2017 S C M R 1476

[Supreme Court of Pakistan]

Present: Mushir Alam and Mazhar Alam Khan Miankhel, JJ

KHAN MUHAMMAD through L.Rs and others---Appellants

Versus

Mst. KHATOON BIBI and others---Respondents

Civil Appeal No. 694 of 2008, decided on 15th May, 2017.

(On appeal from the judgment dated 5.10.2004 passed by the Lahore High Court, Lahore in C.R.
No. 3562 of 1994)

(a) Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), Art. 120--- Suit for declaration seeking correction of
revenue record---Limitation---Fresh cause of action---Scope---Generally, the time provided for
filing a suit for declaration under Art. 120 of the Limitation Act, 1908 was six years---In cases of
simple correction of revenue record, every fresh wrong entry in the record of rights would
provide fresh cause of action provided the party aggrieved was in physical or symbolic
possession of the property as owner.

(b) Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), Art. 120---Suit for declaration in relation to a claim of
inheritance---Limitation---Where a right of inheritance was claimed, the claimant became co¬-
owner/co-sharer of the property left by the predecessor along with others the moment the
predecessor died---Entry of mutations of inheritance was only meant for updating the revenue
record and for fiscal purposes---No limitation would run against the co-sharer.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Riaz Ahmad
and 2 others v. Additional District Judge and 2 others 1999 SCMR 1328; Mst. Suban v. Allah
Ditta and others 2007 SCMR 635; Muhammad Anwar and 2 others v. Khuda Yar and 25 others
2008 SCMR 905 and Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869
ref.

(c) Punjab Muslim Personal Law (Shariat) Application Act (V of 1962)---

----Ss. 2, 2-A, 3 & 5---Muslim Family Laws Ordinance (VII of 1961), S. 4---Colonization of
Government Lands (Punjab) Act (V of 1912), Ss. 10(2) & 19-A---Occupancy rights, inheritance
of---Scope---Daughter of pre-deceased son of propositus---Propositus was recorded as an
occupancy tenant of subject land owned by the Provincial Government---Occupancy rights of
propositus devolved upon his only surviving son to the extent of 1/2 shares and the remaining
half went to the two widows of his pre-deceased son as holders of limited estate as per custom
prevailing in the area---Plaintiff, who was the daughter of the pre-deceased son, filed a suit to
claim her share in the inheritance of her father (pre-deceased son of the propositus) as per S. 4 of
the Muslim Family Laws Ordinance, 1961 claiming that her rights were denied by her uncle
(surviving son of propositus); held, that the provisions of the Punjab Muslim Personal Law
(Shariat) Application Act, 1962, the Muslim Family Laws Ordinance, 1961, and Colonization of
Government Lands (Punjab) Act, 1912 were attracted to the present case---Both the widows of
pre-deceased son being female were not entitled to full ownership of the subject land under S. 2-
A of the Punjab Muslim Personal Law (Shariat) Application Act, 1962---Widows were holders
of limited estate only, which terminated after promulgation of Punjab Muslim Personal Law
(Shariat) Application Act, 1962 and the property held by them as limited estate would go back to
the legal heirs of pre-deceased son---Daughter and widow of pre-deceased son, both his legal
heirs, were entitled to inherit according to their respective shari share out of the share of the
pre¬deceased son, which he would have received at the time of opening of succession of the
propositus---Appeal was dismissed accordingly.

Mst. Sarwar Jan and others v. Mukhtar Ahmad and others PLD 2012 SC 217; Sardar v.
Mst. Nehmat Bi and 8 others 1992 SCMR 82; Muhammad Yaqub and others v. Muhammad
Ibrahim and others 2002 CLC 819; Muhammad Murad and 12 others v. Allah Bakhsh and 34
others 2006 MLD 286 and Mst. Ghulam Bano alias Gulab Bano and others v. Mst. Noor Jehan
and others 2005 SCMR 658 ref.

Muhammad Ilyas Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-
Record for Appellants.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and M.S. Khattak,
Advocate-on-Record for Respondents Nos. 1, 2, 3(ii) and 5.

Ex parte for Respondents Nos. 3(i), (iii) - (v) and 4.

