PLJ 2006
Present: Mian Saqib Nisar, J.
FATEH SHER--Petitioner
versus
MUHAMMAD HAYAT and others--Respondents
C.R. No. 2547 of 2004, heard on
15.4.2005.
(i)
----Ss. 3 & 7--Punjab Limitation
(Custom) Act, 1920--Preamble--Punjab Custom Power to contest Act 1920,
Preamble--Punjab Muslim Law (Shariat) application Act 1948, Preamble--Last male
owner dying issueless--Widow of deceased owner became limited owner--Suit for
declaration by reversioner was compromised whereby plaintiffs were declared to
be owners to the extent of 2/3 rd share of property left by deceased male
owner--Widow became limited owner to the extent of 1/3rd of property left by
her deceased husband--Limited owner died in 1981--West Pakistan Muslim Personal
law (Shariat) Application Act, 1962, having become law of land, Punjab
Limitation Custom Act 1920, Punjab Custom Power to contest Act 1920 and Punjab
Muslim Law (Shariat) Application Act 1948 were repealed by S. 7 of the Act of
1962--After repeal of above mentioned Acts, heirs of limited owner became
co-owners--There is no limitation for a co-sharer to enforce his such rights
against another co-sharer--Besides, period of limitation would not impede
enforcement of rights of inheritance--Suit of plaintiffs for enforcement of
their rights of inheritance was thus, within limitation. [Pp. 288 & 289] A & B
(ii)
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Suit for declaration without
seeking separate possession--Maintainability--Plaintiff's suit was for
declaration, about their right of inheritance in property in question and was
also for joint possession--If plaintiff's suit was decreed, they would get
"Hisadari possession" and therefore, omission in that behalf, would
not bring case of plaintiffs within mischief of S. 42, Specific Relief Act
1877--Findings of Courts below that suit was in competent was set aside and the
same was decreed in terms of Muslim Law of inheritance--Shares of heirs were
worked out by High Court in accordance with law of inheritance in terms of
Muslims Law. [P. 290 & 291] C & D
Sheikh Naveed Shahryar, Advocate for
Petitioner.
Mr. Muhammad Farooq Qureshi Chishti,
Advocate for Respondents Nos. 1 to 4, 7 (i), (iii), 9 (i) to (iv) and 10.
Kh. Saeed-uz-Zafar, Advocate for
Respondents 6, 7 (i) (iv) 8 (i) to 8(vii) and 11 to 16.
Date of hearing : 15.4.2005.
Judgment
The instant revision i.e. 2547 of 2004,
as also FAO No. 264 of 2002, CR No. 3044/2004 and FAO No. 330 of 2004, are
being disposed of together, as all involve common questions of law and facts.
2.
Briefly stated the facts of the case are, that Gama and Shera, were two
brothers; Gama had a son Fateh Sher and two daughters Mst. Changi and Mst.
Gullan; Shera was succeeded by Lal and Jamal; Fateh Sher died issue-less, in
the year 1927, and Mst. Fateh Khatoon his widow became the limited owner of the
estate of the deceased. Lal and Jamal, filed a suit for declaration on
8.3.1936, alongwith Mst. Changi, challenging the limited ownership of Mst.
Fateh Khatoon by relying upon a will in their favour by Fateh Sher; this suit
was compromised and a joint application dated 7.12.1937 Ex. P-6, in this behalf
was moved to the Court by the parties, according to which, it was agreed that
Mst. Fateh Khatoon shall retain 1/3rd of the estate as a limited owner, whereas
2/3rd shall be the exclusive ownership of Lal and Jamal, who were acknowledged
to be already in possession of such share. In terms of the compromise, the suit
was decreed on 7.12.1937, Ex. P-8 and this decree was given due effect in the
revenue record through Mutation No. 394 dated 29.11.1938.
3.
