LA Versus REHMAT BIBI

1. MUHAMMAD AFZAL ZULLAH, C.J .‑‑‑This appeal through leave of the Court is directed against a judgment of the Lahore High Court; whereby, the Regular Second Appeal arising out of a case of inheritance preferred by the appellants/plaintiffs' side, was dismissed. Earlier their suit and appeal had failed. A Thus the appellants/plaintiffs have so far lost throughout. Leave to appeal was granted on noticing the facts and points relating to the plea of res judicata in this case involved then.

2. The following pedigree‑table prepared at page 2 of the leave to appeal petition has been accepted by both the learned counsel for purpose only of understanding the controversy involved in this case.

3. Khan Chehl Muhammad Bakhsh

4. Hayat Bibi Jhanda Pira Mahanda

5. Wadhya Tala Bibi Allah Ditta Jalal Lal died 1908 donor died 1940 Pltf. 2 Pltf 1 issueless died in Last Male

6. 1959 holder

7. Nur Sarda Pltf.

8. Muhammad informer suit.

9. Hayat Bibi

10. Donee. Deft.

11. No.l.

12. Rehmat Pltf. 4 Hayat Pltf. 3

13. Although Khan Chehl and Muhammad Bakhsh the two erstwhile heads of the families of the plaintiffs and the defendants' side are not shown to be related to each other but the learned counsel say that there is no dispute that the plaintiffs' side are the collaterals of the successors of Khan Chehl and further that at present they can also be treated his residuaries under the Muslim Law.

14. Khan Chehl had gifted his property to Mst. Hayat Bibi his daughter. On her death it had gone to her sons Allah Ditta and Wadhaya. Wadhaya died issueless prior to the death of Allah Ditta who also died issueless in 1940. On his death the property went to his widow from whom it passed to Mst. Taleh Bibi the sister of Allah Ditta. She in her turn did not wait for normal devolution and made a gift in favour of her daughter Mst. Hayat Bibi (in 1957) the defendants' side. Mst. Taleh Bibi died in 1959. Sardar one of the sons of Mahanda filed a suit as collateral challenging the alienation by gift of the entire property to Mst. Hayat Bibi. He did not succeed on the ground that under the customary dispensation he would not be treated as within the specified degrees of collaterals under the said law so as to challenge such alienation. Subsequently however, after the death of Mst. Taleh Bibi the appellants (other collaterals of Allah Ditta) filed the present suit again challenging the gift of Mst. Taleh Bibi to Mst. Hayat Bibi. It was dismissed by the trial Court. The District Court dismissed the appellants' first appeal on the ground that the second suit by the other collaterals was barred by principle of res judicata as Sardar had allowed the dismissal of his suit to become final. In the High Court the appellants' contention that Mst. Taleh Bibi was not full owner of the property, was accepted. It was also accepted that she could not have made the gift in her daughter's favour in 1957. The learned Judge also agreed with the contention of the learned counsel that in view of the enforcement of the Muslim Law of Inheritance the property should have passed to the heirs of Allah Ditta in accordance with Islamic Law. However, the appellants' second appeal was dismissed on the ground which prevailed with the first Appellate Court that the suit was barred by the principle of res judicata.

15. Leave to appeal was granted to examine the contention that "the learned Judge erred in holding that the suit of the petitioners (appellants' side) was barred by res judicata because the suit of Sardar had been dismissed on the ground that he was not collateral of Khan Chehl.

16. Learned counsel for the appellants in order to overcome the respondents' plea of res judicata which prevailed with the learned Courts below relied on Allah Rakha v. Siraj Din PLD 1967 SC 559 to contend that the character of the suit of Sardar was different ‑‑ based on customary rules and law while the present suit out of which this appeal has arisen was filed by the other collaterals in a different character. They, in fact, are now to be treated not merely as collaterals but residuaries under the Islamic Law and though the mere change of nomenclature will not make much difference the character of their claim and right also changed. It is true that some of the observations made in this judgment as also some subsequent decisions do support the learned counsel in this behalf. It is also correct that Sardar was non‑suited on the ground that he was not then proved to be such a collateral who could have inherited the property. Learned counsel for the appellants says that he could not prove himself to be within the specified degree of collaterals. Now the question is not of any degree. Whether the plaintiffs and/or Sardar they would all be treated as residuaries. The limitation‑ would be of remoteness i.e., the nearer excludes the remoter.

17. Be that as it may, learned counsel further contend that after the grant of leave to appeal in this case a major jurisdprudential change having already taken place by the enforcement of West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983), this Court by its judgment in Abdul Ghafoor v. Muhammad Shafi P L D 1985 Supreme Court 407 has held that it is retrospective in operation. Thus, according to learned counsel for the appellants under section 2‑A as introduced by the Ordinance, 1983 Allah Ditta shall be deemed to have inherited his property under Muslim Law and its devolution on his death would be in accordance with Muslim law of inheritance. That being so 1/4th of his inheritance would go to his widows‑‑ her heirs; out of the remaining 1/2, 1/4 would go to Mst. Taleh Bibi as sister and through her to her heirs and the other 1/4th will go to the residuaries including the plaintiffs. Learned counsel for the respondents in reply contended that section 2‑A deals with only alienations and the challenge thereto and does not change the nature of devolution under customary law as in present case on Allah Ditta's death in 1940--According to him Mst. Taleh Bibi had validly made the gift of the entire property to Mst. Hayat Bibi. Leaving aside the question whether on the basis of the assumptions made by the learned counsel Mst. Taleh Bibi was or was not a limited owner and whether or not she could make gift of the entire property the 1 fact remains that section 2‑A as held in the case of Abdul Ghafoor being retrospective the devolution even if it took place in 1940 would not be deemed to be under custom. In several subsequent judgments of this Court including Ismail and another v. Ghulam Qadir and others 1990 S C M R 1667 the view has been followed that section 2‑A has a strong retrospective effect. Regarding the second question also although none of the learned counsel has taken out the relevant decisions of this Court, it has already been held that the law as enacted in section 2‑A(a) contains a command that acquisition of agricultural land before the enactment of the 1948 (Shariat) Application Act by a male heir though in fact under custom from his predecessor‑in‑interest who was a Muslim yet the heir "shall be deemed to have become on such acquisition an absolute owner of such land as if such land devolved upon him under the Muslim Personal Law". This command when applied to the present case would mean that Allah Ditta a male heir having ac4aired agricultural land under custom from the person who at the time of such acquisition was a Muslim had by virtue of the deeming provision in subsection (a) of section 2‑A, become an absolute owner of the land as if such land devolved on him under the Muslim Personal Law. This is sufficient to repel the contention raised by the learned counsel that section 2‑A entirely deals with certain alienations and/or decrees.

18. In the light of foregoing discussion this appeal is allowed, the impugned judgment is set aside. The suit of the appellants' side is decreed in that the appellants side as residuaries of Allah Ditta would inherit 1/4th after his widow getting 1/4th and his sister getting 1/2. This distribution of shares has been agreed to by both the learned counsel. The necessary mutations in the record of rights shall accordingly be made taking note of the normal rules of the Muslim Law of inheritance. Both the learned counsel stated that under this dispensation Sardar the son of Mahanda would also inherit alongwith Jalal and Lal. We leave these details to be worked out in the mutation proceedings which shall follow the law as laid down above. There shall be no order as to costs.

19. M.BA./L‑52/S. Appeal allowed.