1980 PLP 937 (CLC)

ABDUL SHAKURUL SALAM, J.-Pedigree-table of the parties shall facilitate understanding of this Regular First Appeal, which is as follows :- Moazam Azarn Rehman I Hsi. Bhagan Mst. Raj Bibi

`- (wife) (wife) I I --_.-__

~ Ghulam Shah Muhammad I Mst. Bibi Mst. Madan I (Deft. App.) Mst. Mehran Mst. Roshanai (Pltff. Respdt.) I I Ghl us Dost - Muhammad Sardar Muhammad Muhammad Muhammad Khan (died issueless) (Deft. App.) Rehman owned land measuring 97 kanals. 7 marlas in Khewat No. 6 and 39 kanals, 14 marlas in Khewat No. 7=137 kanals, 1 marla in village Gijyana and 3374 kanals, 6 morlas in Khewat No. 12, 215 kanals 17 marlas' in Khewat No. 14=3,590 kanals and 3 marlus in village Tikha, all total 3727 kanals and 4 marlas in the aforesaid two villages of Tehsil and District Sheikhupura. He had two wives, Mst. Bhagan and Mst. Raj Bibi. From the former, he had two daughters namely Mst. Mehran and Mst. Roshanai (plaintiff-respondent) and from the second wife Mst. Raj Bibi, he had two daughters namely Mst. Bibi and Mst. Madan. On his death, he was survived by his second wife Mst. Raj Bibi and the four daughters. Under the then prevailing Customary Law, the land was mutated in favour of his widow Mst. Raj Bibi. In the latter's lifetime, Rehman's daughter from his first wife Mst. Bhagan, namely, Mst. Mehran died. The widow Mst. Raj Bibi was murdered sometime to 1940. At that time, Mst. Madan was the only unmarried daughter of Rehman as she was nit-wit, the other two Mst. Bibi and Mst. Roshanai were already married. Land in village Gijyana was mutated in favour of Mst. Madan. Land in village Tikha was not mutated in her favour. It appears that it was mutated in favour of the reversioners of Rehman as their names were shown in the Jamabandi for the year 194243 and onwards. Mst. Madan died in the year 1953. On 30th July 1958, Mst. Roshanai filed a suit for a declaration that she was entitled to 5/8th share in the land measuring 3727 kanals and 4 marlas. As one of the defendants namely Dost Muhammad had died eight years earlier than the suit leaving no heir, his name was dropped and an amended plaint was filed on 19th November 1958. Out of the remaining four defendants, Sardar Muhammad and Ghaus Muhammad filed a written statement admitting the claim of the plaintiff. Shah Muhammad and Muhammad Khan defendants-appellants contested the suit on the ground that the plaintiff was out of possession and a suit for declaration without seeking possession was not maintainable. An issue was framed on 11th February 1959 as to whether the plaintiff was in possession of the land in dispute. It was decided against the plaintiff on 2nd June 1959, where after the plaintiff filed an amended plaint on 23rd November 1959 seeking relief of possession as well. In reply to this plaint, Sardar Muhammad and Ghaus Muhammad, again, filed -written statements admitting the claim of the plaintiff. Shah Muhammad and Muhammad Khan defendants-appellants as before contested the suit. The following issues were framed by the learned .trial Court on 24th February 1960 :- (1) Whether Mst. Roshanai is the daughter of Mst. Rajan ? (2) Whether Mst. Madan was the limited owner of the suit land ? (3) Whether the defendants had remained in adverse possession for more than 12 years .and as such had acquired title to the suit land ? O. P.' D. (4) if issue No. 2 is in favour of the plaintiff and issue No. 3 against the defendants then what is the share of the plaintiff in the suit land ? (5) Relief." .

2. Issue No. 1 was decided against the-plaintiff having been conceded. Issue ' No. 2 was conceded by the learned counsel for the contest ing defendants and it was held that Mst. Madan was limited owner of the suit land. On issue No. 3 the learned trial Court held that adverse possession never started against the plaintiff.. The suit land was admit tedly in the hands of Mst. Madan, a limited owner. She having died in 1953 and the suit having been brought in the year 1958, period of 12 years was not complete. Reliance was placed on A 1 R 1936 Pesh.

