P L D 1961 (W P) Peshawar 9 (PLP)

(2) Whether by retrospective operation of the Muslim Personal Law (Shariat) Application Act, 1935, the females could recover their share now even if they were excluded by custom at the time of the death of Karamdad Khan ?

13. The learned counsel for the appellants argument on the first point was that Khan Karamdad Khan died under the rule of Muhammadan Law and on his death his male and female heirs succeeded to his estate. The male were in actual physical posses sion and the females were in possession through the receipt of the produce as their share of the income from the land. The invasion of their rights took place when Walidad Khan and Allahdad Khan made alienations of the entire property, including their share, in 1954 and 1955, by gifts in favour of their sons, wives and daughters.

14. It was said that mutations. of inheritance were no doubt attested in 1930 and 1931 in favour of the two sons only and .the names of the widows and daughters were omitted, but this was so because the names of the ladies of the respectable families of the parties' status are not brought on the public record. It was also argued that in spite of the omission of their names from the revenue records the widows and the daughters continued to be the owners of their shares in Khan Karamdad Khan's property because they since his death remained in receipt of their share of the produce from the land to which they had succeeded. Each of the three widows used to receive sixty maunds of grain every year, and each of the three daughters one hundred and fifty maunds from the sons. These contentions were supported by oral evidence.

15. Four members of the family, Ahmad Khan (P. W. 3), Habib Ullah Khan (P. W. 4) Khudadad Khan (P. W. 5) and Haji Abdul Ghaffar Khan (P. W. 7) appeared on the side of the plaintiffs and they stated that it was within their knowledge that each of the widows used to receive produce weighing sixty maunds and each of the daughters used to receive produce weighing one hundred and fifty maunds every year as their share of the income of the joint property.

16. One Ghulam Rasul (P. W. 8) was produced who said that he was the agent of Walidad Khan and Allahdad Khan, and also the agent of the plaintiffs, and he used to collect produce of the property on behalf of the widows and the daughters whose shares were sixty maunds and one hundred and fifty maunds respectively. He also stated that he paid to Amir Shah, a sarbrah lambardar of Allahdad Khan, twenty maunds of wheat as the plaintiffs' share of land revenue for rabi and kharif 1953. A receipt (Exh. P. D./2), dated 5th June 1954, was produced, which was said to have been signed by Amir Shah, agent of Allahdad Khan defendant. In this receipt payment of twenty maunds of wheat by the daughters of Karamdad Khan as their share of the land revenue was admitted to have been received by Amir Shah as sarbrah lambardar of Allahdad Khan.

17. Walidad Khan (defendant No. 1) appeared in the witness‑box as defendants' witness, and stated that he succeeded to the estate of his father, along with his brother as Customary Law heir. He said that his father at the time of his death was under the domain of Customary Law, and as the widows, accord ing to that law, were entitled to maintenance only he used to pay to each of them sixty maunds of wheat every year in lieu of maintenance. Nothing was given to them as their share of the income of their portion of the joint property. The daughters, he said, were married during their father's time and were not entitled to any maintenance under the Customary Law, and no mainten ance was ever paid to them. The receipt of 5th June 1954, was denied. He said, at the end of his examination‑in‑chief, "they were receiving grains in lieu of maintenance." It was said by the plaintiffs that in the pronoun "they" the allusion was to all of "them." Defendants said that the allusion was to the "widows" only and not to the daughters.

18. Two patwaris of the disputed villages, Amanullah and Said Amir Shah, were also produced and they stated that the widows and daughters of Khan Karamdad Khan used to collect their share of the produce from the land in dispute through their agent Ghulam Rasul, but their statement was oral. They did not speak from the revenue record. That record contained no mention of the females at all.

19. Amir Shah (D. W. 7) appeared and stated that he was the agent of Allahdad Khan, and the paper containing the writing (Exh. P. D/2) dated 5th June 1954, bore his signatures, but in fact he signed a blank paper for some other purpose and on it a writing in different ink was superimposed, evidencing receipt of twenty maunds of wheat in lieu of land revenue. He denied to have received twenty maunds of wheat from Ghulam Rasul towards the plaintiffs' share of the land revenue.

20. K. B. Ghazi Marian Khan (P. W. 8) was also produced by the plaintiffs and he stated that he wanted to purchase 200 maunds of wheat in 1950 or 1951 for procurement purposes and approached Walidad Khan for it. He was told by him that he had sold his share of the produce, but some wheat was available from his sisters' and mothers' share, and he directed him to consult Ghulam Rasul, their agent. He then approached Ghulam Rasul and bought 200 maunds from him. He also stated that Walidad Khan admitted before him that the daughters of Khan Karamdad Khan were in receipt of their share of the income of their father's estate. He also said that he saw, on one or two occasions Ghulam Rasul collecting the daughters' share of the produce at the threshing‑floor.

