be distributed among his Muhammadan Law heirs, who were in existence at the time of his death in 1920.

22. In 1920 on his death Abdul Qadeer left the following heirs, who were to get his property in the shares noted against each:-- Mg. Muntaha, widow =1/8 Mst. Hussan Pari, Mst. Hussanzadgai Mst. Bismillah Jan and Mst. Amirzadgai Daughters in equal shares =2/3 Abdul Karim, brother =5/24

23. On the death of Mst. Hussan Pari in 1924 her 1/6th share was to go to her Muhammadan Law heirs as follows:- Mst. Muntaha, mother 1/6 x 1/6=1/36 Mst. Amirzadgai, Mst. Bismillah Jan and Mst. Hussanzadgai sisters 1/6 x 2/3 =1/9 Abdul Karim, uncle 1/6 x 1/6=1/36 The share of the heirs would be thus as follows:- Mst. Muntaha 3/24 x 1/36=11/72 Mst. Amirzadgai, Mst. Bismillah Jan and Mst. Hussanzadgai 1/2 x 1/9=44/72 Abdul Karim 5/24 x 1/36=17/72

24. On the death of Abdul Karim in 1933 his above mentioned 17/72th share was to go to his heirs as follows:- Mst. Muntaha, widow 17/72 x 1/16=17/1152 Mst. Firdaus Jana, widow 17/72 x 1/16=17/1152 Mst. Bibi Ukhana and Mst. Awal Jana, daughters 7/8 x 17/72=238/1152 The shares of the heirs would thus come to as follows:- Mst. Mantaha 11/72 x 17/1152=193/1152 Mst. Bismillah Jan Mst. Hussanzadgai and Mst. Amirzadgai 44/72=704/1152 Mst. Firdaus Jana Mst. Bibi Rokhana and Mst. Awal Jana 17/1152=238/1152 It may be mentioned here that the 193/1152 share of Mst. Muntaha would go to Ghulam Sarwar and Muhammad Akbar as she has sold to them more than that to which she was entitled.

25. The shares of the parties in the whole of the property in dispute, that is to say, the whole house and whole Khasra numbers in both the suits -would be as follows:-- Mst. Bibi Rokhana =42/96 in the one half of Abdul Karim plus 119/1152 in the one-half of Abdul Qadeer = 623/2304 The heirs of Mst. Awal Jana =623/2304 Mst. Mantaha 6/96 in one-half share of Abdul Karim plus 193/1152 in the one half share of Abdul Qadeer =265/2304 Mst. Firdaus Jana 6/96 in the one-half of Abdul Karim and 17/1152 in the one half of Abdul Qadeer =89/2304 Mst. Amirzadgai, Mst. Hussanzadgai and Mst. Bismillah Jan 704/1152 in the one half of Abdul Qadeer =704/2304. The 265/2304 share of Mst. Muntaha, as held above, is to go to Ghulam 'Sarwar and Muhammad Akbar.

26. The net result of the above is that Appeal No. 244 of 1966 of Mst. Bibi Rokhana is partially accepted and the judgment and decree of the learned lower Appellate Court are amended to the extent that a decree for possession of 704/2304 share of 37 kanals 4 marlas of land in Suit No. 181/1 is passed in favour of Mst. Hussanzadgai, Mst. Bismillah Jan and Mst. Amirzadgai plaintiffs against Mst. Bibi Rokhana and others, defendants. Appeal No. 225 of 1966 of Mst. Hussanzadgai and her two sisters in 'Suit No. 181/1 is dismissed, as they have been held entitled to a lesser share than that which had been decreed in their favour by the lower appellate Court. Appeal No. 288 of 1966 of Mst. Hussanzadgai and her two sisters alongwith Ghulam Sarwar and Muhammad Akbar in Suit No. 179/1 is partially accepted and the judgment and decree of the learned lower appellate Court are amended to the extent that a decree for possession of 623/2304 share: of the property in dispute in that suit is passed in favour of Mst. Bibi: Rokhana plaintiff against the defendants. The decree for possession of the house is to be treated as preliminary decree by partition. Parties to beau their own costs throughout.