P L D 1961 (W (PLP)

(deceased)

2. The facts leading up to this second appeal by the defen dants are: Sardar Khan, a Baloch by caste, resident of Pindi Maddoki District Jhang, died issueless in 1944 survived by his widow Mst. Jannat. On Sardar Khan's death, his agricultural land, measuring 571 kanals 9 marlas, situate in Pindi Maddoki, was mutated in the name of his widow Mst. Jannat as a limited owner under custom. A day before her death, i.e., the 14th of July 1951, Mst. Jannat made a gift of the suit land in favour of Masjid Chah Ferozewala defendant‑appellant. On the death of Mst. Jannat, Talib Hussian and Ghulam Muhammad, plaintiffs Nos. 1 and 2, respectively, brought a suit on the 26th of April 1954, challenging the validity of the gift. They alleged that Mst. Jannat had inherited the suit land as a limited owner under custom and that she had no power to alienate it except for legal necessity and consideration. They further alleged that she had deliberately gifted the land to Masjid Chah Ferozewala in order to deprive them of inheriting it. . They also contended that they were in possession of the suit land which was ancestral qua them and Sardar Khan deceased and sought far a declaration to the effect that they were owners in rightful possession of it, They also claimed to be heirs of Sardar Khan according to Shia Law of inheritance.

3. Masjid Chah Ferozewala was under the management of Muhammad Khan and Jan Muhammad who contested the suit as mutawallis. They denied the allegation that Mst. Jannat, the donor, and Sardar Khan, her husband, were governed by custom or that Sardar Khan was a Shia. According to them, he was a Sunni and was governed by Hanafi Law.

4. On the pleadings of the parties, the trial Court framed the following issues :‑ (1) Whether the plaintiffs were in possession of the suit property? If not, whether the suit can proceed in its present form? (2) Whether Mst. Jannat and her deceased husband Sardar Khan were governed by custom in matters of alienation? If so, what was that custom? (3) If issue No. 2 is proved in the affirmative, whether the alienation in question was for legal necessity? (4) Whether Sardar Khan, husband of Mst. Jannat, was Shia at the time of his death? (5) Whether the plaintiffs are heirs of Sardar Khan deceased? If so, what is their share in the suit property? (6) Relief.

5. At the trial, the learned counsel for the defendants conceded issue No. 1 in favour of the plaintiffs and did not press issues Nos. 2 and

3. In the circumstances, the learned trial Judge rightly decided issue No: 1 in favour of the plaintiffs and issues Nos. 2 and 3 against the defendants. Acting on the statement of Maulvi Jan Muhammad, mutawalli of the mosque, that Sardar Khan professed Shia faith, the learned trial Judge decided issue No. 4 accordingly. As regards issue No. 5, the learned trial Judge held that Talib Husain and Ghulam Muhammad plaintiffs were entitled to 2/3rds of the suit land. In view of the above findings, the learned trial Judge decreed the plaintiffs suit for 2/3rds of the suit land.

6. Aggrieved by the above judgment and decree, the plain tiffs as well as the defendants went up in appeals. The learned Additional District Judge, Jhang, dismissed both the appeals vide his judgment dated the 26th of November 1955. The defendants have now come up to this Court in second appeal.

7. As already stated, issue No. I was decided on the state ment of the learned counsel for the defendants, who also did not press issues Nos. 2 and

3. The two Courts below have held that the plaintiffs were in possession of the suit land and that Sardar Khan was governed by custom. These are findings o fact and cannot be challenged in second appeal. The finding of the Courts below that the alienation in question was without legal necessity and consideration can also not be challenged as the defendants' learned counsel did not press this issue, i.e., No. 3, at the trial. The finding on issue No. 4, that Sardar Khan was a Shia, is purely a finding of fact. In fact this finding is based on the statement of Maulvi Jan Muhammad defendant who stated that Sardar Khan was originally a Sunni but was later on con verted to Shia faith. The decision on issue No. 5 is based on the statement of Maulvi Jan Muhammad defendant and Talib Husain (P. W. 9) whose evidence establishes that Sardar Khan deceased and the plaintiffs are descendants of the same paternal grand‑father. The learned counsel for the appellants was unable to challenge the findings of the Courts below. The land was ancestral qua the plaintiffs and Sardar Khan, who were governed by custom. On the death of Sardar Khan, who had no male issue, the suit land devolved on his widow Mst. Jannat under custom. According to custom, in the absence of a male lineal descendant the widow of the deceased proprietor ordinarily Succeeds to a life estate (Paragraph 11 of the Rattigan's Digest of Customary Law). Generally a widow in possession of her deceased husband's property cannot alienate it except for legal necessity and consideration (Paragraph 64). Answer to Question 49 of the Riwaj‑i‑Am of Jhang District, compiled by Mr. Abdul Aziz, may also be usefully reproduced to appreciate the position of a widow in possession of her decased husband's estate:‑ "Question No. 49.‑If the estate 'devolves on widow, define her interest therein. What rights has the widow to alienate by sale, gift, mortgage or bequest? Are there any special circumstances under which (or expenses on account of which) alienation is permissible? Is there any distinction in respect of movable or immovable, ancestral or acquired property, or in respect of alienations to the kindred of the deceased? If alienation be permissible only with consent, whose consent is necessary to make it valid? In case she succeeds to property held by her deceased husband jointly with collaterals, does it affect her right of alienation? If so, how? Answer: All Mohammadans.‑When a widow inherits she is the sole owner during her life‑time or till her remarriage, but she has no power to alienate any kind of property by sale, gift, exchange, mortgage or bequest, except for special objects, e.g., to pay off her husband's debt, marriage expenses of her daughter, expenses for maintenance, to pay off Government land revenue. With, the consent of collaterals she can give the land on lease and mortgage, or sell it. As regards movable property, she has a free hand. There is no difference between the rights of a widow as regards ancestral and acquired immov able property. In case of transfer to some of the collateral of her husband, the consent. of others is necessary. The fact that the property she inherited is joint with others, does not affect her right of alienation. Answer to Question No. 49 of the Riwaj‑i‑Am requires n comments. It will follow from what has been stated above that in Jhang District, widow holding the estate of her deceased husband under custom is not competent to alienate it except for F special objects mentioned in Answer to Question No.

