1996 SCMR 158 (PLP)

The facts relevant for decision of the review petition may be stated as follows. One Bhaga, who possessed considerable landed properties died issueless in 1918, leaving behind his widow Mst. Fateh Bibi as the only legal heir. Under the prevailing custom, Mst. Fateh Bibi was entered in the Revenue Records as the limited owner of the estate left behind by deceased Bhaga. Mst. Fateh Bibi gifted 201 Kanals and 11 Marlas of land (hereinafter called as `the suit land') out of the estate inherited by her from' deceased Bhaga as the limited owner under customary law, in favour of Suba (deceased), her nephew (brother's son) through Mutation No. 369 dated 12‑12‑1960. On 18‑4‑1961, the reversioners of Bhaga (Nur Muhammad and others who are not party to the present proceedings) filed a declaratory suit against Mst. Fateh Bibi, Suba and several others seeking declaration that the gift in favour of subs was void as against their reversionary right in the suit land. During the: pendency of this suit, the Act was promulgated on 31‑12‑1962, which ‑ had the effect of terminating the limited estate held by Mst. Fateh Bibi under the customary law in respect of the properties of Bhaga and vested her with the right to hold only 1/4th share in the estate of deceased Bhaga as his childless widow in accordance with Muslim Personal Law. The reversioners of Bhaga (plaintiff in the suit) applied for amendment of their plaint seeking the conversion of their suit into declaration, possession and partition of the suit land. It further appears that as a result of promulgation‑ of the Act, some of the properties of deceased Bhaga held by Mst. Fateh Bibi as limited owner, were also entered in the name of reversioners of Bhaga vide Mutation No. 406 dated 6‑7‑1963 Mst. Fateh Bibi, therefore, filed a suit against the reversioners of Bhaga, seeking annulment of the Mutation No. 406 dated 6‑7‑1963. In the suit instituted by reversioners of Bhaga against Mst. Fateh Bibi and Suba and others, following issues were framed by the trial Court:‑‑ "(1) Whether the suit is properly valued for purposes of court‑fee and jurisdiction? ‑ (2) Whether the suit is bad for multifariousness of causes of action and parties? (3) Whether the alienation made by defendant No.2 in favour of defendant No. 1 is void and in effective as against the reversioners of Bhaga deceased? (4) Who are the reversioners of the deceased Baga? (5) Whether the plaintiffs and defendants 3 to 9 have become the owners in joint possession by virtue of Act V of 1962 of the rest of property left by Baga deceased? (6) Relief." Similarly, in the suit instituted by Mst. Fateh Bibi against the reversioners of Bhaga deceased, the following issues were framed:‑‑ "(1) Whether the plaintiff is the full owner of the property in dispute and as such the Mutation No. 406 attested on 6-7‑1963 is illegal and ineffective as against the plaintiff's rights? (2) Relief." Both the above suits were consolidated by the trial Court and were disposed of by a common judgment/decree dated 30‑3‑1965. Mst. Fateh Bibi in her written statement filed in the suit instituted by the reversioners of Bhaga deceased, categorically stated that she had made a gift of the suit land in favour of Suba out of love and affection. She was examined in the suit on 11‑2‑1965. and in her examination‑in‑chief she made the following statement on oath:‑‑ The trial Court under issue No.3 which related to the validity of the alienation made by Mst. Fateh Bibi in favour of Suba held that the alienation made by Mst. Fateh Bibi in favour of Suba was void, ineffective as against the rights of reversioners. Under issue No5 the trial Court reached the conclusion that the limited estate created in favour of Mst. Fateh Bibi on the demise of Bhaga, came to an end in view of section 3 of the Act and, therefore, the property was jointly owned by Mst. Fateh Bibi and the reversioriers of Bhaga in proportion of 1/4th and 3/4th. As a result of these findings the suit instituted by the reversioners of Bhaga was decreed .and they were held entitled to 3/4th share in the suit land. As a consequence of these findings, the suit instituted by Mst. Fateh Bibi against the reversioners of Bhaga challenging mutation of land belonging to Bhaga in their favour was dismissed. Mst. Fateh Bibi and Suba appealed against . the above judgment and decree of the trial Court and challenged the findings of the trial Court with regard to the devolution of 3/4th share in the estate of Bhaga in favour of his reversioners. During pendency of this appeal, Mst: Fateh Bibi died and her legal representatives were brought on record as respondents in the appeal. The first Appellate Court agreed with the conclusion of the trial Court that Mst. Fateh Bibi after the enforcement of the Act was only, entitled to inherit 1/4th share in the. estate of the deceased Bhaga and as such 3/4th. share in the estate of deceased