2000 PLP 1943 (CLC)

8. Ch, Khurshid Ahmad, learned counsel for the petitioners contends that the suit of the respondent was hopelessly barred by time, therefore, liable to be dismissed on this ground alone. At the time of death of Lehna, 'Muslim Law of Inheritance was not applicable and Atta Muhammad inherited the property as full owner, under the custom and under section 2‑A inserted in Shariat Application Act, 1962 it stands protected as full owner. He further argued that the impugned Mutation No.430 was correctly attested and the learned Appellate Court erroneously reversed the well‑reasoned findings of the lower Court and illegally accepted the appeal of the respondent. He mainly relied upon section 2‑A and portion of Supreme Court judgment, Abdul Ghafoor and another v. Muhammad Shafi and others PLD 1985 SC 407 dealing with the rights of male heir at page 422.

9. Ch. Muhammad Zafar, learned . counsel for the respondent conversely argued that the plaintiff, being daughter of Lehna is entitled to 1/3 share in the estate left by him and Atta Muhammad being her brother could inherit only 2/3 share. She has been getting the share of produce, one square of land was also given to her by Atta Muhammad but subsequently taken back whereafter she checked the Revenue Record and found that the entire estate of Lehna has been mutated in the name of Atta Muhammad as sole heir. She has been deprived of her legal share illegally. She will be deemed to be in possession of the suit property being sister of Atta Muhammad. The bar of limitation pleaded by learned counsel for the petitioner is not attracted in the present case. Plaintiff has been getting the produce of the land one year prior to the filing of the present suit. He has supported the impugned judgment and referred the following judgments:‑‑ (i) Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407. (ii) Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1. (iii) Ismail and another v. Ghulam Qadir and others 1990 SCMR 1667. (iv) Raja Muhaftimad Akbar etc. v. Iftikhar Jillani PLD 1991 SC 71. (v) Mst. Fazal Nishan and others v. Ghulam Qadir and others 1992 SCMR 1773. . (vi) Mst. Zainab Bibi and 2 others v. Muhammad Yousaf and 4 others 1995.SCMR 868. (vii) Ch. Ghulam Nabi and 2 others v. Malik Faqir Muhammad and 29 others 1997 SCMR 1352. (viii) Shahro and others v. Mst. Fatima and others PLD 1998 SC 1512. (ix) Mohib Shah and 3 others v. Mst. Jannat Bibi and others 1997 CLC 659, and (x) Qadir Bakhsh v. Mst. Bakhat Bhari and others 1998 CLC 41.

10. I have heard the learned counsel for the parties at length and perused the record. Admittedly Atta Muhammad and respondent Hidayat Bibi are only legal heirs of Uhna son of Gehna. Both are brother and sister inter se. Exh.P.l the Mutation No.430 was attested on 24‑2‑1921 much before 15‑3‑1948 (enforcement of Shariat Act of 1948). The inheritance which opened prior to aforesaid date and the effect of section 2‑A incorporated in. Shariat Application Act, 1962 through Punjab Muslim Personal Law (Shariat) Application (Punjab Amendment) Ordinance (XIII of 1983) was thoroughly examined by the Supreme Court it is case of Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC

407. The petitioners as well as the respondent have relied upon this judgment. The petitioners have relied upon notes (1) (2) at pages 422 and 423 whereas the respondent has relied upon notes (O), (P), (Q), (R) and (S) at pages 424 to

426. The legal propositions of law whether respondent is entitled to inherit the property of her father which devolved upon Atta Muhammad predecessor‑in‑interest of petitioners under the custom prior to 15‑3‑1948, and whether her suit would be deemed to be barred by limitation for having been filed after 75 years of the sanction of mutation of inheritance, were dealt with elaborately by the Supreme Court. Section 2‑A of Shariat Application Act, 1962 as amended is reproduced for reference as under:‑‑ "2‑A. Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force; or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat). Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim‑‑ '(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the %4ushrn Personal Law (Shariat); (b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery of possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act; (c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such. decree shall abate forthwith: Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decree."

