P L D 1963 (W. P.) Peshawar 199

Before Shakirullah Jan and Faizullah Khan, JJ

Mst. BIBI ALAM TAJ AND OTHERS-Defendants-Petitioners

Versus

Mst. INAYAT BEGUM-Plaintiff-Respondent

Civil Revision No. 189 of 1962, decided on 3rd July 1963.

(a) Record-of-Rights- Pedigree-table (shajra nasab) - Presumption of

correctness -Rebuttable -Presumption does not extend to entry of extraneous matter, such as

devolution of land in village.

(b) Muhammadan Law-Alienation and succession-Limited interest-Definition -Muhammadan

Law recognises interest of limited duration in usage of property but holds ownership to be of

unlimited duration-Person can create life-interest in property in favour of particular individual

with absolute remainder in favour of himself and his descendants -After termination of such

limited interest, successors can validly claim their respective Shariat share out of estate of

deceased-N.-W. F. P. Muslim Personal Law (Shariat) Application (Amendment) Act (XI of

1950).

Mst. Rehmania and others v. Mst. Maqbula and others P L D 1956 Pesh. 115 ; Nawazish Ali

Khan v. All Raza Khan P L D 1948 P C 23 ; Fazl Haq Dilzada and another v. Dawar Shah A I R

1940 Pesh. 52 ; Mst. Zamo and others v. Habib Khan Qadir A I R 1941 Pesh. 33 ; Zabita Khan v.

Sherin A I R 1942 Pesh. 91 and Abdul Jabbar v. Mst, Ni,-am Mishan and other.

A. I R 1946 Pesh, 3 rel.

(c) Civil Procedure Code (V of 1908), S. 11-Res judicata Conditions-Constructive res

judicata-Plea not available to party at time of former suit-Principle not applicable.

Baldevadas Karsondas Patel v. Mohanlal Bapalal Bahia and others A I R 1948 Bom. 232 ;

Muhammad Umar Daraz Ali Khan v. Piraji Abdul Rashid A I R 1933 Lah. 606 ; Fateh Singh and

others v. Jagan Nath Bakhsh Singh and another A I R 1925 P C 55 ; Rao Sobhagsingh v. Rao

Ranjitsingh A I R 1945 P C 132 ; Sirajud-Din and another v. Allah Rakha and others P L D 1960

Lah. 261 ; Maung Sain Done v. Ma Pan Nyun and others A I R 1932 P C 161 ; Jhanda Singh and

another v. Kesar Singh and another A I R 1930 Lah. 149 and Muhammad Abdul Jalil Khan v.

Ubaid Ullah Khan A I R 1932 All. 169 ref.

Chitaley : "Civil Procedure Code," Notes 36 & 46 ref.

Abdul Latif Khan for Petitioners.

Peer Bakhsh Khan for Respondent.

Dates of hearing : 30th April, 1st, 2nd, 13th, 14th, 16th, and 17th May 1963.

JUDGMENT

SHARIRULLAH JAN, J.--The suit out of which this revision petition arises was brought by

Mst. Inayat Begum, plaintiff-respondent, for possession of

(a) 1038 kanals 19 marlas of land bearing khasra numbers as specified in the heading of the

plaint situate in the area of village Khewa, Tehsil Haripur.

(b) 1370 kanals 3 marlas of land situate in the area of village Aloli, Tehsil Haripur.

(c) 86 kanals 17 marlas of land situate in village Gakha.

(d) The entire land bearing Khasra Nos. 17, 19, 43, 873 and 566, and 1/3rd share out of

Khasra No. 21 measuring to 47 kanals 10 marlas situate in the area of village Haripur.

(e) 1/3rd share out of Khasra No. 833, measuring 39 kanals 7 marlas, situate in village

Sikandarpur.

2. The disputed land originally belonged to 'Qazi Mir Alam, resident of Sikandarpur, who had a

wife named Mst. Chanan Bibi, a son Qazi Abdullah Jan and four daughters, namely, Mst. Sardar

Begum alias Sardar Khanam, Mst. Shamas Noor, Mst. Ghulam Ilahi and Mst. Maryam Bibi. The

last named daughter was married to Qazi Asghar and they have a daughter Mst. Bibi Ilam Taj,

petitioner No. 1, wife of Lt.-Col. Q. Muhammad Yusaf, petitioner No. 2, and mother of Qazi

Muhammad Azam, petitioner No. 3. Muhammad Ayub who is now dead and whose widow is

Mst. Inayat Begum, plaintiff respondent, was the son of Q. Abdullah Jan. The plaintiff--

respondent's case is that Q. Mir Alam had created a life estate of the suit property in favour of his

widow and four daughters with the remainder vested in him. The last estate holder was Mst.

Maryam Bibi who died in July 1953.

3. The vested remainder was inherited by Q. Abdullah Jan on the death of his father Q. Mir

Alam. On the basis of a sale-deed executed on 23-12-1935 and registered on 27-1-1936, certified

copy Exh. P. 40, Q. Abdullah Jan sold the vested remainder to the plaintiff Mst. Inayat Begum.

On the basis of a gift deed registered on 23-7-1952, certified copy Exh. P. 55, Mst. Maryam Bibi

had gifted the suit property to her daughter Mst. Bibi Ilam Taj, defendant-petitioner No. 1. The

suit out of which this revision petition arises was brought by Mst. Inayat Begum on 25-1-1955

alleging that Mst. Maryam Bibi being a life-estate holder, was not competent to alienate the

property. It was also urged that a registered agreement deed dated 14-10-1906, certified copy

Exh. P. 30, was executed by Mst. Maryam Bibi in favour of Q. Abdullah Jan, in which she had

admitted that in the entire property belonging to her father Q. Mir Alam, she had a life-estate

only and on her death it will go to her brother Q. Abdullah Jan, and according to the

plaintiff-petitioner on this ground Mst. Bibi Ilam Taj was estopped from claiming absolute title

to the property.

4. The suit was resisted by Mst. Bibi Ilam Taj who claimed the property on the basis of a gift. It

was contended that the agreement dated 14-10-1906, Exh. P. 30, was the result of fraud, undue

influence which lacked consideration, was null and void and did not create any estoppel. In the

alternative, it was urged that under Muhammadan Law her mother Mst. Maryam Bibi was

entitled to 1/3rd share in the property and on her death it was inherited by her.

