P L D 1963 (W (PLP)

(4) Whether Shabzadi Sultan Begum deceased was compe tent to make a gift of the entire land in dispute in favour of defendant No. 1, and if so, did she in fact make such a gift so as to make the defendant No. 1 the exclusive owner of the entire land in dispute? (5) Whether plaintiff No. 2 Asifia Sultan is estopped from denying title of defendant Sher Muhammad Jan on account of her previous admission and whether those admissions also bind the other plaintiff? (6) Whether defendant Sher Muhammad Jan has been in adverse possession of the land in dispute for more than twelve years so as to acquire a prescriptive title in his favour? (7) Whether there was a family settlement between the parties which is legally valid and binding on the parties? (8) What is the effect of the Shariat Act of 1948 on the rights of the parties? (9) Whether according to the terms of the deed of grant the defendant was the sole heir of Shahzadi Sultan Begum deceased and the sole owner of the entire land in dispute? (10) Whether the plaintiffs are estopped from denying the exclusive ownership of the defendant with regard to the entire land in dispute? (11) Relief. (12) Will the defendant not be liable to render the accounts of the income of the property in dispute to the plaintiffs?

11. When the case was first laid before me on the 18th of June 1962, the learned counsel for the parties agreed that the issues as framed by the Civil Judge, mentioned above, did not need any addition or change. The plaintiffs had led their evidence on issue No. 1 before the Civil Judge for which the onus was placed on them and the only witness that they produced in this connection was the attorney of the plaintiffs, Mr. Sajjad Masud. The defendant did not lead any evidence before the Civil Judge. In this Court he has entered the witness -box himself as D. W. 7 and has produced ten other witnesses. Of them, D. Ws. 1 to 5, 8 and 9, namely, Shamun, Ali Muhammad, Shahab‑ud‑Din, Lakha, Umar Din, Amir Khan and Muhammad Din claim that they had remained on the lands as tenants during the life time of Shahzadi Sultan Begum and also after her death and had paid the landlord's share of the produce, first to the lady, Shahzadi Sultan Begum, and thereafter to the defendant. According to the statements of some of them, they started attorning to the defendant during the lifetime of Shahzadi Sultan Begum as she had summoned them and apprised them that she had gifted the land in dispute to the defendant and had told them that they should thenceforward accept him as their landlord. D. W. 6, Mr. Fazal Elahi, Advocate, was produced by the defendant in reference to issue No. 5 to prove certain admissions made by plaintiff No. 2, Shahzadi Asifia Sultan, in favour of the defendant. He stated that he was a counsel of Shahzadi Asifia Sultan in the previous litigation between Mst. Sharaf Sultan and the defendant, in which Shahzadi Asifia Sultan was impleaded as a co‑defendant and that the written statement in that case (Exh. D. W, 6/2) was drafted by him under instruc tions from one Wasi Jan and was sent to Shahzadi Asifia Sultan for her signatures. She had at first sent it back unsigned but later when the draft was dispatched to her again, she sent it back duly signed and it was then filed in Court. D. W. 10 is the Munshi of the defendant and states to have succeeded his father in that capacity. He proved the gift in favour of the defendant by Shahzadi Sultan Begum and the relevant gift mutation which was sanctioned according to the witness on the application of Mst. Sultan Begum to the relevant authorities. He also proved the remittances of certain amounts by money orders to Shahzadi Asifia Sultan and Shahzadi Sharaf Sultan by Munshi Ghulam Muhammad under the instructions of the defendant as per money order receipts Exhs. P. W. 10/1‑

32. He also stated that he had on some occasions paid certain amounts to the plaintiffs directly on behalf of the defendant. The last witness produced by the defendant is Muhammad Shafi, Moharrir Patwari, who produced extracts from the revenue records Exhs. D. W. 11/1 to D. W. 11/3 which show Shahzadi Sultan Begum as full owner in the Jamabandi for the year 194243 of lands measuring 11,032 kanais and 5 marls and Sher Muhammad Jan recorded as the owner of 1.362 kanals and 5 marlas in the same Jamabandi by virtue of gift mutation No. 3 attested on the 28th of March; 1931. He deposed that Shahzadi Sultan Begum had inherited the total area of 13,052 kanals and 10 marlas by way of inheritance from her late father, Shahzada Sultan Ibrahim. Inheritance Mutation No. 6 (copy Exh. D. W. 11/4) was attested on the 3rd of August 1913. The plaintiffs did not produce any evidence in rebuttal.

