1979 PLP 817 (CLC)

4. On the divergent pleadings of the parties seven issues were framed. Issues Nos. 1, 2 and 3 were found by the learned trial Court in favour of the respondent-plaintiff, whilst Issue No. 4 was decided in favour of the appellants defendants and consequently Issues Nos. 5 and 6 were also decided in their favour. As a result the trial Court dismissed the suit of the respondent with costs by its judgment and decree dated 9-12-1974.

5. Aggrieved by this judgment and decree the respondent preferred an appeal to the learned Additional District Judge, Faisalabad (Lyallpur) who, under Issue No. 4 held -that though the land in lieu of which the land in dispute was allotted to Mst. Zenab Bibi, the predecessor-in-interest of the appellants devolved upon her as mother of Manzoor Ahmad and thus Manzoor Ahmad was the last full owner of the property; Mst. Zenab Bibi was a limited owner under the custom and on her death the succession was to open to heirs of the; last full owner and consequently the respondent was entitled to I/6 shark in the land in dispute. In view of his these findings the learned Additional District Judge modified the findings of the trial Court on Issues Nos. 3 and 6 to the extent that respondent Nazir Ahmad was held entitled to 1/6 share in the pr9perty in dispute. He consequently accepted the appeal partly and decreed the suit of the respondent in terms of his above findings by judgment dated 9-9-1976. Hence this second appeal by the appellants-defendants.

6. Before me the only two issues findings of which have been challenged are Issues Nos. 4 and 6 which read as under :- (4) Whether Mst. Zenab Bibi deceased inherited the property in suit as a full owner? (6) Whether the plaintiff' is entitled to inherit the property in dispute exclusively? The learned counsel for the appellants contended that the case of the respon dent was that he was the exclusive owner of the land in dispute inasmuch as the land in lieu of which this land was allotted to Mst. Zenab Bibi had devolved upon him from his father and he had given it to Mst. Zenab Bibi for maintenance for life or till she remarried. He further contended that the respondent-plaintiff never claimed the land as an heir of Manzoor Ahmad deceased, but claimed it exclusively in his own right. According to the learned counsel, the above issues framed also were to the effect whether Mst. Zenab Bibi was the full owner of the property or the respondent-plaintiff was entitled to inherit the same exclusively. He urged that the learned Additional District Judge did not confine to the above facts and in fact had set up a claim for the respondent-plaintiff which he himself never asserted. Reliance was placed by the learned counsel on Abdul Hafiz and others v. Muzaffar Karim (P L D 1973 Kar. 253), Messrs Fair Land Export Syndicate v. Messrs Bengal Oil Mills Ltd., Karachi (P L D 1970 Kar. 125) and Pakistan v. Abdul Ghani (P L D 1964 S C 68), to contend that a point or claim which was not set up in the plaint cannot be made the basis for decreeing the suit of the plaintiff. The second and the only other contention raised by the learned counsel for the appellant was that the lower Appellate Court failed to consider the position taken notice of by the trial Court that the respondent had himself asserted that the land was gifted by him to Mst. Zenab Bibi for life mainte nance and consequently the gift had taken effect and the condition of life maintenance being void had fallen and as such Zenab Bibi had become the full owner of the land in question.

7. On the other band the learned counsel for the respondent submitted that though the respondent claimed the whole of the land in dispute there was no bar for the learned Additional District Judge to allow a part of the said land on coming to the conclusion that only part was allowable to the plaintiff. Reference was made to the provisions of Order XLI, rule 33 of the Code of Civil Procedure to contend that the Appellate Court has the power to pass any. decree and make any order which ought to have been passed or made and to pass or make such other decree or order as the case may require. In support of this contention the learned counsel placed reliance on Haji Musa Haji Oomer v. Ahmad Abdul Ghani and another (P L D 1968 Kar. 320) and Messrs S. M. Yusuf & Bros. v. Mirza Muhammad Mehdl Pooya and another (P L D 1965 S C 15).

8. The learned counsel for the appellants in reply only submitted that the lower Appellate Court could not invoke Order XLI, rule 33, C. P. C. in the manner it was done and that the authorities cited on behalf of respondent do not apply to the facts of the case in hand.

