KHAN Versus HUMAYUN

1. The following pedigree will be helpful in appeciating the facts giving rise to this second appeal

2. Namdar

3. Mst. Sat Bharai= Mst. Sat Shah Beg=Mst. Saban Salehon

4. Raja Bharai Bibi |

5. |

6. Mst. Samon Mst. Sahib Bibi Khan |

7. (defendant No. 2) (plaintiff No. 2) (plaintiff No. 1) |

8. |

9. |

10. Humayun (defendant Mahmood

11. No. 1)

12. Ahmad Sher

13. Mst Taj Bibi Fateh Khan

2. The plaintiffs brought a suit for a declaration to the effect that they are owners in possession of the suit land (details of which appear in the plaint) and the defendants have no right or interest in it, with the further prayer that Mutation No. 953 sanctioned on the 12th of April 1958 is illegal, void and inoperative as against their rights. The plaintiffs' case as disclosed in the plaint is that the parties are governed by custom in matters of succession and alienation. The suit land belonged to Raja. On his death in 1906, the land was mutated in the name of his widow Mst. Sat Bharai also known as Mst. Sattan (hereinafter called Mst. Sattan). When the widow's estate termi nated in 1946, on the death of Mst. Sattan, one-half of the holding was mutated in the names of Khan plaintiff and Mst. Sat Bharai (the step-mother of Khan) as widow of Shah Beg; who had predeceased Raja, in equal shares. The other half was given to Humayun defendant No. 1 (1/4), Sher and Fateh Khan (1/4 in equal shares). Mutation No. 771 sanctioned on the 30th of July 1948 (Exh. D. 1) refers. Mst. Sat Bharai died in 1958 and mutation of inheritance No. 953 (Exh. P. 1) was sanctioned by the revenue authorities under section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, on the 12th of April 1958, in respect of her life estate (1/4 of the holding of Raja) giving 1/2 to Mst. Sammon daughter of Raja (defendant No. 2), 1/4 to Humayun (defendant No. 1) and 1 /4 to the plaintiffs in the proportion of 2 :

1. The land in the hands of Mst. Sat Bharai was held by her as a widow of Shah Beg and on the termina tion of the widow's life interest the plaintiffs are entitled to get the entire holding as heirs of Shah Beg to the exclusion of the defendants. The defen dants contested the suit and the following issues were framed by the trial Court, which fully reflect the pleadings of the parties

14. "(1) Whether the plaintiffs have a locus standi to bring this suit ?

(2) Whether Shah Beg was the last full owner of the suit land ?

(3) Whether after the death of Mst. Sat Bharai, widow of Shah Beg, the succession is!'[to open from the death of her husband or that of Raja ?

(4) Relief."

15. The trial Court found all the issues against the plaintiffs and dismissed the suit. They have remained unsuccessful in their appeal before the Additional District Judge. Hence this second appeal.

3. The only point falling for determination is whether the one-fourth share held by Mst. Sat Bharai, which had devolved upon her at the time of demise of Mst. Sattan, widow of Raja, will be considered to be the property of Shah Beg, her husband, or that of Raja, when the succession of Mst. Sat Bharai opened out in 1958. The relevant provision of law i.e., section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, may be reproduced with advantage :-

16. "3. In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as -if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat)

17. Provided that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner, shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death."

18. It has been argued by counsel for the appellants that the estate that the widow holds will be traced to the person on whose behalf she holds it and, therefore, because Mst. Sat Bharai in this case had succeeded at the time of death of Mst. Sattan alongwith other heirs of the two branches of Namdar, the common ancestor, she will be considered to have succeeded as a widow of Shah Beg and not as widow succeeding collaterally. No doubt at the time of death of Mst. Sattan in 1946, the property was mutated amongst the two branches of Shah Beg and Salehon in equal shares, the fact remains that the property in the hands of Mst. Sat Bharai was never held by Shah Beg. The argument that under custom Mst. Sat Bharai will be considered to have held the property as a matter of fact coming from Raja, on the death of Raja by way of accretion of property which Mst. Sat Bharai held as widow of Shah Beg, is not available, because the considerations of custom are not to be pressed into service while finding out the last full owner for purposes of section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948. Muhammad Hussain and 3 others v. Alam Din and S others P L D 1955 Lah. 420 refers. This is also in accord with the principle enunciated in Mst. Amiran and another v. Nadra and 2 others P L D 1958 Lah. 448 both of which decisions have been approved of in Amir Bakhsh and others v. Allah Yar and others P L D 1974 S C 124. Follow ing with respect the law laid down by the learned Judges of the Supreme Court I find that the words `last full owner' in section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, refer only to the person who actually held the land as a heritable estate and that would mean Raja and not Shah Beg, the husband of Mst. Sattan. The result is that the appeal cannot succeed on this ground.

4. Another aspect of the case, however, requires consideration. It has been contended that Humayun (defendant No. 1) who was given one-fourth share out of the estate of Raja on the death of Mst. Sattan widow of Raja, has confessed judgment in the written statement filed by him in this suit and, therefore, the Courts below have fallen into an error in not granting a decree to that extent. There is force in the argument. I, therefore, while confirming the findings of the Courts below on issues Nos. 2 and 3, modify the judgment, and decree of the lower appellate Court so as to grant a decree to the plain tiffs-appellants to the extent of the share of Humayun respondent-defendant. The rest of the suit stands dismissed.

19. K. B. A. Appeal partly accepted.