12. Before disposing of the issues in their numerical order, it seems necessary to refer to the original deed of grant which is the common source of the title of the rival parties as the fate of the case in its main part depends upon its true construction. On the 18th of June 1962, when I commenced proceedings in the case the learned counsel for the defendant wanted me to take note of the fact that the original Sanad in favour of Shahzada Sultan Ibrahim dated the 28th of July 1886 was filed by him in Court in the previous case as an annexure to the list of documents signed by the learned counsel for the defendant, Mian Muhammad Nazir Advocate who is also his counsel in the present case. This document along with the list is on record. I made the following remarks about these documents on the 18th of June 1962 :‑ "While the Sanad is undecipherable apparently due to water‑soaking, the covering list is intact containing entries about the contents of the document in the second column of the list and the signatures of the counsel under the date 17th of November in the last column." The entry in the second column, referred to above, is as follows :‑ This original being altogether unreadable, we have to fall back on the copy Exh. P. W. 1/A, supplied by the plaintiffs. The defendant in paragraph 2 of his written statement on facts dated the 22nd of March 1962, stated that the copy of the deed of grant (Exh. P. W. 1/A) attached to the plaint was not admitted to be correct, but he has not made any effort to show that it is different in any part from the original. In the course of his lengthy statement recorded by me he admitted that the original had been in his possession throughout but he had not kept a copy of it with himself. He did not try to obtain one from the Colony Officer. He claimed that he had read the original a number of times and so did his late father who was a Sessions Judge. According to his interpretation, which was allegedly endorsed by his late father, the deed recognised primogeniture as the rule of succession to the property in dispute and female heirs were excluded from succession in the presence of male heirs. He stated that on account of the construction of the grant his parents had during their lifetime told the plaintiffs that they were not to get any part of this property, but nonetheless they were to be maintained by the defendant.

