1986 PLP 629 (MLD)

3. The suit was resisted by Mst. Mandan and Mst. Maqbulan appellants. Mst. Khairan Bibi was proceeded against ex parte. Appellants Mst. Mandan and Mst. Maqbulan maintained that Mst. Mandan had the right to inherit the land from her son after his death as a life estate holder and on the surrender of the life estate by Mst. Mandan a mutation of inheritance was sanctioned by the revenue authorities in favour of Mst. Mandan and Mst. Maqbulan. Against the mutation an appeal was filed before the Collector Ferozewala by Mst. Maqbulan Bibi alleging that the shares of eligible heirs were not correctly determined. The case was remanded by the Collector for determination of the shares of eligible heirs in accordance with Muhammadan Law. They denied that the respondents had any right, title or interest in the suit land. They also asserted that Mst Maqbulan Bibi was the daughter of Sher Muhammad from Mst. Mandan.

4. On the pleadings of the parties according to their variance the learned trial Judge raised three issues:‑

(1) Whether, the plaintiffs are estopped by their conduct from filing this suit? (2) Whether the plaintiffs were the valid legal heirs of the deceased, Rahmat Ali at the time of his death? (3) Relief Both the parties led evidence in support of their respective claims.

5. The learned trial Judge under issue No.1 found that none had supported this Issue except Mst. Mandan appellant in her statement, so on the only statement of Mst. Mandan it could not be held that the plaintiff /respondents were estopped by their conduct from filing the suit. As to issue No.2 the learned trial Court observed that the statements of P.W.1 and P.W.2 were not in accord with the statement of P.W.3, the plaintiff himself. P.W.1 stated that in the event of the death of a Muslim male when the deceased had issues and a widow, then the property was to go to his sons and the property of an issueless deceased person devolved upon his brothers and the mother did not inherit. P.W.2, according to the learned trial Judge, was a tutored witness since this witness only said about a deceased person who had four sons and out of whom one was issueless, then from his property the mother and his sisters were to be ignored. This witness too did not tell about the inheritance of a deceased person. According to the learned trial Judge both these witnesses even exceeded in supporting the cause of the plaintiffs/ respondent, Contrary to their statements P.W.3, the plaintiff himself stated that in the event of the death of some one in his family the widow was to get some property for sustenance and in the lifetime of the sons the property could also devolve upon the mother. On the other hand the defendants/ appellants produced D.W.1 who stated that if some body had died issueless the mother would inherit the property. Witness referred to an instance of Mst. Alam Bibi who inherited the property in the presence of his step‑son Faqir Muhammad Lambardar. Muhammad Anwar D.W.2 affirmed the entries in the revenue record (D‑2) as to this instance. The learned trial Court as to the decision cited by the respondents, P L D 1964 Lah. 334, said that the decision talked about the position of a widow. The case in hand was that of a mother of a deceased person who died issueless and without a widow, so the succession of his mother to his property could not be regarded as for maintenance. Then after referring to para. 22 of Sir W . H . Ratigan Digest the learned trial Court concluded that in the case there were only the mother of the deceased and step brothers, so she would have life estate as mother of the deceased. Had there been a widow then she would have got maintenance only. It held that the assertion of the plaintiffs /respondents that she got the property for maintenance was incorrect. The property was rightly mutated in the name of Mat. Mandan appellant. It gave also a finding to the effect that Mst. Maqbulan Bibi was the daughter of Sher Muhammad from Mat. Mandan appellant. As to Mst. Khairan Bibi that she was the daughter of Sher Muhammad, there was no evidence. Its conclusion was that Mat. Mandan succeeded as a life estate holder to the property left by her son and after her surrender of the life estate under section 3 of West Pakistan Muslim Personal Law (Shariat) Act, 1948, the property devolved upon the heirs of last male owner Rahmat Ali deceased; appellant No.1 gating her share as mother and appellant No.2 as sister, so the mutation was correctly recorded in their names. The plaintiffs/ respondents failed to prove their case. He dismissed the suit vide his judgment dated 29‑10‑1976.

6. Being aggrieved therefrom the aforesaid judgment the plaintiffs/ respondents filed an appeal which came to be disposed of by S. Sibtain Raza Naqvi, Additional District' Judge, 'Sheikhupura. The learned Additional District Judge as against the evidence of the plaintiffs/ respondents disagreed with the evidence produced by the appellant as to the custom that the property of an issueless son used to be mutated in the name of his mother. He referred to I L R 1927 Lah. 139, wherein it was observed:‑-- "The general principle governing succession of an estate among the agriculturists is that where a male line of descendants dies out, is treated as never having existed so that succession is then reckoned with reference to the last male owner who dies leaving descendants." He also referred to 46 P R 1891 wherein at page 257, it was observed:‑