5. The following issues were framed :-

(1) Is the suit correctly valued for the purposes of Court fee and jurisdiction? (O. P. P.)

(2) Is the suit not competent in the present form? (O. P. Ds.)

(3) Is the suit bad for misjoinder of parties and causes of action? (O. P. Ds.)

(4) Is the suit within time? (O. P. P.)

(5) Did the suit land belong to Qazi Mir Alain Khan? (O. P. P.)

(6) Did Qazi Mir Alam Khan transfer the suit land to his wife Mst. Chanan Jan, and his

daughters, Mst. Sardar Khanam, Mst. Shamas Nur, Mst. Ghulam Ilahi and Mst. Maryam Bibi,

for maintenance during their lifetime? (O. P. P.)

(7) Whether at the time of the death of any of the maintenance-holder, her interest passed to the

remaining surviving maintenance-holders? (O. P. P.)

(8) Whether Mst. Maryam Bibi was the last surviving maintenance-holder? (O. P. P.)

(9) Whether the vested remainder of the suit land belonged to Qazi Mir Alam Khan and his male

lineal descendant (Q. Abdullah Jan)? (O. P. P.)

(10) Did Qazi Abdullah Jan validly sell the vested remainder of the suit land to the plaintiff on

the basis of a registered sale-deed dated _23-12-1935? (O. P. P.)

(11) Whether Mst. Maryam Bibi had admitted in the registered agreement dated 14-10-1906 that

she was only a life tenant, that she had no right to transfer the property mentioned in the

agreement, that Qazi Abdullah Jan was its owner, and the plaintiff, acting on these admissions,

purchased the vested remainder of the suit land for valuable consideration? (O. P. P.)

(12) If issue No. 11 is answered in the affirmative, is defendant No. 1 estopped from raising any

objection against the said registered agreement and no rights accrued to her on the basis of the

gift deed dated 23-7-1952 executed in her favour by her mother, Mst. Maryam Bibi? (O. P. P.)

(13) Whether the registered agreement dated 14-10-1906 was without consideration or was got

executed as a result of undue influence, or that, it was not acted upon, or, that it had already been

held to be unenforceable and the agreement is therefore void and inoperative? (O. P. Ds.)

(14) What is the effect of the judgment dated 3-3-1952 of the Court of the Honourable the

Judicial Commissioner, N: W. F. P. on the present case? (O. P. P.)

(15) Whether the defendant No. 1 has become owner of the suit land on the basis of the gift deed

dated 23-7-1952 as well as by inheritance? (O. P. Ds.)

(16) If issues Nos. 5 to 13 are proved, whether the plaintiff has got no cause of action? (O. P.

Ds.)

(17) Relief?

6. After recording the evidence produced by the parties, the trial Judge held that the deficiency in

the Court-fee had been made up and thus the suit was correctly valued for the purposes of

Court-fee and jurisdiction. The suit in its present form was maintainable. On issue No. 3 he

found that the principal defendant in the case was Mst. Bibi Ilam Taj, defendant No. 1, and

defendants Nos. 2 and 3 had been impleaded by way of abundant precaution. Issues Nos. 4 and 5

were found for the plaintiff. On issue No. 6 he came to the conclusion that Qazi Mir Alam had

transferred the suit property in favour of his wife and daughters for their maintenance during

their lifetime. Issues Nos. 7, 8, 9 and 10 were also found for the plaintiff. Issues Nos. 11 and 11,

were left undetermined as in view of his finding that Mst. Maryam Bibi was a

maintenance-holder and Q. Abdullah Jan was the real owner of the property, it was unnecessary

for him to deal with these issues which covered the alternative stand taken in the plaint by the

plaintiff which in view of the aforesaid finding stood practically redundant. On issue No. 13 he

found that the defendants' contention that the agreement Exh. P. 30 was brought about by undue

influence had no basis and it was found by the Court of the Judicial Commissioner to have been

acted upon which agreement was cited with approval in their judgment. On issue No. 14 he

found that the important effect of the judgment of the Court of the Judicial Commissioner was

that they had found on merits against the defendants and to his mind (the trial Judge) it appeared

"that by that judgment the defendants had already lost more than 90 per cent. of their case. In

other words, they were now fighting the last battle." Issues Nos. 15 and 16 were found against

the defendants. As a result of the above-mentioned findings, the learned trial Judge, by his order

dated 3rd November 1959, passed a decree for possession of the entire property in suit situate in

village Khewa, Aloli, Ghakha, Haripur and Sikandarpur, with costs in favour of the plaintiff

against all the defendants.

7. Mst. Bibi Ilam Taj, Lt. Colonel Qazi Muhammad Yusaf and Qazi Muhammad Azam Khan

went in appeal to the Court of the District Judge, Hazara, and challenged the findings of the trial

Court on issues Nos. 2, 3, 4, 6, 7, 8, 11, 12, 13 and 14. The learned District Judge, by his order

dated 12th May 1962, maintained the judgment and decree of the Court below and dismissed the

defendants' appeal, ordering Mst. Bibi I1am Taj to bear the costs of the plaintiff throughout. The

defendants have come up on revision to this Court.

8. It may be pointed out here that the learned counsel for the defendant-petitioners did not claim

the property situate in village Sikandarpur and, therefore, the finding of the two Courts below

relating to the property situate in Sikandarpur is maintained.

9. The learned counsel for the petitioners contended that the disputed property originally

belonging to Qazi Mir Alam had been gifted by him to his widow and four daughters on the basis

of the following three mutations with which the present revision petition is concerned :-

(1) Mutation No. 164, certified copy Exh. P. 26 at page 286 of the file was entered on 8-5-1893

as guzara and was attested on 16-7-1893 and relates to the property situate in village Gakha. This

is clearly a guzara mutation and there is no interpolation. The two Courts below have gone

thoroughly into this mutation. The report of the Patwari and the signature of Q. Mir Alam and

the order of the Revenue Officer support the contention of the plaintiff-respondent that this was a

guzara mutation.

(2) Mutation No. 39 certified copy of which is Exh. P. 21 relating to the property situate in

village Khewa was entered on 21-5-1894 and was attested on 15-6-1894 in favour of Mst.

