1987 PLP 1201 (CLC)

Date of hearing: 7th February, 1987. This judgment shall dispose of the civil revision in hand (C.R.No.968 of 1982) as well as Civil Revision No.605‑D of 1982.

2. Facts giving rise to these civil revisions are that some State land was allotted to one Boota as a tenant. He died in 1907 leaving behind Ghaseeta, Mst. Allah Bibi and Mst. Rabid Bibi as his brother, widow and daughter respectively. On his death, said land was mutated in the name of Mst. Allah Bibi (widow) as a limited owner, vide Mutation No. 2, attested on 24th January, 1908. On 31st October, 1975, proprietary rights in respect of the said land were conferred on her, vide Mutation No.69, sanctioned on 23rd February, 1957. On 14th July,1959, she made a gift of the said land in favour of her daughter, Mst. Rabid Bibi, by means of a registered deed. On the basis of the said deed, mutation No.74 was attested on 29th July, 1959, Mst. Allah Bibi died on 30th July, 1972 whereafter on 20th March, 1973, Muhammad Malak son of Ghaseeta, who is petitioner in Civil Revision No. 968, filed a suit claiming the said land for himself and for his three sisters, namely, Mst. Hussain Bibi, Mst. Sharifan Bibi and Mst. Hakam Bibi. The suit was against Mst. Rabid Bibi and his sisters in which his sisters were pro forma defendants. He challenged the aforesaid gift deed on the ground that being a limited owner, Mst. Allah Bibi could not make gift in favour of Mst. Rabid Bibi. His sisters did not turn up to contest the suit but it was resisted by Mst. Rabid Bibi. The Civil Judge, who heard the suit, found that Mst. Allah Bibi was a limited owner and, therefore, the gift made by her in favour of Mst. Rabid Bibi in regard to the entire land was illegal and void. It was, however, observed by him that the impugned gift was perfectly valid to the extent of her (Mst. Allah Bibi's) share By means of the gift deed referred to above, Mst. Allah Bibi not only gifted away the land received from Muhammad Boota as limited owner but also 13 Kanals of land from Killas Nos. 1 and 10/1, of Square No.47 which was found to be her personal property. The learned Civil Judge, therefore, dismissed the suit to the extent of the said land and decreed it to the extent of 3/8th share in the remaining land i.e., the land left by Boota. While awarding this share of Muhammad Malak (plaintiff), it was pointed out by the learned Civil Judge that, under Muslim Law, one half, of the land left by Boota would go to Mst. Rabid .Bibi and 1/8th share of it to Mst. Allah Bibi.

3. Feeling aggrieved by the judgment and decree passed by the learned trial Court, Mst. Rabid Bibi, went in appeal before an Additional District Judge. The learned Additional District Judge maintained the finding of the learned Court regarding the validity of the gift in question. It was, however; held by him that the 3/8th share awarded to Muhammad Malak was to be shared by him with his three sisters. Thus, he found him (Muhammad Malak) entitled to 6/40th share in the land of Boota. In result, he partly accepted the appeal and decreed the suit of Muhammad Malak to the extend of 6/40th share only.

4. Judgment and decree passed by the learned appellate Court were assailed both by Muhammad Malak as well as Mst. Rabid Bibi by means of Civil Revision No. 968 of 1982 and Civil Revision No. 605‑D of 1982, respectively. Mst. Rabid Bibi has since died and is represented by her legal heirs. This is also true of Mst. Hussain Bibi who was one of the sisters of Muhammad Malak.

5. It was contended by Mr. A Karim Malik, Advocate, learned counsel for the petitioner in Civil Revision No.968 of 1982, namely, Muhammad Malak, that according to section 3 of the West Pakistan Muslim Personal Law (Shariat Application) Act, 1962, hereinafter referred to as the said Act, the limited estate held by Mst. Allah Bibi terminated in 1962 and since at that point of time the sisters of Muhammad Malak could not inherit the disputed property as residuaries he was rightly awarded 3/8th share by the learned Civil Judge. On the other hand, it was urged by Mr. Jariullah Khan, Advocate, learned counsel for legal representatives of Mst. Rabid Bibi, who is petitioner in Civil Revision No. 605‑D of 1982, that according to section 5 of the said Act, the land in dispute would devolve upon the heirs of Boota, under Muslim Law, as if that law was applicable to him in 1907 when he had breathed his last. His contention was that Boota was Shia by faith and, therefore, whole of land left by him would go to Mst. Rabid Bibi. In the alternative, it was urged by him that even if Boota was held to be Sunni 3/8th share of land would go to Ghaseeta and as Ghaseeta died leaving behind Muhammad Malak as son and Mst. Hussain Bibi, Mst. Sharifan Bibi and Mst. Hakam Bibi as daughters, Muhammad Malak could not have more than 6/40th share.