devolved on his reversioners. With regard to 1/4th share of Mst. Fateh Bibi, in the properties, the first Appellate Court observed that her share would devolve after her. death on her heirs. However,, as there. was some dispute with regard to the share of reversioners of Bhaga the case was remanded to the trial Court only for the limited purpose of determining the share of reversioners of Bhaga in the estate. Suba deceased filed‑ second appeal before the Lahore High Court against the judgment and decree of the first Appellate Court, being R.SA. No578 of 1969. In his second appeal Subedid not contest the findings of the two Courts below to the extent that after the promulgation of the Act, 3/4th share in the estate of deceased Bhaga devolved on his reversioners and, therefore, alienation of the property by ‑Mgt. Fateh Bibi in his favour to the extent of 3/4th share was not valid. It was, however, contended before the High Court by Suba appellant, that as Mst. Fateh Bibi was admittedly entitled to 1/4th share in the estate being the childless widow of Bhaga, to the extent of her 1/4th share the gift made in his favour was valid. The learned Judge in Chambers dismissed R.SA No. 578 of 1969 with the observations that the decree in the suit of reversioners only declared the alienation by Mst. Fateh Bibi to the extent of 3/4th share of the reversioners in the estate of Bhaga as void. Therefore, the gift made by Mst. Fateh Bibi in favour of Suba to the extent of her 1/4th share in the suit land was valid and binding moreso as Mst. Fateh Bibi in her written statement as well as in her statement made before the Court on oath, supported the gift made by her in favour of Suba. Against the above judgment of learned Judge in Chambers in R.SA No. 578 of 1969 a Letters Patent Appeal (L.PA) No. 31/C of 1971 was preferred before a Division Bench of Lahore High Court only by the legal representatives of Mst. Fateh Bibi. The learned Judges of the Division Bench of Lahore High Court came to the conclusion that as the gift in favour of Suba made by Mst. Fateh Bibi was held to be void, therefore, Suba was not entitled to get any share in the land on the basis of such a void transaction. The contention of Suba advanced before the learned Division Bench on the basis of section 43 of Transfer of Property Act was repelled and it was held that the principle of feeding the estoppel was not attracted in the present case as the transaction was gratuitous and not to consideration. As a consequence, the L.PA filed by the legal heirs of Mst. Fateh Bibi was allowed and it was held that Suba was not entitled to inherit even 1/4th share of Mst. Fateh BIN in the suit kind. Appeal No.23 of 1991 was preferred against the judgment of Letters Patent Bench of Lahore High Court but this appeal was dismissed by this Court by judgment dated 17‑2‑1992. Against, which the present review petition is directed. The contentions raised in the ‑ appeal before this Court by the appellants were recorded as follows:‑‑ "We have heard Shaikh Maqbool Ahmad, Advocate, for the appellants and have perused the record of the case. The learned counsel for the appellants submitted that Mst. Fateh Bibi donor was alive at the time of the termination of her limited estate on the promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, and Suba predecessor‑in‑interest of the appellants was within his right to lay hand on the 1/4th share being inherited by her, moreso, when she herself, in her written statement claimed herself to be a full owner of the suit property and admitted the factum of gift in favour of Suba defendant No.l. According to him, Mst. Fateh Bibi and others legal representatives of Mst. Fateh Bibi defendant No.2. could not set up a case inconsistent with the one set up by their predecessor‑in‑interest and the learned High Court erred in holding in the Letters Patent Appeal that the gift mutation was void in toto and that they were owners of the Shari share inherited by Mst. Fateh Bibi." The above contentions of the petitioners/appellants though noticed in the judgment were not decided and the appeal was dismissed op, other consideration namely, that the principle of feeding the estoppel contained under section 43 of Transfer of Property Act was not attracted in the present case. The learned counsel for the petitioners contends that they do not dispute the correctness of the view taken by this Court that the principle contained under section 43 ibid was not attracted in the present case as the transfer in favour of Suba by way of gift made by Mst. Fateh Bibi was a gratuitous transfer. The learned counsel for the petitioners, however, contended that the main contention of the petitioners/appellants before this Court in appeal was that the gift made by Mst. Fateh Bibi in favour of Suba was valid to the extent of 1/4th share of Mst. Fateh Bibi in the estate of deceased Bhaga, after the enforcement of the