JANNAT BIBI Versus SHER MUHAMMAD

1. ZAFFAR HUSSAIN MIRZA, J .‑‑This appeal arises out of suit No.262/160 of 1966/1967 filed by Mst. Jannat Bibi widow of Islam, caste Sial againsl respondents Sher Muhammad and others in the Court of Administrative Civil Judge, 1st Class, Jhang. Islam, the husband of the plaintiff is said to have died in 1944 issueless. At the time of his death th^ deceased owned considerable property situated in four villages in Multan and ihang Districts. Although the family of Islam is said to have beer governed by agricultural custom, the nature of which was disputed between the parties, admittedly the parties to the suit entered into a family arrangement, whereby the entire land in Chak No.448, Tehsil Jhang was mutated in the name of the plaintiff while the land and the occupancy rights in the, other three villages were mutated in favour` of defendants Nos.l to 3 and their paternal uncle Daula.

2. The precise terms of the family arrangement were also in dispute between the parties. It seems, however, after the attestation of the mutations the parties entered into possession of the respective properties mutated in their favour.

3. The aforesaid position continued until 1962, when the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, came into force. Under its provisions the limited estates held by Muslim females under the customary law were terminated and it was, inter alia, provided that the property shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon death of the last full owner. It was clarified that the share to which a Muslim female holding a limited estate under the Customary law would have been entitled in accordance with the Muslim Law of inheritance from the last full owner, shall devolve on her.

4. Pursuant to the provisions of said Act, the Revenue Authorities in Jhang' attested another mutation in respect of the land held by the plaintiff, allowing 1/4th share in the land in Chak No‑448 to her and remaining 3/4th share to defendant No‑1 Sher Muhammad. Similar changes were made by fresh mutations in respect of the lands situated in other three villages.

5. It was in these circumstances that Mst. Jannat Bibi instituted the suit on 21st June, 1966, for declaration that she was the owner in possession of 1/4th share of land in Chak No.448, District Jhang, and for possession of 1/4th share of the land in three other villages, which had been originally entered in the name of defendant No.1 to her exclusion by virtue of the family settlement. She pleaded that her deceased husband Islam was governed by custom before the Shariat Application Act, 1948, and that she had inherited the land of her husband under that custom. But being a pardahnashin woman she could not properly manage the entire land inherited by her, therefore, she entered into a family settlement with the defendants, as a result of which the land in Chak No.448, was mutated in her name and the rest of the land in three other villages was mutated in the names of defendants 1 to 3 who held the same as trustees. However, after the enforcement of the Shariat Application Act, 1962, the plaintiff had become the owner of 1/4th share of the entire estate of her husband while defendants 1 to 6 were entitled to the remaining 3/4th share.

6. Except defendant No.4 (Mst. Niamat Khatoon since deceased) the rest of the defendants contested the suit taking various legal and factual pleas. According to them the plaintiff was allowed by ‑family settlement the land situated in Chak No.448 for maintenance having accepted the same she was estopped from claiming title to an anything else. They also repudiated the allegation that they were the land in the three villages entered in their names as holding trustees on behalf of the plaintiff. The material issues which may be mentioned that arose from the pleadings of the parties were issues me No.1, whether the suit was within time and issue No.6, whether the plaintiff was entitled to 1/4th share in the whole of the estate of against the Islam deceased. The trial Court answered issue No.1 against plaintiff holding that the suit was barred by time.

7. No.6, on the oral evidence and the copies of the rawaj‑e‑am, the trial Court held that it was proved that deceased Islam belonged to Hiraj Sial caste which was governed by custom to the effect that in the absence of sons the widow and the mother would inherit the property of the deceased in equal shares, with the result that in the absence of the mother the widow would succeed to the entire estate of her deceased husband as a limited owner. However, on the admissions made by the plaintiff in her testimony the trial Court further came to the conclusion that there was a family settlement between the parties, whereby the plaintiff was to maintain the land situated in District Jhang, whereas the land in District Multan would remain with the defendants. The contention of the defendants that the land allowed to remain in the hands of the plaintiff was in lieu of her maintenance was rejected by the trial Court as unsupportable by anything in evidence on the record. As a result of this reasoning the trial Court answered issue No.6 in favour of the plaintiff. But in view of the finding on issue No.1 the suit was dismissed as barred by time vide judgment dated 16th April, 1969.