Chanan Bibi wife, Mst. Shamas Noor, Mst. Sardar Khanam and Mst. Maryam Bibi daughters of

Qazi Mir Alam. The report of the Patwari in column No. 15 shows that this mutation was entered

by way of guzara. The entry in column No. 13 shows that the word "guzara" was cut and "hibba"

was over written. This mutation runs into 7 sheets and the word "guzara" was cut and "hibba"

was written on the first page only and not on the other six pages where there is no interpolation.

The order of Revenue Officer is as under :-

The "tahreer" of the Patwari which was accepted as correct by Qazi Sahib (Q. Mir Alam) related

to guzara and not to gift. In column No. 15 of the mutation the word "guzara" is there. The order

of the Revenue Officer also refers to this very writing of the Patwari and the signature of Q. Mir

Alam is also on this entry relating to guzara. The word guzara which was cut and "hibba" was

substituted at ore page only of the mutation is without any date Rhich also does not bear the

signature of the person who is said to have cut it. The learned counsel for the petitioners,

however, took stand on the report of the Girdawar dated 15-6-18994 and urged that by reading

the entry in column 13 of the first sheet and the report of the Girdawar it would appear that this

mutation was hibba and the land was transferred permanently and not as a guzara. The learned

counsel lastly invited our attention to the statement of Abdur Rashid, NaibSaddar Office

Qanungo, dated 16-10-1959, who in cross-examination stated that in Shajra Nasab Malikan of

village Aloli of the misli-haqqiat 1904-05 there is a note to the following effect below the names

of Q. Abdullah Jan and his four sisters, namely, Mst. Ghulam Ilahi, Mst. Shamas Noor, Mst.

Sardar Khanam and Mst. Marvam :-

The learned counsel for the petitioners urged that this entry also related to mutation No. 39 from

which it appeared that by this mutation complete ownership had been transferred by Q. Mir

Alam to his widow Mst. Chanan Bibi and his daughters, namely, Mst. Shamas Noor, Mst. Sardar

Khanam and Mst. Maryarn Bibi. He further referred to the statement of C. W. Abdui Rashid,

Naib-Saddar Office Qanungo, who stated that in "Shajra Nasab Malikan" including Q. Mir Alam

deceased relating to village Khewa shown in the midi-haqqiat 1904-05, the names of Mst.

Shamas Noor, Mst. Sardar Khanam and Mst..Maryam Bibi are given below the name of Q. Mir

Alam and under the names of the aforesaid three ladies there is a note to the following effect :-

Ihe statement of Abdur Rashid, Naib-Saddar Office Qanungo, mentioned above saying that there

was an entry in the "Shajra Nasab" of village Khewa reproduced above and relied upon by the

petitioners' counsel in support of his contention that it was a gift is irrelevant. Although

presumption of correctness attaches to the pedigree which is part of the Record-of-Rights under

section 44 of the Land Revenue Act but it is rebuttable. The entry, however, appears to be

inconclusive and erroneous, because the original mutation which is before us shows that it was a

guzara mutation which was entered and attested, and, therefore, the opinion appearing in the

Shajra Nasab does not show that it was hibba. The presumption attaching to the correctness of

Shajra Nasab is with respect to the entries relating to pedigree. The presumption of correctness

applicable to pedigree-table contained in the Record-of-Rights does not extend to an entry which

is extraneous matter such as devolution of land in a village, and so we hold that in view of the

entries in column 15, the statement of Q. Mir Alam and the order of the Revenue Offcer the land

was given as guzara to his wife and daughters by Q. Mir Alam.

(3) Mutation No. 134, relating to the property situate in village Aloli, certified copy Exh. D. W.

2/17, was entered as guzara mutation by the Patwari on the strength of the statement of Abdul

Latif "Karinda" of Q. Mir Alam. This entry was also signed by Q. Mir Alam. In column 13 the

word "guzara" was cut and "hibba" was entered. This entry does not bear the initial of the person

who is said to have cut it, and moreover, the mutation was attested as guzara and not as hibba.

10. The counsel for the respondent apart from the entries occurring in the above-mentioned three

mutations showing that the land was given by Q. Mir Alam to his widow and four daughters as

guzara also relied upon the agreement deed dated 14-10-1906, copy of which Exh. P. 30 is at

page 132 of the file and which was registered on 15-10-1906. This document was executed by

Mst. Maryam Bibi in favour of her brother Q. Abdullah Jan. In this document she admitted that

she was a guzara holder and not a donee. This was also signed by her Mukhtar Abdul Latif. Lt.

Colonel Muhammad Yusaf Khan when examined admitted that Abdul Latif was the Mukhtar of

Mst. Maryam Bibi. The learned counsel for the petitioners attacked this deed, on the ground that

it was the result of fraud, undue influence and was without consideration. There is no conclusive

evidence on the record to show that this document was executed under undue influence.

11. This deed was also signed by Mst. Shamas Noor, Mst. Sardar Khanam and Mst. Ghulam

Ilahi, the three sisters of Mst. Maryam Bibi. The execution of this deed shows that as far back as

1906 Mst. Maryam Bibi had admitted that she was a guzara holder of the property and not a

donee. The statement of Bhola Ram, certified copy Exh. P. 44, the scribe of the deed, saying that

the deed was written by him on the dictation of Mst. Maryam Bibi shows that this deed was not

executed under undue influence. Mst. Maryam Bibi was identified by Qazi Fazli llahi, father of

Lt. Colonel Muhammad Yusaf Khan, before the Sub-Registrar. The endorsement of the

Sub-Registrar on the deed also shows that its contents were read and explained by him to Mst.

Maryam Bibi and after admitting it correct she signed it. Exh. D. W. 2/6 is a deed of dower

executed by Q. Muhammad Asghar in favour of his wife Mst. Maryam Bibi on 15-10-1906

which was also registered on the same day. In this deed he stated that the property given to Mst.

Maryam Bibi by her father was guzara and neither he nor his issues would have any claim to it.

12. The document Exh. P. 30 has been the subject-matter of some civil suits and the latest was

the suit giving rise to judgment copy Exh. P. 58. Issues Nos. 7 and 8 of the judgment copy Exh.