Act, and that Mst. Fateh Bibi, having stood by the gift, the same could not be declared as void by the Court. It is further contended by the learned counsel for the petitioners that in the circumstances of the case, the legal heirs of Mst. Fateh Bibi could not take a different stand in the case. The learned counsel, accordingly, contended that failure to decide these important contentions resulted in grave miscarriage of justice in the case. The learned counsel for the respondents opposed the review petition on the ground that the contentions now raised by the learned counsel for the petitioners do not justify the review of the impugned judgment. The scope of review petitions before this Court was considered by a Full Bench consisting of 4 learned Judges of this Court (A.R Carnelius, C.J., Fazle‑Akbar, B.Z. Kaikaus and Hamoodur Rahman, JJ.) in the case of Lt.‑Col. Nawazada Muhammad Amir Khan v. Controller of Estate Duty (PLD 1962 SC 335). Although the review petition in that case was dismissed as not falling within the scope of the power of review of this' Court but it will be useful to refer here the observations of each learned Judge constituting the Bench as they expressed their respective opinion separately on the scope of review. A.R. Carnelius, CJ. (as he then was) who wrote the leading judgment in the above case, observed that where the judgment under review is found to have directed doing of something which came in conflict with the Constitution or law then it will be the duty of the Court to amend such error. It was observed by the learned Chief Justice that the duty of correcting such an error is enjoined upon every Judge of the Court by the solemn oath which he takes when he enters upon his office to protect and defend the Constitution and the Law of Pakistan. The learned Chief Justice, however, added a note of caution that the violation of written law must be clear. It was further observed by the learned Chief Justice that the ascertainment of a breach by a mode of interpretation will, however, not in all cases furnish good ground for interference. Fazl‑e‑Akbar, J. (as he then was) expressed the opinion that the power of review by this Court can only be exercised within the limits laid down in the case of Akbar Ali v. Iftikhar Ali (PLD 1950 Federal Court 50). The learned Judge observed that the decision of this Court should be re‑opened with very greatest hesitation and only in very exceptional circumstances. Kaikaus, J. (as he then was) on the scope of review observed that incorrectness of a conclusion can never be a ground for review as it would amount to granting the Court a jurisdiction to hear appeals against its own judgments which is not permissible. The learned Judge observed that no mistake in a considered conclusions, whatever the extent of such mistake, can be a ground for exercise of review jurisdiction. The learned Judge observed that while any technical limitation arising from the provision of Order XLVII, Rule 1, C.P.C. in exercise of power of review of this Court will not be acceptable, the principles governing the power of review embodied there may be taken into consideration. The learned Judge finally concluded that it is net because the conclusion is wrong but because something obvious has been overlooked, some important aspect of the matter has not been considered, that a review petition will lie. Hamoodur Rahman, J. (as he then was) observed that a review cannot be considered in the nature of an appeal or rehearing of the case on the ground that one party or another conceives himself dissatisfied with the decision of this Court. The learned Judge observed that review may be granted on grounds akin to circumstances mentioned in Order XLVII, Rule 1, C.P.C. The learned Judge finally concluded that the indulgence by way of review may no doubt be granted to prevent irremediable injustice being done by a Court of last resort, as where by some inadvertence an important statutory provision has escaped notice which, if it had been noticed, might materially have affected the judgment of the Court, but in no case should a rehearing be allowed upon merits. In the case of S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore (1978 SCMR 367), this Court after referring the case of Sajjad Nabi Dar & Co. v. The Commissioner of Income‑tax, Rawalpindi (PLD 1977 SC 437) held that a review petition would tie only when the alleged error in the judgment is evident and can be established without elaborate arguments. From the above discussed legal position, it emerges that a petition for review before this Court would lie on grounds, which are analogous to those embodied in Order XLVII, Rule 1, C.P.C. The review petition would also be competent if something which is obvious in the judgment has either been A overlooked and that if it would have been considered by the Court, the final result of the case would have been otherwise. No review