"To turn to another feature of customary succession when a man dies unmarried leaving ancestral immovable property, the practical course in order to discover his heirs, according to custom, is to search among his male ancestors, commencing with the father, to find one who has left male descendants surviving the deceased. These male descendants are the true successors, as if the ancestors had died leaving the same estate at the moment when the deceased died. This holds good even when the last holder dies leaving a widow, though by almost universal usage at the present day, the widow is entitled to immediate possession in preference to them; they have a recognised right to watch over and protect the state with a view to taking possession of it unimpaired by her acts, as soon as the widow's right of possession terminates." According to the decisions he concluded that Rahmat Ali dying issueless and without a widow was to be treated as having never existed so the succession was to be reckoned with reference to Sher Muhammad, father of Rahmat Ali. Sher Muhammad was thus the last male owner who died leaving descendants. The descendants in the case were Shah Muhammad and Hukam Din respondents. So, Shah Muhammad and Hukam Din inherited the suit land as descendants of Sher Muhammad, the last male owner in to case. Mat. Mandan In the circumstances could not inherit any share of the land which was for some time held by her deceased's son Rahmat Ali. The attestation of Mutation No. 134, dated 28‑6‑1944 in favour of Mst. Mandan did not adversely affect the rights of Shah Muhammad and Hukam Din. They were in occupation of the said land. The entries in the Mutation register were made by the revenue authorities against the agricultural custom which governed Shah Muhammad and Rahmat Ali in those days and also the remaining parties to the suit with the result that the entire land fell in the ownership of Shah Muhammad and Hukam Din plaintiffs/ respondents. As to Mutation No. 34, dated 21‑12‑1933 (Exh. D.2) showing mother as inheriting from her son related to Mauza Churha and not to Village Ahdian so that could not be relied upon as a precedent for the advancement of the cause of the defendants/appellants. He reversed the finding of the learned trial Court on issue No.2. and decided the issue in favour of the plaintiffs/ respondent. Consequently he accepted the appeal, set aside the judgment and decree of the (earned trial Court and passed a decree in favour of the plaintiffs/ respond is as prayed in the suit.

7. The learned counsel for the respondents has raised preliminary objections saying that the appeal fails because there was no appeal from Mat. Khairan and Mat. Maqbulan Bibi because there was no authorization by either of them to the lawyer and to the person posing himself as a general attorney for filing tire appeal. On 4‑5‑1977 Mat. Khairan submitted an application that she never filed an appeal nor authorised Manzoor Ahmad Advocate who was acknowledged as the alleged counsel. She also filed an application for contempt of this Court which is pending.

8. The learned counsel for the appellants has in reply submitted that, on 5th May, 1977 an application was made on behalf of Mst. Maqulan Bibi for submitting a power of attorney when the limitation under the appeal had not yet expired. The same application contained that Mat. Khairan who was inadvertently implead as an appellant be allowed to be arrayed as respondent in the memo of parties: The application was allowed on 18‑8‑1981. The learned counsel has relied A upon Khairan v. Nathu and others A I R 1920 Lah. 212‑ In this case it was held that an omission to sign the' power of attorney was obviously an over-sighting and the subsequent signing cured the defect. Consequently the appeal was properly presented. In the case in hand as has been submitted by the learned counsel for the appellants that when the application for curing the defect was made till then the limitation as to the appeal had not yet expired. As to the transposition of Mat. Khairan', the learned counsel for the appellants has referred to Mat. Sawani v. Jeewan and others A I R 1928 Lah. 120 in which it was held that under Order XLI, rule 26, C . P. C . a person who was a party to the proceedings in the Court below might be added as a respondent to the appeal although the time to appeal had expired. Besides, the said application was made When the period of limitation as to appeal had not yet expired, therefore, in view of it and the decision relied upon by the learned counsel the objections raised by the respondents are overruled.

9. Both the learned counsel have supported their arguments by referring to the case‑law. The emphasis of the learned counsel for the appellants is that deceased Rahmat Ali is to be treated as an absolute owner of the property duly vested with that for purpose of succession, appellant No.1 succeeded as a mother and not as a widow of his father Sher Muhammad. An agnetic theory of reversion is no more a good law. He referred to para. 22 of Sir W. H. Ratigan Digest on Customary Law which is:‑-- "In default of male lineal descendants and of a widow, the mother ?of the deceased succeeds to a life interest, provided she has not remarried."

10. The learned counsel for the respondents has referred to certain authorities in line with the general principal governing succession as has been relied upon by the learned Additional District Judge, where the male line of descendants dies it is treated as never having existed so that succession is then reckoned with reference to the last male owner who died leaving descendants and a mother where custom is the rule of succession only succeeds when there are no sons and she succeeds not as a mother of the son but as a widow of her deceased husband and where there are sons they exclude the mother and if a son dies he is succeeded by his brothers but when the last surviving son dies with issues then the mother succeeds in her capacity as a widow of her deceased husband and here in the case the step‑sons will not allow the mother to succeed to life estate because they will be excluding her from succeeding to the property of Rahmat Ali as widow of his father. According to the learned counsel appellant No.1 could at the most be regarded as entitled to maintenance.

11. A minute analysis of all the decisions would have been undertaken as to the general custom or principle adhering thereto had a special custom not been claimed. It had been claimed by the appellants that the parties were governed by a special custom according to which if a son died issueless and without a widow and there were step‑brothers then the mother of the deceased succeeded to the property. Mutation No. 34 (Exh. D.2) was produced in support of it and explanations as to the facts were appended by D.W.1 Muhammad Abdul where one Mst. Alam Bibi succeeded to the property of his deceased son in the presence of her step son Faqir Muhammad Chaudhry. This mutation had been relied upon by the learned trial Court against the evidence of respondent Nos.1 and 2 as to the precise custom governing the family. The mutation produced was disregarded by the learned Additional District Judge on the ground that it related to Mauza Chuhra and not to village Ahdian (which according to the evidence of Allah Bakhsh D.WA was at a distance of 2/3 Kos), so the mutation could not be made to serve as a precedent. The approach of the learned Additional District Judge was erroneous for the reason that he was to see that, that was a custom appertaining to Jat tribe the appellants being also Jats, to weigh that village‑wise could not be regarded as a proper consideration. The learned trial‑Court rightly prepared the evidence as to the special custom against the zig zag evidence produced by respondents Nos. 1 and

2. Appellant No.1 in her turn according to the custom proved succeeded to a life estate. This appeal is accepted, the judgment and decree of the learned Additional District Judge is set aside and the decree that of the learned trial Court dated 29‑10‑1976 dismissing the suit of the respondents is restored. However, in view of the question in issue in this case, there will be no order as to costs. H. B. T.??????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.