Out of the 1/3 share, which Mst. Fateh Sher retained as a limited owner
under the aforesaid decree, she through Mutation No. 582 dated 24.10.1950, sold
certain land in favour of Baro, Hayat, and Noor Muhammad etc., the predecessor
in interest of some of the defendants. Mst. Changi, Mst. Gullan, Lal and Jamal
filed a suit in the year 1950, challenging the sale as being without the
necessity and against their reversionary rights. This suit was decreed on
29.11.1951, Mst. Fateh Khatoon, was affirmed as the limited owner of 1/3 share
and the sale was adjudged as ineffective qua the reversionary rights of Lal and
Jamal, but was dismissed to the extent of two ladies. However, the decree was
to take effect on account of the re-marriage or the death of Fateh Khatoon.
4.
Mst. Fateh Khatoon, died on 12.1.1981 and in pursuance of the decree
mentioned above, the Mutations Nos. 37 to 42 were attested on 14.9.1981, in
favour of Lal and Jamal. Aggrieved of the above, the vendees of such sale or
their successors challenged the mutations on the revenue side as being illegal
and ineffective qua their rights. Their appeal was rejected by the Collector
Khushab vide order dated 17.5.1982 Ex.P-25. They further assailed the matter
through revision, but without any success, which was dismissed by the
Commissioner by the order dated 17.10.1982 Ex. P-26. The respondents thereafter
approached the Board of Revenue in its revisional jurisdiction, which petitions
were accepted on 18.12.1985, Ex. P. 27; the relevant portion of the order is
reproduced as under:--
"According to the decree granted by
the Civil Court Fateh Khatoon was declared to be the owner of 1/3rd property
with 2/3 property vesting in Lal and Jamal. The sale subsequently made by Mst.
Fateh Khatoon in favour of her brother Baroo 1/2, Muhammad Hayat 1/4th and Noor
Muhammad 1/4th is, therefore, to be considered as restricted as to the 1/3rd
portion of the property, which Mst. Fateh originally inherited in 1927 as a
limited owner. 2/3rd property would continue to vest with Lal and Jamal and
their successors in interest. 3/4th of the property which vested with Mst. Fateh
Khatoon after she had alienated 1/4th property in favour of Baroo, Muhammad
Hayat and Noor Muhammad would then pass on to her their after her death in
1981. Accordingly, it is ordered as follows:
(i) Of
the total property of 3200 Kanals inherited by Mst. Fateh Khatoon in 1927, she
become full owner by virtue of the civil decree of 1/3rd property measuring
1066 Kanals and 7 Marlas;
(ii) of
this 1066 Kanals and 7 Marlas, 1/4th share will vest in Baroo 1/2, Muhammad
Hayat 1/4th and Noor Muhammad 1/4th;
(iii) the
remaining 3/4th of 1066 Kanals and 7 Marlas would be inherited by the legal
heirs of Mst. Fateh Khatoon on her death in 1981; and
(iv) the
remaining property (3200) K-minas 1066 K-7Ms) would vest in Lal and Jamal/their
successors.
This
decision would be implemented in the revenue record."
On 22.2.1986, the successors of Jamal and
Lal brought a civil suit, challenging the order of the Board of Revenue,
claiming that out of 1/3 of the share, which was allowed to be retained by
Fateh Khatoon, as the limited owner, they are entitled to 3/4th share on
account of the inheritance, as being the legal heir of Fateh Sher, the last
male owner of the property and only 1/4th share could have been validly sold by
Fateh Khatoon to the vendees. They thus claimed to be the co-sharers of the
property to the extent of their share mentioned above. This suit has been
contested by the respondents, and the following issues were framed:--
1. Whether
plaintiffs are owners in possession of suit land in their capacity as heirs and
on the basis of decree of Civil Court dated 7.12.1937 and 19.11.51 and mutation
Bearing Nos. 37 to 42, attested on 14.9.1981, and that the order passed by the
Collector/EACO & Addl. Commissioner (C) Sargodha, respectively dated
17.5.1982 and 17.10.1982, are in accordance with law as held by Civil Court?
2. Whether
order passed by Member Board of Revenue dated 18.12.1985 is against law, facts,
without authority, void abinitio, arbitrary, malafide, as such it fails to
effect rights of the parties?
3. Whether
plaintiffs are entitled to the possession of land measuring 399 Kanals fully
described at "B" of head note of plaint?
