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Civil Petition for Special Leave to Appeal No. 70‑P of 1973, decided on 14th December 1973.

(From the judgment and order dated 11‑5‑1973 passed by the Peshawar High Court, in R. S. A. No. 561 of 1961).

‑‑ S. 31 read with Limitation Act (IX of 1.908), Arts. 10 & 120 Pre‑emption, suit for‑Limitation‑Sale of house by unregistered sale deeds‑No mutation sanctioned and petitioner as vendee not entering into possession under sale in his favour‑Neither S. 31 of Act XIV of 1950 nor Art. 10 of Act IX of 1908 applicable‑Suit, held, fell within residuary Art. 120 of Act IX of 1908 and could be filed within 6 years.

Shafqat Ali Shah, Advocate Supreme Court instructed by Qasim Imam, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing : 14th December 1;973.

‑By 17 unregistered sale‑deeds, each dated 13-12-1960 and for Rs. 9), Taj N1uhammad and 2 others sold the suit house situated in Tarnab, in Peshawar District, to petitioner herein. On 2‑5‑1962, Mst. Shabnama respondent herein (since deceased) brought a suit claiming the following reliefs in respect of the same, house, namely :‑

(1) a declaration that she is owner in her own right in 2 65/6912th share in the house and that the aforesaid sale in favour of petitioner No. 1 shall not affect her rights of ownership in the house, and for injunc tion restraining the petitioner vendee from interfering with her possession and enjoyment of the above share in the house.

(2) a decree for possession by pre‑emption in the remainder portion of the house viz. 4447/691tth share in the house on the strength of her co‑ownership in the house ; or

(3) in the alternative, a decree for the possession of the entire house by pre‑emption on the basis of her superior rights against the petitioner vendee.

Mst. Shabnama claimed ownership in a portion of the house on the basis of an unregistered sale‑deed dated 21‑1‑192h in her favour by her husband in lieu of her dower fixed at Rs. 400. The trial Court dismissed the suit of Mst. Shabnama on the finding that she is not proved to be co sharer in the house on the basis of the alleged sale‑deed which being unregistered was inadmissible in evidence and further that her suit was barred by limitation, having been brought more than one year after execution of the 17 sale‑deeds. The market value of the house was nevertheless, found to be Rs. 2,508.

On appeal by Mst. Shabnama, the judgment and decree of the trial Court were partially reversed by the learned Additional District Judge and her claim for pre‑emption was decreed for the entire house on payment of Rs. 1690 on the finding that her late husband was a co‑sharer in the house and on his death, his share devolved upon his Muslim Law heirs including Mst. Shabnama, and as such she had a superior right of pre‑emption as against the petitioners ‑vendees, who did not possess any superior or equiva lent qualification. On the question of limitation, the learned Additional District Judge came to the conclusion that the suit was governed by Article 120 which provided for six years' limitation. Her claim to 2465/ 6912th share on the basis of transfer by her late husband in lieu of her dower debt was, however, dismissed and only to that extent the judgment and decree of the trial Court ware affirmed.

The petitioner‑vendee filed a Regular Second Appeal in the High Court which was dismissed by the learned Chief Justice on 11‑5‑1973.

Leave against the judgment of the learned Chief Justice is sought on the following ground, namely :‑

(i) that the sale of a fractional share of the house in lieu of her dower not having been proved in favour of Mst. Shabnama, she could not base her claim for pre‑emption on the basis of her becoming a co. owner in the house by succession to her deceased husband ; and

(ii) that the suit for pre‑emption having been instituted more than one year after the execution of the sale‑deeds in favour of the petitioner, should have been dismissed as barred by limitation.

Having heard learned counsel, we feel that there is no substance in the above contentions. It is true that the sale‑deed dated 21‑1‑1928, in lieu of her dower was excluded from evidence for want of registration, but as pointed out in the beginning she claimed the possession of the entire house by means of pre‑emption on the basis that she was a co‑sharer in the house in her own right. As rightly pointed out by the learned Chief Justice as also the Additional District Judge, it was admitted by the petitioner's own witnesses that Mst. Shabnama's husband Akram Khan had 1/3rd share in the house which had devolved upon him from his father Mahmud Khan who had built the house during his life time. The remaining 2/3rd share had devolved upon the other two sons of Mahmud Khan. It was further held that under the Muslim Law of inheritance, on the death of her husband Akram Khan she though initially succeeded as limited owner, but by coming into force of the Shariat Act, 1962, she became full owner of her share as Muslim Law heir of her husband by operation of sections 3 and 6 of the Shariat Act, notwithstanding her initial limited ownership.

Even on the point of limitation, the conclusion reached by the learned Chief Justice is unassailable. The seventeen sale‑deeds being unregistered, the suit was not governed by Article 10 of the Limitation Act 1908. Similarly, section 31 of the N.‑W. F. P. Pre‑emption Act, did not apply because the sale being that of a house, no mutation was sanctioned and it was found by the Courts below that it was not proved that the petitioner as vendee entered into possession of the house under sale in his favour. Such being the case, the suit will fall under the residuary Article 120, for which the limitation is six years.

For the foregoing reasons, the petition is dismissed.

Petition dismissed.

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