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Petitioner: MAQBOOL AHMAD and others VS Respondent: FAZALIHAQ and others
Court Name: Supreme Court of Pakistan Judge(s): Anwar Zaheer Jamali, Shakirullah Jan Title: MAQBOOL AHMAD and others vs FAZALIHAQ and others Case No.:Civil Appeal No, 2103 of 2000 Civil Appeal No, 2104 of 2000 Civil Appeals
JUDGMENT
Reported As: 2012 SCMR 917 Result: Case remanded Judgment JUDGMENT ' ANWAR ZAHEER JAMALI, J.---Above titled two civil appeals arise out of the common judgment dated 21-3-2000 in Writ Petitions No,989 of 1971 and No,1521 of 1983 passed by a learned Single Judge in Chambers of Lahore High Court, Multan Bench, whereby these petitions, emanating from the same controversy, involving identical questions of fact and law, were allowed. Consequently, earlier orders/judgments dated 23-4-1968, 24-6-1969 and 24-9-1970 challenged in the first petition and orders/judgments dated 7-6-1979; 3-2-1981 and 6-11-1983 challenged in the second petition, passed in the hierarchy of revenue Courts were set aside, being without lawful authority and of no legal effect, and the case was remanded to the revenue officer concerned with directions to decide the mutation of inheritance of late Mst. Lal Sain, widow of Reheat Ali, afresh in favor of legal heirs of Reheat Ali deceased, keeping in view that the legal heirs of Mst. Lal Sain would be entitled to inherit only that share which she as widow, will get by way of inheritance from her late husband Rehmat Ali. 2. Briefly stated, the facts forming background of this litigation are that one Reheat Ali son of Karam Din, predecessor-in-interest of some of the private respondents, now represented before us through Mr. Gulzarin Kiyani, learned Senior Advocate Supreme Court, and husband of Mst. Lal Sain, who owned large chunk of agricultural lands in maze Sarawak District Ferozepur, died in the year 1937 in India. After his death, as per prevalent custom among Bodla families, to which deceased
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belong, his estate was inherited by his two sons Muhammad Aslam and Fazal-i-Haq to the extent of 1/3rd share each, while the remaining 1/3rd share of his estate devolved upon Mst. Lal Sain as his widow, to the total exclusion of his eight daughters. After the partition of sub-continent, two sons of late Rehmat Ali filed their respective claims for the inherited land left by them in India, which were accordingly settled in different mazes of Tehsil Shujahabad, District Multan. Mst. Lal Sain, widow of late Rehmat Ali also accordingly filed her separate claim, which was partly settled in Village Rampur, Chak No,57/4-R, Tehsil and District Sahiwal, while rest was transferred and settled at other places. 3. Upto this stage, things were shaping smoothly, however, after the death of Mst. Lal Sain on 5-3- 1962, dispute arose between the parties i,e, legal heirs of Rehmat Ali and legal heirs of Mst. Lal Sain, when her estate was mutated in favor of the legal heirs of late Rehmat Ali as well as her own legal heirs, but only to the extent of her share as widow of deceased Reheat Ali. These mutations were challenged by the legal heirs of Mst. Lal Sain on the plea that she was full owner of land and not its limited owner; therefore, other legal heirs of Rehmat Ali were excluded and not entitled to get any share out of it. Collector Sahiwal, vide his order dated 23-4-1968, accepted such claim of the legal heirs of Mst. Lal Sain and accordingly set aside earlier mutation with the direction to mutate the land only in favor of her own legal heirs i,e, of Mst. Lal Sain, treating her to be its full owner. The order of Collector was challenged by the respondents (legal heirs of Rehmat Ali) before the Additional Settlement Commissioner, Multan, who, vide order dated 24-6-1969 dismissed their appeal. Revision petition filed by them before the Member, Board of Revenue, Punjab was also dismissed, vide order dated 24-9-1970. It will be pertinent to mention here that in both these orders/judgments of the appellate Court and the provisional Court against the legal heirs of Rehmat Ali, categorical observations were made about the pendency of litigation on the same legal issue regarding the status of legal heirs of a widow acquiring the estate of her husband under the custom as limited owner, which was at that time sub judice before the apex Court. The said judgment of the apex Court was announced on 23-5-1971, in the case of Additional Settlement Commissioner (Land), Sargoda v. Muhammad Shafi (PLD 1971 SC 791) and other connected petitions involving similar controversy, wherein, precisely, it was held that a female, who was recorded in special jamabandis as limited owner under the custom, when allotted property in Pakistan in lieu of such claim, even when such property was permanently 'settled in her name, would remain its limited owner, therefore, on her