2023 PLP 1357 (MLD)

AHMAD NADEEM ARSHAD, J.

Through this single judgment, I intend to decide the titled civil revision as well as connected civil revision, bearing No.614-D of 2002 titled "Mst. Sukhan and others v. Noor Muhammad and others" as in both civil revisions, the subject matter, as well as the parties, are same.

2. Necessary facts for decision of this revision petition as well as connected revision petition are that predecessor of the parties namely Hasso died leaving behind five sons (four sons disclosed in the plaint and name of Khan was not mentioned) namely Pehlwan, Ramzan, Mathela, Khan and Sammand. On the death of Pehlwan, inheritance mutation No.9 was sanctioned on 27.08.1929 (Exh.P-1) only in favour of his son Akbar excluding his widow namely Mst. Izzat Khatoon and daughters namely Mst. Sherman and Mst. Zohran in the light of prevailing custom. Akbar died issueless without any marriage and his inheritance mutation No.37 was sanctioned on 28.09.1931 (Exh.P-2) in the name of his mother Mst. Izzat Khatoon as a limited owner according to the custom. After the demise of Mst. Izzat Khatoon, her inheritance mutation No.327 was attested on 26.02.1989 (Exh.P-3) in favour of legal heirs of Ramzan namely Sattara, Shahra, Gahra, Dilawer alias Dallu and legal heir of Mathela namely Qasim who were her nephews excluding the legal heirs of Sammand. After the demise of Qasim, his inheritance mutation No.373 was attested on 17.02.1991 (Exh.P4) in the names of his widow Allah Wasyie and Mst. Naziran as a daughter. A suit for declaration titled as "Noor Muhammad etc. v. Dallu alias Dilawer etc." was instituted by the male legal heirs of Sammand (petitioners of civil revision No.1266 of 2002) against the legal heirs of Ramzan and Mathela (defendants). The plaintiffs challenged the validity of all the mutations by seeking declaration that all the mutations are against facts, law, void, and liable to be cancelled to the extent of plaintiffs. Their main grievance against the mutation No.327 dated 26.02.1989 (Exh.P-3), whereby they were deprived from the inheritance of Mst. Izzat Khatoon, was that Mst. Izzat Khatoon was limited owner and after her death, the property reverted to Phalwan and being legal heirs of his brother namely Sammand, they were entitled to get inheritance and secondly Sattara, Shahra and Gahara were died at the opening of succession, therefore, they were not entitled to get inheritance. The plaintiffs were also aggrieved from the inheritance mutation No.373 dated 17.02.1991 whereby the property of Qasim was devolved only to his widow and daughter but as Qasim was issueless, therefore, after giving 1/8 share to his widow and share to his daughter rest of the share was liable to be devolved and divided upon them. They also challenged the mutation of gift (Tamleek) No.511 dated 15.02.1996 whereby Dallu alias Dilawer transferred his property to his daughter namely Salamat Bibi (defendant No.10). Defendants Nos.1 to 10 filed contesting written statement by raising certain legal as well as factual objections. On facts, they denied all the contentions raised by the plaintiffs and defended the impugned mutations by stating that after the death of Akbar, his property was devolved upon his mother as he was issueless and after the death of Mst. Izzat Khatoon, her inheritance mutation was sanctioned in the name of Satara, Ghara etc. who were sons of Mst. Jhindu Mai, real sister of Mst. Izzat Khatoon and the plaintiffs were not entitled to get any inheritance from the legacy of Mst. Izzat Khatoon as they were not her legal heirs. The learned trial court, keeping in view divergent pleadings of the parties framed necessary relevant issues and invited the parties to produce their respective evidence in support of their contentions. From the plaintiffs side, they examined plaintiff No.6 Muhammad Ismail as PW-1, plaintiff No. 1 Noor Muhammad as PW-2 and Haji Ghana as PW-3. They also produced copy of mutation No.9 dated 27.08.1929 as Exh.P-1, copy of mutation No.37 dated 28.09.1931 as Exh.P-2, Copy of mutation No.337 dated 17.02.1991 as Exh.P-3, copy of mutation No.327 dated 26.02.1989 as Exh.P-4 and copy of record of rights for the year 1991-92 as Exh.P-5 in shape of documentary evidence. In rebuttal, the defendants examined Azeem as DW-1 and defendant No.6 Muhammad Hussain as DW-2 and they did not opt to produce any documentary evidence. After providing opportunity of hearing, the learned trial court decided the suit vide judgment and decree dated 07.12.1998 in the following terms:- "As a result of my findings and discussion on the foregoing issues, the suit of the plaintiffs to the extent of inheritance mutation No.373 dated 17.02.91 is decreed declaring that Mst. Allah Wasyie as widow of Qasim will get 1/8 share whereas Mst. Naziran as daughter of Qasim will get 4/8 share. Diloo alias Dilawer etc. as uterine brothers will get 1/3 share from the whole property and the rest of the property would go to the other legal heirs of Qasim which include the present plaintiffs. The inheritance mutation No.373 is illegal, against facts, therefore, the same is liable to be cancellation and an order for the same is made. The suit of the plaintiffs to the remaining extent is liable to be dismissal and the same is dismissed, leaving the parties to bear their own costs." Feeling aggrieved, the plaintiffs preferred an appeal and the defendants also filed cross-objection. The learned appellate Court through consolidated judgment and decree dated 16.04.2002 decided both appeal and cross objection in the following terms:- "As a result of the above, the findings of the learned trial court on issues Nos.1, 2 and 3 are up-held with the modification in findings regarding inheritance mutation No.373 to the effect that after distribution of 1/8th share of Allah Wassai and share of Mst. Naziran Bibi the remaining property shall be distributed among the other legal heirs of Qasim but the uterine brothers of Mst. Naziran Bibi shall inherit nothing by virtue of their such status." Remained dis-satisfied, both plaintiffs and defendants filed their separate civil revisions. The plaintiffs filed Civil Revision No.1266-D of 2002 with the prayer that while setting-aside judgments and decrees of both the learned lower courts, their suit be decreed in toto. The defendants filed Civil Revision No.614-D of 2002 with a prayer that both the judgments and decrees be set-aside and the suit of the plaintiffs be dismissed.

