FEDERAL COURT (PLP)

MUHAMMAD MUNIR, C. J.‑This is an appeal, on certificate, from a judgment of the High Court at Lahore reversing the judgment of Mr. Sher Singh, Senior Subordinate Judge, Mont gomery, by which he decreed appellant Ghulam Muhammad Shah's suit against respondent Fateh Muhammad Shah for a declaration of title to some lands. The hearing of the appeal on the merits is objected to by Dr. Qutb‑ud‑Din, learned counsel for the respondent, on the ground that the `petition of appeal' not having been presented within the tithe prescribed by the rules of this Court, the appeal cannot be determined on the merits and should be dismissed for want of prosecution. The `petition of appeal' was filed 37 days beyond time, but the delay was condoned by a Single Judge of this Court "subject to all just exceptions". The rule which deals with the consequences of delay in the taking of step for the prosecution of an appeal is rule 2 of Order XVII which provides : If an appellant fails to take any steps in the appeal within the time fixed for the same. by these Rules, or, if no time is specified, it appears to the Registrar that the appellant is not prosecuting his appeal with due diligence, the Registrar shall call upon him to explain his default and, if no explanation, or no explanation which appears to the Registrar to be sufficient, is offered, may issue a summons calling upon him to show cause to the Court why the appeal should not be dismissed for want of prosecution." Under rule 4 "the Court may, after hearing the parties, dismiss the appeal for non‑prosecution or give such other directions thereon as the justice of the case may require." It is admitted that the Registrar neither called upon the appellant to explain his default nor issued to him a summons requiring him to show cause to the Court against the dismissal of the appeal for non‑prosecution. On the terms of rules 2 and 4 an appeal cannot be dismissed by the Court for want of prosecution unless, in the first instance, the Registrar requires the appellant to explain his default, and finding the explanation unsatisfactory, issues a summons to him to show cause before the Court. Since the rules make the power of the Court depend upon the return of a summons, the appeal cannot be dismissed for want of prosecution unless the Registrar refers the appeal for that purpose to the Court. I, therefore, see no force in the preliminary objection and repel it. I may now state the facts which have given rise to this appeal. The parties to the dispute are Mushhadi Sayyeds of Toba Qalandar Shah in the Bahawalpur State. The family owned considerable property not only in the State but also in the District of Mont gomery. The suit property is situate in Mauza Maghar in Tehsil Pakpattan of the Montgomery District. the central figure in the case is Nazar Muhammad Shah who had two wives. Appellant Ghulam Muhammad Shah is his son by one wife and respondent Fateh Muhammad Shah by the other. Mst. Zaib Elabi, the sister of Nazar Muhammad Shah, was married to Muhammad Ali Shah whom Nazar Muhammad Shah meets in the sixth degree. The last male owner of the property was Muhammad Ali Shah who died about 50 years before the suit. On his death Mst. Zaib Elahi succeeded to the property on the usual life estate of a widow under custom. In 1919‑1920 Mst. Zaib Elahi settled some property of her husband on Fateh Muhammad Shah, but Nazar Muhammad Shah and Ghulam Muhammad Shah objected to this arrangement, and the settlement was not given effect to in the revenue papers. Fateh Muhammad Shah agreed to execute a deed of relinquishment in respect of 14,673 kanals and 12 marlas of land situated in five different villages while Ghulam Muhammad Shah executed a formal document agreeing to pay an annual sum to Mst. Zaib Elahi by way of maintenance. A suit was instituted by Mst. Zaib Elahi on the strenght of this document but it was withdrawn on the intervention of Syed Jalal Shah who is related to the parties. On 17th April 1938 Mst. Zaib Elahi executed a will in favour of Fateh Muhammad Shah bequeathing him the entire property of her husband situate in Tehsil Bahawalnagar and Tehsil Pakpattan and authorising him to recover the arrears of main tenance due to her from Nazar Muhammad Shah, Ghulam Muhammad Shah and Jalal Shah which by that time had amounted to Rs. 68

400. On the following day, Nazar Muhammad Shah executed another document consenting to Mst. Zaib Elahi will in favour of Fateh Muhammad Shah. Disputes between the two brothers and their father began immediately on the death of Mst. Zaib Elahi in February 1941. Fateh Muhammad Shah claimed mutation of the lands of Muhammad Ali Shah on the strength of the will in his favour by Mst. Zaib Elabi and the deed of relinquishment by Nazar Muhammad Shah. The revenue officers accepted both the documents as genuine, effected the mutation accordingly, and directed Nazar Muhammad Shah to seek his remedy in a Civil Court. On first June 1942 Nazar Muhammad Shah filed a suit against Fateh Muhammad Shah in the Court of a Subordinate Judge at Montgomery alleging his exclusive title to the properties covered by the will and asking for a declaratory decree that he was the sole heir of Mst. Zalb Elahi and entitled to the entire land left by her. In the plaint he referred to the will and his consent to it and to the mutation proceedings before the revenue officers that had been taken by Fateh Muhammad Shah on the basis of the will and the deed of relinquishment. He