9. Examination of the record shows that Mutation No. 327, Exh. P. 1 was initially sanctioned by A. C. II Grade by giving 1/3 share to the respondent-plaintiff and the remaining 2/3 to the appellants-defendants. In appeal the Collector gave 1/6 to Mst. Zenab since deceased, 2/3 to the appellants and 1/6 to the respondent. In a further appeal the case was remanded by the learned Additional Commissioner, Sargodba Division, Sargodha by his order dated 11-8-1966, Exh. P.

3. After remand A. C-II by his order dated 30-7-1967 gave 1/6 share to the respondent and 2/3 to the appellants. Again in appeal the Collector by his order dated 21-12-1967 held the respondent entitled to 1/3 instead of 1/6. The appellants' revision before the Commissioner resulted in the appellants being held entitled to the entire land as heirs of Mst. Zenab Bibi on the basis of decision reported in Sher Muhammad v. The Additional Rehabilitation Commissioner, Multan and 7 others (P L D 1968 Lah. 234), whereby widows were held absolute owners. Further revision by the respondent before the Board of Revenue failed vide Exh. P. 2, the order of the Member, Board- of Revenue.

10. From the above narration, one thing emerges that the contest between the parties throughout remained confined to the controversy as to whether Mst. Zenab Bibi who was admittedly a limited holder, was to be treated as a full owner or not.

11. As regards the contention that the lower Appellate Court could not make out a case for the respondent-plaintiff which was not set up in the plaint, it may be observed that the objection is not apt in the circum stances of the case. The Court is not hide bound by the pleadings of the parties so as to feel obliged to accept their ipsi dixit and either to reject a party's plea out of hand or to accept it in toto. In case of divergent versions put up by parties respectively, the truth may well lie partly in one version and partly in the other. In such a situation the Court is well within its competence to ascertain the truth and to state the same even though its conclusion in that behalf is at variance with the respective versions of the parties. By doing so the Court does not expose itself to an objection of making out a new case. The above view finds support from Mst. Qafsar Khatoon and 12 others v. Maulvi Abdul Khaliq and another (PLD1971SC334). At page 349 of this report their Lordships of the Supreme Court observed as under "Learned counsel for the respondents, at this stage, has firstly contended that this question should not be allowed to be raised at all, because, it was not pleaded nor was any issue raised with regard to it. Our attention in this connection is drawn to the plaint which is based on a personal right of inheritance under the Shariat law. There is no mention of custom there at all. In the written statement, however, the defendant Abdul Khaliq did set up the case that the family of Maulvi Abdul Aziz deceased was governed by custom and a specific issue was raised with regard to this question. It is true that there was no allegation in the plaint that the properties were self-acquired properties of Maulvi Abdul Aziz but in view of the case set up there it was not necessary to plead this fact. The defendant, since he pleaded custom, should have known that ordinarily the devolution of ancestral property only is governed by custom. It was for the defendant, therefore, to also allege that the properties left by Maulvi Abdul Aziz were all ancestral properties. He cannot now be allowed to object to this question being raised, because, this is a pertinent question which arises out of the plea raised by the defendant himself."

12. Adverting now to the case in hand it would be observed that the claim made in the plaint was that the total land owned by Fazal Muhammad in India devolved upon the respondent-plaintiff exclusively and out of the same he gave 29 kanals of land to Mst. Zenab Bibi, his step-mother for maintenance for life or till she remarried. The tenor of the plaint clearly shows that the alleged giving of the land by the respondent to his step mother was under the custom. The defence set up to this plea by the appellants defendants was that on the death of Fazal Muhammad, his land was mutated under the custom in equal halfs in favour of Nazir Ahmad, the respondent-plaintiff and his step-brother Manzoor Ahmad son of Zenab Bibi and that on the death of Manzoor Ahmad his half share devolved upon his mother Mst. Zenab Bibi aforementioned. It was also asserted in the written statement that the land in dispute which was confirmed in favour of Mst. Zenab Bibi was in lieu of the land which had devolved upon her from her son Manzoor Abmad and was confirmed in her name as mother of Manzoor Ahmad. The further assertion made in the written statement in para. 4 was that the Supreme Court judgment was not applicable to the land in dispute as it was not given to Mst. Zenab Bibi as widow of Fazal Muhammad but as mother. The crux of the defence, therefore, apparently was that the land had devolved upon Mst. Zenab. Biba under custom as mother of Manzoor Ahmad.