4. Whether
the suit is not maintainable in its present form and as such plaintiffs are not
in possession of the suit land?
5. Whether
suit is not property valued for the purposes of Court fee and jurisdiction? If
so, its effect?
6. What
should have the proper Court fee for both the purposes?
7. Whether
suit is bad for mis-joinder of causes of action and necessary parties?
8. Whether
consolidation of holding land ordinance serves a bar to the institution of this
suit?
9. Whether
suit is not maintainable in view of preliminary objection No.---?
10. Whether
defendants are entitled to recover special posts u/S. 35-A CPC?
11. Relief?
After the trial, the learned Civil Judge,
seized of the matter, vide judgment and decree dated 16.5.1995, dismissed the
suit, holding that on the enforcement of the Muslim Personal Law (Shariat)
Application Act, 1962, the decrees dated 7.12.1937 and 19.11.1951, shall have
no legal effects and shall be deemed to be void; therefore, Mst. Fateh Khatoon,
would inherit 1/4th share in the whole of the estate of the deceased Fateh Sher
and thus the sales made by her within the limits of such share, in favour of
the respondents, is valid. The learned Civil Judge, though the order of the
Board of Revenue was never challenged before him by the respondents, but of his
own, declared the order of the Board of Revenue as illegal, in the following
words:
"Plaintiff Fateh Khatoon was
entitled to inherit the property of deceased husband according to her Islamic
share of ¬ out of his property, whereas MBR confirmed 1/3rd share to Fateh
Khatoon and as such his order to that extent to held to be illegal.";
The plaintiffs were thus not found
entitled to 399 Kanals of the land, about which, they sought the declaration of
ownership; the suit was also declared to be not maintainable, as the possession
had not been asked. It may be pertinent to mention that on Issue No. 1, the
trial Court has made lengthy discussion on account of which, its view is quite
indiscernible about the limitation. But it seems if the Court was also of the
view that the suit is out of limitation, whereas, there was no issue framed in
this behalf. Anyhow, aggrieved of the above, the petitioners challenged the
judgment and decree in appeal, which has been sustained by the learned Court of
appeal, with the additional clear reason that the suit is barred by limitation.
5.
Learned counsel for the petitioners has argued that according to the
consent decree dated 7.12.1937, passed in favour of Lal and Jamal they had
become the exclusive and absolute owners of 2/3rd estate of the deceased Fateh
Sher, whereas the limited ownership of Mst. Fateh Khatoon, was restricted only
to 1/3 share. The enforcement of the Muslim Personal Law (Shariat) Application
Act 1962, never effect the aforesaid decree, which was never passed under the
Customary Law, rather on the basis of their free will; and the parties thereto,
entered into an agreement, which culminated into the decree of the Court. It is
further submitted that in the year 1950, when Mst. Fateh Khatoon, alienated the
suit property out of her 1/3 share, which she was holding as a limited owner,
the petitioners were constrained to file a civil suit, and the Court through
its judgment dated 29.11.1951, affirmed the earlier decree dated 7.12.1937 as
under:--
"The plaintiffs have also proved
that compromise dated 7.12.1937, of which Ex.P-1 is the attested copy. It is
definitely mentioned in Ex. P-1 that Mst. Fateh Khatoon (Defendant No. 4) would
retain one third share for her life time or till remarriage only. In this way
instead of being made a full owner of one third share in her husband's land
Defendant No. 4 continued to hold her husband's one third land in a manner
peculiar to a widow's life estate."
Furthermore, while giving findings on the
effect of the Shariat Act, 1948, upon the rights of the parties, it was held
"It is true that under the provisions of the Shariat Act 1948 she will be entitled
to one fourth share as Fateh Sher's heir under Islamic Law because he died
without leaving any issue but this 1/4th share will be only out of the lead
held by her now as a limited heir and not out of the whole of the land left by
him." Therefore, according to the learned counsel, under the decree dated
7.12.1937, Lal and Jamal had acquired the rights of absolute ownership of the
2/3 estate of Fateh Sher, and to this an extent, the matter was a past and
closed transaction; which was not effected or reopened in any manner on account
of the enforcement of the Muslim Personal Law (Shariat) Application Act 1962.
