SULTAN MUHAMMAD KHAN Versus SULTAN MUBARAK
One Mst. Khamo a childless widow of Umar Khan the last male‑holder of 2123 kanals 10 marlas land in suit situated in villages Malakmala, Abdur Rehman and Wardag, tehsil Attock; while being possessed of a usual limited‑estate of a widow under the customary law executed a will (registered on 25‑5‑1949) in equal shares in favour of Sultan Muhammad Khan son 9f Muhammad Azam Khan a brother of her deceased husband and Taj Mubarak, a grandson of the said brother of her husband and herself died on 11‑12‑1949 giving rise to dispute over the inheritance. Reliance was placed before the Revenue Authorities on the will to claim the entire land thereunder but without much success inasmuch as they gave effect to the will to the extent only of 1/3rd of the share assumed to belong to Mst. Khamo, the remainder whereof was mutated in the name of Shahinchi Khan as her brother and, in addition to mutating the half share of the land as belonging to Mst. Khanam Noor, a deceased sister of Umar Khan, in the names of her legal‑heirs, the residue 1/6th share was also given to Sultan Muhammad Khan as the nearest collateral of Umar Khan.
2. Sultan Muhammad Khan was, however, not satisfied with the distribution of the estate made by the Revenue Officer and, after unsuccessfully agitating against the mutation in the higher forum, instituted a civil suit in October, 1961 for declaration to claim title in equal shares in the entire land for himself and Taj Mubarak on the basis of will. In the alternate, he also prayed for a decree of possession of the land being accordingly passed. Therein, in addition to controverting the status of the legal‑heirs of Mst. Khanam Noor by denying that there may be any sister of the last male‑holder Umar Khan or even that such a woman may have survive) him, he also denied that Shahinchi Khan may be a brother of Mst. Khamo.
3. Defendants contested the suit by denying the assertions contained in the plaint. The suit was set down to be tried on _the following issues:‑
"(1) Whether Mst. Khanam (?‑sic) had made any will in favour of the plaintiff and defendant No.5? OP.
(2) If issue No.l is proved, whether Mst. Khamo was competent to make a will in respect of the property in dispute? O.P.
(3) Whether Mst. Khanam Noor was the sister of Umar Khan the last male‑owner of the property in dispute and whether Shahinchi Khan was the brother of Mst. Khamo if not, what is its effect?
(4) Whether the suit is barred by time? O.D.
(5) Relief."
4. Parties led their evidence upon the consideration whereof trial Court found that the suit was not barred by time and also held that the execution of the will by Mst. Khamo had been satisfactorily proved but it had not been established that she could have competently done so because a person whose interest in a certain property extends only upto his death cannot regulate the succession to such a property by making a will to take effect only after his death. Trial Court also accepted the evidence of the D.Ws. in preference to the statements of the P.Ws. to hold that NIst. Khanam Noor was a sister of the deceased Umar Khan and a brother of his widow Mst. Khamo is Shahinchi Khan. In result of its findings trial Court dismissed the suit by its judgment and decree dated 19‑11‑1964.
5. In an appeal there against filed by the plaintiff, learned District Judge, Campbellpur reconsidered the evidence and repelling the contention raised before him that in making the will Mst. Khamo had really caused acceleration of succession, seemingly upheld the conclusion of the trial Court with regard to absence in Mst.Khamo of a power to dispose of the land in any manner and also affirmed its findings with regard to Mst. Khanam Noor and Shahinchi Khan but considered that the suit of the plaintiff was not liable to be dismissed in its entirety and it deserved to be decreed to the extent of 1/4 th share of the land to be vesting in the plaintiff and Taj Mubarak in equal shares alongwith 1/2 share of the land going to defendants Nos.l to 7 (the legal‑heirs of Mst. Khanam Noor) and 1/4th.share to Shahinchi Khan. The appeal was accordingly accepted on 28‑10‑1965 to modify the decree of the trial Court.
6. The plaintiff has now come up to this Court in this second appeal. Learned counsel, after candidly stating that he does not challenge the findings reached below with regard. to the relationship of Mst. Khanam Noor and Shahinchi Khan respectively with the last male‑holder Umer Khan and his widow Mst. Khamo who is also conceded to have herself held a mere customary limited‑estate of a widow at the relevant time, has attempted to claim the entire land by canvassing validity of the will on the premises that she could have lawfully willed away the land which, in any event, was entitled to be effectuated to the extent at least of a third share of the entire land .held by her. He has not cited any authority or judicial precedent in support of his contention which is sought to be built on the assertion that the Punjab Muslim Personal Law (Shariat) Application Act IX of 1948 had brought about a change in the character of the holding of Mst. Khamo to invest her with an alienable title in the land.
