ALI BEGUM and 2 others vs ZARDAD KHAN and 4 others

1. ' WALI MUHAMMAD KHAN, J.---This petition for leave to appeal is directed against the judgment of the Lahore High Court, Rawalpindi Bench dated 15-4-1992 whereby his Regular Second Appeal No,23 of 1984 against the judgment of the trial Court dated 6-12-1973 decreeing the suit of the plaintiff/respondent for joint possession to the extent of 3/4 share in the estate of Nadir Ali, the last full owner, and that of the appellate Court dated 1-12-1983 dismissing their appeal, was dismissed in limine.

2. ' We have heard Syed Zia Hussain Kazmi, Advocate, for the petitioners and have perused the record of the case.

3. ' Nadir Ali, predecessor-in-interest of the parties, was admittedly owner of the suit land and on his demise on 19-4-1933 Mst. All Begum (petitioner No,1) his widow succeeded to his estate as limited owner and a mutation No,998 to this effect was duly sanctioned on 20-5-1933. She gifted the land in question through mutation No,143 attested on 26-5-1964 in favour of Ghazan Khan deceased petitioner No,2 represented by Mst. Maqsood Begum and others and All A.Sghar petitioner No,3. This alienation gave rise to the filing of the present suit by Allah Ditta, predecessor-in-interest of the respondents, claiming 3/4 share in the estate of Nadir All being the residuary at the time of his death. The suit after hot contest was decreed by the trial Court and the appeal and second appeal were also dismissed by the appellate Court and the High Court. It was vehemently argued by the learned counsel for the petitioners relying on the judgment of this Court in case Mst. Zeenat Begum v. Mst. Iqbal and another (PLD 1991 Supreme Court 427) that Mst. Ali Begum, petitioner No,1, had become full owner of the property left behind by her deceased husband and was competent to alienate the same.

4. In 1933 when Nadir Ali died custom was the rule of inheritance and in the absence of male lineal descendant petitioner No,1 being the widow succeeded to the estate as limited owner which was terminated on the enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (Act V of 1962) on 31-12-1962 and the estate opened for succession amongst the Sharai heirs of the last full owner; namely, Nadir Ali. Thus at the time of the impugned gift in 1964 Mst. Ali Begum petitioner No,1 was owner of 1/4 share in the estate left behind by her husband and the residue had to go to the residuaries. Consequently, the gift in excess of her Sharai share was illegal and not binding on the residuaries. Besides the authorities quoted in the impugned judgment, we have also discussed the legal controversy involved herein in our judgment in case Suba v. Mst. Fatima Bibi (1992 SCM R 1721) and have held that gift by a life estate holder during the continuance of the life estate is void ab initio and not binding on the reversioner entitled to inherit after the termination of the life estate. The judgment relied upon by the learned counsel for the petitioners is not applicable to the facts of the present case as the impugned gift was made after the termination of the life estate.

5. ' The impugned judgment of the High Court does not suffer from an legal infirmity and, in consequence, the petition is dismissed and leave to appeal is refused.