P. 58 which was between the same parties related to the agreement deed Exh. P. 30. The trial

Judge in that case found that the document Exh. P. 30 had been executed by Mst. Maryam Bibi

freely which was concurred by the Bench of the Court of the Judicial Commissioner. In the last

para. at page 7 of the judgment Exh. P. 58, which is at page 140 of the file, it was observed by

the Bench as under :-

“In the case under discussion, however, the point in dispute is not whether any conditions

or restrictions are intended to be attached to an absolute gift, but the question is whether

in Hanfi Law, by which the parties are governed, a person is entitled to create life-interest

in certain property in favour of a particular individual with an absolute remainder in

favour of himself and his descendants, or to put it conversely, is there any substantive or

positive rule of the Hanfi School of Muslim Law, preventing the creation of such an

interest in certain property. None has been quoted by the learned counsel, appearing for

the respondents at the hearing of the appeal, and we are also not aware of the existence of

any such rule.”

Further down on the back of page 140 line 7 from bottom it was observed to the following effect

:-

“In the case before us as would presently be clear, it is not Kazi Mir Alam Khan, who

intended to give to the daughters only the life-interest, but even the daughters accepted

from him only that interest in the property and nothing more. On the 14th of October

1906, Mst. Maryam Bibi executed an agreement in which she in very clear words stated

that she had only been granted a life-interest in the property given to her by her father,

and that she was not its full owner in any way. Again, when Mst. Sardar Khanam died

and Mutation No. 816 was attested on 16th August 1924, the general attorney of Mst.

Maryam Bibi clearly stated before the Revenue Officer that the share of Mst. Sardar

Khanam would be mutated in the name of Mst. Ghulam Ilahi and Mst. Maryam Bibi, but

only till their lifetime. I t is clear that if property had been gifted absolutely in favour of

the daughter the mutation would have been attested in favour of the legal heirs of Sardar

Khanam and not in favour of the surviving sister alone.”

13. The above-mentioned quotations from the judgment Exh. P. 58 show that the document was

held to be the result of free will of the lady on her admission that the property was guzara. As a

result of the foregoing discussion we have come to the conclusion that the property in dispute

being the subject matter of mutations Nos. 164, 39 and 134, was given by Q. Mir Alam to his

wife and his daughters by way of guzara.

14. The counsel for the petitioners further urged that certain khasra numbers in village Haripur

(which have been decreed in favour of the plaintiff -respondent in the present case) were not

covered by guzara mutation No. 228 attested on 24-12-1889, Exh. P. 14, and mutation No. 251,

Exh. P. 15, attested on 24-1-1891. The land being the subject-matter of the above mentioned two

mutations bears khasra numbers of the Settlement of 1872. In order to prove that the khasra

numbers given in the above-mentioned two mutations do not correspond to the present khasra

Nos. 873, 17, part of khasra Nos. 19, 43 and 566 (which have been decreed in favour of the

respondent), the learned counsel for the petitioners referred to a certified copy of mutation No.

632 which has been marked Exh. D. W. 2/24-A, and which was not objected to by the

respondent's counsel. The land being subject-matter of this mutation was gifted by Mst. Maryam

Bibi in favour of Mst. Bibi Ilam Taj and ultimately this mutation was entered and attested on the

strength of the judgment of the Court of the Judicial Commissioner certified copy Exh. P. 58 to

the effect that Mst. Maryam Bibi had gifted the property to Mst. Bibi Ilam Taj and that the

property was not covered by guzara mutations Nos. 228 and 251. The Tehsildar got the present

khasra numbers compared with the old khasra numbers mentioned in the guzara mutations Nos.

228 and 251 of village Haripur and found that the present khasra numbers entered in mutation

No. 632 did not correspond to any old khasra numbers mentioned in mutations Nos. 228 and

251, and so it follows that the property mentioned in mutation No. 632 was not covered by the

guzara mutations. There was a contest between the parties and the matter was taken up in appeal

to the Collector Hazara, who after checking the points modified the order of the Revenue Officer

and sanctioned the mutation with respect to 43 kanals 14¾ marlas of land in favour of Mst. Bibi

Ilam Taj holding that it was not covered by guzara mutations Nos. 228 and 251, and so we hold

that land measuring 43 kanals 14¾ marlas comprised in khasra Nos. 873, 17, part of khasra

Nos. 19, 43 and 566 was wrongly decreed in favour of the plaintiff-respondent and dismissed her

claim with respect to these khasra numbers, which point would also operate as res judicata in

view of the decision of the Court of he Judicial Commissioner, certified copy Exh. P. 58, which

as already indicated were held not guzara mutations.

15. In the alternative it was urged for the petitioners that whatever be the proposition, the law

now applicable is the Muslim Law to which the life-estate is not known. In support of this

contention, the petitioners' counsel relied upon subsection (2) of section 2 of the N.-W.F.P.

Muslim Personal Law (Shariat) Application (Amendment) Act, 1950, which is to the following

effect :-

“(2) Whenever a question relating to the succession upon the death of a Muslim arises in

any Court, the rule of decision shall, whether such death has taken place before or after

the commencement of this Act, be the Muslim Personal Law (Shariat)”.

He also relied upon the N.-W.F,P. Muslim Personal Law

(Shariat) Application (Amendment) Act II of 1953. Subsection (2) of section 2 of which is as

under :-

“(2) Whenever a question relating to the succession upon the death of a Muslim arises in

any Court, the rule of decision shall be the Muslim Personal Law (Shariat), and where

such death has taken place before the 6th December 1935, the rule of decision shall be

according to the Muslim Personal Law (Shariat) as if that law had been applicable at the

time of such death.”

In support of his contention that Mst. Maryam Bibi was entitled to Muhammadan Law share, the

learned counsel for the petitioners cited Mst. Rehmania and others v. Mst. Maqbula and others (P

L D 1956 Pesh. 115) where at page 119 it was held as under :-

"Our own impression of the Act of 1935 is that what the Legislature intended was that

from the date of the Act cases of succession, as they arise, would be governed by

Muhammadan Law. It is never intended to reopen the past, except when express words

are used to that effect. It would have been fair to assume that if succession was to come

upon death then death should have taken place after the Act came into force."