7. The foregoing contention is altogether preposterous and is~ liable to be repelled on the authority of Mst. Shahzadan Bibi and others v. Amir Hussain Shah P L D 1956 SC 227 wherein after making the observations appearing at page 236 of the report as under:‑
"It will readily appear from the above that the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, does not at all allude to as to what is to happen if the female in possession of her limited interest during her life‑time chooses to transfer the property or creates for consideration or otherwise interests in . some third persons which, if not challenged within the prescribed period of limitation, might become unassailable. Surely it was not and could not be the intention of the Act that the property itself might be allowed to be frittered away without any let or hindrance and by the time the limited interest terminates by the marriage or death of the female in enjoyment of the limited interest, no property whatsoever may be left for distribution among the heirs of the last full owner." it was concluded.‑‑ "the conclusion is, therefore, obvious that the Act of 1948 has not in any way or in any degree enlarged the rights of a 'limited owner' and any alienation by her would be liable to control in the same manner and to the same extent of as before the 16th of March, 1948, i.e., the date on which the West Punjab Muslim Personal Law (Shariat) Application Act came into force."
This judgment was affirmed in Abdullah and others v. Mst. Bakhto Mai and another P L D 1956 SC 321 and the findings therein reached may be advantageously reproduced as under:‑
"The difference brought about by the Act of 1948 is that while the powers of a limited owner to alienate the property without legal necessity are still governed by custom, the rule governing succession to the property, on the termination of a limited estate, has ceased to be a rule of custom and by statute has been replaced by the rule that the Muslim Personal law shall govern the succession." and, while considering the legal position at page 329 of the report, it was observed:‑
"What is the position of the female during the period the 'life interest' subsists? Evidently she is not the full owner: she had succeeded under custom for a limited period and with right to alienate the property except for a necessity recognised by custom. The Shariat Act of 1948 has not made a 'limited owner' a full owner, nor has it removed at all the limitations necessarily attaching to a 'female with a life estate'." to conclude as under:‑
"The Act of 1948 nowhere says and would have defeated its own object if it were considered to have ever laid down that a 'female with a life‑estate' has suddenly become free from all the restraints imposed by the conditions of her succession and while still a limited owner to have overnight become a full owner with no one to challenge her acts."
8. That being the correct legal position, the argument raised for the plaintiff‑appellant loses its very foundation. Hollowness of his claim based on a will admittedly executed by a customary limited estate‑holder is too obvious inasmuch as it does not require any elaborate argument to bring home that the tenure of 1st. Kham being limited under the law only to her life‑time, it could not be possible for her to prescribe a mode for its devolution after her death because it is uncontrovertible that a will, by its very nature, can take effect only after the death of the testator and the interest held by her had to lose its very entity with the end of her life so that from the very same moment such an interest in the land has cease to exist and hence there cannot be available any interest which could be capable of being prescribed for by means of a will and it is undeniable also that an alienor cannot transfer any interest larger than that which is possessed by him. In this view of the matter nothing can turn upon the failure of the defendants to challenge the will and there is no doubt that after the expiry of the limitation prescribed for the purpose it had become unassailable but it has still to Loose its efficacy with the interest sought to be devised thereby becoming extinct upon having lived out its life to die out in due course of time.
9. Viewed from any angle, the will relied upon by the plaintiff appellant is incapable of providing him any benefit in this suit filed) decades after the death of the testator Mst. Khamo and since the transaction in this case is a will which is made gratituously, therefore, the absence of payment of any consideration for it takes it out even of the pale of the principle of feeding the estoppel contained in section 43 of the Transfer of Property Act and Nabi Ahmad Shah v. Mirwaiz Muhammad Abdullah and others 1976 S C M R 132 is an authority on the point. Contention raised for the appellant hence fails and is accordingly repelled.
10. No other point has been argued.
11 There is not made out any case for interference on account of will in the appellate decree but there is not pointed out any reason why the appellant has been made to share the 1/4th residue with Taj Mubarak who is remoter in degree than the plaintiff and I have not been able to discover any justification in that behalf to be available on the record and even though an objection on the point has not l) been raised by the learned counsel, in exercise of my power under Rule 33 of Order XLI of the C.P.C., I modify the appellate decree dated 28‑10‑1965 to the extent that the plaintiff‑appellant Sultan Muhammad Khan is exclusively entitled to the 1/4th residue share as the nearest collateral of Umar Khan. With the above modification, the' appeal is dismissed. Parties are, however, left to bear their own costs.
A. A./S‑248/L Decree modified.