demise, such property will revert and devolve on the legal heirs of the last male owner of property in India and not on her own heirs alone. In addition to it, on 31-3-1975, Act No XXVI of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) 1975, was also promulgated to the same effect, under which it was further provided' that the persons effected by mutations sanctioned in favor of widows of the deceased land owners, who have been declared as limited owners by the apex Court, could move the revenue officer within a period of one year to seek review of these mutations and to get decided inheritance in favor of the legal heirs of last male land holder, in accordance with Muslim Personal (Shariat) Law. This Act was given retrospective effect from 15-3-1948. 4. Although the respondents, who were aggrieved by the earlier orders/judgments had approached the Lahore High Court through Writ Petition No,989 of 1971, which was pending, but to avail the benefit of this new legislation, they, along with daughters of Rehmat Ali, also applied to the Revenue Officer concerned for review of earlier mutation in accordance with the decision of the apex Court. Such request on their part was acceded to and accordingly the earlier mutation was reviewed and corrected in accordance with the law laid down by the apex Court in the case of Additional Settlement Commissioner (supra), vide Mutation No,73 attested on 9-4-1976. This time appellants (legal heirs of Mst. Lal Sain) challenged such decision of the Revenue Officer, Pakpattan, through an appeal which was allowed vide order dated 7-6-1979, holding therein that since writ
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petition about the same dispute was pending before the High Court, therefore, matter could not have been re-opened by the Revenue Officer. This order of the Collector was then challenged by the respondents (legal heirs of Rehmat Ali) through an appeal before the Additional Settlement Commissioner (Revenue) Multan, which was dismissed vide order dated 3-2-1981. The revision petition filed by the respondents (legal heirs of Rehmat Ali) before Member, Board of Revenue also met with the same fate vide order dated 6-11-1983. This ultimate decision in the second round of litigation in the hierarchy of revenue Courts, as briefly stated above, constrained these respondents to file another Writ Petition No, 1521/A of 1983 before the Lahore High Court. 5. ' When these two connected writ petitions, though challenging different sets of orders, but substantially relating to same controversy, came up for hearing before the learned Single Judge at the Lahore High Court, Multan Bench, he, taking notice of all the relevant factual and legal aspects of the case allowed both the petitions in favor of respondents/legal heirs of late Reheat Ali, in the above noted terms, by squarely placing reliance upon the judgment in the case of Additional Settlement Commissioner (supra), which had specifically overruled the contrary view earlier taken in the two judgments of the Lahore High Court, in the cases of Sher Muhammad v. The Additional Settlement and Rehabilitation Commissioner (PLD 1968 Lahore 234) and Babu Ali Muhammad v. Mahmood-ul-Hassan (PLD 1968 Lahore 329), regarding the status of the legal heirs of a female, who had acquired some property/land in Pakistan in lieu of her claim in the abandoned property in India as its limited owner under the custom. 6. Mian Saeed-ur-Rehman Farrukh, learned Senior Advocate Supreme Court for the appellants before this Court strongly contended that under the custom late Mst. Lal Sain was full owner of 1/3rd share in the estate of deceased Rehmat Ali and it was on this account that she got her claim settled in Village Rampur Chak No,57/4/R, Tehsil and District Sahiwal, without any objection from other legal heirs of late Rehmat Ali. However, after her demise on 5-3-1962, other legal heirs of Rehmat Ali claimed and got their share in the lands mutated by getting her treated as its limited owner, being widow of deceased Rehmat Ali. This issue was thoroughly contested between the parties and finally decided in the favor of legal heirs of Mst. Lal Sain in terms of various orders, subsequently challenged in. Writ Petition No,989 of 1971. His further contention was that in the light of ratio of judgment in the case of Additional Settlement Commissioner (supra) the claim of legal heirs of Mst. Lal Sain was re-examined and again decided by the revenue authorities in their favor in terms of various orders, which were subsequently challenged before the Lahore High Court in second Writ Petition No,1521/A of 1983. Thus, in these circumstances, the Lahore High Court, in exercise of its writ jurisdiction, while passing the impugned judgment was not justified in up-setting such findings of fact in favor of the legal heirs of late Mst. Lal Sain. Learned counsel, however, when confronted with the