13. Leaving the construction of the deed aside, the defen dant had not even hinted except for the averment made in the written statement, already referred to above, that the original which he had repeatedly read but of which he did not keep a copy, differs in any particular, from the copy produced by the plaintiffs in this case. Nor has he led any evidence to that effect. In the course of arguments before me the learned counsel for the defendant was obliged to accept that the copy Exh. P. W. 1/A supplied by the plaintiff's was a correct copy of the original. This copy (Exh. P. W. 1/A) which, in the circum stances, I accept as correct, shows that the deed was executed on the 28th day of July 1886, between the Secretary of State for India in Council as the Grantor and Shabzada Sultan Ibrahim son of Shahzada Sultan Adham and the representative of the family of Shahzada Yahya Khan as the Grantee. The deed witnesses that in pursuance of orders contained in Letter No. 2237 dated the 5th of December 1872, from the Secretary to the Government of India in the Foreign Department to the Secretary to the Government of the Punjab and as a reward for the loyal and meritorious services of the said grantee and of Shahzada Yahya Khan and in consideration of the promises hereinafter contained and by the said grantee to be observed and performed, the said grantor does hereby grant, convey and assure unto the said Grantee, his heirs and legal representatives as hereinafter defined all that piece or parcel of land situated at Rakh Vegal in the district of Lahore the particulars whereof are set out in the Schedule hereunto annexed together with all agricultural produce of the said land save and except and reserved unto the said grantor, his successors all mines, minerals, coal, gold washings and quarries in or under the said land and full rights at all times to enter upon any part of the said land and to do all acts and things that may be necessary or expedient for the purpose of searching for working, getting and carrying away any mines, minerals, coals, gold washings or quarries in or under the said land without leaving any vertical or lateral support for the surface or any building for the time being standing there in (the Government of India, its successors and assigns making reasonable compensation to the Grantee, his heirs, executors and administrators and his or their lessees or tenants for all damage occasioned by the exercise of the rights hereby reserved). The tenor of the grant is thus depicted in the deed:‑ "To hold the said lands unto him, the said Shahzada Sultan Ibrahim for life in full proprietory right and revenue free but subject nevertheless to all existing rights of way and water and other easements if any subsisting thereon and to payment of all local taxes and rates including water advantage and owner's rates or cesses for the time being imposed by competent authority in respect of the lands hereby conveyed or any part thereof." Then follows the mode of devolution of this property in the following words :‑ "Upon the death of the said Shahzada Sultan Ibrahim, his wife Mst. Tajwar Sultan Begum, if she should survive him shall succeed to the said land for her life upon the same estate and the like conditions upon which the same is now and has hitherto been held by the said Shahzada Sultan Ibrahim. Upon the death of the said Shabzada Sultan Ibrahim and of his said wife the said land shall devolve and be held but always subject nevertheless to assessment to land revenue and cesses under the law and rules for the time being in force as follows :‑ (a) by the eldest of their male issue and on his death or he being then dead by his male lineal descendants successively according to the law of primogeniture. (b) On the failure of all male lineal descendants of the said eldest son, then by the second son of the said Shahzada Sultan Ibrahim and his said wife and on his death or he being then dead by his male lineal descendants successively in the manner aforesaid. (c) On the failure of all male lineal descendants of the said second son then by the third son of the said Shahzada Sultan Ibrahim and his said wife and on his death or being then dead by his male lineal descendants successively in the manner aforesaid and so on by the fourth son and all younger sons of the said Shahzada Sultan Ibrahim and his said wife and their lineal descendants respectively in the manner above set forth until all the male lineal descendants fall. (d) Failing all male lineal descendants as aforesaid the said land shall devolve upon and be held by the daughters of the said Shahzada Sultan Ibrahim and his said wife and their issue in equal shares per stirpes but subject always to such assessment and cesses as aforesaid. (e) Failing all issues as aforesaid, the said land shall lapse to the said Grantor absolutely.

14. It is pertinent to refer here to the relevant provisions of the Crown Grants Act (XV of 1895) which governs the grant in question as it is admittedly a "Crown grant". This Act was passed, as its pre‑emble states, to remove certain doubts as to the powers of the Crown in relation to such grants, in particular, its powers to impose limitations and restrictions upon grants and other transfers of lands made by it. Section 3 of the aforesaid Act reads as follows :‑‑‑ "All provisions, restrictions, conditions and limitations ever contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contray notwith standing." To my mind, this Act, enacted in 1895, which clarified the powers of the Crown in regard to the grants made by it, covers all case: of grants existing at the time of its enactment, including the grant in this case which was made in the year 1886. The limitations and restrictions imposed on the grant by the terms of the deed could not be challenged as invalid nor has the defendant taken exception to any one of them. The difference between the parties, as regards the deed itself is concerned, is not about its validity but is based on their differing interpretations of its terms. Having given the background of the events and having stated the main features of the deed of grant which is the source of title of the parties, it would now be convenient to deal with the issues specifically, which have been framed in the case.

15. Issue No. 1.‑The first part of this issue has already been decided generally with my finding that the original deed of grant which was in possession of the defendant and which is on the record has become useless and undecipherable and that Exh. P. W. 1/A, which has been relied on by the plaintiff's as a correct copy of the original is true in all its particulars. As regards its terms, the parties are at variance on two points : (1) the order of the devolution of the property and the rule of succession governing this property amongst the heirs of the original grantee and (2) the powers of disposition qua this property possessed by the holder for the time being.

