P L D 1954 Lahore 544 (PLP)

AKHLAQUE HUSAIN, J.‑The land in suit belonged to one Abdullah Ji on whose death it was inherited by his son Faqiria. The latter, however died issueless and his mother Jani alias Hayat Jan came into posses sion as a widow of Abdullah Ji. On the 28th of September, 1942, Mst. Jani sold the land to Razi Khan, father of defendants 1 to 3 and husband of defendant No.

4. Both, the lower Courts have found that Sliahinchi Khan, a collateral of Abdullah Ji and the father of plaintiffs 2 and 3 and husband of plaintiff No. 1, gave his consent to `the sale. One Qalandar Khan, another collateral of Abdullah Ji, brought a suit for declaration that the sale was not binding on the reversioners and obtained a decree on the 27th of April 1943. The widow Jani died in June 1952 and the present suit was filed on the 30th of August 1952 by the heirs of Shahinchi Khan against the heirs of the vendee, Razi Khan, claiming possession of the land in suit as heirs of Abdullah Ji under the Maslim Law. Their claim was rejected by both the lower Courts and they have now come up to this Court .in second appeal. The sole contention of the learned counsel for the plaintiff‑appellants before me was that while the consent of Shahinchi Khan, as a reversioner under the Customary Law, to the sale by Mst. Jani cannot debar the plaintiffs from claiming the property as heirs of Abdullah Ji under the Muslim Law, they (the plaintiffs) are, according to the ruling of the Full Bench in Muhammad Asghar Shah v. Muhammad Gul Sher Khan (P L D 1949 Lah. 116=A I R 1949 Lah. 14.) entitled to have the benefit of the declaratory decree obtained by Qalandar Khan in 1943. This argument, even if it were to be accepted in its entirety, cannot help the plaintiffs to get the property in suit. An alienation by a person subject to the Customary Law, a suit for a declaration that the alienation is not: binding on the reversioners and the effect of a decree obtained in such a suit are all matters which are governed by the rules of Customary Law alone, which have not been A in any way modified or superseded by the provisions of the West Punjab Muslim Personal Law (Shariat) Application Act IX of 1948. It is true that the heirs under the Muslim Law, after the passing of Act IX of 1948, are entitled to have the benefit of a declaratory decree obtained by a reversioner under the Customary Law; but there is neither any law nor reason according to which the Muslim Law heirs can claim greater benefit under the decree than what the reversioners themselves could have claimed. The sale by the widow was not void; it was only void-able at the option of the reversioners' entitled to challenge it. The Customary Law, however, took away the right to challenge an alienation from a collateral, and his descendants, who had' consented to it and, therefore, the plaintiffs, as descendants of Shahinchi Khan, do not possess the right. The appellants' contention is based upon a fallacious assumption that the property in suit is a part of Abdullah Ji's inheritance which is available for distribution amongst his heirs. That property, on the 2nd of September 1942. ceased to belong for Abdullah Ji or his widow and passed out of his family subject only to the right of the persons entitled to challenge the alienation to recover it after the death of the widow. That right was a creature of Customary Law and that very law put Shahinchi Khan and his descen dants outside the category of the persons whom it allowed to challenge the alienation the moment Shahinchi Khan consented is the sale by the widow. The decree obtained by Qalandar Khan, subsequent to the sale by Mst. Jani,, therefore, never enured for the benefit of the plaintiff or Shahinchi Khan. There is thus neither any property to be inherited by the plaintiffs, nor any decree the benefit oil which can go to them in accordance with the ruling in Muhammad Asghar Shah's case. No other point was urged in support of this appeal, which is dismissed with costs. A. H. Appeal dismissed.