Date of hearing: 1st March, 2017.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The Respondent No.1/plaintif filed a suit

for declaration to the effect that she being real daughter of Rajada, the pre-deceased son of
Ahmad (the last male owner herein after "the propositus of the parties"), was entitled to inherit
from the legacy of her grandfather to the extent of her shari share out of the share his father
would have inherited if alive at the time of opening of succession of his father (the propositus).
Her claim was totally denied by the defendant/appellants being the legal heirs of Sadiq alias
Sadu, the only surviving son, who got half share in the legacy of deceased father Ahmad, the
propositus, in the year 1944 and the remaining half went to the two widows namely Mst. Fatima
and Mst. Aisha (defendants Nos.1 and 2) respectively of pre-deceased son Rajada (father of the
plaintiff). Her suit was dismissed by the trial Court by holding that she is not entitled to the
decree prayed for and she was also non-suited on the question of limitation. The appellate Court
was also in concurrence with the findings of the trial Court by dismissing the appeal of
Respondent No.1/plaintiff.
 The High Court while dealing with the matter in civil revision, allowed the same both on
merits as well on the question of limitation and held that Respondent No.1/plaintiff being
daughter of pre-deceased son of the last male owner was equally entitled to inherit the legacy of
her grandfather to the extent of her shari share in the legacy of her pre-deceased father had he
been alive at the time of opening of succession as per law. The defendant/appellants questioned
the said findings of the High Court by way of Civil Petition No.3311-L/2004 wherein leave was
granted vide order dated 29.07.2008 in the following terms:-

"After hearing the learned counsel for the petitioners as well as respondent No.1 we grant
leave to appeal to consider, inter alia, the following questions:-

(i) Where Mst. Fatima and Mst. Ayesha widow of late Rajada a pre-deceased son of
Ahmed had inherited the land in dispute as full owners or holders of limited estate?

(ii) Where respondent No.1 Mst. Khatoon daughter of Rajada and Mst. Fatima were
entitled to inherit the shares in the suit property and, if so, to what extent?

(iii) Where the provisions of the Punjab Tenancy Act, Muslim Family Laws
Ordinance, 1961 and West Pakistan Muslim Personal Law (Shariat Application) Act,
1962 were attracted and were rightly construed with reference to facts and circumstances
of the present case?

Since short points are involved the office is directed to fix the main appeal on the present
record within a period of one year. However, the parties any file additional documents
with the permission of the Court."

Hence the present appeal.

2. Learned counsel for the appellants argued that the findings arrived at by the High Court
are against the settled law of the land; that the plaintiff/Respondent No.1 and the two widows of
the pre-deceased son of the last male owner, the propositus, were not entitled to inherit the
legacy of the propositus as the provisions of section 4 of the Muslim Family Laws Ordinance,
1961, (the 'Ordinance VII of 1961'), having no retrospective effect, were not applicable. He next
contended that in view of the provisions of West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962 (the 'Act V of 1962') Sadiq alias Sadu, the only surviving son at the time
of death of Ahmad, the propositus, was entitled to inherit his entire legacy as a sole heir and
thereafter, his legal heirs, the two widows and the daughter i.e. the plaintiff in no way were
entitled to inherit the legacy of the propositus as heirs of the pre-deceased son. He further argued
that the suit of the plaintiff/Respondent No.1 was hopelessly time barred as the same was filed
after more than three decades. In support of his arguments, learned counsel placed reliance on
the following cases:-

1. Mst. Sarwar Jan and others v. Mukhtar Ahmad and others (PLD 2012 SC 217)

2. Aslam and another v. Mst. Kamalzai and others (PLD 1974 SC 207)

3. Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 SC 407)
 4. Muhammad Hussain and others v. Muhammad Shafi and others (2008 SCMR
230)

5. Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others (PLD
2014 SC 167)

