IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Mushir Alam 
Mr. Justice Mazhar Alam Khan Miankhel 
 
Civil Appeal No.694/2008  
(On appeal from the judgment dated 
5.10.2004 passed by the Lahore High Court, 
Lahore in C.R. No.3562/1994) 
 
Khan Muhammad (decd.) through L.Rs. etc. 
 
 
Appellants 
 
Versus 
 
Mst. Khatoon Bibi and others 
 
 
 
 
Respondents 
 
 
For the Appellants:  
 
Mr. Muhammad Ilyas Sheikh, ASC 
 
 
 
 
 
Ch. Akhtar Ali, AOR 
 
For Respondents No.1,2,3(ii) & 5: 
Ch. Mushtaq Ahmed Khan, Sr. ASC 
 
 
 
 
 
Mr. M.S.Khattak, AOR 
 
For Respondents No.3 (i, iii-v) & 4: 
Ex-parte 
 
 
 
 
 
 
Date of Hearing: 
 
 
1.03.2017 
 
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 
No.1 & 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 
C.A.694/2008 
2
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 
C.A.694/2008 
3
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 Vs. Mukhtar Ahmad and others 
(PLD 2012 SC 217) 
 
 
2. 
Aslam and another Vs. Mst. Kamalzai and others  
(PLD 1974 SC 207) 
 
3. 
Abdul Ghafoor and others Vs. Muhammad Shafi and others 
(PLD 1985 SC 407) 
 
 
4. 
Muhammad Hussain and others Vs. Muhammad Shafi and 
others (2008 SCMR 230) 
 
5. 
Mst. Grana through Legal Heirs and others Vs. Sahib Kamala 
Bibi and others (PLD 2014 SC 167) 
 
6. 
Ghulam Abbas and others Vs. Mohammad Shafi through LRs 
and others (2016 SCMR 1403)  
 
7. 
Mst. Ghulam Bano alias Gulab Bano and others Vs. 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 
C.A.694/2008 
4
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 Vs. Mst. Nehmat Bi and 8 others  
(1992 SCMR 82) 
2. 
Sahib Jan and others Vs. Mst. Ayesha Bibi through L.Rs. and 
others (2013 SCMR 1540) 
 
3. 
Mst. Fazeelat Jan and others Vs. Sikandar through his Legal 
Heirs and others (PLD 2003 SC 475) 
 
4. 
Mahmood Shah Vs. Syed Khalid Hussain Shah and others 
(2015 SCMR 869)  
 
5. 
Lal Khan through Legal Heirs Vs. Muhammad Yousaf through 
Legal Heirs (PLD 2011 SC 657) 
 
6. 
Ghulam Ali and 2 others Vs. 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 
No.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 
C.A.694/2008 
5
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 23.11.1980. 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 No.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-
C.A.694/2008 
6
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.A.694/2008 
7
(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 property 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 property 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 Vs. Mukhtar Ahmad and others (PLD 2012 SC 217) and the other 
referred and relied upon by the plaintiff/respondents i.e. Sardar Vs. 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:- 
C.A.694/2008 
8
“ 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 Coart (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 
C.A.694/2008 
9
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 Vs. 
Muhammad Ibrahim and others (2002 CLC 819) and Muhammad Murad and 12 
others Vs. 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 
C.A.694/2008 
10
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 
C.A.694/2008 
11
Mst. Ghulam Bano alias Gulab Bano and others Vs. 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 Vs. 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 Vs. Sheikh Pervaiz Afzal and 
others (2002 SCMR 164), Muhammad Ali and others Vs. Muhammad Ramzan and 
others (2002 SCMR 426), Mst. Fazeelat Jan and others Vs. Sikandar through his 
legal heirs and others (PLD 2003 SC 475) and Mahmood Shah Vs. 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 
C.A.694/2008 
12
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 alongwith 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 Vs. Mst. 
Ghulam Sarwar Naqvi (PLD 1990 SC 1), Riaz Ahmad and 2 others Vs. Additional 
District Judge and 2 others (1999 SCMR 1328), Mst. Suban Vs. Allah Ditta and 
others (2007 SCMR 635), Muhammad Anwar and 2 others Vs. Khuda Yar and 25 
others  (2008 SCMR 905) and Mahmood Shah Vs. 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. 
Vs Muhammad Bakhsh and others (2005 SCMR 1278), Atta Muhammad Vs. 
Maula Bakhsh and others (2007 SCMR 1446), Lal Khan through Legal Heirs Vs. 
Muhammad Yousaf through Legal Heirs (PLD 2011 SC 657), Muhammad Rustam 
and another Vs. Mst. Makhan Jan and others (2013 SCMR 299), Mst. Grana 
through Legal Heirs and others Vs. Sahib Kamala Bibi and others (PLD 2014 SC 
167) and Noor Din and another Vs. 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 
C.A.694/2008 
13
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 1/4 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. 
 
 
C.A.694/2008 
14
13. 
The upshot of the above discussion is that this appeal has lost its fate 
and the same is, therefore, dismissed.       
Judge 
 
 
Judge 
Announced in Open Court at  
 
   on   
   . 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
      
Judge 
Bench-IV 
(Nasir Khan) 
 
‘APPROVED FOR REPORTING’ 
