Mst. FAZAL NISHAN And Others vs GHULAM OADIR And Other

ORDER

1. MUHAMMAD AFZAL ZULLAH, C.J.---Leave to appeal has been sought in a case of inheritance; against the dismissal by the High Court, of petitioners/defendants' Regular Second Appeal.

2. Learned counsel while giving the facts stated that Suba Khan, the last male owner, died in or about 1933. He was survived by two daughters and two sons as also Mst. Gohri, a widow. She died in or about 1968. At the time of death of Suba Khan the parties then being governed by Custom 1/3rd of the land was mutated in the name of Mst. Gohri while 1/3rd each was given to two sons of Suba Khan. It appears that Mst. Gohri made some alienation which was challenged by said sons of Suba Khan and the suit was decreed. In that it was declared that the alienation would not affect their rights of inheritance. After Mst. Gohri's death dispute having arisen regarding the mutation of her inheritance, the respondents' (sons side) filed suit that Mst. Gohri was only a maintenance holder.

3. She, though, could be given only maintenance under custom and could not be given life estate, therefore, on her death the property would devolve upon the plaintiffs alone. The suit was contested by the petitioners' (the daughters) side. It was dismissed by the trial Court on the finding that Mst. Gohri was a limited owner The District Judge accepted the respondents' appeal and held that she was a maintenance holder. The High Court while dismissing the petitioners' Regular Second Appeal upheld the decision by the District Court, therefore, this leave to appeal petition.

4. Learned counsel frankly and fairly conceded that generally speaking under custom in presence of sons the widow would not inherit as a limited owner and often used to get only maintenance. In this case also it could be argued, no doubt, that if the general custom had been applied Mst. Gohri would have got only maintenance and not life estate. However, relying on Ghulam Akbar v. Irshad Begum (PLD 1963 SC 543) he further contended that notwithstanding the general rule stated above, in individual cases in the circumstances thereof widows could inherit as limited owner in presence of the sons--particularly if they are from another wife. In so far as the general proposition of law is concerned another case also Mst. Bakht Bano v. Allah Yar 1986 SCMR 1483 supports the learned counsel. Dealing with the present case learned counsel argued that the previous decision in the declaratory suit would not g0 against the petitioners because even if Mst. Gohri was a limited owner the results would have been the same. He supported his contention by a statement of fact that: had Mst. Gohra been only maintenance holder, instead of a declaration the sons of Suba Khan would have been allowed to take possession also. This circumstance, he further argued, shows that she was in fact a limited owner. The Revenue entries, according to him, did not show Mst. Gohri as maintenance holder. The entries are such that they could lead to an inference of her being a limited owner.

5. If considered the afore-stated facts and circumstances amongst other similar circumstances, in juxtaposition to each other, a strong prima facie impression can be gained that notwithstanding general custom otherwise, in this case Mst. Gohri did inherit as a limited owner and all the parties concerned treated this inheritance accordingly in that light.

6. Apart from the above questions and those raised in this petition it would also need examination: whether, the present petitioners' side would not at all inherit property in dispute being originally left by Suba Khan in accordance with their shares as daughters notwithstanding the question whether Mst. Gohri inherited as limited owner or obtained the suit land in lieu of maintenance. In this context the development of law of inheritance since 1948 shall have to be taken into consideration because Mst. Gohri died in 1968. Even if the death of Suba Khan in 1933 is treated as the starting point, the subsequent legal changes and developments particularly the 1983 Ordinance, will be examined in that context as well. Accordingly, leave to appeal is granted.

7. Security Rs.5,000.

8. All the relevant records have not been produced. Learned counsel has been allowed oral permission to place them on record. However, he shall make a formal application also to the Registrar specifying those records which were produced before the lower Court/s and those which were not produced so and which are being produced in this Court for the first time. In respect of the second category of papers, their copies and information in that behalf shall be sent to the other party, with permission to file any additional document/s if they so desire.