6. Ghulam Abbas and others v. Mohammad Shafi through LRs and others (2016
SCMR 1403)

7. Mst. Ghulam Bano alias Gulab Bano and others v. Mst. Noor Jehan and others
(2005 SCMR 658)

3. As against that learned counsel for the Respondents while supporting the impugned
judgment submitted that the plaintiff being daughter of the pre-deceased son of the last male
owner was entitled to get her shari share from the share her father would have inherited from the
legacy of his father if alive at the time of opening of succession. The learned counsel further
argued that question of limitation in the case of inheritance would not arise as the
plaintiff/Respondent No.1 became sharer in the property when the succession was opened. In
support of his submissions, learned counsel placed reliance on the following cases:-

1. Sardar v. Mst. Nehmat Bi and 8 others (1992 SCMR 82)

2. Sahib Jan and others v. Mst. Ayesha Bibi through L.Rs. and others (2013 SCMR
1540)

3. Mst. Fazeelat Jan and others v. Sikandar through his Legal Heirs and others (PLD
2003 SC 475)

4. Mahmood Shah v. Syed Khalid Hussain Shah and others (2015 SCMR 869)

5. Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs (PLD
2011 SC 657)

6. Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1)

4. Learned counsel for the parties were heard and record of the case was perused. Perusal of
the same would reveal that the predecessor-in-interest of the parties 'the propositus' Ahmad son
of Sajawal had five sons. Three out of whom namely Khan, Raja and Taja died issueless during
his lifetime whereas the fourth son Rajada also died during the lifetime of his father, the
propositus, but leaving behind two widows namely Mst. Fatima and Mst. Aisha and a daughter
Mst. Khatoon, the plaintiff (from his first wife Mst. Fatima). The fifth son was Sadiq alias Sadu,
the predecessor of Defendants Nos.3 to 16. Ahmad, the propositus, died in the year 1944, leaving
behind the only surviving son Sadiq alias Sadu. The propositus, Ahmad, was recorded as an
occupancy tenant of a chunk of land owned by the Provincial Government under section 8 of the
Punjab Tenancy Act, 1887 (the 'Act XVI of 1887'). His occupancy rights devolved upon his only
surviving son to the extent of 1/2 shares and the remaining half went to the two widows of his
pre-deceased son Rajada as holders of limited estate as per customs prevailing in the area vide
mutation No.124 attested on 13th November, 1944 available on the record as Exh.P.1. It is worth
to mention here that entries of this mutation were incorporated in the record of rights in the year
1944-45 but their status was recorded as occupancy tenants under section 10(2) of the
Colonization of Government Lands (Punjab) Act, 1912 (the 'Act V of 1912') vide Notification
No.20668 dated 7.08.1922. These entries in the record of rights continued up to 1964 when
mother of plaintiff Mst. Fatima (the widow of Rajada) re-married with one Sultan son of Sadiq.
Her limited estate reverted back to Sadiq alias Sadu vide mutation No. 51 dated 29.09.1964,
available on the record as Exh.P.2, and thereby the share of Sadiq alias Sadu in the legacy
swelled up to 3/4 and 1/4 remained with Mst. Aisha, the 2nd widow. It would also be worthwhile
to mention here that vide mutation No.52 dated 19.04.1964, the remaining 1/4 share of the said
Mst. Aisha also went to Sadiq alias Sadu as after promulgation of the Act V of 1962, the limited
estate was terminated but the entries in the record of rights, available on the record, would show
that this mutation was never incorporated in the record of rights and entries in her name
continued up-till 1980 when their occupancy rights in the property were converted into
ownership vide mutation No.150 dated 23.1.1.1980. Sadiq alias Sadu died in the year 1984 and
his mutation of inheritance bearing No.227 dated 14.11.1987 was attested in favour of his legal
heirs i.e. Defendants Nos.3-10.

The plaintiff filed the instant suit to claim her share in the inheritance of her father Rajada
(pre-deceased son of the propositus) as per section 4 of the Ordinance VII of 1961 when her
rights were denied firstly by Sadiq alias Sadu and then his legal heirs i.e. the defendants. Her suit
was dismissed by the trial Court and the appellate Court on the question of her entitlement as
such and also on the question of limitation but the learned Judge-in Chambers of the Lahore
High Court while allowing her revision petition held her entitled to her shari share by granting a
decree in her favour by holding that question of limitation would not come in her way.