question as to how Mst. Lal Sain, admittedly being widow of deceased Rehmat Ali, getting 1/3rd share in his estate under the custom as limited owner, in presence of his two male issues, claim herself to be its full owner, could not offer any plausible or satisfactory reply. Further, he could not advance any forceful arguments to get out of the strong observations of the High Court in its impugned judgment against the legal heirs of Mst. Lal Sain, which are squarely based upon the authoritative pronouncement of the apex Court in the case of Additional Settlement Commissioner (supra), which still hold water. Learned Senior Advocate Supreme Court, however, alternatively argued that in case 1/3rd share of deceased Rehmat All had devolved upon her under the custom only as its limited owner, being widow of Rehmat Ali, similar is the position of remaining 2/3rd share devolved upon his two sons under the custom. Therefore, if legal heirs of Mst. Lal Sain are not entitled to inherit her share as full owner to the extent of 1/3rd share in the estate of deceased Rehmat Ali, then they are entitled to get her full share under Muslim Personal Law as widow of Rehmat Ali from his whole estate, including 2/3rd share acquired by his two sons. He, therefore, as first option, contended that the impugned judgment may be set aside, thereby
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restoring the decision of the revenue authorities in favor of the legal heirs of Mst. Lal Sain; otherwise his alternate arguments may be upheld in order to do complete justice between the parties. 7. Ch. Mushtaq' Ahmad Khan, learned Senior Advocate Supreme Court for respondents Nos.28-31, being counsel for subsequent purchasers of some land from the legal heirs of Mst. Lal Sain, strongly supported the arguments of learned Senior Advocate Supreme Court Mian Saeed-ur-Rehmat Farrukh. In addition to it, he made detailed reference to an earlier judgment dated 22-2-1945 between the same parties/their predecessor-in-interest, passed by the High Court of Adjudicator at Lahore in. Regular First Appeal No,323 of 1941, and strongly urged that contents of this judgment, copy whereof has been placed on record by none else but the respondents themselves through C.M.A. No,5621 of 2011, go to show that though Mst. Lal Sain inherited her 1 / 3rd share from Reheat Ali as widow, under prevalent custom, but for all intents and purposes as its full owner. Thus, such findings of fact, recorded by the Lahore High Court in the earlier round of litigation, will operate as res judicata and debar other legal heirs of deceased Rehmat. Ali to agitate any claim in respect of such land after her demise, which will, therefore, exclusively devolved upon her legal heirs to the exclusion of all other legal heirs of Rehrnat Ali. He also supported alternate arguments of Mian Saeed-ur-Rehman Farrukh, learned Senior Advocate Supreme Court for the appellants that in case legal heirs of Mst. Lal Sain only get that much share from the 1/3rd estate of Mst. Lal Sain, which she could inherit as widow of Reheat Ali, then same principle, in all fairness, shall apply to the whole estate of deceased Rehmat Ali, including the remaining 2/3rd share, which devolved upon his two sons under the custom, and in this manner, the legal heirs of late Mst. Lal Sain shall inherit her full share as widow from the total estate of deceased Rehmat Ali. In the end, he placed reliance upon the observations of this Court in Paragraphs Nos.16 and 17 of the judgment in the case of Sadaquat Ali Khan v. Collector, Land Acquisition (PLD 2010 SC 878), wherein, after reference to number of other celebrated judgments of the superior Courts, it had once again enunciated and recounted general principles of dispensation of justice, as the prime goal set for every judicial system. 8. In reply to the above submissions of the learned Senior Advocate Supreme Courts for the appellants and some of the respondents, Mr. Gulzarin Kiyani, learned Senior Advocate Supreme Court for other respondents contended that a careful. Reading of judgment of the apex Court in the case of Additional Settlement Commissioner (supra) clinches the whole controversy involved in these appeals in favor of the respondents/legal heirs of Reheat Ali, inasmuch as, Mst. Lal Sain could not acquire under the custom any better status than a limited owner, to the extent of 1/3rd share. He went one step further in his arguments and contended that as a matter of fact, in the presence of two sons of late Rehmat Ali, which is an undisputed position, Mst. Lal Sain could not claim her status in the 1/3rd share of the land even as its limited owner, but only as maintenance holder, which legal, position will totally disentitle the legal heirs of Mst. Lal Sain to claim any share in her estate in any capacity, as the whole land in her kata, in such eventuality, will revert and devolve solely on the heirs