8. Being aggrieved the plaintiff Mst. Jannat Bibi challenged the decree .passed by the trial Court in a regular first appeal before the Lahore High Court. The defendants in resisting the appeal sought to challenge the finding of the trial Court on issue No.6 against them and reiterated their contention based on their plea of special custom whereby the widow of the deceased was not entitled to limited estate but only entitled to maintenance. But the learned Judges of the Division Bench who heard the appeal, after exhaustively re‑examining the evidence on record rejected this contention. Having done so they proceeded to examine the further question whether the plaintiff by entering into the family arrangement had relinquished all her rights in the land which was mutated in favour of the defendants. Referring to the fact that the plaintiff's brother was present at the time of mutation in favour of the defendants, the learned Judges concluded that she was a willing party to the family settlement. The mutation orders were relied upon to hold that the defendants took over the property entered in their names in their own right. Particular reference was made to one of the entries being attestation of one mutation (Exh.P/3) in which the brother of plaintiff made a statement reflected in the order of the Revenue Officer. It was held that this document supports the contention of the defendants that the plaintiff had given up all rights in their favour in respect of the properties mutated in their names.

9. In the background of the aforesaid evidence, the learned Judges felt that the plaintiff's oral assertion that she was receiving her share of produce from the defendants was not liable to be accepted as true. And, therefore, it was proved on the record that the defendants were holding the property in their own right and not for purpose of management and administration on her behalf. In this state of evidence the learned Judges affirmed the finding of trial Court that the possession of the defendants was proved to be adverse and hostile to the plaintiff, with the result that their rights of full ownership in respect of the land mutated in their names had matured by prescription and the suit was clearly barred by time not having been brought within 12 years from the day they had taken over the land in their possession. The appeal of the plaintiff was accordingly dismissed by the Division Bench vide judgment dated 11th July, 1979.

10. Mst. Jannat Bibi challenged the judgment of the Division Bench in a petition before this Court and leave was granted to consider the following questions:

(i) As to what is the effect of a matured adverse possession) against a widow who under the customary law of the Punjab, on the death of her husband, was entitled only to a life estate, but certain persons occupied that land adverse to her aforesaid life or limited estate:

(ii) If by adverse possession the reversioner would acquire only that life interest /estate, which the widow had or could have had, then after the death of the widow or termination of all life estates under law, would West Pakistan Muslim Personal Law (Shariat) Application Act V of 1962, apply to the aforesaid tip adversely occupied estate:

(iii) It is generally stated that a female limited owner does not represent the estate for the purpose of limitation, and that adverse possession against the female does not affect reversioner's right to recover possession within 12 years of the death of the female under section 141 of the Limitation Act 9 of 1908, as laid down in Mt. Jaggo Bai v. Uteava Lal AIR 1929 P C 166 (it needs examination as to what is the effect of this law otherwise) .

(iv) Whether on the facts and in the circumstances of this case, was the possession of the defendants/ respondents really adverse in the three villages in dispute as found by the High Court."

11. It has been urged on behalf of the appellant that she had succeeded to her deceased husband's estate as a limited owner in accordance with the custom in 1944 and even if contesting defendants are held to have been in adverse possession, at the most they would be entitled to prescribe qua the limited interest then vesting in the appellant, but would not thereby become full owners by virtue of such adverse possession. On this basis the conclusion arrived at by the Division Bench of the High Court that the suit was barred by time was assailed as untenable.

