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Civil Petition for Special Leave to Appeal No. 59 of 1970, decided 10th April 1970.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 16th January 1970, in Regular Second Appeal No. 334 of 1959).
Art. 58(3)‑Civil suit, in respect of dispute, already pending in civil Court‑Special Leave to Appeal refused by Supreme Court.
Malik Saeed Hassan, Advocate Supreme Court instructed by Raja Abdul Razzaque, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing : 10th April 1970.
The dispute between the parties is in respect of land situated in village Tarkwal, Tehsil Gujarkhan District Rawalpindi. It was Owned by Muhmad son of Abdullah, who was a Mughal by caste and was governed by Customary Law. He died in the year 1908 without any issue. On his death, one half of his estate was mutated in the name of his mother Mst. Ghulam Bi and the other half in the name of his widow Mst. Sharfo. Mst. Ghulam Bi died in the year 1946 and the portion of the property left by her was then mutated in the name of the widow Mst. Sharfo. In this way, Mst. Sharfo succeeded to the entire property left by Mehmad, her husband.
On the 29th January 1958, Mst. Sharfo .gifted away 1/4th share of the land in favour of petitioners Nos. 1 and 2. Respondents who are the collaterals of the last full owner, filed a suit on the 26th February 1958 for declaration that the alienation made by Mst. Sharfo in favour of the petitioners was against law and custom, without consideration and necessity and was ineffectual against their rights after the re‑marriage or death of the donor Mst. Sharfo. The learned Civil Judge, Rawalpindi, by judgment dated the 9th December 1958, decreed the suit. The appeal filed by the petitioners was dismissed by the learned District Judge, Rawalpindi on the 30th May 1959. Thereupon, the petitioners filed Regular Second Appeal No. 334 of 1959, before the High Court. During the pendency of the appeal, Mst. Sharfo died and on an application her legal representatives, (a) Khuda Dad, (b) Nawab, and (c) Mst. Amiran, wife of Ghulam Hussain, were brought on record.
In the High Court, it was conceded that the alienation in question neither amounted to acceleration of succession nor was it otherwise valid according to custom. The only point urged was that Mst. Sharfo, the alienor, having died on the 7th October 1959, her succession was to be regulated according to section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act IX of 1948. On this basis, it was contended that the alienation in dispute should be declared valid at least to the extent of the share which had to go to the alienor after the determination of her estate on the principle of "feeding the grant by estoppel". This contention was repelled by the High Court on the decision of this Court in the case of Said and others v. Fazal Hussain and others (P L D 1959 S C (Pak.) 356). The next contention of the petitioner that the respondents were not collaterals of Mehmad was also repelled. The contention of the petitioners that the customary collaterals could not file a suit for declaration regarding alienation of the type in question was also repelled by the High Court. The petitioners seek permission to file an appeal against the said judgment of the High Court.
In support of the petition, Malik Saeed Hassan, learned counsel for the petitioners, has urged that the collaterals are not entitled to get possession of the share of Mst. Sharfo and it is her heirs alone that can claim it. On enquiry, the learned counsel conceded that the respondents have already filed a suit for posses sion on the basis of decree granted to them by the civil Court. In our opinion, the proper course for the petitioners is to take up this plea in, the suit filed by the respondents for possession of the property in dispute. It will not be proper to express any opinion on this point in this case. There is no force in the petition which is dismissed.
Petition dismissed.
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