6. As for the plea of Mr. Jarrui Ullah Khan, learned counsel for legal representatives of Mst. Rabid Bibi, that Boota was a Shia, it was not raised by Mst. Rabid Bibi in her written statement nor any issue was framed in this behalf. Also, no request for framing of additional issue in this regard was made at any stage of the proceedings. Sardar Khan (D.W.1) and Manzoor Ahmad (D.W.2) made statements in support of the above plea after Muhammad Malak (plaintiff) had closed his evidence. Thus, Muhammad Malak could not have a chance to produce evidence in rebuttal. It may also be noted here that in the civil revision filed by Mst. Rabid she did not contend that Boota was a Shia. An averment to this effect is there in the grounds of appeal preferred by her before the learned Additional District Judge but no argument in the matter was advanced before him. All this shows that Mst. Rabid Bibi was not serious in agitating the plea that Boota was a Shia. In any case, it is not possible to accept her plea on the basis of statements of the said two witnesses because the opposite party, namely, Muhammad Malak plaintiff had no opportunity to rebut their testimony. I would, therefore, proceed further on the premises that Boota was a Sunni.

7. It is not disputed that Ghaseeta died after Boota but before 1962 when limited estate of Mst. Allah Bibi came to an end, due to) coming into force of the said Act. In view of the provisions of section 5 of the said Act, therefore, land in dispute would devolve upon legal heirs of the last male‑holder, namely, Boota on the assumption that Muslim Law was applicable when he died in 1907. Undoubtedly, at the time of his death, there were Mst. Rabid Bibi, Mst. Allah Bibi and Ghaseeta as his only heirs under Muslim Law. Therefore, under that law, Mst. Rabid Bibi and Mst. Allah Bibi would have one half and 1/8th share in the land of Boota while the remaining 3/8th share would go to Ghaseeta. As noted above, Ghaseeta died before termination of the limited estate of Mst. Allah Bibi in 1962. At the time of its termination, under the Muslim Law, the heirs of Ghaseeta were his one, son, namely, Muhammad Malak and three daughters namely, Mst. Hussain Bibi, Mst. Sharifan Bibi and Mst. Hakam Bibi. Muhammad Malak would. therefore, share the share of Ghaseeta in the disputed property with the said three sisters in such a way that his share would be double the share of any of his sister. Needdless to say that his sisters would have equal shares. Thus, they would have following shares in 3/8th share of Ghaseeta in the property in question: Muhammad Malak 6/40 Mst. Sharifan Bibi 3/40 Mst. Allah Bibi 3/40 Mst. Rabia Bibi 3/40'

8. Argument of the learned counsel for the petitioner that they property of Boota would devolve upon his heirs on the assumption that he died in 1962 on the termination of the limited estate of Mst. Allah Bibi offends against the provision of section 5 of the said Act is, therefore, not accepted.

9. It was pleaded by learned counsel for the respondents that since the sisters of Muhammad Malak did not bring suit to have any share in the disputed land nor did they file any appeal against the judgment of the learned Additional District Judge,, their shares would also go to Mst. Rabia Bibi anal not to them or Muhammad Malak. A perusal of paragraphs 1 and 3 of the plaint of the suit brought by Muhammad Malak and the prayer made therein would reveal that he had impleaded his sisters as pro forma defendants and had claimed the entire land in dispute for himself an‑d his sisters. The learned Additional District Judge had committed a material irregularity in not passing any order in relation to the share of Ghaseeta in the disputed land over and above 6/40th share (awarded to Muhammad Malak). In exercise of my revisional powers, I can revise his order with a view to making amends. I, therefore, hold that Muhammad Malak would have 6/40th share in the land left by Boota while his (Muhammad Malak's) sisters, namely, Mst. Hussain Bibi, Mst. Sharifan Bibi and Mst. Hakam Bibi would have 3/40th share each in the said land. Judgment and decree passed by the learned Additional District Judge are modified accordingly.

10. In result, both the civil revisions are dismissed except to the extent of above modification in the judgment and decree of the learned . Additional District Judge. In view of the peculiar circumstances of this case, parties in both the civil revisions are left to bear their own costs . A.A./M‑66/L?????????????????????????????????????????????????? Order accordingly.