1983 PLP 384 (SCMR)

SHAFIUR RAHMAN, J.‑The petitioners seek leave to appeal. against the judgment of the Lahore High Court dated 4‑12‑1975 whereby their Regular Second Appeal was dismissed in limine. The petitioners are the successors‑in‑interest of one Mst. Aisha, daughter of Boota. The respondents who were the plaintiffs are on the other hand, the successors‑in‑interest of three sons of the same Boota. In 1929 Boota made a gift of the disputed property in fav6ur of Mst. Aisha for her life time or till her remarriage‑ She held land till 1970 when she died and mutation of her inheritance was attested in favour of the petitioners treating her to be the absolute owner of the land. A suit was filed by the respondents contending that she had only a life estate and on the termination thereof her brothers and after them their successors‑in‑interest, that is, the respondents were entitled to inherit. The petitioners contested the suit taking a number of objections, the material ones being with regard to the form of the suit, its being within ,limitation and claiming that it was an outright gift without any limitations or reservations on the donee and Mst. Aisha had, in fact, become absolute owner. Issues were framed and were decided against the petitioners. On merits, however, it was held that after determination of the limited estate of Mst. Aisha the inheritance or devolution of the property in her possession would be governed by Shariat and her heirs would be entitled to 1/7 shares and the plaintiff‑respondent to 6/7. The suit was decreed in terms thereof. The petitioner's appeal failed and also the second appeal. The learned counsel for the petitioners has contended that the gift made by Boota in 1929 should be tested under the Islamic Law and declared to be absolute gift notwithstanding the condition that it was to last for her life time or till her remarriage. On the basis of this argument it is also contended that the form of the suit was net proper because the plaintiffs were not in possession of any other portion of the disputed land. Finally it is stated that the suit is barred by time as part of their claim was based also on the mutation attested in 1929. It appears from the record that Boota was an Arain of Faisalabad and was dealing with his self‑acquired agricultural property. He had in very clear and unmistakable terms Made a gift of the usufruct of the property which was to be enjoyed by Mst. Aisha till her lifetime or her remarriage, whichever happened earlier. These conditions were not 'violative of any law then in force and will have full effect, Their legality and effect has been recognized as such and we do not and any legal infirmity in such a construction of the document. As the plaintiffs‑respondents have been taken to be heirs of Boota and as such joint owners of the property which was held by Mst. Aisha they could, being co‑sharers, seek a declaratory relief in respect of the joint land. Their cause of action had arisen in 1970 when in fact the land held by Mst. Aisha was available for being inherited by them. We find no merit in the petition and the leave to appeal is, therefore, refused. Petition dismissed.