P L D 1957 (W (PLP)

ABDUL AZIZ KHAN, J.‑The following pedigree‑table will be helpful in understanding the facts of the case :‑ SAYYED HAMID SHAH | ________________|__________________ | | Sayyed Karam Hussain Shah Khan Sahib Sayyed Pallu Shah | __________________________________________________|_______________ | | | | Mst Sardar Bibi Mst. Sukho Mst. Bakhtan Mst. Makhan | | | Bilbi | | | | Akbar Shah Muhammad Rafi Muhammad Yusuf Ashiq Shah (Plaintiff). Shah (defend‑ Shah (defendant ' | dant No. 2). No. 1). | Nazir Ahmad Shah (defendant No. 3). Khan Sahib Sayyed Pallu Shah had four wives and had a son from each. Ashiq Shah, his son from Mst. Makhan Bibi, died during the life‑time of his father, leaving behind a son Sayyed Nazir Ahmad Shah defendant No:

3. Khan Sahib Sayyed Pallu Shah who died in December 1942, owned considerable landed property which included lands in villages Panjani, Sebrai, Hotewala, Kahrwala, Thatha Kheewan, Abaora, Sheikhpur Sebrai, Kleechpur and Sangri. On his death, lands, other than the lands in the aforesaid villages, were mutated in the names of the plaintiff and defendants Nos. 1 to 3 in equal shares under custom. The lands in the villages mentioned above were, however, mutated in the name of Muhammad Yusuf Shah defendant No. 1 alone, on the ground that his father, K. S. Sayyed Pallu Shah, had bequeathed these lands to Muhammad Yusuf Shah by means of a registered will (Exh. D. 1), dated the 9th of January 1942. Muhammad Akbar Shah, who felt aggrieved by the aforesaid order of mutation, went up in appeal, but his appeal was dismissed on the 23rd of July 1943 by the Collector, Multan, who directed him to resort to the Civil Courts. On the 7th of 'February 1950, Muhammad Akbar Shah filed the present suit for possession of th share of the lands bequeathed to Muhammad Yusuf Shah. He challenged the will (Exh. D. 1) on the grounds :‑ (a) that his father, K. S. Sayyed Pallu Shah, was an old man, who had been insane for four or five years prior to the execution of the will and, therefore, did not possess a disposing mind at the relevant time ; (b) that his father was taken to Chunian by Muhammad ,Yusuf Shah defendant No. 1, who was Zaildar at that place, on the pretext of medical treatment and that Muhammad Yusaf Shah got the will executed there by exerting undue influence over his father ; (c) that the will contained no details of the bequeathed land and was therefore, void on the ground of uncertainty, and (d) that K. S. Sayyed Pallu Shah was not legally competent to make a will of a major part of this estate. All the defendants filed a joint written statement. They pleaded that the suit was barred by time and was, therefore, liable to be dismissed. They admitted that the parties were governed by custom in matters of alienation etc., but contended that the land in suit was non‑ancestral in nature and, therefore, their father had unlimited power to alienate it. They also contended that their father was sane and possessed a sound disposing mind at the relevant time and that he voluntarily executed the will. In view of the pleadings of the parties, the trial Court framed the following issues:‑-- (1) Is the suit barred by time ? (2) Did Sayyed Pallu Shah deceased make the alleged will and was he of sound disposing mind at that time ? (3) Was Sayyed Pallu Shah deceased of unsound mind before or at the time of the execution of this will ? (4) Is the will in dispute forged one ? (5) Is the will void for uncertainty ? (6) Is the will void as it was executed secretly and under undue influence ? (7) Is the will void as Sayyed Pallu Shah was not competent under law, Shariat and equity to make the will as he did ? (8) Relief. The trial Court decided issue No. 1 in favour of the plaintiff, holding that the suit was not barred by time, having been filed within twelve years from the date of the regis tration of the will. Issue Nos. 2 and 3 were also decided in favour of the plaintiff, holding that K. S. Sayyed Pallu Shah did not make the will while of sound disposing mind and that he was insane at the relevant time. All other issues were decided against the plaintiff. In view of his findings on issues Nos. 1, 2 and 3, the learned trial judge decreed the plaintiff's suit and granted him a decree for possession of the share of the lands situated in the aforesaid villages. Muhammad Yusuf Shah has come up in appeal against the judgment and decree of the trial Court. This appeal has to be accepted on the short ground that the suit was barred by time. In arriving at the decision that the suit was not barred by time, the learned trial Judge relied on Sohan Singh v. Jagir Singh (A I R 1948 Lah. 114) and Gopal Singh v. Thakar Singh (A I R 1935 Lah, 313). But these cases were decided under section 7 of the Punjab Limitation (Custom) Act (I of 192C), which cannot be applied in the present case as it has not been proved that the land involved in the suit was ancestral qua K. S. Sayyed Pallu Shah. The plaintiff had contended in paragraph 2 of the plaint that part of the property in dispute was ancestral qua K. S. Sayyed Pallu Shah and the rest had been purchased with the income from the ancestral property. This allegation was categorically