P L D 1958 (W (PLP)

Date of hearing: 26th February 1958. AKHLAQUE HUSSAIN, J.‑These two appeals arise out of a suit for possession of a property, the history of which it is necessary to recount in some detail for the decision of the appeals. One Chughatta was possessed of some land including the one in suit. Upon his death on the 1st of February 1939 his land was mutated in the names of his widow Mst. Nur Bhari, his son Nawab, and Mst. Shahbazan the widow of Mehdi, another son of Chughatta, who had predeceased him, in equal shares. Mst. Nur Bhari died in 1941 and her one‑third share in the inheritance of her husband Chughatta was mutated in favour of Mst. Shahbazan and her grandson Nadra to the extent of one‑half each. Nadra's father Nawab had predeceased Mst. Nur Bhari, having died on the 27th of June 1939. Thus Mst. Shahbazan came to be in possession of half of the lands which had belonged to Chughatta. It is conceded before me by learned counsel appearing in both the appeals that the mutations on the death of Chughatta and Mst. Nur Bhari were correctly made in accordance with the custom by which the parties were governed. Mst. Shabbazan admittedly died after the coming into force of the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948). Nadra thereafter filed the present suit, claiming the entire property possessed by Mst. Shahbazan to the exclusion of everyone else. To this suit he impleaded as defen dants Mst. Amiran, the daughter of Mst. Shahbazan from Mehdi, Mst. Nur Bano, the daughter of Chughatta, Mst. Gohar Bano, the daughter of Nawab and the plaintiff's sister, and Bahadur, the brother of Mst. Shahbazan. Mst. Nur Bano and Gohar Bano admitted the plaintiff's claim and also said that such interest as they may have possessed in the property they had relinquished in favour of the plaintiff. The suit was, therefore, contested only by Mst. Amiran and Bahadur. The main question canvassed before the trial Court by the parties was whether "the last full owner" within the meaning of section 3 of the Shariat Act of the property in suit was Chughatta or Mehdi. Learned trial Court held that Mehdi was such an owner and decreed the plaintiff's suit to the extent of 3/8th of the property: Nadra appealed and the learned Senior Civil Judge, Jhelum, held, disagreeing with the trial Court, that the last full owner was Chughatta and not Mehdi, and, varying the decree of the trial Court, decreed the plaintiff's suit to the extent of 189/192 share in the land in suit. Against the appellate Court's decree Mst. Amiran and Bahadur have filed the second appeal, No. 224 of 1955, and Nadra the Appeal No. 288 of 1955. In Regular Second Appeal No. 224 of 1955 the sole question which falls for decision is whether Mehdi and not Chughatta was the last full owner. Section 3 of the Act provides as follows:‑ "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 termination of 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 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 will be observed that the section itself does not define the expression "the last full owner". It is contended by the learned counsel for the appellant that that expression would be applicable even to a person who was the full owner of the property, not in actual fact but fictionally in accordance with the theory of Customary law. He has cited two rulings reported as Mst. Gango v. Mst. Hukam Kaur (A I R 1938 Lah. 111) and Mst. Fatima Bibi v. Nur Muhammad Shah (P L R 1951 Lah. 184: P L D 1951 Lah. 147) for the proposition. In the first case it was held that where a widow had succeeded collaterally after her death it is the heirs of her husband who have to be sought for and not the heirs of the last male holder of the property. In the second case, Mst. Fatima Bibi v. Nur Muhammad Shah, it was laid down that according to custom, the mother succeeds not as the mother of her son but as the widow of her husband and on her death inheritance has to be traced to the latter and not to the last male holder. With these propositions there can be no dispute. The question is whether a widow's husband who had never actually succeeded to the property and had died before the succession opened can be treated as the last full owner. It would be noticed that in both the cases the widow's husband was not treated as the last male holder. Learned counsel has been unable to refer to any case which may support him. The widow or other heirs, of a predeceased son of the last male holder of the property succeed, to a part or the whole of it, not because the deceased ever held or owned the property; but because of the right of representation which is one of the basic principles of the customary Law governing succession amongst the agriculturists. I have, therefore, no hesitation in agreeing with the learned lower appellate Court that the last full owner in this case must be deemed to be Chughatta, who actual owned the property, and not his pre‑deceased son Mehdi. The appeal (No. R. S. A. 224 of 1955), therefore, fails and is hereby dismissed with costs. As regards the appeal by Nadra (R. S. A. No. 288 of 1955), it is completely devoid of any substance. Learned counsel for the appellant contended that the lower appellate Court had erred in holding that on Nur Bhari's death a part of her property would descend to the children of Nawab and Mehdi because the latter had predeceased her. He asserts that the children of predeceased children cannot be residuaries under the Muslim Law. There is no warrant or authority for this pro position. This appeal too is dismissed with costs. A. H. Appeal dismissed.