13. It also emerged from the evidence that the land, fell to Mst, Zenab Bibi not because it was given to her by Nazir Ahmad, respondent, but because it came to her lot as mother of her real son Manzoor Ahmad, who died issueless after the death of his father Fazal Muhammad.

14. One thing, therefore, stood established that the interest of Mst. Zenab Bibi in the land was under the custom as limited owner, may, be through her son Manzoor Ahmad. It is by now well settled that on the death of a widow, limited owner, the succession was to open to all the heirs under the Muslim Personal Law who would have inherited as if the last) male owner died on the date of death of the limited owner. Consequently, therefore, the inheritance of Manzoor Ahmad was to open on the death of Mst. Zenab Bibi and under the Muslim Personal Law 1/6 would have gone to the mother, 2/3 to the sisters and 1/6 to consanguine brother. There is no dispute aboui Nazir Ahmad, being the step brother of Manzoor Ahmad, the last male owner and consequently though the claim in the plaint may have been set up for the whole of the land, but if on the evidence and in view of rival version put up by the opposite-party, it was found that he was entitled to a part, there could be no impediment in the way to allow actual entitlement to the plaintiff.

15. The issues in question were also to the effect whether Mst. Zenab Bibi deceased inherited the property in suit as a full owner and whether the plaintiff is entitled to inherit the property in dispute exclusively. Now under Issue No. 4 from the pleadings of the parties and the evidence on record, as already pointed out above, it stood established that Mst. Zenab Bibi did not inherit the land in dispute as full owner, but only as a limited owner though from her son and not from her husband. The findings on Issue No. 4 as recorded by the trial Court holding Mst. Zenab Bibi as the full owner were, therefore, apparently based on misreading of the record which consisted of' Exhs. P. 1, P. 2, P. 3, etc. the mutation, order of the Additional Commissioner and of the Member, Board of Revenue. The lower Appellate Court has on the contrary taken due notice of the evidence on record and, with reference to Exh. D. 1 came to the conclusion that Mst. Zenab Bibi held the land as limited owner through Manzoor Ahmad, her son. The finding of the lower Appellate Court that Mst. Zenab Bibi was not the full owner but a limited owner holding through her issueless son Manzoor is, therefore, unexceptionable.

16. After having come to the conclusion that Mst. Zenab Bibi, deceased was not a full owner but a limited owner through her sin, it was to be decided whether the plaintiff was entitled to inherit the property exclusively. It was held that he was not so entitled. But then there appear no impediment to have gone further to determine the share if any to which the respondent was entitled. Such a determination would not be barred especially when the plaintiff had prayed in the plaint that he be declared exclusive owner or be granted such other relief to which he may be found entitled by the Court, and more so when the relief granted was within the scope of the issue as a necessary consequence of the plaintiff being found not an exclusive owner.

17. The other contention raised on behalf of the appellants that according to averments in the plaint, Mst. Zenab Bibi having been given the land by the respondent as gift for lifetime for maintenance, the gift was to be held as valid and condition attached redundant also does not find support from the record. There is no averment in the plaint that the land was given by Nazir Ahmad to Mst. Zenab Bibi as a gift. The averment is that the respondent-plaintiff gave 29 kanals of land to Mst. Zenab Bibi as maintenance for life or till remarriage. But as discussed above, the factual position is that she got land as a limited owner in her capacity as mother of an issuless son.

18. The only point now left to be considered is, whether the determi nation of the shares made by the learned Additional District Judge was justified or not. I may have remanded the case for decision on this point afresh after allowing the parties to lead evidence, but examination of the record, viz. Exhs. P. 1, 2 and 3 shows that in the Settlement hierarchy no dispute was ever raised as to the law by which the inheritance was to be determined and the shares determined by the Settlement hierarchy according to Sunni law of in. inheritance were not questioned, and the contest remained confined to the position whether Zenab Bibi deceased was full owner or limited holder. There is otherwise also a presumption that Muslims in Pakistan are Sunnis unless contrary is established by good evidence. This being the position I am of the view that the shares as determined by the learned Additional District Judge are correct and as such a remand is not called for in the circumstances of this case.

19. As a result of the above discussion this appeal fails and is dismissed. In the peculiar circumstances of the case the parties are however left to bear their own costs. M. Y. M Appeal dismissed.