Mst. BHAGAY vs Mst. FATIMA BIB1

Petitioner's suit for declaration, claiming the inheritance to the estate of Sumail, her father and challenging the consent decree in favour of daughters of Bahawal, defendants and also the gift made by Mst.Sheran, widow of Bahawal, in favour of her daughters/defendants, was challenged and dismissed by the learned trial Court on issues of limitation, maintainability of the suit (Issues Nos.3 and 7) and Issue No,9-A. Against the above, the petitioner preferred an appeal and the learned Appellate Court, has reversed the findings on Issues Nos.3, 7 and 9-A but has non-suited the petitioner on the question of limitation.

2. Briefly stated the facts of the case are, that Sumail son of Samanda, was the owner of 1/3rd share in the land measuring 655 Kanals, 17 Marlas, alongwith his brothers Jaffar and Bahawal; Sumail died on 1-5-1934 and according to custom, Mst. Sattan, his widow became the limited owner.

However,.On the re-marriage of Mst. Sattan, the limited ownership extinguished and the property went to Mst. Bhagay, present petitioner, as the daughter of Sumail under the Customary Law. The petitioner also married and according to the Custom, half of share of the estate of Sumail was mutated in the name of Jaffar, his real brother and the other half in favour of Mst. Sheran, widow of Bahawal, the deceased brother of Sumail. Subsequently, when Jaffar died, his half share went to the two widows of Taja, his son; Mst. Sheran, one of the widows, had subsequently through a consent decree in the year 1982, in a suit filed by the daughter of Bahawal had conceded that property was gifted to them, whereas out of the share, which comes as limited owner to Mst.

Sheran widow of Bahawal, she through Mutation No,60, dated 16-9-1974, had gifted the same in favour of her daughters/respondents. Aggrieved of the above, petitioner first agitated the matter before the Revenue Authorities, but in the ultimate outcome, the Board of Revenue had directed that the matter be got resolved through Civil Court. In the light of above, the petitioner brought the present suit for declaration challenging the decree and the Mutation No, 60, dated 16-9-1974 and claiming that she being the daughter of Sumail, is entitled to her share in the estate left by him under the Mohammadan Law, particularly, on account of termination of the estate of the female limited owners under section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, this suit was filed in the year 1983 and the result of the litigation at two forums below has already been mentioned above. It may be pertinent to state here, that one of the issues, which is important for the decision of this case, is 9-A, which reads as below:-- 9-A. Whether the impugned gift Mutation No,60 dated 16-9-1974 and subsequent orders of Additional Commissioner dated 9-12-1976 and Member, Board of Revenue dated 4-3-1982 are illegal, void ab initio and ineffective qua the rights of the plaintiff? (OPP)

3. Learned counsel for the petitioner by relying upon Murad v. Karam and others (1987 SCM R 2008), has argued that where the limited ownership terminated by operation of law, any transaction made by the limited owner would have no effect upon the right of inheritance of the petitioner, and therefore, the question of limitation, does not arise in this case. He has also relied upon Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), to argue that in the cases of enforcing right to the inheritance, there is no limitation involved.

4. Confronted with the above, learned counsel for the respondents concedes, that Mst. Sheran, widow of Bahawal, was the limited owner and resultantly she could not have made the gift of that part of the share, which she had received as such, from the estate of Sumail, being the widow of Bahawal. Resultantly, the gift being invalid should be so declared, and also concedes, that the petitioner from this part of share is entitled to inheritance. However, he has strenuously argued, that in the case of Jaffar, he on account of custom had become the full, exclusive and absolute owner of that part of the estate of Sumail, which was mutated in his name under the Customary Law and on the enforcement of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 his ownership shall not stand terminated, because the law very clearly envisages the termination of the estate held by a female owner and not by a male, therefore, to the extent of Jaffar, the ownership remained intact and for all intents and purposes, he shall be deemed to be the full owner and the petitioner is not entitled to claim his inheritance, as it is not her case in the plaint.

5. I have heard the learned counsel for the parties. Learned counsel for the petitioner, has reiterated his submission and has further objected, that the point now raised by the respondents' side was never part of their defence. It is also argued, that the findings on Issue No,9-A were given against the respondents by the learned Appellate Court, and they have not challenged this, by way of cross-objections, resultantly, the findings on this issue, having become final, the respondents cannot seek the reopening of the issue. Moreover, it is stated that after the death of Jaffar, property under the Customary Law, had again went to the widows of Taja son of Jaffar, thus, when upon the enforcement of Act 1962, the customary rights of the widows were terminated, the estate for the purpose of inheritance would revert back to Sumail and the petitioner being the daughter of Sumail could inherit 1/2 of the share out of his whole estate as being the daughter.

6. I am afraid, the above contentions have no force. Though, the respondents have not filed any cross-objections to the findings of the learned Court of Appeal on Issue No,9-A, but according to the rule laid down in Khairati and others v. Aleem ud Din and others (PLD 1973 SC 295), when the respondent in an appeal is not attacking the decree or seeking its reversal or modification, but only intends to challenge the findings of the Court below on one of the issues involved in the lis; the respondent can always make oral submissions, to assail the findings, on the issue going against him. This rule is primarily enunciated in the matters, relating to appeals, but I am guided by the judgment of the Hon'ble Supreme Court, reported as Zakirullah Khan and others v. Faizullah Khan and others (1999 SCM R 971), according to which, the cross-objections can also be filed in the revisional proceedings, however, if the cross-objections have not been filed by the respondents, an analogy can be safely drawn as per judgment reported as PLD 1973 SC 295, to hold that while arguing a revision, the respondent of the case, who is not challenging the decree in his favour, but only the findings of a particular issue, can assail the same during the course of his oral submissions. Moreover, under section 115 of the Civil Procedure Code, "the High Court may make such order in the case as it thinks fit", which means that in the exercise of supervisory jurisdiction, if a material irregularity or error of jurisdiction comes to the notice of the Court, in the interest of justice, the Court can suo motu interfere and correct the findings of an issue. Therefore, while exercising this power, I have come to the conclusion, that Jaffar, had inherited the property, though under the Customary Law, but for all intents and purposes, had become the complete and full owner and for the purposes of inheritance of his estate, it is the hierarchy of his legal heirs, who shall be entitled, and the estate would not revert back, to Sumail on the enforcement of section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 which is only restricted to the female limited owners and not to the males.

7. However, as regards the estate held by Mst. Sheran, widow of Bahask al, and the alienation made by her is concerned, it definitely stands annulled on account of such provisions of law and in view of the judgments reported as 1987 SCM R 2008 and PLD 1990 SC 1, the transaction made by a limited owner would have no effect on the right of inheritance of the petitioner, and her case would also not be out of limitation. Resultantly, I modify the findings of the learned Court of Appeal, holding that the petitioner is entitled to 5/16 share in the estate of Sumail and not 1/2, as claimed by her.

The findings on the issue of limitation, are also reversed, holding that the suit of the petitioner is well within limitation. Therefore, by allowing this revision, on the question of limitation, but while exercising my power, under section 115, C.P.C., by modifying/reversing the findings of the learned Court of Appeal on Issue No,9-A, it is held that the petitioner is entitled to 5/16 share in the estate of Sumail, and to this extent her suit stands decreed. No order as to costs.