At page 120, their Lordships observed as follows :-

"Section 4(1) of the amendment of 1950, however, provided that on the termination of the

limited interest, the heirs of the last full-owner at the time of his death were to be determined,

and if such heirs were themselves dead, subsection (2) provided that they should be deemed to

have died immediately after the termination of the life-interest, so that they could be succeeded

by their own Muhammadan Law heirs. Beyond this measure of retrospectivity, it will be noticed,

neither of the two amendments provided that they should be deemed to have always been part of

the Act of 1935. We should, therefore, hold that the provisions of section 4 applied only to

limited estates which would terminate after the amendment of 1950.-

But the addition of subsection (2) to section 3 places retrospectivity on a different footing. We

should at once say that in our opinion the amendment of this provision in 1953 does not carry the

matter any farther than it was in 1950. The intention in 1950 was that even if the full-owner had

died before 1935, if the question of his succession arose after the Act of 1935, the Act should

apply."

16. Under the Amendment Act of 1953 and the authority cited above, the case is to be decided

according to the Shariat Act. On the deaths of Mst. Sardar Khanam, Mst. Ghulam Illahi, Mst.

Shamas Noor and Mst. Chanan Bibi, only Q. Abdullah Jan, son, and Mst. Maryam Bibi daughter,

of Q. Mir Alam, were left who inherited the property once belonging to Q. Mir Alam ; the share

of Abdullah Jan being 2/3, and that of Mst. Maryam Bibi being 1/3. The learned counsel for the

respondent contended that in the Act of 1950 for the first time a statutory guarantee was given to

Muslim females as limited owners under the customary law under section 4 (1) of the Act. Mst.

Maryam Bibi, according to the respondent's counsel, never had such an estate, i.e., she was never

a limited owner under the customary law, because her father Q. Mir Alam and her brother Q.

Abdullah Jan were alive. The life-estate referred to in section 4 (1) of Act XI of 1950 refers to

life-estate created under the custom. The present life-estate of Mst. Maryam Bibi is not the

life-estate of custom. Q. Mir Alam and his son Abdullah Jan ware alive, and, therefore, the

question of life-estate did not arise, and as such, the life-estate was never created which was only

guzara and was not protected under section 4(1) of Act XI of 1950. He continued that the section

applies only to a case where the last full-owner dies without any male issue and is succeeded by

a female owner as a limited owner under the customary law, but in the present case there is no

such life-estate created by the custom. He maintained that the points for distinction between the

status of a female limited owner under the customary law and the guzara holder in the present

case are as follows :-

(1) The life-estate of a widow or a daughter presupposes that the last full-owner is dead. In

the present case, however, the family settlement by way of guzara was effected by Q. Mir

Alam himself who was the last full-owner then. He survived for several years after the

attestation of the mutations.

(2) In the case of customary life-estate holder no male heir of the last full-owner should be

living, while in the present case Abdullah Jan the only son of Q. Mir Alam was living and

survived his father.

(3) In the case of customary life-estate the female comes on the property under customary

law as heir, while in the present case Mst. Maryam Bibi enjoyed the property under a

guzara settlement and not as a customary heir.

(4) In the case of a female limited owner under customary law, there is no vested remainder.

There is only the expectancy of reversion on the male collateral in the event of the

termination of the life-estate.

The substance of the argument of the learned counsel for the respondent, therefore, is that the

benefit of section 4 of Act XI of 1950 can be invoked only in cases of female limited owners

who have succeeded to the estate of the last full-owner by "succession" and not by way in which

the last owner in presence of male heirs creates a limited interest in favour of any one of his

daughter, wife or sister for lifetime.

The respondent's counsel urged (1) as to whether such a settlement as made by Q. Mir Alam is

allowed by Muhammadan Law, and (2) whether now it stands in the way of Mst. Maryam Bibi

and then her daughter to claim any share under the Muslim Personal Law. Reference was made

to para. 44 sub-para. (2) of Mulla Muhammadan Law 1944, page 44, relating to family

settlement which is as under :-

"A life-estate may be created by an agreement in the nature of a family settlement,

whether such agreement is preceded by litigation or not, but the creation of such a

life-estate does not seem to be consistent with Muhammadan usage, and there ought to be

very clear proof of so unusual a transaction,"

17. The definition of limited interest has been given by the Privy Council in a case reported in

Nawazish Ali Khan v. Ali Raza Khan (P L D 1948 P Q 23), in the following terms:-

“in general, Muslim Law draws no distinction between real and personal property, and it

does not recognize the splitting up of ownership of land into estates, distinguished in

point of quality like legal and equitable estates, or in point of duration like estates in fee

simple, in tail, for life, or in remainder. What Muslim Law does recognize and insist

upon, is the distinction between the corpus of the property itself (ayn) and usufruct in the

property (manafi). Over the corpus of property the law recognises only absolute

dominion, heritable, and unrestricted in point of time ; and where a gift of the corpus

seeks to impose a condition inconsistent with such absolute dominion the condition is

rejected as repugnant ; but interests limited in point of time can be created in the usufruct

of the property and the dominion over the corpus takes effect subject to any such limited

interests. This distinction runs all through the Muslim Law of gifts-gifts of the corpus

(hiba), gifts of the usufruct (ariyat) and usufructuary bequests. No doubt where the use of

a house is given to a man for his life he may, not inaptly, be termed a tenant for life, and

the owner of the house, waiting to enjoy it until the termination of the limited interest,

may be said, not inaccurately, to possess a vested remainder. But though the same terms

may be used in English and Muslim law, to describe much the same things, the two

systems of law are based on quite different conceptions of ownership. English law

recognises ownership of the land limited in duration, Muslim law admits only ownership

unlimited in duration, but recognises interests of limited duration in the use of property.

There is no difference between the several schools of Muslim law in their fundamental

conception of property and ownership. A limited interest takes effect out of the usufruct

under any of the Schools.

In dealing with a gift under Muslim law, the first duty of the Court is to construe the gift. It is a

gift of the corpus, then any condition which derogates from absolute dominion over the subject

of the gift will be rejected as repugnant, but if upon construction, the gift is held to be one of a

limited interest the gift can take effect of the usufruct, leaving the ownership of the corpus

unaffected except to the extent to which its enjoyment is postponed for the duration of the

limited interest."

From this authority it is clear that Muslim law admits only ownership unlimited in duration, but

recognises interest of limited duration in the usage of the property, and a limited interest takes

effect out of the usufruct under any of the schools.