119. The .issue was thus decided against the contesting defendants. On issue No: 4, the learned trial Court found that "on the death of Mst. Madan, the property will.. revert to Rehman and will be distributed among his. heirs. Accordingly the four daughters will get 2/3rd share and Mst. Raj Bibi 1/8th share. The remaining share would go to the reversioners. Mst. Mehran, Mst. Madan and Mst. Bibi are dead. They left no issue. Therefore, Mst. Roshanai is entitled to inherit 1/2 share out of the share of each of her sisters. In this way the share of Msr. Roshanai comes to 5112. The issue is decided accordingly." Consequently, a decree in favour of the plaintiff against the defendants for possession of 5/12 share of the suit land was passed. The suit regarding the remaining suit land was dismissed. Parties were left to bear their own costs. This is vide judgment and decree dated 19th September 1960. Shah Muhammad and Muhammad Khan, two of the contesting defendants, have filed this Regular First Appeal.

3. Learned counsel for the appellants has referred to para. 5 of the plaint at page 10 of the Paper Book and submitted that the plaintiff had claimed inheritance as sister of Mst. Madan to the extent of 1/2 and as daughter of Mst. Rajan to the. extent of 1/8. She is not entitled to any share in the estate of Mst. Rajan as a daughter because, admittedly by now, she is not the daughter of Mst. Rajan. Therefore, her claim remains only for 1/2 share of the estate of Mst. Madan. The latter being one of the four daughters of the original right-holder Rehman would be entitled to 2/3 x 1/4=2/12. Mst. Mehran (sister) having already died, Mst. Madan would be succeeded by the other two sisters namely Mst. Bibi and Mst. Roshanai. The two sisters would get 2/3 of 2/12=4/36=1/9, each sister getting 1/2 of 1/9=1/18. This is the share Mst. Roshanai would be entitled to. It is submitted that without amending the claim in the plaint under Order VI, rule 7 of the C. P. C., the plaintiff could not be granted inheritance from any other source or from the share of the other three sisters. Reliance is placed on P L D 1964 C. S.

68. It is turther contended that in any case. Mst. Roshanai could get her 1/4 of 2/3 of the four daughters of the deceased, i. e. 2/ 12 in her own right and out of the share of Mst. Madan 2/12, the two sisters Mst. Bibi and Mst. Roshanai would get 2/3, ie. 2/3 of 2/12=4/36, each - getting 1/2 of 4/36=1/18. Thus Mst. Roshanai would get 2/12+1/18=12+4/72=16/72=2/9. The learned trial Court, therefore, erred in granting her 5/12. He has next submitted that land measuring 3590 kanals and 3 marlas situated. in village Tikha was mutat ed in favour of - the appellants and the other co-reversioners on the murder of Mst. Raj Bibi in the year 1940 and not in favour of Mst. Madan. The appellants and others were shown as owners in the Jamabandi for the year 1952-53 onwards and have remained in possession. Consequently, the appellants and others remained in adverse possession since 1940 and the suit filed in 1958 was barred by time.

4. Learned counsel for the plaintiff-respondent has submitted that the plaintiff had claimed her share in the inheritance of the entire land left by her deceased father Rehman to the extent of 5/8 share and what ever her share be that had to be decreed by the learned trial Court. As regards the pleadings, the learned counsel for the plaintiff-respondent has submitted that the suit was in the nature of administration of the estate of a deceased Muslim and had to be decided in accordance with the Muslim Law and inheritance has to be apportioned to all the heirs according to their entitlement. As regards the contention of the learned counsel for the appellants that the appellants have been in adverse pos session of the land in village Tikha, it is submitted that on the murder of Mst. Raj Bibi in 1940, Mst. Madan the unmarried daughter of the deceased original right-holder Rehman became vested with life estate and until her death, the plaintiff-respondent had no right to claim posses sion and, consequently, on .the death of Mst. Madan in 1953, the suit filed in 1958 was within the period of 12 years.