21. From this evidence it was sought to prove that the widows and daughters of Khan Karamdad Khan succeeded to his estate as co‑heirs with his two sons, Allahdad Khan and Walidad Khan, and were in possession of the property through receipt of their share of the produce. If their names were omitted from the revenue record, such omission has no effect on their rights in the property.

22. It is true, and this has been admitted by the learned counsel for the appellants and the respondents, that if the evidence on the record in support of the contention that the widows and the daughters had been receiving produce from the land in lieu o their share of the income of Khan Karamdad Khan's property be accepted as true, the plaintiffs are entitled to a decree in their favour. On that evidence, they will be deemed to have succeeded to Karamdad Khan's property as co‑heirs with his sons and they will be deemed to be in joint possession with them through receipt of their share of the produce. The omission of their names from the revenue record alone would not divest them of the right which had vested in them by succession. Walidad Khan and Allahdad Khan's possession, on that evidence, would not be adverse to them. They would be held to have entered into possession as co‑heirs with them. In the payment of grain to the plaintiff would be the admission of their right in Khan Karamdad Khan's estate. The invasion of the plaintiffs' right on that view would be deemed to have taken place from the alienation of 1954 and 1955.

23. The learned trial Judge did not believe the evidence that the widows and the daughters had been receiving their share of the produce as income of their share in Khan Karamdad Khan's property. He held the widows alone were in receipt of sixty maunds of wheat. For this conclusion he relied on the admission of Walidad Khan. But the payment of the grain to the widows was held to be in lieu of their right to maintenance from their husband's property under Customary Law, such right lasted till marriage or death.

24. The evidence with regard to the payment of the produce to the sisters at the rate of one hundred and fifty maunds per year was rejected by him. The four witnesses, who were members of the family, were not believed, as they did not admit having seen the distribution of the produce in their presence. They did not even see any payment of the produce being made in their view. The Judge's comments on their evidence were that they were on inimical terms with the defendants and deposed from ill‑will. K. B. Ghazi Marjan's evidence was also disbelieved.

25. The receipt of the 5th of June 1954, was also disbelieved because only one instance of payment of land revenue out of twenty‑six years was cited and that too was supported by a receipt of doubtful character. The execution of this receipt showing payment of land revenue was denied by the executant Amir Shah and as the writing on the receipt was in two inks, there were grounds for suspecting its genuineness.

26. Ghulam Rasul's evidence was attacked on the ground that no power of attorney was executed by the plaintiffs in his favour. He was no doubt agent of defendants for some time, but his appointment was cancelled a few months before the institu tion of the suit, and he was said to be giving evidence out of malice.

27. We are in agreement with the conclusions of the trial Judge that the evidence on the record in support of the payment of the produce to the widows and daughters of Khan Karamdad Khan in lieu of their share of the income from the property in suit is far from satisfactory. It has not been established by reliable evidence that one hundred and fifty mauuds of wheat used to be given to each of the three daughters of Khan Karamdad Khan by their brothers every year since 1928, in lieu of their share of the income of the joint property. There is in support of it the oral evidence of the four witnesses, Ahmad Khan, Habibullah Khan, Khudadad Khan, and Abdul Ghaffar Khan, who are somewhat hostile to Walidad Khan and Allahdad Khan. Their evidence is hearsay as well, as they have not actually seen the passing of the produce from the brothers to the sisters. K. B. Ghazi Marjan's evidence is also of no great assistance. The receipt of the 5th of June 1954, which contains writings in two inks is also of a doubtful character.

28. There was no entry anywhere in the revenue record from 1928 until 1954 that the widows and the daughters were co‑owners in, this land with Allahdad Khan and Walidad Khan. If they claimed ownership in it, the claims should have been supported by evidence of a very strong character, evidence capable of refuting entries in the official record standing in favour of the sons for a period of over twenty‑six years. Strength of that character is lacking to the evidence produced by the plaintiffs.

29. So far as the first point is concerned, the plaintiffs have undoubtedly failed to prove that they succeeded on the death of Khan Karamdad Khan to his property as heirs under Muslim Law and, were in enjoyment of their share of the property through receipt of grain from their brothers. That point has been correctly decided against the plaintiffs.