16. The learned counsel for the defendant contended that the succession to this property, according to the terms of the grant, is to be confined only to the male line of descent of Shahzada Ibrahim and female succession is excluded in all cases when a male descendant is available. According to hire, Shahzadi Sultan Begum succeeded to this property on the death of Sultan Ibrabim in the absence of any male descendant of Shahzada Sultan Ibrahim but on her death the defendant being her male issue who has survived her is to succeed to the property to the exclusion of the daughters of Shahzadi Sultan Begum. On the other hand, by reference to the relevant terms of the deed, the learned counsel for the plaintiffs contends that the rule of succession as laid down in the deed of grant provides for the rule of primogeniture so far as the male lineal descendants of Sultan Ibrahim were concerned but failing them the property is to devolve on the daughter or daughters of Shahzadi Taiwar Sultan Begum and Shabzada Sultan Ibrahim and in that, case no question of the rule of primogeniture arises and the property is to be divided between them and on their death between their issues in equal shares per stirpes.

17. A careful study of the relevant terms of the deed definitely yields the interpretation as put on it by the plaintiff's. According to the terms of the deed, on the death of Shahzada Sultan Ibrahim, his wife, Shahzadi Tajwar Sultan Begum, would have succeeded him if she had not predeceased him even in the presence of issues born to them. This was for the reason that, apart from being the wife of Shahzada Sultan Ibrahim, she was a representative of the family of Shahzada Yahya Khan who had died issueless and the grant in question had been made in recognition of the services of Shabzada Yabya Khan as well as Shahzada Sultan Ibrahim. On the death of Shahzadi Tajwar Sultan Begum, if she had succeeded to the property, it was to be inherited by the eldest of their male issues or he being dead by his male lineal descendants successively, according to the law of primogeniture. Failing the eldest son and his descendants the property was to go to the second son to remain in his line of descent and failing him by the third son or by his line or the fourth son and so on, the law of primogeniture remaining the dominant rule. But clause (d) of the terms of the devolution clearly states that failing all male lineal descendants, as aforesaid the said land shall devolve upon and be held by the daughters of the said Shahzada Sultan Ibrahim and his said, wife, Shahzadi Tajwar Sultan Begum and their issues in equal shares per stirpes. I have italicized the words "as aforesaid" because they refer to the male linear descendants enumerated in the previous clauses (a) to (c), confined to the male line of descent without reference to the male lineal descendants in the female line. Shahzadi Sultan Begum had obviously inherited the property under clause (d) because of the total absence of any of the male lineal descendants of Shahzada Sultan Ibrahim and his wife, Shahzadi Tajwar Sultan Begum and under the rule of devolution as laid down by the deed on the death of Shahzadi Sultan Begum, the property in dispute has to be inherited by her issues, male and female, in equal shares per stirpes. The plaintiffs and the defendant are her issues and therefore fall within this rule which entitles them to divide the property in equal shares. The second difference between the parties with regard to the powers of disposition possessed by the holder of the property will be discussed under issues Nos. 3 and 4 which more specifically deal with this power of disposition.

18. Issue No. 2.‑This issue does not require any further discussion as I have held under issue No. 1 that the plaintiffs are entitled to one‑third share each (total two‑third) under the terms of the deed and the remainder one‑third belongs to the defendant, all succeeding as the heirs of Shahzadi Sultan Begum in equal shares.