3. I have heard learned counsel for the parties and perused the record with their able assistance.

4. It appears from the record that the plaintiffs claimed inheritance from the legacy of Pehlwan with the contention that Mst. Izzat Khatoon was limited owner and in this regard they challenged inheritance mutations No. 09, 37 and 327, secondly; they claimed inheritance from the legacy of Qasim and in this regard, they challenged mutation No.373 and lastly, they also challenged mutation of tamleek No.511 dated 15.02.1996 whereby Dilawer gifted his property to his daughter Salamat Bibi.

5. The plaintiffs claimed themselves owners in possession of land measuring 33 kanal 10 marla and sought declaration to that effect with the contention that they are sons of brother of Pehlwan namely Sammand and after the death of Pehlwan, inheritance mutation No.9 was sanctioned on 27.08.1929 (Exh.P-1) in the name of his son Akbar, on the basis of custom, and after the death of Akbar, inheritance mutation No.37 was sanctioned on 28.09.1931 (Exh.P-2) in the name of his mother Mst. Izzat Khatoon, as limited owner and after her demise, her inheritance mutation No.327 was sanctioned on 26.02.1989 (Exh.P-3) only in the name of her sister's sons excluding the plaintiffs and in this background they sought that impugned mutation No.327 is illegal, against facts and void, therefore, ineffective qua their rights. The West Punjab Muslim Personal Law (Shariat) Application Act, 1948 as amended in 1951 by Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951 provide for the application of the Muslim Personal Law (Shariat) to Muslims in Punjab. Property which came to a person under the customary law at once became subject to Muslim Law on passing of the Act ibid and that statute introducing distribution of property on the Muslim heirs in accordance with Muslim Law. In accordance with section 3 of Act ibid, on the termination of limited owner of a female the inheritance is opened at the time of death of last male owner and successors of propositus are entitled to inherit. Under that section it was provided that the property given to the females as limited owner would devolved on heirs of last full owner. Section 3 reads as under:- "

