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Second Appeal No. 282 of 1953, decided on 3rd January 1955 from the decree of the Court of Fazl‑i‑Haq, District Judge, Attock at Campbellpur, dated the 13th July 1953, reversing that of Muhammad Saleem, Civil judge 1st Class, Attock at Campbellpur, dated the 22nd December 1952.
Ambiguity informer decision Effect Civil Procedure Code (h of 1908), S. 11.
The party, appearing as defendant in the later suit, was granted in the former suit an absolute estate under Muham madan law and not a limited one under custom. Towards the end of the former judgment, however, the Court introduced a remark suggesting that the party succeeded as a limited owner and that succession to property held by her would open out under the Punjab Muslim Personal Law (Shariat) Application Act (II of 1948) on such party's re‑marriage or death.
Held, that the latter observation was just a remark for the Court was not determining the nature of the estate of the party in question. Rather than the question of party's suc ceeding as a limited owner being res‑judicata, there was really the question of the absolute estate of the party operating as res‑judicata against the plaintiff in the later suit.
Questions and answers relate only to ancestral property unless self‑acquired property specifically mentioned.
According to a well‑settled rule of interpretation all questions and answers in a riwaj‑i‑am relate only to ancestral property unless self‑acquired property is specifically mentioned.
Campbellpur District, year 1928‑Answer to Question No. 19‑Interpreted‑Succession of unmarried daughters.
Question No. 19 in the Riwaj‑i‑Am of Campbellpur District (1928) deals with the special rights of an un‑married daughter, the rights which she has over and a over those possessed by a married daughter. It is this right that comes to an end when she marries. In a case where the daughter would be entitled, apart from the status which she possesses as an unmarried daughter, to inherit the property, it is hardly reasonable to argue that her estate will come to an end merely on account of the fact that she happens to be unmarried at the time when inheritance opened. She cannot suffer on account of the fact that she happened to be unmarried. The condition of being unmarried can confer greater rights but cannot take away the rights which a daughter otherwise possesses. It is a qualification and cannot be turned into a disability.
Sajjad Hussain Jafri for Appellant.
Inayat Ullah Khan for Respondent No. 1.
‑The following pedigree‑table will explain the relationship of the parties :‑
Mst. Gulab Bano = Nur Abdullah = Mst. Roshnai
Jiwan=Mst. Chanani
Mst. Mulk , Mst. Bakht
Mst. Fazal Nur. Bano. Nishan.
The property in dispute in the suit out of which this second appeal arises is 182 kanals 6 marlas situate in Pind Sultani, District Attock, and is a part of the total‑area of 972 kanals 2 marlas owned by Nur Abdullah mentioned in the pedigree-table. Nut Abdullah died on the 14th of September 1917 and his property was mutated one‑half in the name of his son Jiwan and one‑half in the name of Mst. Roshnai, the step mother of Jiwan. Jiwan died in 1933 and was succeeded by his widow Mst. Chanani. On the death of Mst. Chanani the whole of the land which stood in the name of Jiwan was mutated in favour of his daughter Mst. Fazal Nur, who was as yet unmarried.
On the 15th of July 1933, .Mst. Roshnai made a gift of a part of the property and a house in favour of Mst. Mulk Bano, her daughter. She also bequeathed a part of the land which stood in her name in favour of both her daughters Mst. Mulk Bano and Mst. Bakht Nishan. Mst. Chanani filed a suit for a declaration as to the invalidity of both the alienations men tioned above. She alleged in the suit that Mst. Roshnai had only a charge for maintenance on the land and had no power to alienate it. The suit was decreed and an appeal to the District judge was dismissed. A further appeal to the High Court was also dismissed on the 6th of November 1936. During the pendency of the appeal in the High Court, Mst. Chanani died and Mst. Fazal Nur was substituted as her legal repre sentative.