49. It has not been shown that according to custom, Mst. Jannat could alienate the land of her deceased husband for a charitable purpose. Thus, the gift made by Mst. Jannat in favour of Masjid Chah Ferozewala is null and void and is not binding on the plaintiffs who are Sardar Khan's reversioners as well as heirs under Muslim Law.

8. Mst. Jannat died on the 15th of July 1954, i.e., after the enactment of the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), to be hereinafter referred to as the Act. According to section 3 of the Act, on the death of Mst. Jannat, succession is to be deemed to open out to the persons who would have been entitled under Muhammadan Law a to inherit Sardar Khan's property, and if any such person be not in existence, then his rights are to devolve upon his existing heirs.

9. Sardar Khan deceased being a Shia, his succession has to be governed by Muslim Law as followed by the Shia school (Imamia Code) under which a childless widow takes no share in her husbands lands. Paragraph 452 of Wilson's Anglo‑Muhammadan Law may be usefully reproduced here :‑‑ "In working out the Koranic rules respecting the shares of husbands and wives, the Shias differ from the Hanafis in three points :‑ (1) The `children' whose existence has the effect of reducing the share of the husband or wife, include descendants of either sex, tracing through females, as well as those tracing through males. (2) A childless widow takes no share in her husband's lands, though she is entitled to her Koranic share in the value of the buildings erected thereon, as well as in his movable property. (3) The surplus does not return to the wife even where there are no other heirs, but passes by escheat in Shia theory to the Imam." Paragraph 113 of the Principles of Mahomedan Law by Mulla (15th Edition) provides :‑ "A childless widow takes no share in her husband's lands, but she is entitled to her one‑fourth share in the value of trees and buildings standing thereon, as well as in his movable property including debts due to him though they may be secured by a usufructuary mortgage or otherwise." In Mir Ali Hussain v. Sajuda Begum (I L R 21 Mad. 27), a Division Bench of the Madras High Court held that the childless widow of a Muhammadan of the Shiya school is not entitled to any share in the land left by her husband. A similar view was taken by Chevis, A. C. J. in Shaukat Ali v. Anwar‑ul‑Haq (55 1 C 745). In the case under consideration, Sardar Khan died issueless and Mst. Jannat, being a childless widow, would not get any share in the land left by her husband. According to Shia Law, there are the following three classes of heirs:‑ "I. (i) Parents ; (ii) Children and other lineal descendants how‑low‑so‑ever. II. (i) Grand parents, how‑high‑so‑ever (true as well as false) ; (ii) Brothers and sisters and ‑their descendants how‑low so‑ever. III. (i) Paternal, and (ii) maternal, uncles and aunts, of the deceased, and of his parents and grandparents, how‑high‑so‑ever, and their descendants how‑low‑so‑ever. Of these three classes of heirs, the first excludes the second from inheritance, and the second excludes the third. But the heirs of the two sections of each class succeed together, the nearer degree in each section excluding the more remote in that section." (Paragraph 75 of Principles of Mohammedan Law by Mulla). The plaintiffs clearly fall under Class III as heirs of Sardar Khan, being paternal uncles sons. It is in evidence that they have two sisters. Thus they have to succeed to the suit land along with their two sisters. The male heirs get double share as compared with the female heirs. Thus excluding the share of the two sisters, the plaintiffs are entitled to 2/3rds of the suit land. We, however, do not express any considered' opinion on it as the matter was not in issue between the parties and the other possible heirs of Sardar Khan are not before us.

10. For the reasons given above, we see no force in this appeal and dismiss it, but leave the parties to bear their own costs throughout. K. M. A. Appeal dismissed.