19. Issues Nos. 3 and 4.‑The two issues are inter‑connected and may be disposed of together. They involve two main points, firstly, whether Shahzadi Sultan Begum had gifted the land in dispute in favour of the defendant, thus making him the exclusive owner of the entire land, and, secondly, if she has made such a gift, was she competent to do so? The first point has to be answered in the affirmative both on the documentary and verbal evidence led on the point. Shahzadi Sultan Begum had herself inherited this property under the deed of grant as mentioned above on the death of Shahzada Sultan Ibrahim in the year 1913. A mutation was duly attested in her favour (copy Exh. P. W. 11/4). By Mutation No. 3, attested on the 28th of March 1931, she gifted 1,972 kanals and 3 marlas of the disputed land to the defendant. By a second mutation attested on the 10th of April 1954 (copy Exit. P. Vv. 7/2) she gifted the rest of the area, comprising 1,132 kanals and 5 marlas, to the defendant in village Ibrahimabad The defendant thus became the owner of the entire village by virtue of these two mutations. The verbal evidence of the tenants, already referred to above, and the statement of D. W. 10 Bashir Ahmad and of the defendant himself as D. W. 7 definitely confirm the fact that Shahzadi Sultan Begum had gifted the disputed land in favour of her son, the defendant, during her lifetime and had asked the tenants to attorn to the defendant thereafter. The revenue entries further support this gift but while the gift in favour of the defendant is proved, I am clearly of the opinion that according to the terms of the deed under which Shahzadi Sultan Begum had herself inherited this property she was to hold the property only for her lifetime without interfering in any manner with its devolution on her heirs after her death as laid down in the terms of the deed. ,L will be noticed that the deed provided for the succession of Shahzadi Tajwar Sultan Begum, mother of Shahzadi Sultan Begum, in case she had survived her husband, Shahzada Sultan Ibrahim. But she would have succeeded to the lands as clearly mentioned in the deed for her life only on the like conditions as the estate was held by Shahzada Sultan Ibrahim. Again, the deed provides that in the event of the extinction of the male line of descent of the original grantee and non‑existence of female heirs the granted land shall lapse to the Grantor absolutely. The provision for the continuity of the succession to this property to the various heirs as contained in the deed and its lapse to the Government in the event of the failure of the succession as provided clearly manifests the intention of the Grantor that the holders for the time being under the grant did not have absolute powers of disposition to destroy its regulated devolution, Alienation of the property by gift or otherwise definitely inter feres with and diverts the mode of devolution as provided in the deed. In one sense. it would amount to the extinction of the estate itself for purposes of devolution, defeating the terms of the grant and providing a situation where under the terms of the grant the property may laps;, to the Government. The learned counsel fur the defendant laid great emphasis on the fact that the deed styles the grantee, Shahzada Sultan Ibrahim, as the holder in full proprietary rights and that such rights do not admit of any limitation on the power of disposition. It is true that the words "in full proprietary rights" are mentioned in relation to the grantee and his successors in the deed, but full proprietary rights being CO‑extensive with the lifetime of the holder for the time being, it is illogical to say that any disposition made by the holder for the time being of those rights can take effect beyond the lifetime of such holder. An alienor cannot give greater rights than what he himself possesses and in this case since the proprietary rights of Shahzadi Sultan Begum were to last only till her lifetime with a guarantee for her successors to succeed to that property intact, any disposition made by her cannot prejudicially affect the interests of her successors as provided by the terms of the deed. I would, therefore, hold that the gifts made by Shahzadi Sultan Begum in favour of the defendant of the lands in dispute could not and did not prejudicially affect the interests of the plaintiffs and they are entitled to succeed to their share of the property in spite of the gift made by her in favour of the defendant after the death of Shahzadi Sultan Begum and the termination of her interests.