5. After bearing the learned . counsel for the parties and perusing the record with their assistance, it is quite clear that on-the demise of Rehman, his state devolved under Customary Law oil his widow Mst. Raj Bibi and on latter's murder in 1940 it devolved on the unmarried daughter Mst. Madan, On the death of- -Mst. Madan, according to Muslim Personal (Shariat) Application Act, 1948, inheritance would open . in favour of all the heirs of the original right-holder as if he had then died. At this stage contentions of the learned counsel for the appellants may be adverted to. The first is that the plaintiff- respondent claimed inheritance of 1/8th from Mst. Raj Bibi as a daughter and 1/2 from M.at. Madan as a sister whereas she had been granted inheritance from Rehman, her father and Mst. Madan, the sister and the share 5/12 is exces sive. No doubt, in the plant. the plaintiff-respondent claimed as contend ed but in the re-application, she clarified that estate of Rehman and Vst. Madan was the same and the plaintiff was entitled to the estate of Rehman and Mst. Madan the same way. See para. 8 at page 57 of the Paper Book. Moreover, the issue on the point No. 3 was as to "what is the share of the plaintiff in the suit land" Therefore, the objection that without amending the plaint the share of the plaintiff from the estate of her deceased father Rehman could not be determined though specious has no force. The parties were aware of the substance of the controversy and contested the matter on merits. It is too late in the day to raise hyper-technical objection of procedure. The share in inheritance has to be determined in accordance with the applicable law. As regard the contention that land in village Tikha was shown in the ownership of the appellants and other co-reverstioners since the Jamabandi of 1942-43 and not in the name of Mst. Madan, therefore, the appellants were in adverse possession for more than 12 years when suit was filed in 1958 requires attention to facts constituting "adverse possession". Possession by itself is not enough. It has to be adverse to the person entitled to possession Mst. Roshanai, plaintiff-respondent was not entitled to possession during the lifetime of Mst. Madan on whom the land had developed as limited owner under the Customary Law. When Mst. Madan died in 1953, only then, Mst. Roshanai, plaintiff respondent became entitled to possession and she filed the suit in 1958. Period of 12 years had not gone by for maturing the right of the appellants. Moreover and it is quite important, no evidence had been led by the contesting defendants-appellants to the' effect that their possession was "adverse". Mere entries in the Jama bandis do not prove that the possession is adverse. It has to be open, hostile and to the knowledge of the person entitled to possession. Mst. Madan, on whom land devolved as limited owner being the unmarried daughter of Rehman on the murder of the widow Msr. Raj Bibi, was nit-wit, as per statement of Shah Muhammad appellant at page 64 of the Paper Book that "Mst. Madan was nit wit Not very nit-wit. For this reason she was not married that she was nit-wit." Therefore, Mst. Madan being out of wits, possession of the appellants against - her would not be open, hostile and to her knowledge. Consequently, question of adverse possession against Mst. Madan would not arise. Muchless against Mst. Roshanai, as seen above; who became entitled to possession only in 1953 on the demise of Mst. Madan. The suit itself was brought in 1958. Consequently question of adverse possession against her does not arise at all. Therefore, the contention of the learned. counsel for the appellants on this score is without substance.

6. Now coming to the apportionment of inheritance under section 3 of the Muslim Personal (Shartat) Application Act, 1948, it may be recapi tulated that on the demise of Rehman, he was survived by his widow Mst. Raj Bibi and four daughters, Mst. Roshanai, plaintiff-respondent, and Mst. Mehran from first deceased wife' Mst~. Bhagan, and . Mst. Bibi and Mst. Madan from the widow Mst. 'Raj Bibi. The estate devolved on the widow Mst. Raj Bibi under Customary, Law, Mst. Mehran died. Then was murdered the widow Mst. Raj Bibi in 1940. The estate devolved on the only unmarried daughter Mst. Madan who died in 1953. At this stage, the inheritance would open under the above Act in favour of all the heirs of the last male owner, i.e Rehman as if be had died then. Now, he having been survived by Mst. Raj Bibi widow and the four daughters Mst. Roshanai, Mst. Mehran, Mst. Bibi and Mst. Madan, the estate would be distributed as follows :- Mst. Raj Bibi, widow = 1/8. Mst. Roshanai 4 daughters =2/3 x 1/4=2/12 Mst. Meehra n 2/ 3, each = 2/3 x 1 /4 = 2/ 12 Mst. Bibi getting 1/4 = 2/3 x 1/4=2/12 Mst. Madan of 2/3 =2/3 x 1/4=2112 Then Mst. Mehran died leaving a real sister Mst. Roshanai and two consanguine sisters Mst. Bibi and Mst. Madan. The real sister MSI. Roshanai will get 1/2 of the share of Mst. Mehran 2/12, i.e. 1/2 x 2/12= 2/24. The two consanguine sisters Mst. Bibi and Mst. Madan shall get 1/6th of the estate 2/12, i.e. 1/6 x 2/12=2/72, each getting 2/72x 1/2-2/144, that is to say, Mst, Bibi and Mst. Madan will get out of the estate of Mst. Mehran 2/144 each. At this stage, the shares of Mst. Raj Bibi widow, and three daughters Mst. Roshanai, Mst. Bibi and Mst. Madan may be calculated. Mst. Raj Bibi, widow gets =1 /8 Mst. Rashanai gets as daughter 2/12+2/24 as sister of Mst. Mehran. ==6/24 Mst. Bibi gets as daughter 2/12+2/144 as con sanguine sister of Mst. Mehran. =24+2/144=26/1.44 Mst. Madan gets as daughter 2/12+2/144 as ctinsanguine sister- of Mst. Mehran. =24+2/144-26/144. On the death of Mst: Raj Bibi, her estate 1/8 will devolve on her daughters Mst. Bibi and Mst. Madan to the extent of 2/3 and the remaining 1/3 will . also go to her daughters under the doctrine of Radd as no other heir had come forward. Therefore, Mst, Bibi will get 1/2 of 1/8=1/16. So also Mst. Madan 1/2 of 1/8=1/16. The shares of Mst. Bibi will be 26/144+ 1/16=26+9/144=35/144 of Mst. Madan will be 26/144+1/16=26+9/144=35/14=