alleged that the will and the deed of consent were, for the reasons stated, void and not binding on him, and claimed to succeed as against Fateh Muhammad Shah on the ground that he was the nearest collateral of Muhammad Ali Shah, and therefore the sole owner of the property in suit. The suit was stated to have been brought in a declaratory and not in a possessory form because the land was in the possession of tenants who were prepared to give the landlords share of the produce to the plaintiff if a declaratory decree was passed. While the suit was pending Nazar Muhammad Shah died on 29th October 1942 and no application was made by Ghulam Muhammad Shah to be brought on record as the legal representative of the deceased plaintiff, nor was any application made by him to set aside the abatement. On being informed that Nazar Muhammad Shah had died the Subordinate Judge dismissed the suit on 14th November 1942. The present suit was instituted by Ghulam Muhammad Shah against Fateh Muhammad Shah, the sole defendant, on 8th December 1942. It was founded on the allegation that Mst. Zaib Elahi made no will, that if she made any will it was void, that the plaintiff and the defendant succeeded to the property of Muhammad Ali Shah in one half share each, and that therefore the plaintiff was entitled to a decree for possession of one half of the property in dispute. The defendant relied on the will and on Nazar Muhammad Shah's consent to it in support of his exclusive title to the property. He also claimed that he had been adopted by Mst. Zaib Elabi and that therefore he was entitled to succeed to the entire property of Muhammad Ali Shah to the exclusion of Ghulam Muhammad Shah plaintiff. Objection was also taken to the maintainability of the suit on the ground that e.g previous suit by Nazar Muhammad Shah having abated no fresh suit could be brought by the plaintiff who was one of the legal representatives of Nazar Muhammad Shah, the deceased plaintiff of the previous suit. The learned Subordinate Judge repelled the pleas of abatement and adoption, and found the will and Nazar Muhammad Shah's consent to it proved. He, however, held that Mst. Zaib Elahi could not make a will in respect of the property of her husband, and that Nazar Muhammad Shah's consent could not validate the will because that consent in the circumstances was no more than the bequest of a spes successionis which was void in law. The suit was, therefore, decreed. Fateh Muhammad Shah appealed to the High Court where Sir Abdur Rashid, C. J. and Abdur Rahman J. by their judgment of 5th February 1948 reversed the decree of the Subordinate Judge and dismissed the suit. The learned Judges agreed with the Trial Court that the present suit lay and that Fateh Muhammad Shah's adoption was not proved. But they thought that Nazar Muhammad Shah's consent to the will had the effect of precluding Nazar Muhammad Shah and his son Ghulam Muhammad Shah from objecting to the testamentary "alienation" made by Mst. Zaib Elahi to which Nazar Muhammad Shah had given his consent in writing. This view they purported to base on the Full Bench judgment of the Lahore High Court in Ali Muhammad v. Mst. Mughlani and others (A I R 1946 Lah. 180). Before I deal with the question whether the ground of the High Court's decision to dismiss the suit was correct, I might shortly dispose of the pleas of adoption and the abatement of the previous suit which though repelled by the High Court were relied upon before us by the learned counsel for the respondent in support of the decree of the High Court. The respondent's contention is that the present suit is based on the same cause of action as Nazar Muhammad Shah had previously sued upon and that therefore it is barred by Rule 9 of Order XXII of the Code of Civil Procedure. It is unnecessary for me to go into the question whether the cause of action in both suits was the same, because assuming that it was the present suit cannot be held to be barred by Rule

9. I have already mentioned that Nazar Muhammad Shah, the plaintiff of the previous suit, died on 29th October 1942, and that the present suit was brought on 8th December 1942. The limitation for the legal representatives of a deceased plaintiff to come on the record is 60 days and the present suit having been brought within that period, sub‑rule (1) of rule 9, which declares that where a suit abates no fresh suit shall be e brought on the same cause of action, does not in terms apply. Under rule 3 of Order XXII a suit abates on the death of the sole plaintiff if within the time limited by law no application is made by the legal representatives of the deceased plaintiff to be brought on record. Since the abatement takes effect only on the expiry of 60 days from the death of the plaintiff, a suit brought before the expiry of that period cannot be held to be not maintainable by reason. of sub‑rule (1) of rule 9 of that Order. e That sub‑rule enacts a penalty and must therefore be strictly construed. Since the present suit was brought before the previous suit had abated, the objection to its maintainability cannot be allowed to succeed. As regards the alleged adoption, the essential point to remember is that in order to defeat the suit and to constitute himself the sole heir to Muhammad Ali Shah, Fateh Muhammad Shah respondent bad to prove that according to the custom appli cable to the parties the widow of Muhammad Ali Shah was competent to adopt a son to succeed to the estate of her husband. No precedent