30. Very learned arguments were addressed by the learned counsel for the parties on the second point, which is, whether by the retrospective operation of the Muslim Personal Law (Shariat), Application Act of 1935 the widows and daughters of Khan Karamdad Khan should be deemed to be co‑heirs with Allahdad Khan and Walidad Khan, and as such, be deemed to be in. constructive possession of the property in suit from 1928 till 1954 and be held entitled to their personal law share in Khan Karamdad Khan's property.

31. The Muslim Personal Law (Shariat) Application Act of 1935 came into force on the 6th of December 1935. The trend, of the early decisions was that the Act was retrospective in effect because it was a piece of adjective law. It said that whenever a question arises before a Court, with respect to succession to the estate of a deceased person, whether the death had taken place before or after the enactment of the Act, the rule of decision would be Muslim Personal Law of the deceased. In early decisions this Act was admitted' to be retrospective in effect.

32. Decisions containing a contrary view were also given by this Court and. the Act. in some later decisions was held to be prospective in force and not retrospective in effect. As this created conflict of decisions on the retrospectively of the Muslim Personal Law (Shariat) Application Act, 1935, an amendment was inserted in section 3 in 1950 by adding subsection (2) to it, and by this amendment retrospectivity was conferred upon the Act in clear language. It ran as follows:‑-- "(2) Whenever a question relating to the succession upon the death of a Muslim arises in any Court, the rule of decision shall, whether such death has taken place before or after the com mencement of this Act, be the Muslim Personal Law (Shariat)." That was interpreted to mean that whenever a question relating to succession to the estate of a deceased Muslim arose in a case, the deceased would be deemed to have died under the domain of Muhammadan Law, even if the death had taken place before the enforcement of the Act.

33. The retrospectivity was repeated by another amendment of 1953, for which there was perhaps no need, and which ran as follows :‑ (2) Whenever a question relating to the succession upon the death of a Muslim arises in any Court, the rule of decision shall be the Muslim Personal Law (Shariat) and where such death has taken place before the 6th December 1935, the rule of decision shall be according to the Muslim Personal Law (Shariat) as if that Law had been applicable at the time of such death."

34. The correct reading of the law now undoubtedly is that the Muslim Personal Law (Shariat) Application Act of 1935 is retrospective in effect. Whenever a dispute comes before a Court of Law with respect to succession to the estate of a deceased Muslim the deceased will be deemed to have died under the domain of Muhammadan Law, even if the death had taken place at any time before the 6th of December 1935. This view has support from P L D 1956 Pesh. 115.

35. In this suit which was instituted in 1955, succession to the estate of Khan Karamdad Khan was in question, and according to the provisions of subsection (2) of section 3 of the Muslim Personal Law (Shariat) Application Act, 1935, as amended, Khan Karam Dad Khan should 'be deemed to have died under the domain of Muhammadan Law and his Muhammadan Law heirs will be deemed to be heirs to his estate. The Shariat Act of 1935 permits them to prefer claims to his estate provided there is no bar to the claim from any other quarter.

36. But it has also been held in the decisions of this Court, and one of them is P L D 1956 Pesh. 115, that the claim under' the Muslim Personal Law (Shariat) Application Act, 1935, are like all other claims, subject to the provisions of the Limitation Act. If a claim to the estate of the deceased is preferred under the Muslim Personal Law (Shariat) Application Act, 1935, and the claim is under the bar of Limitation the bar of Limitation will prevent the cliam from being entertained. (P L D 1956 Pesh. 115.)

37. In the case in hand, Walidad Khan and Allahdad Khan succeeded as sons and as Customary Law heirs to the estate of Khan Karamdad Khad in August 1928. The entire estate devolved upon them on his death and vested in them as full owners. For this reason mutations in their favour were attested in 1930 and 1931. After inheriting the estate from their father, they partitioned the property between themselves and separated their shares in 1931 and 1932. Partition mutations were attested declaring them as exclusive owners in respect of the property allotted to them in the partition proceedings. From 1928 up to 1954 each one of them remained in exclusive possession of the land assigned to him.

38. It was within the knowledge of the plaintiffs, the widows and the daughters of Khan Karamdad Khan, that in 1928, the Jan sons succeeded to the estate of the father in their own right as full Dad owners under Customary Law, and not as co‑heirs with them. They received nothing from the property as their share of the income. If Muslim Personal Law (Shariat) Application Act, 1935, permitted the widows and daughters to raise the question of succession to the estate of Khan Karamdad Khan and to claim their shares of inheritance under Muhammadan Law in his estate they could undoubtedly do so, but the claim had to be judged by the tests laid down by the law of limitation. If the law of limitation prohibited the entertainment of claims after twelve years of the accrual of the right upon death, the claims will cease to be enter tainable. The Customary Law heirs who succeeded as heirs and remained in enjoyment of the estate for over twelve years will be held to have matured their irrevokable title to the deceased estate, by prescription.