5. To answer the queries raised in the leave granting order, we, in the given circumstances,
have to see as to whether the plaintiff/ Respondent No.1 and the two widows would be entitled to
inherit the legacy left by the propositus, being legal heirs of the pre-deceased son, within the
meaning of Section 4 of the Ordinance VII of 1961. If answer to the above question comes in
positive then the legal heirs of the pre-deceased son naturally will get their right of inheritance
otherwise, the suit of the plaintiff would be liable to dismissal.

6. To proceed further, it would be useful for the adjudication of the matter in hand to
reproduce the relevant statutory provisions of the Act V of 1962 and Ordinance VII of 1961
which read as under:

"Act V of 1962

Section 2.-- Application of the Muslim Personal Law.

Notwithstanding any custom or usage, in all questions regarding succession (whether

testate or intestate), special property of females, betrothal, marriage, divorce, dower,
adoption, guardianship, minority legitimacy or bastardy, family relations, wills, legacies,
gifts religious usages or institutions, including Waqfs, trusts and trust properties, the rule
of decision, subject to the provisions of any enactment for the time being in force shall be
the Muslim Personal Law (Shariat) in cases where the parties are Muslim.
Section 2(A): - Succession prior to Act IX of 1948.

Notwithstanding anything to the contrary contained in section 2 or any other law for the
time being in force or any custom or usage or decree, judgment or order of any Court,
where before the commencement of the Punjab Muslim Personal Law (Shariat)
Application Act, 1948, a male heir had acquired any agricultural land under custom from
the person who at the time of such acquisition was a Muslim:--

(a) he shall be deemed to have become, upon such acquisition, an absolute owner of
such land, as if such land had devolved on him under the Muslim Personal Law (Shariat);

(b) any decree, judgment or order of any Court affirming the right of any reversioner
under custom or usage, to call in question such an alienation or directing delivery or
possession of agricultural land on such basis shall be void, inexecutable and of no legal
effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;

(c) all suits or other proceedings of such a nature pending in any Court and all
execution proceedings seeking possession of land under such decree shall abate
forthwith;

Provided that nothing herein contained shall be applicable to transactions past and closed
where possession of such land has already been delivered under such decrees.

Section 3.-- Termination of limited estates under customary law.

The limited estates in respect of immovable properly held by Muslim female under the
Customary Law are hereby terminated;

Provided that nothing herein contained shall apply to any such estate saved by enactment
repealed by this Act, and the estates so excepted shall continue to be governed by that
enactment notwithstanding its repeal by this Act.

Section 5.-- Devolution of property on the termination of life estate and certain wills.

The life estate terminated under section 3 or the properly in respect of which the further
operation of a will has ceased under section 4 shall devolve upon such persons as would
have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of
the last full owner or the testator as though he had died intestate; and if any such heir has
died in the meantime, his share shall devolve in accordance with Shariat on such persons
as would have succeeded him if he had died immediately after the termination of the life
estate or the death of the said legatee;

Provided that the share to which a Muslim female holding limited estate under customary
law would have been entitled under the Muslim Personal Law (Shariat) upon the death of
the last full owner shall devolve on her.

Ordinance VII of 1961

 Section 4: -- Succession.

In the event of the death of any son or daughter of the propositus before the opening of
succession, the children of such son or daughter, if any, living at the time the succession
opens, shall per stripes receive a share equivalent to the share which such son or
daughter, as the case may be, would have received, if alive."

7. There are two judgments of this Court which could decide the fate of the case, one
referred and relied upon by the appellants i.e. Mst. Sarwar Jan and others v. Mukhtar Ahmad and
others (PLD 2012 SC 217) and the other referred and relied upon by the plaintiff/respondents i.e.
Sardar v. Mst. Nehmat Bi and 8 others (1992 SCMR 82). Relevant parts of both the judgments
would also require to be reproduced which for ready reference read as under:-

"Mst. Sarwar Jan's case

6. .........The Ordinance was in force at the time of such termination, therefore, the
retrospective application of section 4 was not an issue in the case. However, in the instant
matter there is no element of any limited holding of the estate by a female under the
custom which would terminate on the enforcement of Act, resultantly, the judgment supra
has no relevance qua the present proposition.

