P L D 1978 Lahore 1392 (PLP)

(d) West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948)

Ss. 2 & 3 read with Muslim Personal Law (Shariat) Application (West Pakistan Amendment) Act (V of 1962), S. 3-Ancestral land Succession-Propositus's daughter holding land by virtue of custom-To be treated as holding same in limited estate till marriage or death-Propositus's brother's sons held, became at once entitled to half share in ancestral land under personal law on termination of limited estates by S, 3 of West Pakistan Act V of 1962.-[Succession]. Raja Afrasiab Khan for Appellant. S. Talib Hussain Rizvi for Respondent. Dates of hearing : 18th, 19th and 22nd October, 1977. This second appeal is from the decision dated 28-6-1966 of Additional District Judge, Gujranwala, which modified the decision dated 28-1-1966 of the Civil Judge, Mandi Bahauddin, and decreed the suit of the respondent in full.

2. The property in dispute in this appeal is agricultural land measuring 46 kanals and 12 marlas and situate in Village Bohkal of Tehsil Phalia. It was owned by one Khawaja who was governed by the agricultural custom. He died some time in 1936 without leaving any male issue. He was survived by his widow Mst. Baghan and an unmarried daughter who is the respondent in this appeal. In the circumstances his entire property was mutated in favour of Mst. Baghan till death or remarriage. In 1944 Mst. Baghan remarried, consequently again in accordance with the agricultural custom, the property held by her was mutated in favour of the respondent who was still unmarried. Sometimes after the enforcement of West Punjab Muslim Personal Law (Shariat) Application Act, 1948, the respondent also got married. However, no consequential mutation was attested by the revenue authorities. In 1962 West Pakistan Muslim Personal Law (Shariat) Application Act came into force. Section 3 of this Act terminated limited estates held by Muslim females under the Customary Law. In pursuance of the provisions of this section the revenue authorities sanctioned a mutation on 21-3-1964 whereby the appellants who were brother's sons of Khawaja were also allowed a share in the property held by the respondent.

3. On 1-9-1964 the respondent brought the present suit challenging the validity of the mutation of 21-3-1964. She inter alia alleged that her father Khawaja was a Shia and as such she was entitled to inherit the entire property of her father to the exclusion of the appellants who were her collaterals in the third degree, She also claimed that she had been in possession of the property in dispute for a period exceeding 12 years and on that account too she had perfected her title thereto. Both these pleas were rejected by the trial Court as well as by the learned Additional District Judge. The learned trial Court, however, granted her a declaration that she was entitled to a half share in the property in dispute for the reason that it was due to her under the Muslim Law. On appeal by her the learned Additional District Judge held that she was entitled to the entire property in dispute on the ground that it was of non-ancestral nature and under the Customary Law she was entitled to inherit it to the exclusion of the collaterals.

4. The property in dispute can be split into two categories. The learned trial Court found Khasras Nos. 2939/1101/1, 1102 min, 2548/1103 and 2405/98, measuring 16 kanals and 11 marlas, were non-ancestral and the remaining land measuring 30 kanals and 1 marla was ancestral qua the appellants. This finding of the learned trial Court was not challenged by the appellants in first appeal. As such they must be taken to have accepted it. Khawaja admittedly died long before the enactment of the West Panjab Mush Personal Law (Shariat) Application Act, 1948, at a time when he was govern by the Customary Law. The remarriage of his widow Mst. Baghan also occurred before the said Act was passed. Now as observed by the learned Additional District Judge the Rawaj-i-Aam of Gujrat District recites that in respect of self-acquired property the daughters exclude the collaterals no matter how near they may be Consequently, the respondent became full owner of that part of the land which has been found to be non-ancestral. The subsequent enactment, of the West Punjab Muslim Personal Law (Shariat) Application Act, did not change that position. I would, therefore, uphold the decision of the learned Additional District Judge in so far as Khasra Nos. 2939/ 11011/1102 min, 2548/1103 and 2405/98, measuring 16 kanals and 11 marlas are concerned.

3. In respect of the remaining land measuring 30 kanals and 1 marla it was found by the learned Additional District Judge that it was received by Khawaja from his father Muhammad who was the common ancestor of the parties. He, however, held this part of the land also to be non-ancestral on the ground that it had not been shown by the appellants that it had been received by Muhammad from his forefathers. I do not think that the learned Additional District Judge was right in taking this view. After the appellants had established that this land was held by Muhammad he should have treated it ancestral qua them. I, therefore, reverse the finding of the learned Additional District Judge in this regard.

5. So far as the ancestral land is concerned the respondent must be treated as holding it in limited estate, that is, till marriage or death. Then when section 3 of Muslim Personal Law (Shariat) Application Act, 1962, terminated the limited estate the appellants became at once entitled to a share in the ancestral land. It is common ground between the parties that under the personal law the respondent was entitled to a half share in the land. Accordingly I modify the decree of the learned Additional District Judge in so far as it relates to the property found to be ancestral and declare that she is entitled to a half share therein.

6. This appeal is disposed of in the above terms. Since the success is partial there will be no order as to costs. S. A .H ?????????????????????? Orders accordingly.