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Civil Petition for Special Leave to Appeal No. 670 of 1976, decided on 9th September, 1981.

(On petition against the judgment and decree, dated 16‑4‑1976 of the Lahore High Court in R.S.A. No. 599 of 1964).

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‑‑‑Art. 185(3)‑‑West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948)‑‑Family settlement‑‑Acted upon‑‑Subsequent challenge to family settlement‑‑Alienation of property‑‑Family settlement entered into by concerned parties in 1933‑‑Binding on heirs who subsequently acquired right of succession by enforcement of West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948)‑‑Said Act could not be retrospective and confer a right so as to challenge an agreed family arrangement.

‑‑‑Art. 185(3)‑‑Concurrent finding of facts by three Courts suffering from no legal infirmity‑‑Supreme Court refused leave to appeal.

Iftikhar Ahmad Dar, Advocate Supreme Court and Hameed Aslam Qureshi, Advocate‑on‑Record for Petitioners.

Date of hearing: 9th September, 1981.

‑The petitioners who have been unsuccessful as plaintiffs in all the three Courts dealing with their suit and the appeals arising there from, seek leave to appeal against the judgment of the Lahore High Court, dated 16‑4‑1976 whereby their regular second appeal was dismissed.

2. One Abdullah, the last male owner of the property died in 1928 and his two widows Mst. Jindan and Mitho held his estate as limited owners in equal shares. Mst. Mitho has a daughter Mst. Gaman, petitioner No. 2, who is married to Rab Nawaz, son of petitioner No. 1, a first cousin of Abdullah. In 1933 Mst. Mitho alienated her half share in favour of Rab Nawaz and others. On 25‑4‑1960, the other widow Mst. Jindan by registered gift deed alienated her half share in favour of her own daughter Mst. Bakhto. This led Ghulam Rasul and Gaman, the first as heir under custom, the other as heir under Shariat to join together as plaintiffs in order to challenge the later alienation made, by the other widow. The suit was contested and the main plea taken up was that at the time of alienation in favour of his own son Ghulam Rasul had entered into an arrangement whereby the remaining half of the property in the hands of the other widow could be similarly alienated and it was that compromise and the right there under which were reflected in the registered gift deed. The contest centred around the compromise allegedly entered into between the parties.

3. The trial Court dismissed the suit holding as follows:‑

"After weighing the evidence of the parties I come to the conclusion that there was a fimily arrangement between the reversioners and Mst. Jindan when she raised an objection at the time of Mst. Mitho's remarriage and her transferring the land in which she had only life interest as a widow in favour of Ghulam Rasool plaintiff's sons to one of whom Mitho's daughter was married.

Under the circumstances the family arrangement was made and Jindan was given the right to dispose of the land in which she had a life interest only and considered as full owner of that land which she had inherited from her deceased husband. I hold that a family arrangement had taken place about the right of Mst. Jindan and she was acknowledged as full owner of the land in dispute and as such she could alienate the land to defendant No. 2."

4. On appeal the Additional District Judge affirmed the finding on the basis of the finding recorded as follows:‑

"It is, therefore, clear that Ghulam Rasool plaintiff‑appellant who had been benefited by the alienation made by Mst. Bakhto, was the consenting party to that agreement and similarly Mst. Gaman consented to that agreement because one of the alienee i.e. Rab Nawaz was her husband. Thus by their conduct they are estopped from contesting the present alienation made by Mst. Jindan."

5. A learned Judge of the High Court while dismissing the second appeal held as follows:‑

"A family settlement was arrived at as has already been seen, whereby Mst. Jindan was acknowledged by Ghulam Rasool and Mst. Mitho as the full owner of the property which fell to her share, Mst. Gaman is the daughter of Mst. Mitho and is the wife of Rab Nawaz, one of the persons who were benefited by the gift made by Mst. Mitho. She can, therefore, not be allowed now to object alongwith Ghulam Rasool to the gift made by Mst. Jindan in favour of Mst. Bakhto."

6. As regards the plea of minority of Mst. Gaman and her not being a party to the compromise, the learned Judge in the High Court held that:‑

"It cannot be forgotten in this regard that the husband of Mst. Gaman i.e. Rab Nawaz has been benefited by that arrangement and Mst. Gaman has not raised even her little finger against the gift made by Mst. Mitho. In other words, she has acknowledged the gift made by Mitho. She would, therefore, now be estopped from raising any objection to it because she is herself a beneficiary of that gift in the sense that her husband Rab Nawaz has been benefited from it. It can hardly be argued that although she did not raise any objection that part of the transaction from which the family arrangement arose which affects her and that at the same time she would be able to challenge successfully the arrangement in so far as it affects Mst. Jindan and her daughter."

7. The learned counsel for the petitioners contended that Gaman was minor in 1933 and was not a party to the compromise and could not be bound by it. He has also challenged the concurrent finding of fact contending that no such compromise as disentitled the petitioner from challenging the alienation had been arrived at.

8. At the time when the compromise was entered into, that is, in 1933 it was not necessary that Gaman be a party because it was an arrangement between a contesting limited estate holder against the acceleration of succession agreed to by the other widow who was losing her limited interest in the property on account of her remarriage. The interest of Jindan was directly involved and she alongwith petitioner No. 1 and the beneficiaries under the arrangement was concerned with it. The subsequent conferment of interest under the West Pakistan Muslim Personal Law (Shariat) Application Act, 1948 could not‑ be retrospective and confer a right on Gaman' to challenge a compromise validly and completely entered into by the concerned parties in 1933.

9. As regards the fact of compromise, the same has been concurrently held by all the three Courts to have taken place. The finding suffers from no legal infirmity. Leave to appeal is, therefore, refused.

M. I. Petition dismissed.

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