P L D 1959 Supreme Court (Pak (PLP)

S. A. RAHMAN, J.‑This is a certificated appeal from a judgment of the High Court of West Pakistan, Lahore, recorded in Regular First Appeal No. 62 of 1951. The plaintiffs‑appellants, claiming to be reversionary heirs of one, Pir Muhammad, brought the action for possession of the lands in dispute on the death of Mst. Sabhrai, widow of Pir Muhammad, against the respondents, Fazal Hussain and others, who held the lands under a sale effected in their favour, by Mst. Sabhrai, in her lifetime. She had inherited a limited estate under custom and it was the plaintiffs' case that the sale from which the respondents derived their title, was not supported by consideration or legal necessity and consequently did not affect their reversionary rights. Some of the heirs of the last male owner, who had not joined in the suit, were impleaded as defendants, along with the alienees who alone were the con testing parties. The Court of first instance found that out of a total con sideration of Rs. 17,000 for the sale which was effected by means of a registered deed, dated the 6th of May 1947, a sum of Rs. 2,400 only, represented the portion that bad the sanction of legal necessity. As Mst. Sabhrai had died after the enforcement of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948 (Punjab Act IX of 1548) and she had succeeded not to her husband, Pr Muhammad, but to her son, Hayat, the plaintiffs were held to have no right to the one‑third share which she could have inherited from Hayat, under Muslim Law. They were therefore given a decree for possession of two‑thirds of the property in suit, subject to payment of Rs. 2,400 to the vendees. Both parties, being aggrieved by the decision of the trial Judge, went up in appeal to the High Court. The alienee -defendants' appeal was allowed in part, to the extent that the fourth plaintiff, Ghulam Haider, alone was held entitled to recover a two‑ninth share of the property with proportionate costs. The plaintiffs' contention that the charge of Rs. 2,400 should be distributed over the entire property was not acceeded to and Ghulam Haider was burdened with the payment of this sum, which was characterised as a debt of the estate of Hayat, payable by 4eits inheriting to him. It appears to have been suggested before the learned Judges as an alternative argument that Mst. Sabhrai had died before Punjab Act IX of 1948 had come into force, contrary to the assumption made in the trial Court, but it was observed that the acceptance of that statement would have the effect of reducing Ghulam Haider's share to a bare one‑sixth of the property. The other plaintiffs' claim to a share in the property was negatived in consequence of the dismissal under Order IX, rule 8; Civil Procedure Code, of a previous suit for a declaration to challenge the alienation in question under custom, brought in the lifetime of Mst. Sabhrai by them or by their predecessors‑in‑interest. The plaintiffs' appeal was therefore dismissed with costs and it has been urged before us, on their behalf in this appeal that the High Court had erred is not decreeing their suit in full. Some of the plaintiffs died during the pendency of the suit in the trial Court and their legal representatives were duly brought on the record a, parties. Out of them, Mst. Rabia Bibi way impleaded as the sixth defendant, the first five defendants being the alienees. Mst. Rabia Bibi identified herself with the plaintiffs and supported the claim made in the suit, inter alia, for her benefit. The following pedigree‑table relating to the family of the alienor would be helpful in understanding the facts of the case: ‑ KARAM DAD ________________________|_________________________ | | | Jan Muhammad Sultan Pir Muhammad=Mst. Sabhral ______| | _______|______ | | | | | | Hayat Fazal | | (Died issueless) (Died issueless) | ____________|___________ | | | | Nabi Bakhsh Ramzan | (Died issueless) | | Qaim Din=Mst. Sardar Bibi | ___________| | ________________________|__________________________ | | | | | | | Mst. Rabia Muhammad Inayat Said Ahmad Rehmat | Bibi (Defen‑ Fazil (Died (Plaintiff (Plaintiff (Plaintiff | dant No. 6) issueless) No. 3) No. 1) No. 2) |____________________ __________________|___________________________________________ | | | | | | Hakam Muhammad Imam Bhawal Ditta Ali Gohar | Bakhsh Bakhsh(Died (Died | | | | issueless) issueless) | | | | Shah Barkat Ali | | Muhammad (Plaintiff | | No. 7) | _|___________________ | | | | Sher Muhammad Hakim Din | (Was defendant ; (Died issue | died issueless less) | during pendency) |_____________________________ _______________|_________________ | | Ghulam Haider Sadiq Ali (Plaintiff No. 4) | __________________|_______________ | | Muhammad Yusuf Muhammad (Plaintiff No. 6) Malik (Plaintiff No. 5) It seems necessary to clear the ground at the outset by affirming that the assumption made in the trial Court about the time of Mst. Sabhrai's death falling after the enforcement of Punjab Act IX of 1948, appears to be correct on the state of the pleadings and the evidence led in this case. There was no clear denial of that fact on the part of the alienees in their various written statements in answer to the original or amended plaints put in by the plaintiffs in this case. The statements made by their‑ witnesses also left that question in an uncertain state and it was presumably for their reason that the case was argued in the trial Court on the basis that Punjab Act IX of 1948, governed the situation, on the demise of Mst. Sabhrai. We see no ground to alter that premises. The first question that calls for determination is as to the effect of the earlier declaratory suit on the fortunes of the plaintiffs in this case. The previous suit was instituted by Sher Muhammad, son of Muhammad Bakhsh (now deceased) and. Rahmat, Said, Inayat, Muhammad