20. The learned counsel for the defendant has advanced another argument in support of his contention that the property now belongs exclusively to the defendant which may be noticed. He has referred me to the contest that took place between the parties before the "Land Reforms Law Authorities" under Martial Law Regulation No. 64, entitled West Pakistan Land Reforms Regulation 1959. The defendant filed his declaration forms L. C. I and L. C: II before the Deputy Land Commissioner and in the proceedings that followed, on the point whether the land in dispute was a Jagir or not, the Deputy Land Commis sioner in his order dated the 26th of May 1959 observed as follows :‑ "In the revenue records the original grantee and his successors‑in‑interest have all along been shown as full proprietors of the land. The deed of grant and the revenue records do not mention that the land had been granted by way of Jagir or it was to be held during the pleasure of the Government. Shahzadi Sultan Begum or his son Shahzada Sher Jan have also not been mentioned in the register of Jagirdaran maintained in the office of the Deputy Commissioner, Lahore. In view of the above facts, I am of the opinion that the grant of land held by Brigadier Sher Jan is not a Jagir but an ordinary grant and, thus, shall be disposed of according to the provisions laid down in Parts II, III and IV of the West Pakistan Land Reforms Regulation." This finding of the Deputy Land Commissioner was challenged by the plaintiff Mst. Sharaf Sultan Begum before the Commis sioner of the Lahore Division. The latter by his order dated the 24th of August 1959, refused to interfere with the order of the Deputy Land Commissioner, agreeing with him that it was not a Jagir. A revision was filed before the Chief Laud Commissioner which does not appear to have been pressed. On these facts, the learned counsel for the defendant has contended that under section 27 of Martial Law Regulation No 64, referred to above, the jurisdiction of the Civil Court, including that of the High Court, stands ousted, to call in question the orders made under the Martial Law Regulation. I have not been able to appreciate the relevancy of this argument in: relation to the dispute before me. Granted that under the Martial Law Regulation the relevant authorities have held the land in dispute to be an ordinary grant and not a Jagir, the question arising for my decision is as to the extent of the rights of the plaintiffs therein. This fact was not in issue before the "Land Reforms" authorities and in fact they could not have adjudicated upon it under the aforesaid Martial Law Regulation. On the contrary, I find that the Deputy Land Commissioner, Lahore, in paragraph 3 of his order dated the 26th of May 1959. has referred to the fact that the gift made by Shahzadi Sultan Begum to her son Shahzada Sher Jan (defendant) was under challenge by her daughters and the matter was still sub judice. We, therefore, directed that the area so resumed shall vest in the Land Commission who will arrange for its management in the manner considered appropriate. I do not consider that the proceedings taken before the Land Reforms Authorities can at all stand in my way for adjudication of the dispute between the parties as to their respective rights in the property itself.

21. Issue No. S.‑This brings us to the fifth issue whether plaintiff No. 2, Shahzadi Asafia Sultan Begum is estopped from denying the title of the defendant on account of her previous admissions and whether those admissions also bind the other plaintiff. The admissions, referred to in this issue, are contained in the jawab‑i‑dawa filed by Shabzadi Asafia Sultan Begum in the previous suit instituted by Shahzadi Sharaf Sultan Begum against the defendant, challenging the gift in favour of the defendant, the plaint in which suit, as already stated above, was finally dismissed under Order VII rule 11, of the Code of Civil Procedure. She supported the defendant's claim in this jawab‑i‑dawa but in circumstances which prove that she did so under the influence of representations and promises made by the defendant to her. The defendant sent her letters Exhs. D. W. 7/3 and D. W 7/5 in which he asked her to sign the jawab‑i‑dawa, drafted by the defendant's counsel, Mian Muhammad Nazir, and send it back to him for filing in Court, assuring her that on his return back to Pakistan from abroad he will give her five squares of land. As brought out in the evidence of D. W. 6, Mr. Fazal Elahi, Advocate, who was engaged by the defendant as counsel for Shahzadi Asafia Sultan Begum, she had at first refused to sign the jawab‑i‑dawa. It was sent to her for the second time and under the pressure and influence of the letters Exhs. D. W. 7/3 and D. W. 7/5 she appears to have yielded to the wishes of the defendant to support his case. I do not consider that she stands irrevocably committed to the admissions which she made in favour of the defendant influenced by rosy promises and professions which were not carried out. At the worst, they were gratuitous admissions which she could competently withdraw and which she has repudiated by becoming a co‑plaintiff in the present suit and by asserting a claim to her share in the property in suit Further, the admission that the gift in favour of the defendant was valid, being clearly wrong in its legal effect, can have no significance in supporting the defendant's title. There can be no estoppel against law nor can the admission of a party validate a transaction which is otherwise legally invalid. The admission on the part of Shahzadi Asafia Sultan Begum, even if it were admissible and binding, cannot validate the gift in favour of the defendant which was otherwise invalid. An erroneous admission does not bind the person making such admission. See Mangru Rai v. Shivanand Lai and another (A I R 1923 All. 575).

