P L D 1967 Lahore 792 (PLP)

K. E. CHAUHAN.‑The land which is the subject‑matter of this L. is. .1. belonged to one Haidar who executed a will on the 5th of January 1929, whereby bequeathed it to his widow Mst. Lalan and his daughter Mst. Sarwar Noor. Haidar died in year 1931 and after his death some of his reversioners brought the usual decla ratory suit to challenge the aforesaid will. This suit ended into a compromise which is contained in Exh. P. 2 dated the 22nd of October 1931. The relevant portions of this deed read as follows:

2. Mst. Lalan held the land in terms of, the aforesaid compromise till her death in year 1953. After her death the plain tiffs‑appellants brought a suit (from which this L. P. A. has arisen) for the recovery of the possession of the land in dispute. The case of the plaintiffs was that after the death of Mst. Lalan they were entitled to get possession of the whole of the suit land. They aversed that in terms of the compromise aforesaid, Mst. Lalan or Mst. Sarwar Noor were liable to redeem about 40 kanals of land and if either of them did so, then the said redeemed area was to go to Mst. Sarwar Noor. It was asserted in the plaint that as none of them got redeemed the mortgage, therefore, no parcel of the land was to go to Mst. Sarwar Noor and that as such the plaintiffs were the sole eligible heirs to the land left by Haidar deceased.

3. The trial Court dismissed the suit on the 2nd of April 1954. The appeal of the plaintiffs was dismissed on the 23rd of February 1955, by Mr. N. A. Mahmood, District Judge, Jhelum, (as then his Lordship was). The plaintiffs filed a second appeal in the High Court which was dismissed by Masud Ahmad, J., on the 23rd of January 1959. Having failed in all the Courts, the plaintiffs have now come up in Letters Patent Appeal.

4. It is significant to mention that the learned District Judge has held that as Mst. Lalan was holding a limited estate under custom and as she died in 1953, the case was governed by West Punjab Muslim Personal Law (Shariat) Application Act, 1948 (as or amended), where under the succession was to open out from Haidar. Counting that way, he held, that none of the plaintiffs was an heir of Haidar under Muslim Law.. The learned Single Judge maintained that finding and before us the only point agitated was that section 3 of the aforesaid Act was not applicable to the facts and circumstances of the present case. This section reads as follows:‑ "

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 the 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 termi nation of the limited interest of the female and had been govern ed 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." It was argued by the learned counsel for the plaintiffs‑appellants that the aforesaid provision of law was attracted to those cases where a female held a limited estate under custom, and according to the learned counsel since in the present case, the limited estate (if at all) of Mst. Lalan was under a contract, agreement, compromise or a consent decree of a Court, he submitted that it was not the case of a limited estate under custom and that, as such, the said section was not attracted to it. There is no force in this conten tion. A perusal of the title of the previous Suit No. 89/42 (insti tuted on the 20th of July 1931), as reproduced in compromise deed (Exh. P. 2) shows that the will was inter alia challenged under custom on the ground that Haidar had no power to execute a will of ancestral property and that it shall not affect the revi sionary rights of the then plaintiffs after the death of Mst. Lalan. The very fact that right of Mst. Lalan to remain in possession of the land in dispute till her lifetime was acknowledged (independent of the will) shows that the plaintiffs' reversioners placed their case under custom. In para 7 of the present plaint also they aver that the rights of Mst. Lalan were not of a full proprietary charac ter but were for providing maintenance to her. All these things go to show that it was under custom that Mst. Lalan's right to hold the estate was acknowledged. The will was under the Customary Law. The suit of year 1931 was also under Customary Law and the mere fact that the parties entered into a compromise will not take them out of the pale of the Customary Law. The estate which was taken by Mst. Lalan was a life estate or a limited estate. She did not become full owner of the property and the nature of the property in her hands remained the same. In these circumstances, it cannot be held that her estate was not a limited estate under custom. Mst. Lalan retained the land in dispute by virtue of her relationship with Haidar and it was for this status that the reversioners also settled the matters with her. Actually in her presence and during her lifetime the reversioners had no right or interest in the property and all that they possessed was a mere spes successions. They were not in a position of bestowing any estate on her because they were not possessed of any estate themselves. At the most they had a right. to challenge the alienation, but this is not a status by virtue whereof they could bestow, enhance or curtail the estate of Mst. Lalan. Reference can be made for this propo sition to Vastalabai Vinayak and another v. Vasudev Vishnu (A I R 1929 Bom. 348); S. Appa Swami Pillal and others v. Thapammal and others (A I R 1939 Mad. 83) and Thakur Prasad and others v. Mst. Dipa Kuer and others (A I R 1931 Pat. 442). It has been laid down in Muhammad v. Gauhra and others (A I R 1932 Lah. 61) and Mst. Ram Rakhi v. People of Northern India Ltd. (A I R 1942 Lah. 42), that the position of a widow under the Customary Law is the same as under the Hindu Law. In Debi Mangal Prasad Singh v. Mahadeo Prasad (I L R 34 All. 234 (P C)), it was held that there was no substantial difference in principle between woman's property acquired by inheritance or by partition and that in either case she remained a limited owner of the property. Applying the same principle in the present case even if it be assumed that the agreement (Exh. P. 2) was the source of Mst. Lalan's title, the estate, which she acquired, nevertheless would remain life or limited estate under Customary Law.

5. The same was the view in the following authorities, wherein it was held that an ancestral property acquired by a person who will succeed to it by inheritance remains to be ances tral in his hands even though he gets it by gift. See Khizar Hayat and another v. Allah Yar Shah (A I R 1926 Lah. 171), which in turn refers to Mahindar Singh and another v. Allah Ditta (A I R 1924 Lah. 538), or even though he requires it by means of a compromise, Pars Ram v. Kehr Singh and others (A I R 1933 Lah. 539); or with the consent of any other heir Lt.‑Col. Muhammad Siddiq Khan and others v. Major Muhammad Karim Khan (P L D 1954 Lah. 167). In the last mentioned case with the consent of their uncles certain land was mutated in the names of their nieces whose father had predeceased. It was held that the estate in the hands of the daughter of a predeceased son was a life estate which was controlled in the matters of alienation, etc., by custom.

6. The findings of the lower Appellate Courts being thus unexceptionable, no interference is called for in this Letters Patent Appeal. The said Courts were justified in holding that the succes sion to the property in dispute was to be governed by section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948. It is not denied that the plaintiffs do not get any share under the said law.

7. No other point was argued before us.

8. For the reasons aforesaid, there is no force in this Letters Patent Appeal which is hereby dismissed leaving the parties to bear their own costs. K. M. A. Appeal dismissed.