MUHAMMAD QASIM KHAN Versus MEHBOOBA

1. MUHAMMAD AFZAL ZULLAH, C.J.- -These two appeals through leave of the Court arise in the following facts and circumstances as noted in the order for grant of leave to appeal:--

2. "The plaintiffs as welt as the contesting defendants by two separate petitions seek leave to appeal against the judgment of the Peshawar High Court in Regular Second Appeal dated 9-2-1983 whereby the plaintiffs' claim was allowed only in part.

3. Mst. Mahbooba was the plaintiff who sued for 25/96 shares in the ancestral property devolving on her through her mother and father. This property had remained in the hands of three ladies, Mst. Ameera, Mst. Shahzadgai. and Mst. Maryama. The dispute was whether it was held by Mst. Ameera as a GUZARAKHUR or as a limited estate for life or a till re-marriage. Similarly the question was whether on the death of Mst. Shahzadgai, the mother of the plaintiff petitioner, in 1945 the Rule governing the inheritance was one of Shariat or of custom and whether the inheritance of collateral Abdul Latif at that stage was not adverse to her and whether the claim made by the plaintiff was not barred by limitation.

4. All the three Courts have dealt with the case differently. The trial Court dismissed the suit on the ground that it was barred by time and the plaintiff was not entitled to inherit any share in the estate. The District Judge accepted the appeal and allowed 19/96 shares of what Mst. Ameera had left for inheritance. On second appeal the High Court held that Mst. Ameera had only a right of being maintained from the property and had left no heritable estate. However, the petitioner was held entitled to the estate of Mst. Shahzadgai, her mother, whose share was determined as 1/16 and half of it was allowed to the petitioner.

5. We have heard the learned counsel for the petitioner at some length and find that the case raises more than one question of law which are what is the distinction between a guzarakhaur and a life estate holder and whether on that score the interest of Mst. Ameera could be held to be non-heritable.

6. Further, it requires examination whether on the death of Mst. Shahzadgai in 1945 custom governed the inheritance or Shariat and what benefit the plaintiff-petitioner could derive from either. Finally the question of limitation requires examination and authoritative pronouncement in a case of this type. Leave to appeal is, therefore, granted to examine the abovementioned questions".

7. We have heard the learned counsel from both sides at length. In so far as what has been left with the plaintiffs' side in this case of inheritance, could be challenged by the defendants' side successfully only on the ground of limitation, which their learned counsel in Appeal No.66-P of 1983 vehemently advanced and urged. But after the grant of leave to appeal in this case in a number of judgments by this Court this part of the controversy now stands resolved in favour of the respondent side. The case-law has been marshalled in a recent judgment of this Court in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 Supreme Court. It goes against the defendants' plea of bar of limitation. There is ample discussion on this question in the said judgment. It fully applies to the case of the respondent/plaintiff side. Accordingly, there is no force in the defendants' appeal in so far as the question of limitation is concerned.

8. Regarding the right of the daughters of Muhammad Akram through Mst. Shehzadgai, their mother, whether as a plaintiff or as pro forma defendant, they are entitled to it. Thus, the share of Mst. Mahbooba plaintiff and that of Mst. Maqboola defendant No.l in this part of the inheritance could not be taken away from them. Except for the formal plea that Mst. Maqboola defendant No.1 had not joined Mst. Mahbooba, the plaintiff and perhaps on account of that she could not be given any relief, nothing more could be urged by the learned counsel for the defendants. Mst. Maqboola could be granted relief by the first appeal Court as well as by the High Court and in any case can be granted by this Court under Order XLI, Rule 33, C.P.C. and Order XXXIII, Rule 5 of the Supreme Court Rules. As held in the case of Ghulam Hussain v. Faiz Muhammad C.A-594 of 1980, decided on 10-11-1990 Mst. Maqboola could also be granted relief by the trial Court by resort to the said provision as also by transposition and/or section 151 read with section 153 C.P.C.

9. In the light of what has been stated above there is no force in the defendants' Appeal No.66-P of 1983. The same, accordingly, is dismissed.

10. In so far as the plaintiffs/appellants case (No.67-P) is concerned, it is of advantage to reproduce what the High Court thought about the estate of Mst. Ameera the step-mother of Muhammad Umar. In the opening part of the impugned judgment the case of the defendants through their counsel was noted as follows:--

11. "The learned counsel for the appellants took an exception to the finding of the learned appellate Court and strenuously contended that Mst. Amira had not entered the estate of Azim Khan as a limited owner but she was inducted into the estate subsequently as she was being maintained by the said estate. She was not a limited owner and was a Guzara Khor only."

12. After noticing this argument from the appellants' side the learned Judge in the High Court also made the following observation:--

13. "It is envisaged by Customary Law in Peshawar District by J.G. Lorimer in answer to Question No.41 that sons, grandsons or other male lineal descendants excluded all other heirs and in the absence of male lineal descendants widows and after that daughters etc. are entitled to possession of property for life or till marriage or re-marriage."

14. However, on the factual side in the facts and circumstances of this case a very weighty observation in the impugned judgment of the High Court needs also to be produced.

15. "A look at the Jamabandi 1929-30 shows that Mst. Amiran, Mst. Shahzadgai and Mst. Maryam, the widows are recorded as owners of half the land whereas the other half was owned by Ghulam Muhammad and Abdul Latif in equal share."

16. Obviously neither Mst. Amira nor the other two ladies were the full owners and therefore they could not be recorded as such. If, as is apparent from the above quotation, they were entered as owners, it must be as "limited" owner and if the entry is same about all the three namely Mst. Amira, Mst. Shahzadgai and Mst. Maryam, it will not be safe to single out Mst. Amira so as to hold that she alone was a Guzarakhaur and not a limited owner though the entry is the same with regard to all three of them. The evidence led on this question, other than Jamabandi entry is of not much help on this question. The entry in the Jamabandi of 1929 reads as follows:--

17. The High Court has not attached due importance to this entry. It remained intact and nobody disputed it. Mst. Amira was treated as limited owner for a long time. That being so due effect has to be given accordingly. Thus the question posed in the leave grant order in this behalf is answered accordingly.

18. If Mst. Amira was a limited owner the devolution of estate on her death after 1962 will be in accordance with the then prevailing law and that being so the 64 decree passed in favour of the plaintiffs regarding the share of the suit land which was in possession of Mst Amira also was proper and valid and was not liable to be set aside by the High Court. As to the question whether, on the death of Mst. Shahzadgai in 1945 the rule of inheritance would be Custom or Shariat in the N.W.F.P., it would suffice to make reference to the recent decision of this Court in Civil Appeal No.32-P of 1984 decided on 12-11-1990. Looked at from this angle also the decree passed in favour of the plaintiff vis-a-vis, the property left by Mst. Amira was also not liable to be set aside. Accordingly, the impugned judgment is liable to be reversed on this issue.

19. Before closing this order, it needs to be mentioned and reiterated that as observed in the disposal of the other appeal, namely, C.A-66-P/83, the decision and observations regarding Mst. Maqboola defendants No.l shall apply mutatis mutandis to that part of the inheritance also which relate to the property left by Mst. Amira.

20. In the light of the above discussion with the foregoing decision and observations regarding Mst. Maqboola, Appeal No.67-P of 1983 is allowed. The impugned judgment in that appeal is set aside and the decree is ordered to be modified accordingly. There shall be no order as to costs.

21. A.A/M-1448/S. Appeals accepted.