The first decree, therefore, shall not be rendered void and ineffective, rather
it is only the decree dated 29.11.1951, which would be deemed to have abated,
and Mst. Fateh Khatoon became the co-sharer to the extent of 1/4th out of 1/3rd
which, she was holding as a limited owner, alongwith Lal and Jamal, as being
the legal heir of the last male owner, under the Islamic Law of Inheritance. On
the basis of above, it is submitted that it is settled law by now, that the
possession of a co-sharer shall be the possession of all and that no limitation
shall run against a co-sharer, thus the contrary view expressed by the two
Courts below cannot be sustained. It is also submitted that the point of
limitation had never been an issue between the parties, resultantly, to
non-suit the petitioners on that basis, without given them proper opportunity
of adducing the evidence, is nullity in the eyes of law. Likewise, it was
argued that the petitioners being the co-sharers in the property, asking the
possession under joint khata, their suit should not have been dismissed on
account of the maintainability for not asking for the separate possession of
the property, when they were asserting the Hisadari possession thereof.
6.
Conversely, Kh. Saeed-uz-Zafar, learned counsel for the respondents has
argued that the petitioners' suit is out of limitation, because they have never
challenged the sales in favour of the respondents, within 12 years from the
enforcement of the Muslim Personal Law (Shariat) Application Act, 1962, even if
considering that they had become the co-sharers of the property; besides, on
the promulgation of the Shariat Application Act, 1962, as also the enforcement
of Section 2-A of the Muslim Personal Law (Shariat) Application Act (Amendment)
Ordinance, 1983, the decrees dated 7.12.1937 and 29.11.1951, being under the
Customary Law and on the basis of the reversionary rights of Lal and Jamal,
shall stand abated and the entire estate of the deceased, shall be deemed
reverted to the deceased for its distribution to his legal heirs according to
the Shariat Law, therefore, Fateh Khatoon being widow, shall have 1/4th share,
out of whole estate of her husband and resultantly, the sales made by Fateh
Khatoon, within the limit of her 1/4th, are protected under the law.
7.
I have heard learned counsel for the parties and find that there was no
issue about the limitation and resultantly, both the Courts have erred in
non-suiting the petitioners on a question, which has never been the proposition
between the parties at the trial or before the Appellate Court. Assuming that
it is purely a question of law and on the basis of the admitted facts of the
case, can be resolved; and u/S. 3 of the Limitation Act, it is the duty of the
Court to see if a lis before it within time or not. Yet the legal position in
this behalf is quite simple. Because admittedly, Lal etc. challenged the sale
made by Fateh Khatoon in favour of the vendee within the prescribed period of
limitation under the provisions of the Punjab Limitation Act 1920 and that is
at the best what they could have done under the law in vogue at the relevant
time. This suit was decreed in the terms as below:
"In view of the above findings, this
suit, so far as it relates to Mst. Chungi and Mst. Gullan, fails but succeeds
as regards Lal and Jamal plaintiffs.
I, therefore, dismiss Mst. Chungi
plaintiff's suit but pass a decree in favour of Lal and Jamal, plaintiffs, granting
them the declaration that the sale in suit, shall be void and inoperative as
against their reversionary rights after the death or remarriage of Defendant
No. 4."
Obviously the above decree was to take
effect, on the happening of the eventualities mentioned therein. But as per the
record, Mst. Fateh Khatoon never married and died on 12.1.1981, there was thus
no occasion for Lal, etc. to enforce the decree, before the termination of the
limited ownership of Mst. Fateh Khatoon. However, in the meantime, a vital and
important legal change was brought by West Pakistan Muslim Personal Law Shariat
(Act 1962), and u/S. 3 thereof, the limited ownership in respect of the
immovable properties held by a Muslim Female under the customary law, was
terminated. In addition u/S. 7 of the Act, inter-alia Punjab Limited (Custom)
Act, 1920, Punjab Custom Power to Contest Act 1920 and Punjab Muslim Law,
(Shariat Application) Act 1948, were repealed, with the further signified legal
consequences that the limited owner property would revert back to the last male
owner, who in this case, was Fateh Sher, to be distributed amongst his legal
heirs, whosoever were surviving at that time, according to the Muslim Law of
Inheritance. In such a situation, Mst. Fateh Khatoon, remains entitled to the
ownership of 1/4th share and the remaining has to go to Mst. Chungi and Mst.