Mst. Roshnai died in the end of 1948. Mst. Fazal Nur then filed against Mst. Mulk Bano a suit for half of Nur Abdullah's property, which had been mutated in favour of Mst. Roshnai at Nur Abdullah's death. This suit was decreed by the trial Court for a share of 10/16 on the assumption that Mst. Roshnai had a limited estate under custom which came to an end after the passing of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, and inheritance was to be governed by section 3 of the Act. Both parties appealed against this decree. The learned District Judge held, that the share of Mst. Fazal Nur was only 9/16. Mst. Fazal Nur filed no appeal but the opposite party appealed to the High Court and the High Court held that Mst. Roshnai being only in possession as a charge‑holder, no question of the application of the Shariat Application Act arose. Mst. Fazal Nur was held entitled to the whole of the land but she not having filed an appeal could not be granted any further decree.
The present suit was filed on the 25th of October 1952 by Mst. Mulk Bano alleging that Mst. Fazal Nur having married about a year before the suit her estate under custom had come to an end as she held the land as an unmarried daughter, and, therefore, the land had now to be distributed in accordance with section 3 of the Punjab Muslim Personal Law (Shariat) Application Act. She claimed to be entitled to 3/16th of the whole land on the basis that the last male holder of the land was Jiwan. Jiwan, it would be observed, had died leaving a daughter Fazal Nur who would be entitled to 4/8, a widow Mst. Chanani who would be entitled to 1/8 and two con sanguine sisters each of whom would be entitled to 3/16.
The defendants in the suit are Mst. Fazal Nur and Mst. Bakht Nishan. Mst. Bakht Nishan, who is a pro forma party, has not appeared. Mst Fazal Nur denied the paternity of Mst. Mulk Bano. She pleaded further that her own title to the property had been established in the previous suit and that her marriage did not cause a termination of her estate. The fact of the marriage was, however, admitted. The following issues were framed :‑
(1) Is plaintiff a consanguine sister of Jiwan deceased
(2) Whether according to the zamindara custom by which the parties are governed defendant No. 1 inherited the land in dispute only until marriage and her tenure under the custom has terminated on marriage
(3) To what share is plaintiff entitled
(4) Relief. .
The trial Court found issues Nos. 1 and 2 against the plaintiff and dismissed the suit. On appeal the learned District Judge differed as to issue No. 1 and found it in favour of the plaintiff. That finding is one of fact and the matter has not been con tested before me. On issue No. 2, the learned District judge found, in the first place that the question whether Mst. Fazal Nur held an estate till re‑marriage was res‑judicata on account of the appellate judgment in the suit filed by Mst. Fazal Nur. He was of the opinion in the second place that considering the Riwaj‑i‑Am of the Campbellpur District an unmarried daughter gets a share only till marriage. On these two findings which are now impeached before me he decreed the suit.
The finding as to res‑judicata may be shortly disposed of. In the last suit the trial Court had granted Mst. Fazal Nur a decree for 10/16th share on the basis that the Punjab Muslim Personal Law (Shariat) Application Act applied. This 10/16th share was obviously graded to her in absolute estate. Both parties had appealed. The learned District judge found that A was the owner of the whole of the land left by Nur Abdullah and that Mst: Fazal Nur had succeeded to his property. This would have led to a conclusion that Mst. Fazal Nur was entitled to the whole of the land for which she had filed a suit. Yet, strangely enough, without any further' discussion the learned judge simply observed that the share of Mst. Fazal Nur was 9/16th and not 10/16th. The concluding part of the judgment is really not understandable. The learned judge does not say at all that the appeal of Mst. Fazal Nur was dismissed although his judgment, as stated at the beginning, deals with both the appeals. The learned District judge has relied upon the following paragraph at the end of that judgment for his finding that the matter is re-judicata :‑
"The Shariat Act II of 1948 applies to successions, which opened on or after the 15th of March 1948. Mst. Fazal Nur, an unmarried daughter of Jiwan, succeeded to the property, as a limited owner, and succession to the property of Jiwan, under Shariat Act, will open after her interest is terminated by her marriage or death, whichever is earlier".