18. From the record it is abundantly clear that the gift of the property in favour of his wife and

four daughters by Qazi Mir, Alam was of limited interest, which took effect out of theft usufruct

and left the ownership of the corpus unaffected except that its enjoyment was postponed for the

duration of the limited interest, and so the settlement made by Q. Mir Alam was not against

Muhammadan law and Mst. Maryam Bibi and after her, her daughter can claim a share out of the

property under the Muhammadan Law.

19. The learned counsel for the respondent argued that after the promulgation of the N.-W. F. P.

Muslim Personal Law (Shariat) Application Act VI of 1935, the plea that she was entitled to her

shari` share out of the estate of her father was available to Mst. Maryam Bibi, but she did not

avail of it in the two suits to which she was a party. He contended that on 13th May 1940, Q.

Abdul Wabid, son of Q. Abdullah Jan had brought a suit against his father Q. Abdullah Jan, Mst.

Said Jan, w/o Q. Abdullah Jan, Mst. Inayat Begum, Mst. Maryam Bibi and others, which was

registered at No. 75/1, and was dismissed by the Senior Sub-Judge, Hazara, by his order dated

13th March 1948, certified copy of the judgment is Exh. P. 41. Again Mst. Inayat Begum, widow

of Q. Muhammad Ayub, had brought a suit on 19th January 1949, which was registered at No.

18/1 in the Court of the Senior Sub-Judge, Hazara, against Mst. Maryam Bibi, Mst. Bibi Ilam Taj

etc., for declaration alleging that gift of the land as specified in the heading of the plaint on the

above-mentioned file, by Mst. Maryam Bibi in favour of Mst. Bibi Ilam Taj was not binding on

her reversionary rights after the termination of the life-estate of Mst. Maryam Bibi and the gift

mutation was, therefore, ineffective and void. Her suit was dismissed. Mst. Inayat Begum went

on appeal which was partially accepted by the Bench of the Court of the Judicial Commissioner

(certified copy of the judgment Exh. P. 58 is on the file), who set aside the judgment and decree

of the Court below and granted the plaintiff a declaration to the effect that Mst. Maryam Bibi

could not in law transfer the absolute interest in favour of her daughter Mst. Bibi Ilam Taj in the

property with respect to which mutations Nos. 228, 165, 251 and 393 were attested and the

plaintiff who was the owner of the reversionary rights shall not be bound by these transfers after

Mst. Maryam Bibi has died. Her suit with respect to mutations Nos. 394, 416 and 288 was

dismissed on 3rd March 1952.

The learned counsel for the respondent continued that at both stages, i.e., during the trial of Suits

Nos. 75/1 of 1940 and 18/1 of 1949, certified copies Exhs. P. 41 and P. 58, respectively, the plea

that she was entitled to her shari„ share out of the property left behind by her father was available

to Mst. Maryam Bibi, but she did not raise it. In the case, certified copy Exh. P. 58, a decree was

passed in favour of Mst. Inayat Begum who was held to be the vested remainder bolder. The

effect of this judgment according to the respondent's counsel is that the plea of the petitioners

that Mst. Maryam Bibi was entitled to her shari„ share is res judicata. The fact that Mst. Maryam

Bibi was proceeded against ex parte in Suit No. 75/1 of 1940-Q. Abdul Wahid v. Abdullah Jan

etc., operates as res judicata. In support of his contention, be relied upon Baldevadas Karsondas

Patel v. Mohanlal Bapalal Bahia and others (A I R 1948 Bom. 232), where it was held as under

"An ex parte decree passed, in a summary suit filed on the original side of the High Court, on the

defendant's noncompliance with the condition precedent of his getting leave to defend the suit,

operates as res judicata being a decree on merits".

He also relied upon Muhammad Umar Daraz Ali Khan v. Piraji Abdul Rashid (A I R 1933 Lah.

606), where it was held :-

"The mere fact that the previous decisions were ex parte does not exclude the operation

of the doctrine of res judicata if the defendant could have put in appearance and raised the

same plea which he raises in the subsequent suit."

20. The learned counsel for the respondent contended that although the suit by Q. Abdul Wahid

against Q. Abdullah Jan, etc., was dismissed, but yet the title of Mst. Inayat Begum and Mst.

Maryam Bibi was decided, and, therefore, Mst. Maryam Bibi and Mst. Bibi Ilam Tai petitioner,

who were defendants in Suit No. 18/1 of 1949, certified copy Exh. P. 58, had resisted the suit, on

the ground of complete gift by Q. Mir Alam in favour of Mst. Maryam Bibi and the plea that

they were entitled to inherit under Muslim Law was not raised which they could raise ; therefore,

now this plea was not available to them under Explanation 4 to section 11, C. P. C. In support of

this contention, he relied upon Fateh Singh and others v. Jagan Nath Bakhsh Singh and another

(A I R 1925 P C 55). The facts of that case are that the plaintiffs in a previous suit based their

claim on nearness of kin, but did not mention the family custom but for the proof of which, the

nearness could not be proved and the suit therefore failed ; it was held that they cannot bring a

fresh suit basing their claim on the family custom.

Rao Sobhagsingh v. Rao Ranjitsingh (A I R 1945 P C 132), was also relied upon by the

respondent's counsel. The facts of that case briefly are that in a previous suit between the same

parties the plaintiff claimed that he was entitled to one-half of the entire income from the

offerings made by pilgrims to the idol of Shree Onkarji at the time of certain annual fairs. The

plaintiff's title to one half of the entire income was upheld. In the subsequent suit the plaintiff

claimed a half share in the income from entire offerings made at subsequent annual fairs; it was

held that "the defence in the subsequent suit that the plaintiff was entitled to a half share in the

income of only one portion of offerings, namely, the shamlat khut or joint account, was a matter

which might and ought to have been made a ground of defence in the previous suit and was

therefore to be deemed to have been a matter directly and substantially in issue in the previous

suit within the meaning of Explanation 4 to section 11. The defence in the subsequent suit

therefore was barred by section 11, Explanation 4".

