P L D 1980 Lah ose 672 (PLP)

The dispute relates to the inheritance of one Muhammad Ali deceased son of Noor Din of Tehsil Kharian, District Gujrat. The facts as borne out from the pleadings of the parties and the record are that the aforesaid Muhammad Ali was an owner of agricultural land measuring 23 kanals and 4 marlas situated in village Ali Chak, Tehsil Kharian, District Gujrat, as according to jamabandi for the year 1957-58 who died somewhere in 1924 and was survived by Imam Bibi his widow, Khushi Muhammad his son, Mst. Sardaran and Nehmat his daughters. However Khushi Muhammad also died immediately soon after his father's death and as a result thereof the entire legacy left by Muhammad Ali deceased devolved upon his widowed mother namely Mo. Imam Bibi to the utter exclusion of his sisters and the collaterals.

2. One Allah Ditta, who was a collateral of Muhammad Ali deceased also died issueless simultaneously leaving behind Mst. Resham his widow and the agricultural holding left by him was mutated exclusively in her name vide mutation of inheritance bearing No. 452 to the utter exclusion of other existing Muslim Law heirs. But on her re-marriage, Mst. Imam Bibi widow of Muhammad Ali also inherited 1; 5th share out of the land of Allah Ditta collaterally along with other collaterals and as a result of the aforesaid two incidents of succession, she ultimately acquired 25 kanals and 18 marlas of land in the said Chak which she later on alienated by way of gift in favour of his son Ahmad Din from her previous husband vide Mutation No. 1810 dated 18-3-1958 in its entirety. Imam Din and others, plaintiffs respondents who are the reversioners of Muhammad Ali deceased last male holder having felt aggrieved therefrom, filed a suit for declaration as well as possession on the allegation that the gift by Mst. Imam Bibi widow was without legal necessity and consideration and being invalid and ineffective had no adverse effect on their reversionary rights after the termination of life tenure held by Mst. Imam Bibi under. customary law. The defendants-appellants resisted the suit and controverted the allegations. The learned Civil Judge after framing the issues and recording evidence granted decree dated 31-1-1962 in favour of plaintiffs for declaration against the defendants that the gift made by Mst. Imam Bibi in favour of her son namely Ahmad Din son of Allah Ditta, defendants respondent, was void and ineffective qua their reversionary rights after the death of Mil. Imam Bibi. Ahmad Din donee and Mst. Imam Bibi assailed the aforesaid decree of the trial Court in appeal before the learned Additional District Judge, Jhelum Camp at Gujrat unsuccessfully who dismissed the appeal with costs vide judgment dated 23-10-1965. Ahmad Din and his mother Mst. Imam Bibi have challenged the aforesaid impugned decrees in second appeal.

3. I have heard the learned counsel for the parties at length, perused the impugned judgments, and scanned the relevant record with the assistance of the learned counsel for the parties. The learned counsel for the appellants concedes that Mst. Imam Bibi inherited the entire legacy left by her husband and son to the exclusion of other existing Muslim law heirs. He frankly conceded this well-settled legal proposition of law that whenever a Muslim widow in defiance of the mode of distribution of inheritance prescribed by Muslim Law takes over the whole of agricultural estate left either by her husband or son, there is a strong natural presumption that she inherited' as life estate holder only under the customary law of the Province subject to the control by male reversioners. Therefore in view of the above concession made by the learned counsel for the appellant, it is no longer disputed that Mst. Imam Bibi appellant was holding a life tenure under Customary Law and as such was not competent to alienate the same or any part thereof by way of gift or otherwise in favour of her son namely Ahmad Din appellant No.

1. According to Customary Law of the Gujrat District to which the present parties belong, widow cannot alienate by way of gift or will the estate devolved upon her and no distinction is made between the movable and immovable, ancestral and self-acquired property or whether the alienation be to the kindred of the deceased husband or to others.

4. I, therefore, agree with the finding of learned Courts below that Mst. Imam Bibi had merely a life interest in the suit land and was holding such limited estate under customary law as a conduit pipe to pass it on to the heirs of her deceased husband. However the learned Courts below while arriving at this conclusion absolutely failed to take into consideration the impact of the promulgation of West Pakistan Muslim Personal Law (Shariat Application) Act No. V of 1963 on such limited interest. According to section 3 of the aforesaid Act No. V of 1962 the life estate held by a Muslim female stood terminated since 31-12-1962 and according to section 5 of at Act, it shall devolve upon such persons as would have been entitled that succeed under the Muslim Personal Law Shariat Application Act upon the death of the last full owner and if any such heir has died in the meantime, his share shall devolve in accordance with Shariat on such person as would have succeeded him if he had died immediately after the termination of the life estate, provided that the share to which the Muslim female holding limited estate under Customary law would have been entitled under the Muslim Personal Law (Shariat) Act upon the death of the last full owner shall devolve on her.

5. It may be clarified that Mst. Imam Bibi had acquired the property from two distinct last full owners namely Khushi Muhammad her son as he was alive on the death of his father, Muhammad Ali, and one Allah Ditta collateral of Khushi Muhammad and Muhammad Ali deceased. Therefore, the succession to each of the life estates will have to be traced from the actual las full owner in accordance with the principle laid down in section 5 of Act No. V of 1962. Both the parties have conceded that out of all the collaterals, only Imam Din and Hassan Muhammad (now deceased) were alive on 31-12-1962 when the life estate was terminated by operation of law. Imam Din is still alive while Hassan Muhammad has died during the pendency of these proceedings and is survived by his two sons namely Shah Muhammad and Ghulam Muhammad respondents Nos. 2 and

3. Therefore, keeping in view the provision of section 5 of Act No. V of 1962 the land measuring 23 kanals and 4 marlas detailed in para. 1 of the plaint left by Muhammad Ali first and then by his son Khustli Muhammad, devolved upon Imam Bibi, Nehmat Bibi and Ahmad Din to the extent of 53/54 share in accordance with their prescribed Quranic shares while the residue, 1. e. 1/54 share measuring 8J marlas of land will be inherited by Imam Din and Hassan Muhammad deceased in equal shares. As regards the land detailed in para. 2 of the plaint left by Allah Ditta deceased and out of which Mst. Imam Bibi appellant inherited 1/5th share measuring 2 kanals and 14 marks collaterally stands devolved as under Mst. Resham Bibi 1/4th share measuring 131 marlas while 3/4 residue measuring 2 kanals and half marla will devolve upon Imam Din and Hassan Muhammad deceased residuaries who were admittedly alive on the date of termination of limited interest.

6. The upshot of the above discussion is that the suit for possession is decreed in favour of the plaintiffs-respondents against the appellants upto -the extent of 1/54 share measuring 81 marlas only out of the suit land measuring 23 kanals and 4 marlas detailed in para. 1 of the plaint left by Muhammad Ali deceased and hereby dismissed with regard to 53/54 share out of the aforesaid land.

7. The suit is hereby further decreed to the extent of 1/5th share measuring 2 kanals 14 marlas out of the land detailed in para. 2 of the plaint which was left by Allah Ditta deceased and the same shall devolve on (i) Resham Bibi to the extent of 131 marlas equivalent to her 1/4 share, Imam Din to the extent of one kanal and 1/4 marla equivalent to 3/8 share, Shah Muhammad and Ghulam Muhammad sons of Hassan Muhammad deceased to the - extent of remaining 1 kanal and 1/4 marla in equal shares equivalent to their 3/8 share.

8. The appeal stands disposed of in the terms indicated above with no order as to costs. s. Qs Order accordingly.