and Fazal Ahmad, sons of Qaim Din, against Mst. Sabhrai and her alienees, impugning the sale made by her and asked for a decree declaring their reversionary rights to be unaffected by that sale. Some other reversioners who had not joined as plaintiffs were cited as defendants in that suit. It is common ground between the parties, that the suit was dismissed on the 19th July 1947, for default of the plaintiffs' appearance in Court, under Order IX, rule 8, Civil Procedure Code, in the presence of the contesting defendants. It is curious to note that Muhammad who figured as a plaintiff in that suit, is not shown as one of the sons of Qaim Din in the pedigree‑table proved in the present case but in the view that we take of the matter, this discrepancy is of little moment. Rule 9 of Order IX, Civil Procedure Code, provides inter alia that when a suit is dismissed wholly or partly, under rule 8 of that Order, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. Reliance was placed on this provision to defeat the plaintiffs' claim in the present suit. In the High Court, the learned Judges gave effect to this contention as against Said Ahmad, Inayat and Rehmat (plaintiffs 1 to 3) and one of Sher Muhammad deceased's representatives, namely, Barkat Ali plaintiff (ignoring his other legal representatives who were among the plaintiffs) and held their suit to be barred by Order IX, rule 9, Civil Procedure Code. Fazil Ahmad or Muhammad Fazil (as he is described in the present suit) and Muhammad, sons of Qaim Din apparently both died issueless and the first four plaintiffs, viz., their three brothers and their mother Sardar Bibi (later replaced by her daughter Rabia Bibi, on her death), represent their interests. The learned Judges declined to accept this objection as against the claim of those of the reversioners who had been impleaded as defendants in the previous declaratory suit. It appears to us that sufficient attention was not paid, in the High Court, to the point whether the cause of action in the two suits was identical or not. The relevant provisions of Order IX, rule 9, Civil Procedure Code, are penal in character and must be strictly construed. We are not impressed by the argument raised by Mr. Ghulam Abbas Jaffery on behalf of the alienees, that the cause of action in the two suits was "practically the same" and that only the character of the relief prayed for in the two plaints varied because of tire death of the alienor before the institution of the second suit. It is true that the plaint in the second suit was not carefully drafted and gives one the impression, on a cursory reading of the last few paragraphs, that there was no distinction between the causes of action in the two suits. But in an earlier paragraph, the death of Mst, Sabhrai, had been mentioned and this necessitated the seeking of the relief of possession, which was not open at the time of the previous suit. Moreover the position as it emerged out of the pleadings in the second suit eventually was that the case was fought out by the plaintiffs claiming to be heirs to the last male owner of the property, Hayat, under Muslim Law as distinguished from custom which wholly governed the previous case. It is plain that the heirs of Hayat under the two systems of law need not be identical. It is well settled that the expression "cause of action" means the totality of the material facts, which it is necessary for the plaintiff to allege and prove in order to succeed Chand Kaur v. Partap Singh (15 I A 156). The plaintiffs in the first suit had to rely on their character as reversionary heirs of the last male owner, to assail the alienation made by a limited owner, fettered in this respect by customary rules. In the second suit, because of the change in the law introduced by Punjab Act IX of 1948, the plaintiffs, in order to succeed, had to establish not only that the alienation in question was ineffective against their rights but also to allege and prove their competency to sue under a wholly different system of law vie., the Muslim Law and further that the right to ask for possession had accrued to them by the death of the alienor. We are unable to agree with Mr. Jaffery, that the cause of action for the two suits was "substantially the same" merely b.‑cause part of the ground of action was common to them. The observations of the Privy Council in Chand Kaur v. Partap Singh on which Mr. Jaffery relied, that "the cause of action does not depend upon the character of the relief prayed for by the plaintiff but it refers entirely to the grounds set forth in the plaint as the cause of action or in other words the media upon which the plaintiff asks the Court to a conclusion in his favour", are not therefore apt in the circumstances of the present case. We have come to the conclusion that the identity of causes of action for the two suits was far from being established and that the defence to the suit raised on the basis of Order IX, rule 9, Civil Procedure Code, failed. Mr. Jaffery then adopted an alternative line of attack and attempted to argue that only persons entitled to impeach an alienation made by a holder of property under custom, could be permitted to get the benefit of a declaration of invalidity of such alienation by virtue of S. 8 of Punjab Act I of 1920. It was argued that heirs to Hayat under Muslim Law could have no locus standi to avail themselves of the customary rules governing alienations of property, to advance their interests after the death of the alienor, when succession would open out to them. The argument is in our opinion, unsound. The position in this regard, was examined by this Court in Abdullah v. Mst. Bakhta Mai (P L D 1956 S C (Pak.) 321) and the right of the reversioners of the last mile owner of agricultural property to obtain a declaration under S. 42 