21. On the point of difference of causes of action, the respondent's counsel relied upon

Siraj-ud-Din and another v. Allah Rakha and others (P L D 1960 Lah.261), to show that the rule

of res judicata applies even though cause of action is not the same in subsequent suit. A suit

under custom for declaration that gift made by limited owner would not affect his reversionary

rights after death of the donor was dismissed on plaintiff's failure to prove his relationship with

the last male-holder. Subsequent suit for possession of land after the death of donor by the

plaintiff was dismissed as barred under section I1, C. P. C. He further urged that all parties to the

subsequent litigations need not have been all parties to the previous suit. Once a matter has been

determined between the parties the decision remains binding in any litigation between the same

parties irrespective of the existence of other parties on the record.

He relied upon Maung Sein Done v. Ma Pan Nyun and others (A I R 1932 P C 161), where it

was held as under :-

“If a plaintiff cannot get at his rights without trying and deciding a case between

co-defendants, the Court will try and decide that case, and the co-defendants will be

bound. But if the relief given to the plaintiff does not require or involve a decision of any

case between co-defendants, the co-defendants will not be bound as between each other

by any proceeding which may be necessary only to the decree the plaintiff obtains.”

22. As pointed out above, the plea of res judicata is based on suits, certified copies of which are

Exh. P. 41 and Exh. P. 58 on the file, and now we have to see as to what was the point directly

and substantially in issue in those cases. The judgment certified copy Exh. P. 41 was never

referred to by the plaintiff in the plaint and nor there was any issue to the effect that it operated

as res judicata. The main issue in Exh. P. 41 between Q. Abdul Wahid as plaintiff and Q.

Abdullah Jan, Mst. Said Jan and Mst. Inayat Begum as defendants was about the execution of the

sale deeds in favour of Mst. Said Jan and Mst. Inayat Begum. So far Mst. Maryam Bibi is

concerned, there was no direct dispute between her and Q. Abdul Wahid and between her and

her co-defendants, Mst. Said Jan and Mst. Inayat Begum, and, therefore, it does not operate as

res judicata. The matter was not directly and substantially in issue between Mst. Inayat Begum

and Mst. Maryam Bibi. The point regarding the Muhammadan Law share of Mst. Maryam Bibi

was not directly and substantially at issue in the above-mentioned suit, certified copy Exh. P. 41

on the file. It was . not even argued before the two Courts below. The learned District Judge

while dealing with issue No. 14 did not address himself to Exh. P. 41. The Suit No. 75/1 of 1940,

certified copy Exh. P. 41, was dismissed and a finding regarding the guzara was given against

Mst. Maryam Bibi, but this, in the opinion of the petitioners' counsel; -does not operate as res

judicata. Reference was made to Note 109 under section 11, C. P. C. Chitaley 4th Edition page

273, which reads

“Thus, where a decree is one of dismissal in favour of the defendant but there is an

adverse finding against him on one point, a plea of res judicata cannot be founded upon

that decision ; because the defendant having succeeded on the other plea, had no occasion

to go further as to the findings against him.”

Jhanda Singh and another v. Kesar Singh and another (I), relied upon by the petitioners'

counsel, lays down "that a finding on an issue not necessary to the determination of a suit

cannot operate as res judicata. So also, where the plaintiff in the former suit having

obtained a decree for perpetual injunction as prayed for could not appeal from an issue

decided against him, the finding on such issue cannot operate as res judicata.”

Note 46 under section 11, C. P. C. lays down conditions which are as under

(1) there must be a conflict of interest between the defendant concerned,

(2) it must be necessary to decide the conflict in order to give the relief which the plaintiff

claims,

(3) the question between the defendants must have been finally decided, and

(4) the co-defendants were necessary or proper parties in the former suit.

If all the above conditions exist the adjudication will operate as, res judicata between

co-defendants. But it will not so operate, if either there is no conflict of interest between them or

there is no necessity to decide such conflict for granting relief to the plaintiff or the conflict has

not been decided. The suit giving rise to G Exh. P. 41 was brought with respect to the avoidance

of sale deeds in favour of Mst. Said Jan and Mst. Inayat Begum, and it was, therefore, not

necessary to decide the conflict between these two ladies and Mst. Maryam Bibi to give the

necessary relief to Q. Abdul Wahid who was a plaintiff in that suit, and for this reason it does not

operate as res judicata.

23. No averment was made in the plaint that Suit No. 18/1 of 1949, certified copy Exh. P. 58,

operated as res judicata, and there was no issue on this point. Issue No. 14 in the suit out of

which this revision arises is to the following effect: -

What is the effect of the judgment dated 3-3-1952 of the Court of the Honourable the Judicial

Commissioner, N.-W. F. P., on the present case?

The learned District Judge did not address himself to the question of res judicata. In paragraph

17 of his judgment while addressing himself to the judgment Exh. P. 58, he made the following

observation :-

"As regards the judgment Exh. P. 58, it is a valuable guide in this case because in respect

of the part of the property of Qazi Mir Alam Khan that just is binding between the parties

and it also provides us the principles according to which the mutations are to be

interpreted."

In para. 18, he observed as under

"In view of the above discussion it follows that the deed executed by Mst. Maryam Bibi

in 1906 was not under undue influence or illegal for any other reason mentioned in the

issue and the judgment Exh. P. 58 is binding on the parties."

24. The petitioners' counsel argued that the judgment Exh. P. 58 was binding with respect to

mutations Nos. 228, 165, 251 and 398, but was not binding on the mutations which are in dispute

in the present case. There is some force in the argument addressed by the learned counsel for the

petitioners, because the mutations which are in dispute were not involved in the case, certified

copy Exh. P. 58. The question of res judicata can arise if the causes of action are the same. Suit

No. 18/1 of 1949, certified copy Ex. P. 58, was brought by Mst. Inayat Begum against Mst.

Maryam Bibi etc., for a declaration alleging that gift mutations Nos. 68, 75 and 74 attested on

26th December 1948 by Mst. Maryam Bibi in favour of her daughter Bibi Ilam Taj with respect

to one-half share out of 12 kanals 17 marlas situate in the area of village Dheri, one-half share

out of 148 kanals 4 marlas situated in village Haripur, and 72 kanals 9 marlas situate in village

Sikandarpur were void, on the ground that Mst. Maryam Bibi was only guzara khor and was not

entitled to gift the property and the gift mutations were not binding on her as she was the owner

of the vested remainder. The present suit out of which this revision petition arises is based on a

gift deed registered on 23rd July 1952, on the basis of which the suit land was transferred by

Mst. Maryam Bibi to Mst. Bibi Ilam Taj. It is obvious that the transaction in dispute is entirely

affected on the basis of the gift deed registered on 23rd July 1952 and every mutation which was

attested on the basis of the said gift deed gives a different causes of action and different evidence

is required.

