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Revision Side No. 228 of 1959‑60, decided on 23rd January 1961, District Montgomery.
No mutation to be sanctioned on basis of decree which has ceased to be operative.
t‑Limited owner‑ Whether can gift away property for good.
Properties, succession to which has not been finally decided, should be divided among heirs under Shariat.
Muhammad Iqbal Cheema for Petitioner.
Muhammad Anwar Bhuttar for Respondent.
This case relates to the succession of Mst. Ahsan Bibl who held a life interest in the land in dispute after the death of her husband, Sher Muhammad in 1946. Sher Muhammad had left one son Sardar Muhammad, the petitioner and three widows, Lal Bibi, Ahsan Bibi and Rahm Elahi who were step‑mothers of Sardar Muhammad, I need not go into the history of litigation regarding succession between the step‑mothers and the son ; suffice it to say that the three widows remained In possession of certain areas with a life interest. Mst. Lal Bibi died in 1954 and both the parties have given me to understand that succession in respect of the area held by her did open out in accordance with the provisions of section 3 of the Muslim Personal Law Shariat Application Act, but the entire property was mutated in favour of the son. Mst. Ahsan Bibi died a short‑time afterwards but before her death she had gifted away all the property held by her to her grand‑daughter. Another fact to be considered is that the widows remained in possession of areas considerably in excess of what was finally compromised upon in civil litigation which ended in 1944. The compromise decree was thus not acted upon and no steps were taken to make it affective by the son Sardar Muhammad. Now that Mst. Ahsan Bibi has died Mutation No. 39 has been entered (sic) can sanctioned giving effect to the decree in the revenue records. This action of the Revenue Officer concerned was obviously wrong as the decree was no longer operative and one of the parties to the decree Mst. Ahsan Bibi was no longer alive. The Collector was, therefore, justified in permitting a review of this mutation.
The second question for consideration is in respect of the gift made by Mst. Ahsan Bibi in favour of her grand‑daughter Le., daughter's daughter Mst. Karam Elahi. It is a fact that Mst. Ahsan Bibi had only a life interest in the disputed land and the consensus of rulings has been that a widow with a life' interest cannot gift away the property for good to the detriment of the real heirs and the gift would merely be a transfer, foal whatever purposes it may be, to last till the lifetime of the widow.
The third point that has been urged is that if the view adopted by the Revenue Officers is accepted, succession to the property held by Sher Muhammad would be governed by two laws, the law of custom which were prevalent at the time of his death and the Shariat which is operative now and this would result in an anamolous position. Further that it would be incorrect to presume retrospective effect for any legislation. A reference to section 3 of the Shariat Act however clarifies the position. No distinction is drawn in this section that it would be applicable only to the property held by these widows who succeed as sot w heirs, and would not' govern cases in which a part of the property goes to other heirs under the Customary Law. As regards retrospective effect: the section is again clear that in respect of property which is held by a female under the Customary Law: succession shall open out to all persons who would have been entitled to inherit the property at the time of the death of the last full owner as if Shariat were applicable at that time. The intention of the legislature to which no reference is necessary under the law is quite clear, i.e., at least in respect of those properties succession to which has not been finally decided and determined, the Shariat should be made applicable.
As a result of the above discussion I would reject this revision petition. I he order passed by the Collector directing that succes sion to the property held by the widow should be in accord with the Shariat is quite correct.
I would further direct that the papers regarding succession to the land held by Mst. Lal Bibi should be sent for. That case will be taken up by me on 14‑2‑1961. Notice to the effect is given by me to the petitioner.
K. M. A.
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