11. The contention of the learned counsel for the petitioners is based on clause (a) of aforesaid section on the ground that Atta Muhammad acquired the property from Lehna under the custom and shall be deemed to have E inherited under Muslim Personal Law as absolute owner and such right is not available to a female. This difference between male and female was noticed by the Supreme Court in this very judgment at page 424, note (o) and while interpreting the provisions of Muslim Personal Law (Shariat) Application Act, 1962 after incorporation of section 2‑A therein held as under:‑‑ (o) It is correct that the newly‑enacted section 2‑A does not make any, specific and direct provision about a female heir acquiring and holding land as absolute owner, limited owner of , maintenance holder but for the time being in so far as these present cases are concerned, even if they are treated. as illustrative of various disputes which would come up for resolution, . (p) Thus read two seeming conflicts/omissions would be removed‑‑ (i) the omission about the female heir would become understandable, because to an extent it already stood supplied by sections 3 and 5 and the remaining gap would be filled by taking into account all the heirs, male or female, of the 'male heir', specified in section 2‑A; and (ii) section 6 would now operate in one way, as an interpretation clause for sections 3, 4 and 5 as well as for 2‑A when all read together. And accordingly they shall have retrospective effect. (q) It is well‑known that the ‑provisions regarding females were interpreted by the superior Courts as implying that notwithstanding the termination of the limited interest in 1962 the previous holding of the estate and interest was subject to the restrictions imposed by the customary law if the origin of the estate or interest was in the customary law. Accordingly, the alienations made by them whether in possession of the land as a limited estate or in lieu of maintenance were subject to the challenge by the reversioners of the last full owner. The 1962 Act when terminating the limited interests did not make any major change in this behalf. Not only these the judgments rendered by the two superior Courts (Federal Shariat Court and the Supreme Court in its Shariat Appellate Bench also kept alive the law relating to the challenge to the alienations made by the females holding limited interest; so as to keep intact and preserve the estate for the benefit of the Muslim (Shariat) Law heirs of the last full owner. Section 2‑A has to be interpreted in the foregoing entire context and has to be read and reconciled with sections 3 and 5 in so far as the females are concerned; as also, the pre‑existing section 2 in so far as the general change in the law was concerned. (r) The position that develops thus, is that a male heir who acquired agricultural land under custom from a Muslim prior to 15th March, 1948, is held to have inherited under the Muslim (Shariat) Law. His heirs, after his death meanwhile, would be discovered in accordance with the Muslim Law. They could be male and female heirs. But if a female deriving the limited interest from any such 'male heir' (now. under section 2‑A, deemed to be an 'absolute owner under Muslim Law since the time of his acquisition) would not be able to keep any land in excess of her share as an heir under the Muslim law. She' will act as a conduit so as to pass the remaining land to the other heirs of such a 'male heirs' and so on howlowsoever, under the Muslim (Shariat) Law of Inheritance. This by and large is what has been provided in and emerges out of the combined reading of sections 3, 4 and 5 now read with section 2‑A. Thus, read in this context, the omission in section 2‑A of a female holding an interest in land, is of not much significance. The aforesaid dictum makes it clear that there is no difference between a male and female, as far as the inheritance of land from the estate of Muslim prior to 15‑3‑1948 is concerned. Respondent being daughter of Lehna was entitled to 1/3 share and was wrongly deprived through impugned Mutation No.430 of her due share. Atta Muhammad was only entitled to 2/3 share in accordance to Shariat Application Act, 1962. An absolute ownership would be limited to the extent of his 2/3 legal share. The attestation of mutation in favour of Atta Muhammad in exclusion of respondent is in violation of section 2‑A read with other provisions of Shariat Application Act (No.V of 1962). All the case‑law on the subject prior to 1985 was considered in this case. Same proposition of law was considered by the Supreme Court in the case of Mst. Fazal Nishan and others (supra) and their Lordships held that the last full owner having acquired agricultural land under custom from a Muslim prior to 15th March, 1948, would be deemed to have inherited under Muslim Personal Law, his heir after his death would inherit in accordance with Muslim Law whether they were male or female heirs. Same view was expressed in the case of Mst. Zainab Bibi and 2 others v. Muhammad Yousaf and 4 others 1995 SCMR 868 and reaffirmed in Ismail and another v. Ghulam Qadir and others 1990 SCMR 1667. It is clear from the aforesaid judgments referred by the learned counsel for the petitioner that there is no distinction between male and female so far inheritance of the property of their father prior to 15‑3‑1948 is concerned. Both will inherit in accordance with Muslim Law. The contention of the petitioners that the male inheritance is protected as full owner and the word 'female' does not figure in section 2‑A and on this score respondent is debarred to claim inheritance is misconceived. In Abdul Ghafoor and others' case (supra), Supreme Court has clarified that there is no difference between male and female as far as inheritance of a Muslim deceased prior to 15‑3‑1948 is concerned, the respondent being daughter of Lehna was entitled to 1/3rd share with Atta, Muhammad her brother.

12. The question of limitation raised by the learned counsel for the petitioner has no force. It was a joint property. Respondent and Atta Muhammad are brother and sister and the possession of the brother will be deemed to be of the sister. In the case of Ismail and another (1990 SCMR 1667), it was laid down that the deceased Muslim having died before the enforcement of Act IX of 1948, when customary law was in vogue in matters of succession would be deemed to have become absolute owner of land which he inherited from his father as if said land had devolved on him under Muslim Personal Law. Deceased's widow being only a limited owner could not have alienated by way of gift the property beyond her share under the Islamic Law of Inheritance as a widow. She having alienated the entire property of her husband, which she was then holding as a limited estate, excess area alienated by her in favour of defendants was rightly given by Courts below to plaintiffs in accordance with their share according to Muslim Law. Further observed (hat per force of Act V of 1962 as amended the properly devolved instantaneously on the heirs‑widow of deceased holding such property as a limited owner would be deemed to have held the property as a custodian and co‑sharer on behalf of all the other heirs who were entitled under Muslim Law to inherit the property of deceased Muslim at the time of his death. Plaintiffs' suit to claim their entitlement in the property left by deceased Muslim would thus be deemed to be within time.

13. In the present case the respondent will be deemed to be the co‑sharer on the death of Lehna with Atta Muhammad, therefore, institution of suit after a long time cannot be deemed to be barred by limitation. She has been getting the share of produce and Atta Muhammad kept her in dark about the mutation. He was holding the land on behalf of his sister. The possession of the brother is the possession of the sister. Possession of Atta Muhammad will be deemed to be that of respondent. Lower Appellate Court has given sound reasons in repelling objection of limitation raised by the petitioners. The G aforesaid findings do not suffer from any legal infirmity calling for interference.

14. The impugned judgment is based on proper appreciation of evidence and the law declared by the Supreme Court. The petition has no merit and is dismissed with no order as to costs. H.B.T./S‑37/L Petition dismissed.