This is just a remark, for the learned District judge was not determining the nature of the estate of Mst. Fazal Nur. In fact Mst. Fazal Nur had been granted an absolute estate under the Muhammadan Law, and he simply observed that the share of Mst. Fazal Nur was 9/16th while he dismissed the appeal of Mst. Mulk Bano. So far as the judgment of the learned District judge in the last case is concerned, it cannot possibly be regarded as res‑judicata against Mst. Fazal Nur on the question of her estate, for a full estate having been granted to her by the trial Court and the appeal of the other party having been dismissed, the effect of the decree would be to grant Mst. Fazal Nur a full estate in that part of the land which was decreed. So far as the judgment of the High Court is concerned, it simply dismissed the appeal filed by Mst. Mulk Bano. It makes no reference to the question of the estate of Mst. Fazal Nur or to the fact she got the land as an un married daughter. Really there is a serious question whether the judgments are not res‑judicata against Mst. Mulk Bano, because although in the judgment of the High Court it had been observed that the question of the application of the Punjab Muslim Personal Law (Shariat) Application Act did not arise as Mst. Roshnai was in possession only in lieu of maintenance, yet the decree of the lower Court was not in any manner altered. That decree granted Mst. Fazal Nur an absolute estate. However, this matter has not been pressed before me by the learned counsel for the appellant.
The finding of the learned District judge on the question as to whether the rights of an unmarried daughter would terminate on her marriage is also not supportable. The property in dispute in the present case is non‑ancestral property, there being no allegation at all that it is ancestral there being no allegation even that any collaterals are in existence. Admittedly this property, according to the general custom of the Province as well as according to the custom of the district and the parties, was to be inherited by Mst. Fazal Nur at the death of her mother even if she was married at the time. The learned District judge relied on the Question and Answer No. 19 of the Riwaj‑i‑Am of the Campbellpur District of the year 1928 for the proposition that the estate of an unmarried daughter would terminate on her marriage. I quote below Question and Answer No. 19 :‑
"Question No. 19.‑-Are unmarried daughters until marriage, and daughters vowed to celibacy (Musalla Nashin) entitled to a share in the inheritance If so, to what extent, and how is this right affected by the presence of male issue
Answer.‑The replies of the various tribes to this question cannot be considered very satisfactory. There is, however, a preponderance of opinion in favour of the view that in the presence of male issue, daughters, whether Musalla Nashin or not, do not share in the inheritance. In the absence of male issue, unmarried daughters succeed but forfeit their share on marriage. It follows, therefore, that Musalla Nashin daughters remain in possession till death, the property then reverting to the collateral line".
The learned District judge has erred in coming to a con clusion on the basis of this paragraph that even in a case where a daughter would be entitled though married to an estate, her estate must come to an end with her marriage. Perhaps it would be a sufficient answer to this paragraph to say that it applies only to ancestral property for according to a well‑settled rule of interpretation all questions and B answers in a Riwaj‑i‑am relate only to ancestral property unless self‑acquired property is specifically mentioned. How ever. I will explain the correct approach, to the question before me. Question No. 19 deals with the special rights of an unmarried daughter, the rights which she has over and above those possessed by a married daughter. It is this right that will come to an end when she marries. In a case where the daughter would be entitled, apart from the status which she possesses as an unmarried daughter, to inherit the property, it is hardly reasonable to argue that her estate will come to an end merely on account of the fact that she happens to be unmarried at the time when inheritance opened. It is conceded that had she in fact been married when her mother Mst. Chanani died, then her estate would not have come to an end when she married. I do not see how she can suffer on account of the fact that she happened to be unmarried. The condition of being unmarried can confer greater rights but cannot take away the rights which a daughter otherwise possesses. It is a qualification and cannot be turned into a disability. The only question which I have to answer is whether if custom still remains the rule of decision the estate of Mst. Fazal Nur would at the time of her marriage have come to an end and I have not the slightest hesitation in holding that it could not so end. The question as to who are ultimately to be entitled to this property will have to be settled at the time when her estate comes to an end by her death.
This appeal is accepted and the suit dismissed, but the parties are left to bear their own costs throughout.
A. H. Appeal accepted.
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