1. Now, on the death of Mst. Bibi, she having left no child per state! oera of Shah Muhammad appellate at page 65 of the Paper Book. her share of 35/144 will go to the extent of 1/2 to her sister Mst. Madan, i.e. 35/144 x 1/2=35/288 and 1/6th to her consanguine sistor Mst. Roshanai, i. e. 35/144 x 1/6=35/864. Thus the ,snares of Mst. Madan will be 35/144+35/288=70-1-35/288= 105/288 and Mst. Roshanai 61241-35/864=216-t-35/864=2511864. (" the death of Mst. Madan from her estate 105/288, Mst. Roshanai will get as consanguine sister 1/2, i.e, 1051288x 1/2=105/576. Thus the share of Mst. Roshanai will be 25 ! /864-1-105/576 502 + 315,11728 = 817; 1728, Under the decree .41st. Roshanai has been given 5'1 2 =720/t %28, i.e. less by (817/ t 728-720; 1728) =97/ 1728. Although she has filed no appeal against the decree nor cr03s-objectiov., 'yet it is open to an appellate g Court under provisions of Order XLl, rule. 33, C. P. C. to grant a- decree which ought to have been passed. The provision is to the following effect :

"The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection." "'It was held by the Privy Council in Tricomda Coovergi Bho.ja v. Sri Gopinath Juen Thakar (AIR 1930Mad.801) that "The appellant himself had brought the entire decree of the trial Judge before the High Court review, and thus they were right in making the decree, which should have been made below, even though the second defendant had given no notice of appeal," In S. 1!.f. S. Subramanian Chedriar, etc. v. Siri Nathmal and others (A IR 1916 P C 182) the Pull Bench of the Madras High Court held that'"we are satisfied that in a proper case the lower appellate Court has jurisdiction to exercise its powers in favour of the respondent by dismissing the plaintiff's case in toto though the respondent did not prefer a cross-appeal or a memorandum of objections challenging the decree passed by the first Court" The Supreme Court of Pakistan in the case of Messrs S. M. YousaJ A Brothers v. Mirza Muhammad Mehdi Poo ya and another (P L D 1965 SC 1 5), after quoting the above provisions of Order XL1, rule 33, C. P. C. observed at page 20 of the report as follows :- "The terms employed to confer the power are of the widest amplitude to enable an appellate Court to pass decrees accord ing to the justice of the case. The language used is affirma tive and the rule is further strengthened by non-obstante clauses, giving the clear impression that the intention is bene ficial, so that no legal right should be denied which the appellate Court considers should be allowed within t e frame work of the suit." In the present case, the suit, out of while this appeal arises, was in ~ the nature of administration of the estate of a deceased Muslim, and it is the duty of the Court to apportion the Tarka (estate left out after meeting funeral expenses, paying legacies, etc.) amongst the heirs of the deceased. In the case in hand, the plaintiff-respondent in spite of being the daughter of the deceased Rehman had not got the inheritance since the last 40 years on the demise of her father, and also for nearly 26 years since the demise of the last limited owner, Ms. Madan. In all they circumstances of the case we feel that the plaintiff-respondent is at least now entitled to possess her rightful share of inheritance and decree to' that effect under the above-mentioned provisions of law. Therefore, the lower Court decree is modified to the extent of the share of the plaintiff. respondent which is 817/ 1728, as calculated above, in the suit land measur ing 3,727 kanals and 4 marlas. In the circumstances, the parties are, however, left to bear their own costs, The appeal thus stands disposed of. M Y. M. Order accordingly,