25. The judgment certified copy Exh. P. 58 was announced by the Court of the Judicial

Commissioner on 3rd March 1952, and the Muslim Personal Law (Shariat) Application

(Amendment) Act II of 1953 came into force on 14th January 1953. In 1935 custom was

repealed and Shariat Act 1935 was enforced on 6th December 1935, that Muhammadan Law was

the rule of decision. In a case reported in Fazal Haq Dilzada and another v. Dawar Shah (A I R

1940 Pesh. 52), it was held that Shariat Act was applicable with retrospective effect. In another

case reported in Mst. Zamo and others v. Habib Khan Qadir (A I R 1941 Pesh. 33), it was held

that "Muhammadan Law must be applied irrespective of fact whether succession opened after or

before Act. All questions of succession which come up before the Courts after Act VI of 1935

came into force must be decided according to Muhammadan Law irrespective of the fact as to

whether the person whose estate is in dispute had died before that Act came into force or after".

The same view was taken in another case reported in Zabita Khan v. Sherin (A I R 1942 Pesh.

91). Abdul Jabbar v. Mst. Nizam Mishan and others (A I R 1946 Pesh. 3) was also relied upon.

The facts of that case are that one Fazal died before 1904 and was survived by two daughters and

a widow. The land was mutated under custom in favour of the widow who died in 1933 and on

her death the agricultural land was mutated in the same year in favour of the nephew of Fazal.

After the passing of the Shariat Act of 1935, the daughters of Fazal brought a suit in 1943 against

the nephew of the deceased for the possession of 2/3rd share ; it was held "that before the

passing of the Shariat Act the daughters had no cause of action as custom was the rule which was

enforced in the Courts. The passing of the Shariat Act itself did not give them a fresh cause of

action, for the Act merely directs how cases are to be decided when they come before the Courts.

As the property of F had vested in the nephew of F before the Shariat Act was passed he could

not be divested of that property."

26. Subsequently, N.-W. F. P. Muslim Personal Law (Shariat) Application (Amendment) Act XI

of 1950, was passed, according to which the rule of decision was Muhammadan Law with

retrospective effect, and this Act was followed by the Amending Act TI of 1953 passed on 14th

January 1953. Note 36 caption `Might' under section 11, C. P. C. Chitaley, at page 203 is as

under :-

“Where a party could not have raised a ground of attack or defence, the rule of

constructive res judicata will not apply. Where the facts on which a plea might have been

raised by a H party were not within his knowledge at the time of the former suit, it could

not be said that he might have raised it . . . . .”

27. Suit No. 18/1 giving rise to the judgment, certified copy Exh. P. 58, was brought on 19th

January 1949 and was dismissed on 17th April 1950, and so it follows that the plea that she was

entitled to her Muhammadan Law share out of the property left: behind by her father was not

available to Mst. Maryam Bibi at the time of filing the written statement, because the Shariat

Amendment Act XI making the Shariat Act retrospective in effect was passed in 1950, and the

Shariat Amending Act II of 1953 came into force on 14th January 1953, after the judgment Exh.

P. 58 was delivered by the Court of the Judicial Commissioner. The law being in a fluid state,

even the Judicial Commissioner's Court did not definitely say as to what was the about the

applicability of the Shariat Act, therefore it cannot be held to be res judicata.

28. The subject-matter of the suits, certified copies Exh. P. 41 and Exh. P. 58, and the present

suit are different, and, therefore, they do not operate as res judicata. In a case reported in

Muhammad Abdul Jalil Khan v. Ubaid Ullah Khan (A I R 1932 All. 169), it was held that "when

not only is the subject-matter different but the cause of action also is different, the decision on a

pure question of law does not operate as res judicata for all subsequent cases".

29. We have, therefore, come to the conclusion that the suit brought by the respondent so far as

the application of Shariat Act is concerned is not res judicata and the plea is open to the

petitioners.

30. The petitioners had claimed that Mst. Maryam Bibi was entitled to her shard` share in the

estate of her father in the light of Act VI of 1935 as amended by Act XI of 1950 and the

Amending Act II of 1953. The rule of decision being Shariat, the two Courts below failed to

exercise the jurisdiction vested in them by law. The Shariat Act being the law of procedure was

not considered and on this ground the revision petition is maintainable.

31. From the record it is clear that on the deaths of Mst. Sardar Khanam, Mst. Ghulam Ilabi, Mst.

Shamas Noor and Mst. Chanan Bibi, only Qazi Abdullah Jan as son and Mst. Maryam Bibi as

daughter of Qazi Mir Alam were left to inherit the property belonging to Qazi Mir Alam. Qazi

Abdullah Jan being the son was entitled to inherit 2/3rd and Mst. Maryam Bibi was entitled to

1/3rd share.

32. As a result of the foregoing discussion, we accept this revision petition, modify the

judgments and decrees of the Courts below on this extent that we pass a decree for possession of

2/3rd share in favour of plaintiff-respondent out of the property situate in the following villages

(1) Village Khewa.

(2) Village Aloli.

(3) Village Gakha.

The plaintiff had sought possession of the entire land comprised in Khasra Nos. 17, 19, 43, 873,

566 and 1/3rd share out of Khasra No. 21, measuring 47 kanals 10 marlas situate in village

Haripur, but as held by us in para. 14, out of this 43 kanals 141 marlas, comprised in Khasra Nos.

873, 17, part of Khasra Nos. 19, 43 and 566, was not given as guzara, but was held to be a gift,

therefore, the plaintiff's claim with regard to this area is dismissed and is decreed in respect of

the remaining 23 kanals 15¼ marlas out of Khasra Nos. 17, 19, 43, 873, 566 and 1/3rd of Khasra

No. 21, which was frankly conceded by the learned counsel for the petitioners. In view of the

partial success of the parties, we direct them to bear their own costs throughout.

K. B. A./A. H. Petition partly accepted.