3. In respect of immovable property held by a Muslim female of limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Law (Shariat) been applicable at the time of such death, and in the event of the death of any such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat): Provided that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner, shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death." On the promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, under section 3 limited estate created under the customary law stood terminated which reads as under:- "

3. Termination of limited States 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 any enactment, repealed by this Act, and the estate so excepted shall, continue to be governed by that enactment notwithstanding its repeal by this Act." Section 5 of the Act ibid provides the rule of succession, which is reproduced for convenience and ready reference as under:- "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." The property held by Mst. Izzat Khatoon by operation of law reverted/return to last full owner namely Pehlwan and his legal heirs were entitled to receive their respective shares from the legacy of Pehlwan. It is an admitted fact that the late Pehlwan was survived by his son Akbar and widow Mst. Izzat Khatoon. The witnesses of plaintiffs admitted that Mst. Sharman and Mst. Zuhran are daughters of late Pehlwan. Mst. Zuhran is stated to be the wife of Sattara, who is survived by defendant No.2 namely Noor Muhammad. Thus under the law, the property of Pehlwan was to be distributed amongst his legal heirs according to the following shares:- Mst. Izzat Khatoon as widow 1/8 (4/32) Mst. Sharman as daughter 7/32 share Mst. Zuhran as daughter 7/32 share Akbar as son 14/32 share On the death of Akbar his property was to be shared by his legal heirs namely:-

1. Mst. Izzat Khatoon as mother 1/3 share

2. Mst. Sharman and Mst. Zuhran as sisters 2/3 shares. There was left no property in the name of Akbar for its distribution amongst lineal descendants. As is transpired from the evidence on record Mst. Izzat Khatoon had a sister namely Jindoo and the said Jindoo was married to Ramzan. From this marriage Gharah, Shahra, Sattara and Dilawar were born. Mst. Jindoo contracted second marriage with Mathala and they conceived a son namely Qasim. Mst. Izzat Khatoon had two other sisters namely Raasti and Lalan besides two brothers namely Ali Muhammad and Wali Muhammad. The present plaintiffs thus would not inherit the property of Akbar as nothing was left for its distribution amongst lineal descendants of Akbar after satisfying the shares of other persons entitled to get his inheritance. It is correct that the mutation of inheritance sanctioned on the death of Mst. Izat Khatoon has not been sanctioned in favour of all her legal heirs. Some of the persons mentioned in the mutation had already expired. The persons entitled to inherit the property have not challenged the mutation in dispute and it was for the said legal heirs of Mst. Izzat Khatoon to challenge the validity of the inheritance mutation sanctioned on her death. Therefore, the learned Courts below rightly held that there is no necessity to declare mutation No.327 dated 26.02.1989 illegal, and against the facts as the plaintiffs are neither legal heirs of Mst. Izzat Khatoon nor have any right to challenge the validity of mutation No.327.

6. The plaintiffs challenged validity of mutation of Tamleek No.511 dated 15.02.1996, whereby, Dallo alias Dilawer transferred his property by way of Tamleek to his daughter Salamat Bibi. The plaintiffs are not legal heirs of Dallo alias Dilawer, therefore, they have no locus standi to challenge the impugned mutation. Dallo alias Dilawer during his life time acknowledged the mutation of tamleek and after his demise none of his legal heirs objected upon the impugned mutation. The plaintiffs failed to bring on record the impugned mutation in their evidence, therefore, the learned courts below dismissed the claim of the plaintiffs with regard to mutation No.511. I have seen no illegality and irregularity in the impugned judgments and decrees to that extent.