39. But even if it be held that before the enactment of the Muslim Personal Law (Shariat) Application Act, 1935, a suit was not competent to the plaintiffs, because the Customary Law which was then in force did not recognise them as Khan Karamdad Khan's heirs. and a suit for the possession of their share became competent to them after the enactment of the Muslim Personal Law (Shariat) Application Act, 1935, even then the suit should have been instituted within twelve years of the enactment of the Muslim Personal Law (Shariat) Application Act, 1935. But they have come into Court in 1955, about twenty‑seven years after the death of Khan Karamdad Khan and twenty years after the enactment of the Act of 1935. During this interval, the two sons, Walidad Khan and Allahdad Khan, who entered into exclusive possession of the property as full owners, to the knowledge of the plaintiffs and remained in open possession, acquired full owner ship by prescription against claimants created by subsequent legislation. Their possession as owners in their own right, and not as co‑heirs with the plaintiffs, was to all intents and purposes hostile to the plaintiffs. Their possession cannot be deemed to be the possession of co‑owners or co‑heirs with the plaintiffs, because their entry into possession in 1928 was not as co‑heirs or Co‑ owners, but was an entry in their own right. In their possession there is an element of ouster as well. Ouster is constituted when possession is open and hostile, is in one's own right as full owner, and when these elements are within the knowledge of the party claiming right to the property. The possession of Walidad Khan and Allahdad Khan, in our view, had elements of ouster. They entered into possession of the property in 1928 in their own right as full owners, remained in open possession as such, effected partitions and denied access to the property to the plaintiffs, and all these facts were within the plaintiffs' knowledge.

40. It was also argued by the learned counsel for the appellants that by the retrospective operation of the Muslim Personal Law (Shariat) Application Act of 1935, the plaintiffs should be deemed to have become co‑heirs with Allahdad Khan and Walidad Khan from 1928 or at least from 1935 and limitation should not be allowed to run against them. The plaintiffs and the defendants should be deemed to be co‑heirs since 1928 or 1935 and the possession of one co‑heir should be deemed to be the possession of the other, and denial of the plaintiff's right should be counted from the date of alienations made in 1954. On that view the suit be held to be within time.

41. It is obvious that it was not the intention of sub section (2) of section 3 of the Muslim Personal Law (Shariat) Application Act of 1935 to create a situation of this type. If that had been the intention, Customary Law would stand abrogated from its inception. On that view question of subsection to the estates of persons dead since centuries would be reopened, and persons who had held the estates one after the other during centuries past would be deemed to be co‑heirs with the claimants created by the Act of 1935. The Law of limitation would also stand abrogated. No Judge will throw the society into that con fusion by interpreting the law in that manner. If the Shariat Act of 1935 intended to create that confusion, it should have said so in clear terms. All Civil claims have to stand the test of limitation and claims under the Muslim Personal Law (Shariat) Application Act of 1935 are not exempt from this test.

42. The theory of co‑heirs cannot be introduced between the Customary Law heirs who entered into succession upon deaths occurring before December 1935, and the Muhammadan Law heirs who have been enabled by the Muslim Personal Law (Shariat) Application Act of 1935 to claim their shares. The latter cannot be ranked as co‑heirs with the former, because the Customary Law heirs entered into possession as full owners in their own right. The character of their possession cannot be altered by the change made by the Muslim Personal Law (Shariat) Application Act of 1935. The claim which the heirs of a deceased person have to prefer after the enactment of the Act of 1935 will be entertained only if the law of limitation offers no impediment. If it does, the claims will be rejected if preferred after twelve years of the death of the deceased whose estate is sought to be inherited.

43. We are of the opinion that Khan Karamdad Khan died in 1928 when he was under the domain of Customary Law and on his death his two sons, according to the Customary Law to which he was subject, succeeded to his estate as full owners to the exclusion of his widows and daughters. The widows were no doubt in receipt of sixty maunds of grain in lieu of maintenance as widows, but not in lieu of their share of the produce in their husband's property. No grain out of the produce of this land was ever paid to the daughters of Khan Karamdad Khan. Even if the Muslim Personal Law (Shariat) Application Act of 1935 permitted the plaintiffs, as Muhammadan Law heirs of Khan Karamdad Khan, to question the sons' exclusive succession to his estate, and to claim their Muhammadan Law share in his property the claim is barred, because the suit has been instituted in 1955, when possession of the sons had matured into full ownership by prescription. The suit was rightly dismissed by the trial Judge, and this appeal is also dismissed with costs. A.H. Appeal dismissed.