of the last male owner of lands left in India i,e, Rehmat Ali. In support of this legal proposition, he placed reliance on the cases:- (i) Mt. Channi Bibi v. Ahmad Khan (AIR 1924 Lahore 265) (ii) Nawab v. Muhammad Fazil (PLD 1964 Lahore 334) (iii) Muhammad Iqbal v. Durab Khan (1976 SCMR 149) 9. Making reference to various other, orders in the hierarchy of revenue Courts, which were passed against the respondents/legal heirs of Reheat Ali and were subject matter of challenge in the earlier Writ Petition No,989 of 1971, he contended that in those orders respondents/legal heirs of Reheat Ali were non-suited by the revenue Courts with specific reference to the judgment of the Lahore High Court in the case of Sher Muhammad v. Additional Settlement and Rehabilitation Commissioner (PLD 1968 Lahore 234) in field at the relevant time, ratio whereof was in favor of the appellants, and appeal preferred against that judgment was pending before the apex Court, with
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further observation that the judgment of the apex Court in the said pending case would decide the fate qua entitlement or otherwise of the claim of legal heirs of late Reheat Ali. He made further reference to certain other orders of the revenue Courts passed against the respondents/legal heirs of Reheat Ali, which were challenged in the subsequent Writ Petition No,1521/A of 1983, to show that such view taken by the revenue Courts was in clear negation of the judgment of the apex Court in the case of Additional Settlement Commissioner (supra), and the subsequent legislation to this effect, providing further remedy to the legal heirs of Reheat Ali, which could be availed by them within one year. 10. Making reference to the judgment of the Lahore High Court in the earlier round of litigation during pre-partition days, learned Advocate Supreme Court further argued that from no stretch of imagination any observation contained in this judgment could be construed to hold that Mst. Lal Sain had ever acquired 1/3rd share in the estate of her late husband Reheat Ali as its full/absolute owner, rather this judgment clearly indicates that she had acquired said 1/3rd share in her capacity as son-less widow of the deceased under the custom (Rewaj-e-Aam) prevalent in the family of "Bolas", to which they belong. He also argued that from no angle the earlier judgment of 1945 could operate as res judicata or would disentitle legal heirs of Reheat Ali to claim their due share of inheritance after the demise of Mst. Lal Sain, as their claim' is not only based on fresh cause of action, which had accrued in their favor on the demise of Mst. Lal Sain in the year 1962, but it is further premised on the findings of the Lahore High Court in the said judgment that she was holding the 1/3rd share under the custom (Rewaj-e-Aam), applicable to their family. His last submission was that the impugned judgment of Lahore High Court remanding the case for fresh adjudication in accordance with the observations contained therein to the concerned Revenue Officer is just, fair and equitable order, which calls for no interference from this Court. To fortify his submissions, learned Senior Advocate Supreme Court further provided the list of following cases:-- (i) Additional Settlement Commissioner (Land) v. Muhammad Shafi (PLD 1971 SC 791) (ii) Muhammad Bibi v. Ghulam Muhammad (PLD 1978 Lah. 483) (iii) Zarmina v. Munjawar (1975 SCMR 487) (iv) Muhammad Din v. Imam Din (PLD 1980 Lah. 672) (v) Muhammad Aslam v. Abdul Hamid (1991 SCMR 552) (vi) Hashmat Ali v. Jantan (1993 SCMR 950) (vii) Saeed Ahmed v. Abdul Wahid (1999 SCMR 1852) 11. We have carefully considered all the arguments advanced by the parties' counsel before us and also perused the material placed on record. From the admitted/undisputed facts, one can see that after the demise of late Reheat Ali in the year 1937, his estate was inherited by three persons i,e, his two sons Fazal-e-Haq and Muhammad Aslam and his widow Mst. Lal Sain in equal share i,e, 1/3rd each. It had happened under the custom, prevailing at the relevant time among "Bodla" families. The arguments on behalf of the appellants that Mst. Lal Sain was full owner of 1/3rd share so inherited by her from her late husband Reheat Ali are, therefore, totally misconceived and devoid of merits, when gauged on the touchstone of judgment in the case of Additional Settlement Commissioner (supra), as will be discussed, hereinafter, in detail. 12. When we proceed to examine the merits of the alternate arguments, we find that in so far as the ownership claim of two sons of late Rehmat Ali to the extent of 1/3rd each is concerned, it is fully protected in view of the clear language of section 2-A of the Muslim Personal Law (Shariat) Application Act of 1962, inserted by Ordinance XIII of 1983, which reads as follows:-- "2-A. Succession prior to Act, IX of 1948: Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law
