ASLAM AND Another vs Mst. KAMALZAI AND Other

1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, is directed against the judgment of a learned Single Judge of the former High Court of West Pakistan, Peshawar Bench, in a second appeal.

2. The said second appeal arose out of a suit filed by respondent Mst. Kamalzai on the 31st of August, 1964, for possession of 17 kanals and 5 marlas of land out of 57 kanals and 11 marlas situated in the area of village Spinani and for possession of 5 kanals and 5 marlas of land out of 17 kanals and 8 marlas situated in the area of village Sheikhjana, both in Tehsil Swabi.

3. These lands originally belonged to one Karam Khan who died sometime: in the year 1934 leaving him surviving a widow Mst. Roshani, two sonsAslam Khan and Zaman Khan and a daughter Mst.

4. Kamalzai. He was. Governed by custom and, therefore, by two mutations Nos. 272 and 292, attested on the 23rd of March 1934, and the 27th of July 1934; respectively--- according to custom, 2/3rd share was allotted to the two sons jointly in equal shares and the remaining 1/3rd share was allotted to the widow Mst. Roshani as a limited owner. The daughter got nothing under custom.

5. Subsequently, Mst. Roshani died in 1951, and mutation No. 941 was attested: on the 27th of August 1951, in respect of the estate left by her, according to Shariat, as the North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935, had come into force from the 6th of December 1935. One-third share in the properties left by Mst. Roshani was given to her daughter Mst. Kamalzai and the remaining two-third went to Aslam Khan and Zaman Khan.

6. Mst. Kamalzai, however, claimed in her suit that, on the death of Mst. Roshani, she alone was entitled to inherit from her mother and, therefore, she should have received 12/40th share in the estate of Karate Khan.

7. This suit was contested by the two sons of Karam Khan who, apart from pleading that the suit was barred by time, also disputed the claim of Mst. Kamalzai. According to them, she had got more than her share and she could not claim any portion of the share which had already beets" taken by the sons on the death of Karam Khan.

8. The trial Court found that the suit was within time but dismissed the, suit with costs holding that Mst. Kamalzai had got more than what was due to her.

9. Mst. Kamalzai went up in appeal to the learned Additional District. Judge, Mardan. The appellants Aslam Khan and Zaman Khan also filedcross-objections challenging the finding of the trial Court on the issues decided against them. At the hearing of the appeal, these issues were,, however, not pressed, and the sole point argued was as to whether Mst. Kamalzai was entitled to the 12/40th share claimed by her in the. Entire estate of Karam Khan, deceased.

10. The learned Additional District Judge set aside the finding of the trial Court with regard to the quantum of the share receivable by Mst.. Kamalzai and modified the decree to the extent that he held Mst. Kamalzai to be entitled to joint possession of 12/40th share out of only the 1/3rd. Share of the suit land taken by Mst. Roshani as a limited owner.

11. Mst. Kamalzai went up to the High Court in second appeal. The defendant Aslant Khan also filed an appeal from the judgment of the learned Additional District Judge seeking to challenge the finding of the. Trial Court on issues Nos. 1 to 4.

12. The High Court agreed with the trial Court that the bar of limitation did not apply in the present case, for, there was no evidence to show that there was definite ouster of Mst. Kamalzai who was a co-sharer of the estate. In any event, the suit was within time, as Mst. Kamalzai was. Shown in possession in the Jamabandis of 1953-54, 1959-60 and 1962-63, and the suit land had not yet been partitioned. On the question of the extent of the share receivable by Mst. Kamalzai, the High Court took the view that she was entitled to a 12/40th share in the entire property left behind by Karam Khan. Her appeal was, accordingly, accepted and a decree passed in her favour for the said share.

13. The appeal preferred by Aslam Khan was dismissed.

14. Leave was granted in this case to the sons of Karam Khan to consider-

(1) whether the High Court decided the question of limitation correctly--- and

(2) whether the High Court was right in holding that Mst. Kamalzai was entitled to a share in the entire properties left by Karam Khan."