7. In order to examine if as per its own force section 4 ibid has a retrospective effect, it is
settled rule that any statute or a provision thereof forming part of substantive law, which
creates or extinguish or affect the rights of the persons/citizen shall ordinarily have a
prospective effect, except where by the clear command of the law, it is made applicable
retrospectively. From the language of section 4 ibid we do not find such to be the
intention of the legislature, therefore, in our considered view, the application of the
section for all intents and purposes is prospective in nature and by no rule of
interpretation can it be given a retrospective effect, so as to undo or reopen the past and
closed settlements of inheritance, which had been concluded prior to the coming into
force of the Ordinance, otherwise, there shall be no sanctity and conclusiveness attached
to all or any of the successions, which have been settled under the Mohammedan Law,
much before the enforcement of the Ordinance, 1961, even those successions finalized 50
or 100 years prior thereto shall have no protection. This has never been the object of
section 4 ibid and the intendment of the legislature. Thus, considering this case in the
light of the above rule and criteria, Ilam Din in the case died in 1956 and the legal heirs
of his pre-deceased son would not be entitled to inherit his estate, under the
Mohammedan Law.........

Sardar's case

9. After hearing the learned counsel for the parties and perusing the precedents cited by
them, we are of the view that while enforcing section 5 of the Muslim Personal Law
(Shariat) Application Act, 1962 for the purpose of devolution of the estate of the last full
owner we will have to apply Muslim Personal Law (Shariat) wherein is included the
Muslim Family Laws Ordinance, 1961. The contention of the learned counsel for the
respondents in this behalf is supported by the judgment of the Supreme Court (Shariat
 Bench) in Federation of Pakistan v. Mst. Farishta PLD 1981 SC 120 that Muslim
Personal Law (Shariat) is a comprehensive term to cover all laws relating to personal
matters of Muslims. Section 4 of the Muslim Family Laws Ordinance, 1961 allows
inheritance to the children of the pre-deceased son or daughter to the extent that the son
or daughter would have got. Section 3 of the latter Ordinance 1961 also provides that
'The provisions of this Ordinance shall have effect notwithstanding any law, custom or
usage'. Therefore, it appears to us that the learned Judge in the High Court was right in
holding that by providing for devolution of the property under section 5 of the Muslim
Personal Law (Shariat) Application Act, 1962 on termination of the life estate, the
children of pre-deceased daughter of the last full owner will inherit the share which their
mother would have got as if she were alive at the time of the opening of the succession,
that is to say, on the demise of her father Ilam Din in 1947.

10. ..........

11. Finally if the statutory provisions i.e. section 5, section 2 and section 2-A of the
Muslim Personal Law (Shariat) Application Act, 1962 and section 4 of the Muslim
Family Law Ordinance, 1961 are read together and the rule of interpretation for
harmonizing statutory provisions is applied, it is quite clear that on the termination of the
life estate of Mst. Nehmat Bi, inheritance will open with reference to the full owner
namely Ilam Din who died in 1947. He would be succeeded by his heirs the widow, sister
and pre-deceased daughter's children. The claim of the appellant to exclude children of
the pre-deceased daughter of Ilam Din is untenable. As regards distribution of shares
amongst the heirs, assigned by the Lahore High Court, no one has come up in appeal;
therefore, no interference is called for in this behalf."