or instance in support of such custom has been proved, and the oral evidence is either mostly irrelevant or not founded on any concrete instance within the knowledge of the deposing witnesses. Some extracts from wajib‑ul‑arz have been produced but none of them refers to the precise custom. The statement nearest to the custom alleged is to be found in the wajib ul‑arz of Monza Fidai Shah in the District of Bahawalnagar in Babawalpur State wherein ‑reply to a question relating to the property of a sonless co‑sharer the custom was stated to be that if a co‑sharer dies sonless his widow shall remain in possession till her death, that in the absence of his widow his brothers or near relatives sball come into possession of his share, and that if a male or a female wants to make adoption he or she can do so in which case the adopted son shall inherit as a real son. The authority to a female to adopt does not in this wajib‑ul‑arz mean an authority to a widow who merely holds a life estate to adopt to her husband. We are, therefore, of the view that the plea of adoption was rightly rejected both by the Trial Court and by the High Court. Coming now to the last and the most important question in the case, namely, whether the consent of the nearest reversioner to a will by a widow bequeathing her husband's property has the effect of validating the will so as to exclude the consenting reversioner and his heirs, the first thing to be borne in mind is that in the present case we are dealing with the will of a widow and not with a gift or alienation by her. A widow under the Punjab Custom succeeds to her husband's property only for her lifetime, and her interest comes to an end on her death. In the present case, Mst. Zaib Elahi did not at all surrender her life interest in the property as she would have been presumed to have done if she had made a gift of the property to the person whore she intended to favour. The very fact that the document she executed in favour of Fateh Muhammad Shah was a will and not a gift indicates that she was not effacing herself or operating her own death. She did not, therefore, alienate any property which she owned or in which she had a limited interest. What the will declared was that on the testatrix's death the property would pass on to Fateh Muhammad Shah to the exclusion of other heirs. The case, therefore, is distinguish able from all others where the consent of a reversioner to an alienation by a widow, for consideration or gratuitous, was held to debar the consenting reversioner and his heirs from calling the alienation in question. Thus the case has to be decided on the footing that Nazar Muhammad Shah's consent f to Zaib Elahi's act amounted to an alienation by himself which would have been perfectly valid if at the time of the consent the property had become vested in him. Property which is not ancestral can be alienated by a reversioner at will and no other reversioner has any locus standi to object to such alienation. But here when Nazar Muhammad Shah gave his consent, the widow was alive and in possession and enjoyment of her life interest and the succession to the last male owner Muhammad Ali Shah had not yet opened. Nazar Muhammad Shah's act, therefore, amounted to no more than the relinquishment or transfer of a spes successionis. The D transfer of such expectancy is void under section 6 (a) of the Transfer of Property Act in the Provinces where that Act is in force. The matter has been before the Privy Council more than once, and each time the Board has emphatically pro nounced against the validity of such transfer, in whatever form it might have been attempted to be clothed. Reference in this connection may be made to Amrit Narayan Singh v. Gaya Singh and others (45 1 A 35), Harnath Kaur v. Indra Bahadur (50 1 A 69) and Annada Mohan Roy v. Gour Mohan Mullick (50 1 A 739). "A Hindu reversioner", said Mr. Ameer Ali, in Arnrit Narayan Singh v. Gaya Singh and others "has no right or interest in praesenti in the property which the female owner holds for her life. Until it vests in him on her death, should he survive her, he has nothing to assign or relinquish or even to transmit to his heirs. His right becomes concrete only on her demise ; until then it is mere spes successionis". Even a contract to convey the property if and when the estate falls into possession in no way differs from a present transfer or relinquishment, it being equally void, and the rule is applicable not only to reversioners under the Hindu Law but also to those under the Punjab Custom and presumptive heirs under the Muhammadan Law. It is true that the Transfer of Property Act, 1882 is not in force in the Punjab and such transfers are not void in that Province by ‑reason of any statutory rule. But the principle on which such transfers are held to be void is of wider application and rests on the rule, also recognised by English Law, that an expectancy is not property which can be E assigned. There is, however, one exception to this principle, which has been enforced by the Courts in England, and here in the Provinces where the Transfer of Property Act is not in force. That exception was stated by Buckley, J. in re. Ellenborough ((1903) 1 Ch. 697) at p. 700 where he said, "if value be given, it is immaterial what is the form of assurance by which the disposition is made, or whether the subject of the disposition is capable of being thereby disposed of or not. An assignment for value binds the conscience of the