12. It will be seen from the finding of the learned Judges of the High Court that they found that the appellant had become entitled to succeed to the entire estate of her husband as a limited owner in accordance with the custom applicable to the family. In so holding, the learned Judges rejected the plea of the contesting defendants that according to the applicable custom the appellant was only entitled to maintenance, in lieu of which by the family settlement she was allowed to retain the possession and enjoyment of the usufruct of the land in Chak No.448. From the judgment of the High Court it appears clearly that both parties had set up different versions of the nature of the said family settlement resulting in the mutations as attested by the Revenue Authorities upon the death of Islam. The learned Judges rejected both versions set up by the parties. In civil proceedings a party is not permitted to deviate from his or her pleadings, nor can the Court set up a different plea for a party and decide the suit on that basis, much less at the appellate stage. The record does not support the case of relinquishment of rights on the part of the appellant and there appears to have been no evidence produced to establish conscious relinquishment of rights on her part. Document Exh.P/3 to which prominent reference was made in the judgment of the High Court at best reveals that the land situated in Chak No.448 was kept apart for the purpose of providing maintenance to the appellant. In such circumstances, in order to support the plea of time bar, in our opinion, the Court was not right in construing this document as constituting abandonment on the part of the appellant, who was not present in the proceedings and nothing was pointed out from the evidence to show that her brother was duly authorized to surrender her rights. Be that as it may, no evidence was pointed out to indicate that the appellant was aware of her rights and consciously relinquished them through her brother. The onus of proof lies heavily upon a party who claims the surrender or relinquishment of rights in immovable property by a pardahnashin woman through writing, to prove by positive evidence that she was doing so out of free will and upon receiving independent advice. The evidence doe not appear to satisfy these stringent requirements of the law.

13. Both the trial Court as well as the High Court, as already, stated, have held that the appellant had succeeded to life estate in the entire property of her deceased husband under the Customary law. Until the enforcement of the Muslim Personal Law (Shariat) Application Act, 1962, therefore, the contesting defendants could prescribe only to the extent of widow's right of enjoyment of a life estate and not for title as full owners which right she did not possess at that time. The plea of the contesting defendants was in the form! of pleading the statute of limitation and not a claim of full ownership, as they were only defending the suit. In that context the Court was', concerned with the question whether the suit in its present form was within the period of limitation applicable to it. There is no cavil to the proposition that there can be adverse possession in respect of, limited estate vesting in a female under any law. But the appellant,' in her suit was not claiming her right under the Customary law as a limited owner.

14. This brings up the particular aspect of this case which seems to have been overlooked by the High Court. The plaintiff's suit was based upon right created by the statutory provisions, namely, section 3 of the Act of 1962, whereby limited estates of Muslim females under the Customary law were terminated and under section 5 such females were entitled to their Muslim law share as heirs of the last full owner. It is, therefore, clear that new rights were created by operation of law in favour of the appellant in respect of the estate of the deceased. Since these rights were not being enjoyed by the appellant prior to 1962, there can be no question of her having brought a suit for possession on that basis on a date prior to the enforcement of the said Act of 1962. Looking at the matter in this perspective, it becomes manifest that the right to possession as full owner as a Muslim heir vesting in the appellant having accrued in 1962, the suit filed in 1966 for possession was still within time.

15. Although it was not contended so but it might have been urged that the limited estate devolving upon the appellant under the, Customary law was extinguished by adverse possession by the date of the suit, in respect of the land situated in three villages mutated in the names of the defendants, with the result that section 3 was not attracted as there was then no subsisting limited estate enjoyed by the appellant. In this regard it is sufficient to state that a legal fiction has been created by the combined effect of sections 3 and 5 of the Act of 1962, so that although the last full owner may have died long back in the past, he is deemed to have died on the date of the enforcement of the Act and succession would be deemed to have opened to his estate on such date. It is a recognized principle of Muslim law that upon the death of a Muslim proprietor his estate devolves on his heirs who succeed to the same as tenants‑in‑common in specific shares. In such a situation possession of one co‑sharer oil co‑heir is presumed to be that of the other co‑sharers or co‑heirs. In the present case the deceased left agricultural land in four separate villages, out of which one village, namely, Chak No.448, was in the exclusive possession of the appellant and the land in the remaining villages was in the possession of the contesting defendants on the date when the Act of 1962 came into force. Applying the principle of co‑ownership, therefore, the defendants could plead adverse possession as to full estate of the deceased to the extent of the share of the appellant, when they proved ouster of the appellant qua the share of inheritance to which the appellant had succeeded. This period, in the circumstances, could not exceed 12 years as reckoned from 1962. The finding that the suit was barred by limitation under Article 144 of the Limitation Act is, therefore, not sustainable in any case.

16. In the result this appeal is allowed and the suit of the appellant is decreed as prayed with costs.

17. M. B.A./J‑27/5 Appeal allowed.