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(Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim --- (a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat); (b) any decree, judgment or order of any Court affirming the right of any reversionary under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, in executable and of no legal effect to the extent it is contrary to the Muslim Personal. Law (Shariat) Act; (c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith: ' Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees. ' This view of the matter is further amplified from the following judgments:-- (i) Abdul Ghafoor v. Muhammd Shafi (PLD 1985 SC 407) (ii) Ghulam Haider Khan v. Muhammad Hayat (1990 SCMR 338) (iii) Mst. Ghulam Jannat v. Ghulam Janat (2003 SCMR 362) (iv) Muhammad Saleem Ullah v. Additional District Judge, Gujranwala (PLD 2005 SC 511) (v) Bashir Ahmed v. Abdul Aziz (2009 SCMR 1014) and a recent judgment in Civil Appeals Nos.718 and 719 of 2002, titled Ghulam Haider, etc. v. Murad since deceased through his L.Rs, etc. Announced on 30-3-2012. Thus the alternate argument of the learned Advocate Supreme Court for the appellants in this context are also devoid of any legal force. 12 (sic.) Examining the facts of the case in further detail, we find that after the demise of Mst. Lal Sain on 5-3-1962, litigation had commenced between the legal heirs of late Reheat Ali and the legal heirs of Mst. Lal Sain, due to the controversy that whether only the legal heirs of Mst. Lal Sain would be entitled to inherit 1/3rd share acquired by her from Reheat Ali as limited owner, being her exclusive legal heirs or such estate will revert and devolve upon all the legal heirs of last male owner Reheat Ali, thereby reducing their entitlement from the 1/3rd estate of Mst. Lal Sain to the extent of her own entitlement as his widow. This aspect of the case also needs no detailed deliberations in view of unequivocal findings on this issue recorded by apex Court in the case of Additional Settlement Commissioner (supra). In this judgment, in number of civil appeals, the main question for consideration before the apex Court was as to the nature of the estate taken by a female (recorded in jamabandis received from India as limited owners under custom) in evacuee properties allotted to her on migration to Pakistan, under the Rehabilitation scheme in lieu of the properties abandoned in India. The question of law involved was whether an evacuee property initially or finally allotted to a female in lieu of limited estate left by her in India would, on her death, devolve on her own heirs or on the heirs of last male owner of the property abandoned in India. In this context all the relevant factual and legal aspects were taken into consideration with reference to concept of widows estate under the Hindu Law and the custom in the same context prevalent in some parts of the sub-continent and it was held that:--- "In order to ascertain the true nature of the capacity under which a widow holds the lands of the last male owner under custom and receives lands in Pakistan on migration the concept of a female's estate under custom is to be borne in mind. Merely saying that she is the present owner of the estate having absolute power of enjoyment over it, that she is not accountable to anyone as long as she is alive or her estate is not terminated and that no one else has any vested interest in it till then is not enough. It is now well settled that a female's estate under custom is analogous in nature to a widow's estate under the Hindu Law. If so then under Hindu Law the true concept of a widow's estate is that she notionally represents her husband, as if, her deceased husband is, for the purposes of the management and user of his properties, kept alive in her, and it is for this reason
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that it is Said that during the time the widow is alive or does not re-marry, the whole estate of her husband vests in her absolutely as if the husband is for all intents and purposes alive in her. The distinctive feature of the estate is that, at her death, it reverts to the heirs of the last male owner. She never becomes a fresh stock of descent. If this be the true position then the claim that is filed by a widow, under the Punjab Refugees (Registration of Land Claims) Act, 1949, is a claim for the loss or damage suffered by her in respect of the properties left behind by her in India. Now she leaves behind no property of her own but only the properties which she has inherited from her husband as a limited owner. Therefore, if her claim is in lieu of what she has left behind then it is in lieu of her estate in her husband's properties, which, according to the concepts of Hindu Law, she holds as a representative of her…
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