Gullan, Lal and Jamal. The decree dated 19.11.1951, on account of the law, was
rendered nugatory and no further action on the basis of such decree under the
earth while customary law could have been initiated or sustained by Lal, etc.
Rather they alongwith Mst. Chungi, Mst. Gullan and Mst. Fateh Khatoon, or her
vendees, who stepped into her shoes, became the co-owners of the property by
operation of law and it is settled by now that there is no limitation for a
co-sharer, to enforce his such rights against another co-sharer. Likewise, it
is also an eminent principle, that period of limitation, shall not impede the
enforcement of the rights of inheritance. Thus on both the counts, the suit of
the plaintiffs could not be debarred by limitation. The view taken by the
Courts below, particularly, the Court of appeal, that the suit is barred on
account of limitation, in the following words--
"As the decree passed 1951 by Civil
Court was not executable because of custom of Limitation Act 1920 was
applicable to that decree and limitation for controlling alienation for filing
a suit for declaration is 6 years and after death of limited owner, suit for
possession should have been filed within three years. In this case limited
ownership was terminated by operation of Muslim Personal Law, Shariat
Application Act, 1962 and plaintiffs should have filed suit within three years
from the termination of limited ownership, which they have not filed. According
to customs limited Act of 1920, it is mandatory after having the decree of
declaration that after termination of limited ownership, the claimants of
property should file a suit for possession within prescribed period of 3 years
but the present appellants-plaintiffs have not filed a suit for possession
within time. If Article 141 of Limitation Act which is general law, is to be
applied then limitation for filing a suit for possession is 12 years and as
limited ownership of Fateh Khatoon terminated in 1962, therefore, plaintiffs
should have filed suit upto 1974, which they have not filed within the
limitation."
is based upon erroneous understanding and
application of law. In the facts and circumstances of the case, Punjab
Limitation Act, 1920, had no application at all, because Lal, etc. were not
seeking the implementation of any decree declaring their rights under the
customary law, rather, were asking for the enforcement of their rights of
co-ownership and inheritance, which they had acquired under the law, and for
which, as mentioned earlier, there is no limitation. The general law regarding
the suits for the possession of the immovable property also did not create any
hurdle in the way of Lal, etc, because the possession of the respondents/defendants
was in the nature of the co-owners and Article 141, etc. was not attracted to
the matter at all. Therefore, the view of the Courts below that the suit of the
petitioners is barred cannot sustain, and it is hereby set aside, with the
result that the dismissal of the suit on this account by two courts below, also
stand reversed.
8.
The other key question, involved in the case is about the effect of the
decrees dated 7.12.1937 and 29.11.1951. As regards the first decree is
concerned, suffice it to say that Lal, etc. and Mst. Chungi, had filed a suit
for the declaration, against Fateh Khatoon wherein Mst. Chungi claimed that
Fateh Sher, had made a will in her favour, about the whole of the property and
the parties in that suit, entered into a compromise out of their own free will,
whereby Mst. Fateh Khatoon, voluntarily gave 2/3rd share of the estate of Fateh
Sher to Lal, etc, whereas 1/3rd share was retained by her, as being the limited
owner. Lal, etc. in pursuance of the said decree, got sanctioned the Mutation
No. 394 dated 29.11.1938 and thereafter their possession was under the decree.
Thus for all intents and purpose, they became the exclusive owners of the
property, which whereafter, never remained a part of the estate of Fateh Sher,
to be distributed after the termination of the limited ownership of Fateh
Khatoon. It is only 1/3 share, which remained with Mst. Fateh Khatoon, as the
limited owner. The above reasoning is further strengthen that when Mst. Fateh
Khatoon, sold her part of ¬ share in favour of contesting respondents; Lal,
etc. Mst. Gullan and Mst. Chungi, all the four challenged the said sale as
against their reversionary rights and the Court was pleased to re-affirm the
exclusive ownership of Lal, etc. about 2/3rd share of Fateh Sher's estate,
which is undoubtedly clear from the various paragraph of the judgment dated
29.11.1951 reproduced above. Consequently, when in the year 1962, the limited
ownership of the females terminated, it only related to 1/3rd which Fateh
Khatoon was holding under the custom and had nothing to do with 2/3rd share,
which had already been conferred upon Lal, etc under the decree dated
7.12.2937. This decree as mentioned earlier had attained the
finality and was a past
and closed transaction. Mst.