22. Issue No. 6.‑The learned counsel for the defendant laid great stress on this issue for his contention that the defendant after having gained the possession of the property in 1931 during the lifetime of his mother, although under an invalid gift, had started holding adversely to the plaintiff's and had maintained his position as an exclusive owner openly and adversely ever since and, therefore, his adverse possession has been matured, resulting in the extinction of the rights of the plaintiffs under section 28 of the Limitation Act to recover possession even if they may be held to own a share in the property. This contention, in my view, ignores a basic concept of adverse possession that it does not start running in favour or the trespasser against the true owner until such time as the truer owner has the right to immediate possession. Adverse possession implies that it commences in wrong and is maintained against right. To quote the famous remarks of Markby, J., in Bejoyo Chunder Banerjee v. Kalley Prosonno Mookerjee (I L R 4 Cal. 327) "By adverse possession I understand to be meant possession by a person holding the land on his own behalf or on behalf of some person other than the true owner, the true owner having the right to immediate possession. If by this adverse possession the statute is set running and it continues to run for twelve years then the title of the true owner is extinguished and the person in possession becomes the owner." In another case, Kherdomoney v. Doorgamoney (I L R 4 Cal, 455), the same learned Judge remarked as follows :‑ "By possession adverse to the possession is meant possession of that which the plaintiff is entitled to possess held not on behalf of the plaintiff but on behalf of some other person." If the true owner does not have the right to immediate possession, he cannot eject the person in possession and until he can get into possession, it is immaterial for him who is in possession. In the present case the plaintiffs had no right to immediate posses sion and could not have entered into possession during the lifetime of their mother, Shahzadi Sultan Begum. Nor could they eject the donee or the alienee so long as Shahzadi Sultan Begum was alive. Therefore, the possession of the defendant under the invalid gift made by Shahzadi Sultan Begum in his favour could not have started running adversely against the plaintiffs until the time when on the death of Shahzadi Sultan Begum they became clothed with the legal right to obtain possession of the property. It is admitted that Shahzadi Sultan Begum had died on the 16th of September 1954 and the present suit for possession which was instituted on the 26th of January 1956 was quite within time if the period of limitation is to be counted from the date of her demise. The plaintiffs have not directly challenged the gift in favour of the defendant in the present suit although it was previously challenged by Shahzadi Sharaf Sultan Begum in the earlier suit which was not pursued. However, the invalid creation of the gift by Shahzadi Sultan Begum could not give a cause of action to the plaintiffs to recover possession of their share of the gifted property during the lifetime of the donor. I would, therefore, find this issue against the defendant, holding drat he has not held the land in adverse possession for the full statutory period to extinguish the right of the plaintiffs to recover their share of the property as claimed by them.

23. Issue No. 7.‑For proof of this issue the defendant relies on a settlement deed (photostat copy on record) dated the 1st of May 1937. The execution of this deed is not denied by the plaintiffs and from its contents it appears that the plaintiffs had agreed to relinquish their rights in the land in suit in favour of the defendant on the stipulation made by the defendant that he would pay Rs. 720 per annum to each of the plaintiffs. It is stated by the defendant that instead of paying Rs. 720 as a legal liability flowing from the settlement deed, he has been paying to each of the plaintiffs Rs. 200 to Rs. 400 per mensem and to substantiate this he has filed money order receipts Exh. D. W. 10/1‑

32. D. W. 6 Sher Muhammad Jan and D. W. 10 Bashir Ahmad also support the remittances of the money amounts. The learned counsel for the plaintiffs has challenged the deed of family settlement on various grounds. The first objection is that it was executed at a time when the plaintiffs were not in possession of any part of the disputed property to effect its relinquishment and at the most it amounted to a transfer of a mere chance of succession which is prohibited by law. It is further alleged that this family settlement being without consideration is of no effect. The basis of the settlement according to the plaintiffs' case was a will executed by Shabzadi Sultan Begum by virtue of which the plaintiffs were to get some other property given to them under the will by Shahzadi Sultan Begum but the will was not implemented because the property covered by the will and which was to come to the plaintiffs after the death of Shahzadi Sultan Begum was disposed of by her during her lifetime. Therefore, according to the plaintiffs' case the entire basis for the family settlement disappeared. It seems to me that the deed could be admitted as one of family settlement and given effect to as such, if it were not for the reason that it was rendered ineffective because of the failure of the arrangements in lieu of which the plaintiffs had subscribed to it, namely, the accrual of certain other property to them under the will made by Shahzadi Sultan Begum. It is also clear that the alleged family settlement was never acted upon and in fact the evidence about its non‑implementation was supplied by the defendant himself. During the pendency of the suit the defendant relied on a fresh compromise effected between the parties which he wanted to be accepted and recorded by the Courts. I do not consider that the settlement deed in question is binding on the plaintiffs to deprive them of their share in the property. I find the issue against the defendant.