A bare look of the above two judgments would reveal that there is a very delicate distinction in
these judgments and if the true import of these judgments is seen then it becomes crystal clear
that in the case of Sardar (supra) it was held by the Hon'ble five Member Bench that there were
limited estate holders of the legacy of the propositus being the legal heirs of the pre-deceased
son. On termination of the limited estate, in view of section 3 of the Act V of 1962, the
provisions of section 4 of the Ordinance VII of 1961 were in field, so it was made applicable to
that case and the right of inheritance to the legal heirs of the pre-deceased son was given whereas
in the case of Mst. Sarwar Jan (supra) no such question of limited estate was involved in that
case and the only question of inheritance and rights of the legal heirs of pre-deceased son was
involved prior to the promulgation of the Ordinance VII of 1961, so in this view of the matter,
the provisions of section 4 of the Ordinance VII of 1961 was declared to be prospective in nature
and would not extend any benefit to the legal heirs of pre-deceased son retrospectively. Apart
from the case of Mst. Sarwar Jan (supra) we were unable to lay hand on any such judgment of
this Court dealing with the effect of provisions of section 4 of the Ordinance VII of 1961 and for
that matter we almost went through the entire case law available on section 4 ibid except the two
judgments of the Lahore High Court i.e. Muhammad Yaqub and others v. Muhammad Ibrahim
and others (2002 CLC 819) and Muhammad Murad and 12 others v. Allah Bakhsh and 34 others
(2006 MLD 286). The ratio which comes out of the above two referred judgments is that when
there is a question of limited estate holders and the legal heirs of pre-deceased son or daughter,
the legal heirs of pre-deceased son or daughter would become entitle on termination of the
limited estate in view of section 3 of the Act V of 1962 as section 4 of the Ordinance VII of 1961
would be in field and in simple case of inheritance, the legal heirs of pre-deceased son or
daughter, prior to promulgation of the Ordinance VII of 1961, would not be entitled to get any
benefit under section 4 of the Ordinance VII of 1961 as it will have no retrospective effect rather
it will take effect prospectively.

8. While reverting back to the facts and circumstances of the case in hand, it is admitted and
established on the record that the propositus of the parties died in the year 1944 leaving behind
his only son Sadiq alias Sadu and the two widows and a daughter of his pre-deceased son namely
Rajada. In view of the introduction of section 2-A to the Act V of 1962, Sadiq alias Sadu though
inherited as legal heir but also became full owner. His inheritance devolved upon his son to the
extent of 1/2 share and the remaining 1/2 share went to the two widows as limited estate holders.
Their limited estate got terminated after promulgation of the Act V of 1962 and by the time
section 4 of the Ordinance VII of 1961 was very much in field so was applicable in their case.
The above referred situation tallies on all fours to the case of Sardar (supra) entitling the legal
heirs of pre-deceased son i.e. the two widows and the daughter i.e. the plaintiff according to their
respective shari shares i.e. 1/8 to the two widows, 1/2 to the daughter (plaintiff) whereas the
remaining would go to the son Sadiq alias Sadu as residuary, full brother.

9. Since the status of parties to the lis is admittedly of occupancy tenants under section
10(2) of the Act V of 1912 so their succession would no doubt be dealt with under section 19-A
of the said Act. Since the appellants and the second widow namely Mst. Aisha of pre-deceased
son after depositing the requisite fee under the scheme have become full owners so the plaintiff
and her mother namely Mst. Fatima, the first widow of pre-deceased son, be also dealt with
accordingly and the same principle was laid down in the case of Mst. Ghulam Bano alias Gulab
Bano and others v. Mst. Noor Jehan and others (2005 SCMR 658).

10. It is also worthwhile to mention here that provisions of section 4 of the Ordinance VII of
1961 were declared against the tenets and injunctions of Islam by the Federal Shariat Court by
reviving the theory of Mahjub-ul-Irs (otherwise, under the traditional Muslim Law of inheritance
grandson is not excluded from the inheritance of his grandfather) in its judgment rendered in the
case of Allah Rakha and others v. Federation of Pakistan and others (PLD 2000 FSC 1), wherein
the effective date of such declaration was also given as 31.03.2000 but such verdict has been
questioned before the Shariat Appellate Bench of this Court and by virtue of provisions of
Article 203D of the Constitution of Islamic Republic of Pakistan, 1973 operation of such verdict
becomes automatically suspended. Besides, such declaration could not affect previous operation
of law or succession taking place before such date as was held in the cases of Mst. Samia Naz
and others v. Sheikh Pervaiz Afzal and others (2002 SCMR 164), Muhammad Ali and others v.
Muhammad Ramzan and others (2002 SCMR 426), Mst. Fazeelat Jan and others v. Sikandar
through his legal heirs and others (PLD 2003 SC 475) and Mahmood Shah v. Syed Khalid
Hussain Shah and others (2015 SCMR 869).