assignor. A Court of Equity as against him will compel him to that which ex hypothesi he has not yet effectually done. Future property, possibilities and expec tancies are all assignable in equity for value : Taiby v. Official Receiver ((1888) 13 A C 523 at p. 543 ). But when the assurance is not for value, a Court of Equity will not assist a volunteer." The exception has received statutory recognition here in section 43 of the Transfer of Property Act, section 115 of the Evidence Act and section 18 of the Specific Relief Act. The doctrine feeding the grant by estoppel which appears as the solitary illustration to section 115 of the Evidence Act and in section 43 of the Transfer of Property Act is based on the ground that if a person, for value received, conveys what he does not own but subsequently he acquires the title which he conveyed, then the transferee can enforce the conveyance against him. A Court of Equity in such cases will not only actively assist the person paying the value but will also repel, the transferor's plea based on the invalidity of the transfer in, law. Similarly section 18 of the Specific Relief Act recognises as enforceable at law the right of a person contracting to purchase or to take in lease property from a person who at` the time of the contract does not own it but who sub-sequently acquires it. This rule, being founded on equity, has been applied in the Punjab, where the Transfer of Property Act is not in force. Thus where a person acting on the consent of the next reversioner has purchased for valuable consideration property from a limited owner, as for instance, a sonless proprietor or a widow, his right to the property has been held to be enforceable against the consenting reversioner, if he has on the expiry of the limited estate succeeded to the property. Instances of this character will be found in Allah Bakhsh v. Ghulam (13 P R 1899), Padmun and others v. Aehhar and others (A I R 1926 Lah. 39), confirmed in Letters Patent Appeal No. 87 of 1924. Naranjan Singh v. Dharam Singh (A I R 1930 Lah. 928), and other cases cited in Ali Muhammad v. Mst. Mughlani and others (A I R 1946 Lah. 180), Gobinda v. Chanan Singh and another (A I R 1933 Lah. 378), was in fact a case of gift but was decided by Currie, J. as if it were a case of sale. The distinguishing feature between the Full Bench case in A I R 1946 Lah. 180 and the present case is that in the former the widow had made a gift of property, thus surrendering her own widow's interest in the property gifted, with the result that that part of the property had become vested in the consenting reversioner who was the next reversioner. It is on this ground that that decision can be supported because section 18 of the Specific Relief Act which seems to have been invoked in that case is not applicable to gratuitous transactions like gifts and wills. In the present case, the consent by Nazar Muhammad Shah amounted, at the most, to an alienation of his rever sionary right which at the time of his consent was no more that a spes successionis. Such consent would have been enforced by a Court of Equity against him and his heirs if it had been given for valuable consideration, but admittedly Nazar Muhammad Shah received no consideration for his consent and his act was no more than a promise to make a gift, which in the absence of facts giving rise to estoppel, could not be enforced against him before or after he actually succeeded to the property of Muhammad Ali Shah. This distinction seems to have been completely overlooked by the learned Judges of the High Court though the decision of the Subordinate Judge was solely founded on it. As will appear from the following passage in their judg ment, "There is considerable authority in favour of the proposition that an alienation by a limited owner like a widow and a bequest by means of a will is a form of alienation although it may take effect after the death of a testator cannot be questioned either by the nearest reversioner who has given his consent or by his descendants provided the nearest reversioner happens to survive the limited owner" they have treated the widow's will as a form of alienation which, in the circumstances of this case, it certainly was not. No authority in support of the proposition that the will was in the nature of an alienation was cited before us and none exists, because all the cases in which consenting rever sioners were held bound by their act are either of alienations for valuable consideration or of gifts where the widow surrendered her interest in the property gifted and none of a will by a widow. I am, therefore, of the view that the judgment 'of the High Court proceeds on an erroneous assumption and accepting the appeal, I would set aside the judgment and decree of the High Court, and restore that of the Subordinate Judge decreeing the suit. The appellant will have his costs throughout. AKRAM, J.‑I agree. MUHAMMAD SHARIF, J.‑I agree. SHAHABUDDIN, J.‑The conclusions of the trial Court on the points arising in this case were in my opinion correct. I, therefore, agree with my Lord the Chief Justice that the appeal be allowed with costs throughout. Mr. Justice Cornelius, allowing the appeal, wrote a short note agreeing with the trial Court that on the death of the widow no property was left, over which the will made by her could operate and that the consent given by Nazar Muhammad did not estop him or his son to maintain the suit and challenge the will. A. H. Appeal accepted.