Fateh Khatoon, as the heir/widow of Fateh Sher, was only entitled to 1/4th of
1/3rd share, of which, she could validly transfer to the respondents and could
be protected. The Courts below have fallen in serious error to hold that the
decree dated 7.12.1937 had abated and therefore, Fateh Khatoon, shall be
entitled to 14th Share of the Whole estate; this is absolutely misconceived and
against the law, also for the reason that even under the provision of Section
2-A of the 1983 Ordinance, such decree never abated. Therefore, the judgments
and decrees of the Courts below, refusing the relief to the petitioners with
regard to their rights of inheritance in the property, cannot sustain.
9.
As regards the question of maintainability of the suit for the lack in
asking the separate possession is concerned, it may be held that the suit of
the petitioners is for the declaration, about their right of inheritance in the
property and also for the joint possession. Obviously, if they are declared to
be the co-sharers of the property, they get Hisadari possession and therefore,
the omission in this behalf, shall not bring the case of the petitioners within
the mischief of the proviso to Section 42 of the Specific Relief Act.
Resultantly, the findings of the Courts below particularly, the trial Court,
that the suit is incompetent cannot be upheld.
10.
The nutshell of the above discussion is, that the decree dated
7.12.1937, was not the customary decree, rather based upon an agreement between
Lal etc. & Fateh Khatoon, which was arrived at, out of their free will,
containing a super added command of the Court; the said decree was never
challenged by Mst. Fateh Khatoon or any other person deriving any subsequent
title from her and therefore, has become final; the said decree was given due
effect in the revenue record and the possession of Lal, etc. was recognized
under the decree; the said decree when considered in the subsequent litigation,
about the reversionary rights of Lal, etc. against Mst. Fateh Khatoon and the
contesting respondents, was affirmed in the manner as stated in the preceding
paragraphs, and despite having abated by the operation of law, it is, however,
clear from the decree that 2/3rd share was severed from the limited ownership
of Fateh Khatoon and was given in the absolute ownership of Lal, etc. and was
never a customary decree.
In the light of above, by setting aside
the impugned judgments and the decrees, the suit of the petitioners is allowed
that only to the extent of 1/12th share of 1/3rd share of the deceased Fateh
Sher's estate, as this is the share, which they shall be entitled to inherit,
as being the legal heir of Fateh Sher, whereas, 1/4th shall go to Mst. Fateh
Khatoon, while remaining 2/3 to Mst. Gullan and Mst. Chungi. And if the sales
made in favour of the contesting respondents falls within the limits of 1/4th
share of Fateh Khatoon, such sales shall be protected and be valid. However, to
the extent of 2/3rd share of Ghulla, etc, it cannot be declared invalid in the
present suit, because they have never come forward to challenge the said sales
regarding enforcement of their rights and their share cannot be
given to the petitioners. Therefore, as mentioned
earlier, the suit of the petitioners shall be decreed to the extent of 1/12 of
1/3, which Mst. Fateh Khatoon has retained as limited owner of the property
with the relief granted to the petitioners about the joint possession of such
sharer.
As regards CR No. 3044 of 2004, and FAO
No. 264 of 2004, as also FAO No. 330 of 2004, are concerned, these have been
filed by the petitioners therein, for seeking the enforcement of the
compromise, allegedly entered into between some of the parties, which has not
given effect by the lower appellate Court. I find that in the light of the
decision made in the noted petition i.e. CR No. 2547 of 2004, the said revision
petition as also the eappeals, have become infructuous, and therefore, the same
are accordingly disposed of.
(A.A.) Order Accordingly.