24. Issue No. 8.‑The West Punjab Muslim Personal Law' (Shariat) Application Act, 1948, does not govern the present dispute as admittedly the property in question is covered by the Crown Grants Act of 1895 which according to its section 3 takes effect regardless of any custom, rule of law or statute to the contrary. The succession of the property is to be regulated by the terms of the deed and the Shariat Act introduced in 194h does not alter the mode of that devolution. The Crown Grants Act is a Central Act which is still extant without any modification and the Provincial Legislature has no jurisdiction to amend it, nor has it sought to do so in order to make the Shariat Act applicable to succession governed by this grant. In cases where the Provincial Legislature has deemed it necessary to bring succession governed by special enactments in conformity with the provisions of the Muslim Personal Law (Shariat) Application Act, it has done so by special amending legislation. Some instances of this are in point. By the Colonization of Govern ment Lands (Punjab) Amending Act of 1951, section 10‑A was added which reads as follows :‑ "When after the coming into force of the Colonization of Government Lands (Punjab) (Amendment) Act, 1951, any Muslim tenant dies, succession to the tenancy shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat) Act, and nothing contained in sections 20 to 23 of this Act shall be applicable to his case." Similarly, section 59 of the Punjab Tenancy Act was amended by the Punjab Tenancy (Amendment) Act IV of 1951 to bring it in line as regards succession with the provisions of the Muslim Personal Law (Shariat) Application Act of 1948. I hold, there fore, that as the succession in this case is governed by the Crown Grants Act, which is in full force unmodified, the Muslim Personal Law (Shariat) Application Act of 1948 has no appli cation to it. It seems also pertinent to observe that the non-obstante of section 2 of the Act strikes down custom or usage which is contrary to the Shariat Law of succession and does not mention successions covered by statutory enactments.

25. Issue No. 9.‑It has already been answered in the negative in the discussion of other issues. It is found against the defendant because the defendant is not held to be the sole heir of Shahzadi Sultan Begum or the sole owner of the land in dispute.

26. Issue No. 10.‑This issue is also answered in the negative against the defendant. The plaintiffs were not estopped from denying the exclusive ownership of the defendant.

27. Issue No. 12.‑As the plaintiffs have been found to be co‑sharers of the property in suit entitled to joint possession with the defendant to the extent of their share amounting to two‑third (one‑third for each of them), the defendant is liable to render to them the accounts for the income of the property in dispute received by him from the period 16th of September 1954 when the death of the last holder, Shahzadi Sultan Begum, had taken place, up to the time that the plaintiffs obtain their due share of the property. I would pass a preliminary decree to that effect. A commissioner who may preferably be agreed to by the parties shall be appointed to prepare the accounts of the income received by the defendant and to fix the amount to which the plaintiffs are entitled. I decide the issue against the defendant, holding that he is liable to render accounts of the income of the property as stated above.

28. In the result I grant the plaintiffs a decree to the effect that they are entitled to possession of two‑third share in the property in dispute (one‑third to each of the plaintiffs) and I also pass a preliminary decree to the effect that they are entitled to have a rendition of accounts from the defendant for the income of the property between the period 16th of September 1954 up to date and that they are entitled to that income also to the extent of their respective shares. The defendant shall bear the costs of the plaintiffs. K. H. A. Suit decreed.