15. Learned counsel appearing in support of the appeal has referred us to section 4 of the North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935. This section reads as follows:- "(1) In respect of immovable property held by a Muslim female as a limited owner under the customary law, the persons entitled to succeed to such property upon the termination of the limited interest of the female shall be those persons who would have been entitled to succeed at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been the rule of decision governing the succession upon such death.

(2) If any person entitled to succeed under subsection (1) dies before the termination of the said limited interest the share which he would have taken had he succeeded and the heirs entitled to succeed to that share shall be ascertained as follows, that is to say, he shall be deemed to have died immediately after the termination of the said limited interest and the rule of decision governing the succession upon his death shall be deemed to have been the Muslim Personal Law (Shariat): Provided that the share which the female limited owner would have taken had the Muslim Personal Law (Shariat) been the rule of decision governing the succession upon the death of the last full owner shall devolve on her if her limited interest in the property terminates by reason of her marriage or remarriage, and on her heirs under the Muslim Personal Law if her limited interest terminates by reason of her death."

16. According to the learned counsel, under these provisions, the succession has to open only "in respect of immovable property held by a Muslim female as a limited owner" and not to respect of the entire property left by the last male full owner. The position, therefore, in the present case, according to the learned counsel, would be that only the t/3rd share that was taken by Mst.

17. Roshani as a limited owner would go back to Karam Khan and be distributed amongst his heirs, as if Karam Khan had died on the termination of the limited estate. It would not involve the reopening of the shares, if any, taken by male heirs as an absolute estate.

18. It seems to us that the contention of the learned counsel is correct, because, it does not appear that it could have been the intention of the makers of the Statute to reopen the inheritance, even in cases where the heirs had taken an absolute vested estate under custom. Only the limited estates taken under custom, which were, in any event, to terminate on the death or remarriage of the female heir, were intended to be distributed according to Muslim Personal Law. The language of section 4 leaves no room for doubt that the intention was to provide for the distribution of such properties only which were notionally still the properties of the last male owner and would have otherwise gone to his reversioners on the termination of the life estate. We cannot, therefore, agree with the High Court that the share of Mst. Kamalzai had to be calculated in the entire estate left by Karam Khan but only in the estate which was taken by Mst. Roshani as a limited owner. The succession opened only in respect of this limited estate and not the entire estate. The learned Additional District Judge of Mardan was, therefore, right in the view that he took, namely; that Mst.

19. Kamalzai was only entitled to 12/40 share in the 1/3rd of the estate of Karam Khan which was taken as a limited owner by Mst. Roshani.

20. The question of limitation also has, in our view, to be answered in favour of the appellants. The estate that they took as customary heirs, they took in their own right as absolute owners to the exclusion of all B others. Mst. Kamalzai cannot say that she was unaware of this fact or that the possession of the appellants was in any way possession as co-heirs. In the kind of possession that they took, the element of ouster was also present, for, their possession was not only open but also hostile in their own right as full owners. Mst. Kamalzai's suit, therefore, for al share in the estate that they had taken was clearly barred by limitation.

21. This is as the view taken by the Peshawar High Court in the case of Mst. Sahib Jan Bibi v. Wall Dad (PLD 1961 Pesh. 9 The learned counsel for the respondent very faintly tried to argue that the Shariat Act of 1935 had been amended in 1953 by N.-W. F. P. Act II of 1953; but this did not amend or alter the provisions of subsection (1) of section 4. The proviso under this section does not also have an by bearing on the question now under consideration before us.

22. For the reasons given above, this appeal must succeed and is, accord--ingly, allowed. The judgment and decree of the High Court is set aside and that of the learned Additional District Judge, Mardan, restored.

23. The parties are, however, left to bear their own costs, as the inter--pretation of a question of law of some importance was involved.

24. K. B. A.