of the Specific Relief Act, that an alienation made by his widow, while holding the property under custom, would not affect their right to succeed under Muslim Law, on the termination of her limited interest, by virtue of Punjab Act IX of 1948, was expressly upheld. It was pointed out in that case that while the powers of a limited owner holding under custom, to alienate property, are still governed by custom the rule governing succession to the property on the termination of the limited estate, has ceased to be a rule of custom and by statute has been replaced by the Muslim Personal Law. Eventual Muslim Law heirs have therefore a remedy by way of declaratory suit to safeguard their contingent interests, and it follows that they would be competent to sue for possession after the estate of the last holder under custom terminates and to canvass the validity of any alienation made by the last holder on grounds incidental to the law that governed the latter, in the course of such a suit. The succession being to Hayat who died issueless, as was observed by the learned Judges in the High Court, the living descendants of Jan Muhammad's line, as residuaries, would have preference over those of Sultan, who are connected in a remoter degree to Hayat, under Muslim Law. In the line of Jan Muhammad again, on the same principle, the nearer residuaries, Sher Muhammad, Ghulam Haider and Barkat Ali plaintiffs, would exclude the more remote Muhammad Malik and Muhammad Yusuf plaintiffs, from inheritance. Sher Muhammad died during the pendency of the suit and therefore his Muslim Law heirs among the plaintiffs would be entitled to his share None of them could be said to be disqualified from inheritance. It is not quite clear whether all the relevant Muslim Law heirs including females are sufficiently shown in the pedigree‑table adduced in the case and therefore the order being made in this appeal would be without prejudice to the rights of any such Muslim Law heirs that may have been inadvertently omitted from the list of heirs. It also seems unnecessary in the circumstances to specify the individual shares of the successful plaintiffs and the heirs at law must be left to arrange for the division of the property as an internal affair. For the purposes of this litigation a joint decree in their favour against the alienees, would be sufficient. The High Court apparently assumed without discussion of the point involved that the 1/3rd share which Mst. Sabhrai would have got as heir to her son Hayat, should be excluded from the decree in favour of the plaintiffs. The decision of this point depends on the true effect of S. 3 of Punjab Act 1X of 1948, which may be reproduced in extenso: ‑ "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 an successors existing at the time of the termination of the limited interest of the female as if the aforesaid such 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 limit‑.d interest in the property on account of her marriage or re‑marriage and on her heirs under the Muslim Personal Law ' (Shariat) if her limited interest terminates because of death". Mr. Jaffery stressed the first part of the section which declares that on the termination of the limited interest held by a Muslim female, succession shall be deemed to open out to all persons who would have been entitled to inherit under the Muslim Law at the time the last full owner died and argued that in the present case, Mst. Sabhrai, as mother of Hayat, would be included among these heirs. Learned counsel then invoked the provisions of S. 43 of the Transfer of Property Act and pressed in aid the principle of "feeding the estoppel" to support his contention that the alienees from Mst. Sabhrai were entitled to retain at least the share of the property that would have fallen to her. This argument would have bad force if instead of the notional inheritance envisaged in the first part of S. 3 of the Act, Mst. Sabhrai had actually succeeded to a share in the property as she would have done if her limited interest had terminated other wise than by her own death. In the present circumstances the proviso to the section applies in full force and it enacts that in case her limited interest terminates because of her death, the share, which she would have otherwise inherited shall devolve on her heirs under the Muslim Personal Law. It is plain that she herself never became vested with full ownership in any part of the property, on the facts of this case. The formula contained in the section would seem to be designed to discover the person or persons who should take the property in such a contingency and the mere notional inheritance by her, after her death, even if it could be spelt out of the first part of the section, would be too slender a basis for the equitable doctrine contended for, to apply to the facts of the case. The result in our view is that no part of the property can be retained by the alienees and that they are merely entitled to reimbursement to the extent of Rs. 2,400, the legally supportable part of the consideration of the sale in their favour before they are asked to surrender the subject of that sale to the heirs at law. It may be mentioned that the concurrent finding of the Courts below that the alienation was supported by consideration and necessity to the extent of Rs. 2,400 only was not seriously challenged before us. No other point was argued in this appeal, which must be allowed in the light of the above discussion. We direct the modification of the judgment and decree of the High Court by declaring that the plaintiffs would be entitled to take possession of the whole of the land in suit as against the alienee‑defendants, on payment of Rs. 2,400 to the latter. The successful appellants will have their cost in this Court and the High Court. A. H. Order accordingly. .