7. The plaintiffs challenged the validity of mutation No.373 dated 17.02.1991 whereby the whole legacy of Qasim was devolved upon his widow and daughter. Plaintiffs claimed from inheritance of Qasim being sons of brother of Qasim's father (Paternal cousins). The learned trial court observed that widow of Qasim namely Allah Wassai will take 1/8 share and his daughter namely Mst. Naziran will take share both being sharer and the remaining share of 3/8 will be distributed among uterine brothers and other legal heirs of Qasim and concluded that Dilawer alias Diloo and other uterine brothers will get 1/3 of 3/8 and remaining 2/3 of 3/8 will go to cousins of Qasim. Learned appellate court while dealing with this proposition observed that after satisfying the share of widow and daughter, uterine brothers of Mst. Naziran will not get any share and the rest of share will go to legal heirs of Qasim. The learned lower appellate court while observing this completely overlooked the record as the learned trial court declared that Dilawer etc. are entitled to get 1/3 share being uterine brothers of Qasim and not being uterine brothers of Mst. Naziran. Anyhow, keeping aside this controversy, I would like to decide it in the light of law of inheritance. Before deciding inheritance of Qasim, it is necessary to explain some terminologies i.e. "Full Brother and Sisters" means their father and mother are same, "Uterine Brother and Sister" means their mother is same but their father is different and "Consanguine Brother and Sister" means their father is same but their mother is different. Father of Qasim, were five brothers, (at the cost of repetition) they were Pehlwan, Ramzan, Mathela, Sammand and Khan. Qasim was son of Mathela and suit was instituted by legal heirs of Sammand. Dilawer, Sattara, Sahara and Gahara were born from the wedlock of Ramzan and Jindo and after the demise of Ramzan, Jindo got married with Mathela real brother of Ramzan and Jindo gave birth Qasim from wedlock of Mathela. In this way Dilawer, Sattara, Sahera, Gahara and Qasim were also uterine brothers inter se.

8. The next question is who are entitled to get inheritance from the legacy of Qasim. Admittedly, Qasim had no male child and he left behind a widow namely Allah Wassai and a daughter Mst. Naziran. Being sharer, Allah Wassai get 1/8 share and Mst. Naziran get share, after satisfying their share 3/8 share was left for distribution. There is no denial with this fact that Dilawer etc. were uterine brothers of Qasim. The normal share of uterine brother or sister from the legacy of deceased as a sharer 1/6 in case of one and 1/3 in case of two or more collectively. But in order to get their share, the condition is that the deceased has no child, child of a son, father or true grandfather. But in this case, deceased Qasim had a child in shape of a daughter, therefore, the uterine brothers have no right of inheritance from the legacy of Qasim. The uterine brother and sister will get share from the legacy of deceased as sharer only when the deceased has no child or child of a son, father or true grandfather.

9. Now the question arises who will get the remaining share of 3/8 which was left after satisfaction of the share of sharers. After widow and daughter, the other relatives of Qasim were sons of brothers of his father (Paternal cousins). Although they did not fall within the categories of "Sharer" but they are descendants of true grandfather at serial number 15 i.e. full paternal uncle's son and fall in the category of Residuary in the light of "Principles of Muhammadan Law" by D. F. Mulla. Therefore, all the paternal uncle's sons of Qasim including plaintiffs and defendants will get the residue of 3/8 as residuries.

10. From perusal of mutation No.373 dated 17.2.1991 it appears that inheritance mutation of Qasim was sanctioned in the name of his widow Allay Wassyie as 1/8 share and his daughter Mst. Naziran Bibi as 7/8 share which is not correct. From the legacy of Qasim his widow Allah Wassai will get 1/8 share, daughter Naziran Bibi will get share and rest of 3/8 share will go to paternal uncle's sons of Qasim and the mutation of inheritance of Qasim No.373 dated 17.02.1991 is liable to be corrected in this way. The plaintiffs failed to bring on record death certificate of any of them, therefore, cannot be decided entitlement of paternal uncle's sons at this stage. The judgments and decrees of both the learned lower courts are modified. The findings of learned courts below with regard to mutations No.9 dated 27.08.1929, No.37 dated 28.09.1931, No.327 dated 26.02.1989 and No.511 dated 15.02.1996 are upheld and maintained, while findings with regard to mutation No.373 dated 17.02.1991 are modified with above terms. The suit of the plaintiffs regarding mutations No.373 dated 17.02.1991 is only decreed in the above terms and dismissed with regard to other mutations. Resultantly both the Civil Revisions are disposed of with the above terms. Parties are left to bear their own costs. ZH/N-30/L Order accordingly.