petition, however, would lie on the ground of a wrong decision by the Court or that another view is possible on reconsideration. The main contention of the petitioners/appellants in Appeal No. 23 of 1991, as noted in the impugned judgment of this Court, was, that Mst. Fateh Bibi even after promulgation of the Act, which had the effect of reducing her share/entitlement in the suit land only to the extent of 1/4th, had appeared in Court and confirmed and stood by the said gift and as such the gift made by her in favour of Suba should have been held valid to the extent of her interest in the suit property. The second contention of the petitioners/appellants before this Court was that the legal representatives of Mst. Fatah Bibi who were impleaded as party on her demise in the first appeal were not entitled to raise a plea different and inconsistent from the plea raised by Mst. Fatah Bibi. Although all these contentions were duly noted in the impugned judgment of this Court but unfortunately no decision thereon was delivered by this Court while dismissing the appeal of the petitioners/appellants. In our opinion, these two contentions raised by the appellants/petitioners were main contentions and if these would have been decided in their true perspective, the decision on the appeal would have been otherwise in the case. The learned counsel for the respondents relied on the case of Murad v. Karim and. others (1987 SCMR 2008), to support his contention that the gift in favour of Suba having been held to be void, he could not take any advantage under the said gift. The facts of the cited case are quite distinguishable. It appears from the facts as stated in the report of the cited case that one Mst. Karam Bibi had made a gift of the property which she was holding as a limited owner from Imam Din who died in 1934, in favour of the petitioner in that case in the year 1953. The reversioners of Imam Din challenged the gift made by Mst. Karam Bibi in favour of petitioner in that case before the Civil Court which declared the gift as invalid. The petitioner in that case did not challenge the decision of the Court. Mst. Karam Bibi died after the enforcement of the Act in 1964 and on her demise her Shari share was inherited by her legal heirs. The petitioner then asserted his right in the property of Mst. Karam Bibi on the basis of the gift in his favour. It was on these facts that this Court held. in the cited case that upon the death of Mst. Karam Bibi the properties were inherited by her heirs in accordance with the law to the extent of her 1/4th share in the properties and that the petitioner in the case could not claim any right on the basis of the gift which was declared void by the Civil Court and he failed to challenge this. decision. In the present case, although the gift was made earlier than the enforcement of the Act by Mst. Fatah Bibi in favour of Suba but it is significant that when the reversioners of bhaga challenged the gift made by her to Suba she stood by the gift made‑by her in favour of Suba and defended the same in Court. It is also to be noted that the reversioners of Bhaga had challenged the gift made by Mst. Fatah Bibi in favour of Suba to the extent of their share after enforcement of the Act and the findings of trial Court on issues Nos.3 and 5 in the suit also declared the gift of the suit land by Mst. Fatah Bibi in favour of Suba void, to the extent of 3/4th share of the reversioners of Bhaga only. Therefore, it is not correct to say that the gift of the suit land by Mst. Fatah Bibi in favour of Suba even to the extent of her interest in the property was also declared void by the Court. It must be borne in mind that the reversioners of Bhaga had challenged the validity of the gift by Mst. Fatah Bibi to the extent of their reversionary rights in the suit land and, therefore, the admitted 1/4th share of Mst. Fatah Bibi was not subject of any dispute in the suit filed by the reversioners of Bhaga. Mst. Fatah Bibi, having consistently stood by the gift made by her in favour of Suba, throughout the proceedings of case, the gift of the suit land in favour of Suba to the extent of, her 1/4th share in the property was correctly found to be valid by the learned g Judge in Chambers. The legal heirs of Mst. Fatah Bibi who were impleaded as respondents in the first appeal on the demise of Mst. Fatah Bibi (one of the; appellants in that appeal), were not entitled to take a stand inconsistent with the stand taken by Mst. Fatah Bibi in the suit and in the appeal. We, accordingly, accept the review petition and allow the appeal of the petitioners. The judgment of the Division Bench of Lahore High Court dated 15‑1‑1991 in L.PA. No.31‑C of 1971 is accordingly set aside and judgment of learned Single Judge dated 11‑10‑1971 in R.SA. No.578 of 1969 is restored. There will be no order as to costs in the circumstances of the case. AA./N‑453/S Review accepted.