denied by the defendants in paragraph 2 of the written statement. According to them, the land in suit was in fact the self‑acquired property of K. S. Sayyed Pallu Shah. It is significant that no issue was framed regarding the ancestral nature of the land. Mr. Muhammad Amin Khan, the learned counsel for the respondents did not refer t4 any material on the record to show that the land in question was ancestral. Nor did he refer to any material which would enable us to distinguish which part of the land is ancestral. It is a settled principle of law that where only a part of the property in suit is ancestral and it is impossible to distinguish R which part is ancestral, the entire property in suit must be taken to be self‑acquired. In other words, where it is not possible to distinguish the self‑acquired land from the ancestral, the entire land must be regarded as self‑acquired, Atar Singh and others v. Thakar Singh (42 P R 1910 (P C)) and Rehmat Ali Khan and others v. Mst. Sadiq‑un‑Nisa and others (I L R 13 Lah. 404). In the circumstances, we have no option but to hold that the land in suit, was the self‑acquired property of K. S. Sayyed Pallu Shah. The Punjab Limitation (Custom) Act, does not therefore, apply to the case under consideration. Mr. Bashir Ahmad, the learned counsel for the appellant, urged that Article 91 of the Limitation Act would apply in deciding the question of Limitation. According to the learned counsel, Muhammad Yusuf Shat defendant was in possession and the plaintiff could not dislodge him from the property without clearing the will (Exh. D. 1) out of his way. In support of his contention, he relied on Mohesh Narain Moonshi v. Taruck Nath Moitra and others (20 I A 30 (P C)) and Hassu v. Bazida (A I R 1933 Lah. 399). The facts of the case in 20 I A 30 are distinguishable from the facts of the case before us. In that case, the plaintiff had brought the suit to recover possession on the ground that the defendant's adoption was invalid. It was indeed a suit to set aside an adoption. In A I R 1933 Lab. 39), the plaintiff as reversioner sued for possession of certain land. He alleged in plaint that the sale‑deed in the defendants' favour was fictitious. It was found that the property in question was the self‑acquired property of the vendor. Jai Lal J. held that it was necessary for the plaintiff to obtain cancellation of the sale‑deed before he could claim possession and that Article 91 applied to the suit. Mr. Muhammad Amin Khan, learned counsel for the respondents, argued that the will was void on the face of it and, therefore, Article 91 did not apply We agree with the learned counsel that Article 91 does .not apply but cannot accept the contention that the will is void ab initio. The will Exh. (D. 1) is not void on the face of it, though it might have been voidable on the ground of lack of disposing mind on the part of the legator. Mr. Muhammad Amin Khan further argued that Article 144 applies to the facts of the present case. He, however, did not refer to any authorities in support of his contention, and we are unable to share his view. Article 144 cannot apply to a case like the one under consideration. A suit for possession of immovable property contemplated by Article 144 is one by a person entitled to possession as owner against a person in possession without title. In Chhatra Kumari Devi v. Mohan Bikram Shah and others (AIR1931 PC 196), their Lordships of the Privy Council observed that "Article 144 is applicable only to a possessory suit by the owner of the property claimed against a person holding adversely to him without title." So long as the will (Exh. D. 1) is in existence it cannot be said that the plaintiff was the owner of the property and that Muhammad Akbar defendant was in adverse possession. Their Lordships of the Privy Council held in Sajjad Ali v. Ibad Ali (I L R 23 Cal. 1 (P C)), that Article 91 did not appear to them to have any application to the case of a will. In Jahan Khan v. Shahamad and others (134 P R 1908), a Division Bench of the Chief Court of Punjab followed I L R 23 Cal. 1 (P C), and held that Article 91 had no application to wills, which fall under Article 120, and the period of limitation, therefore, begins to run from the time when the succession opens up. Harrison and Dalip Singh JJ. took a similar view in Firoz and others v. Sultan Surkhru (A I R 1926 Lah. 635). The same view was taken in Gauhar Bibi v. Ghulam Muhammad (82 P L R 1909) D and in Jahana v. Mst. Hafizan and others (I L R 1932 Lah. 647). In the present case, the averments contained in the plaint show that the plaintiff learnt of the will at the time of the mutation. In any case, he had knowledge of the will (Exh. D. 1) when his appeal was dismissed by the Collector, Multan, on the 23rd of July 1943. The present suit was filed on the 7th of February 1950. It is clear therefore, on, the plaintiff's own showing, that he was aware of the will more than six years before the institution of his suit and his suit is, therefore, barred by time. For the reasons stated above, we accept the appeal, set aside the judgment and decree of the trial Court, and dismiss the plaintiff's suit. No order as to costs. A.H. Appeal accepted.