11. As far as the question of limitation in filing suit for declaration is concerned, we also
would like to discuss it in some detail. In general, the time provided for such suit under
Article 120 of the Limitation Act, 1908 is six years. Different aspects regarding
reckoning/calculating this period of limitation have been considered and some yardsticks
have been settled by this Court in different nature of cases and the situation cropping-up
according to the facts and circumstances of the cases. In the cases of simple correction of
revenue record, it is settled by now that every fresh wrong entry in the record of rights
would provide fresh cause of action provided the party aggrieved is in possession of the
property as owner needless to say that it can be either physical or symbolic possession.
Similarly, in the cases of claiming right of inheritance, it is well settled that the claimant
becomes co¬-owner/co-sharer of the property left by the predecessor along with others the
moment the predecessor dies and entry of mutations of inheritance is only meant for
updating the revenue record and for fiscal purposes. If a person feels himself aggrieved of
such entries, he can file a suit for declaration within six years of such wrong entries or
knowledge. Any such repetition of the said entries in the revenue record would again give
him a fresh cause of action or when the rights of anyone in the property are denied it would
also give fresh cause of action. Similarly, it is again. settled by now that no limitation would
run against the co-sharer. We for instance can quote few judgments covering all these
aspects like Ghulam Ali and 2 others v. Mst. Ghulam Samar Naqvi (PLD 1990 SC 1), Riaz
Ahmad and 2 others v. Additional District Judge and 2 others (1999 SCMR 1328), Mst. Suban v.
Allah Ditta and others (2007 SCMR 635), Muhammad Anwar and 2 others v. Khuda Yar and 25
others (2008 SCMR 905) and Mahmood Shah v. Syed Khalid Hussain Shah and others (2015
SCMR 869). In recent past certain judgments have been rendered in the cases of inheritance
wherein the question of waiver, acquiescence and estoppel have been considered like in the cases
of Mst. Phaphan through L.Rs. v. Muhammad Bakhsh and others (2005 SCMR 1278), Atta
Muhammad v. Maula Bakhsh and others (2007 SCMR 1446), Lal Khan through Legal Heirs v.
Muhammad Yousaf through Legal Heirs (PLD 2011 SC 657), Muhammad Rustam and another
v. Mst. Makhan Jan and others (2013 SCMR 299), Mst. Grana through Legal Heirs and others v.
Sahib Kamala Bibi and others (PLD 2014 SC 167) and Noor Din and another v. Additional
District Judge, Lahore and others (2014 SCMR 513). Since the question of limitation in the
instant case has not been argued in the light of above noted cases, so we would not like to discuss
the questions involved in the above noted cases qua the question of limitation and would leave it
open and consider this aspect in some other appropriate case wherein such like issues are
involved. Since we have held that plaintiff Mst. Khatoon Bibi and the two widows of pre-
deceased son Rajada of the propositus Ahmad are entitled to receive their due share and they
being co-sharers/co-owners in the legacy of the propositus just after opening of succession have
become fait accompli after the demise of the propositus and would not need the intervention of
the revenue authorities to make them co-sharers/co-owners as such no limitation would run
against them as possession of one co-sharer would be deemed to be the possession of all and
further any wrong entry in the record of rights would also equip them with a fresh cause of
action. Non-filing of any suit by the first widow namely Mst. Fatima, the mother of the plaintiff,
by claiming 1/2 share out of 1/8 would also not disentitle her to claim her share.

12. After considering each and every aspect of the case in hand the answers to the queries,
raised in the leave granting order, would be as under:-

(i) Both the widows being female were not entitled to full ownership under section
2-A of the Act V of 1962. They were holders of limited estate only which terminated
after promulgation of Act V of 1962 and the property held by them as limited estate
would only go back to the legal heirs of pre-deceased son.
 (ii) Both were entitled to inherit according to their respective shari share out of the
share of the pre¬deceased son Rajada which he would have received at the time of
opening of succession of the propositus.

(iii) Provisions of the Ordinance VII of 1961 and Act V of 1962 were attracted
besides the provisions of section 19-A of the Act V of 1912.

13. The upshot of the above discussion is that this appeal has lost its fate and the same is,
therefore, dismissed.

MWA/K-9/SC Appeal dismissed.