1989 PLP 929 (MLD)

Mst. Ghulam Fatima v. Muhammad Hussain and 5 others PLD 1976 SC 729 ref. Muhammad Yaqoob Khan for Appellants. Ch. Muhammad Abdullah Bajwa for Respondents. Date of hearing: 7th December, 1988. This R.S.A. arises from the judgment and decree dated 11‑3‑1982 by the learned Additional District Judge, Sialkot, whereby the appellant‑defendant's first appeal was dismissed.

2. The land in dispute belonged to Ali Muhammad, who while dying allegedly in 1963 left behind a widow, Mst. Karam Bibi, a daughter Mst. Talea Bibi (appellant) and pre‑deceased son's daughter Mst. Saleem Akhtar, the respondent in the present appeal. His inheritance was determined initially by mutation Exh.D.1 dated 27‑6‑1963 but was later reviewed by mutation Exh.P.6 dated 18‑11‑1966. In both these mutations the pre‑deceased son's daughter Mst. Saleem Akhtar was given only one‑fourth of seven‑eight, i.e. 7/23 whereas she claimed that she was entitled to 14/24 per stripes representing her father Fateh Muhammad who had died in 1949 before the death of his own father Ali Muhammad taking place in 1963.

3. The suit was resisted denying the jurisdiction of the Civil Court on. the ground that the propositus Ali Muhammad was not a fullfledged owner of the property being only an allottee under the orders of the A.R.C. and that the Civil Court would not have jurisdiction to deal with devolution of his inheritance. It was added that he had died much earlier than 1963; that the respondent‑plaintiff was estopped by her conduct from claiming anything from .his inheritance and that‑‑‑‑‑‑he had during his lifetime surrendered his property in favour of the appellant No.1. Lastly it was urged that the suit was barred by time.

4. Appropriate issues were framed about these contentions and both the Courts decreed the suit. S. In support of the present R.SA. it was urged that the evidence particularly in relation to Ali Muhammad's death was misread. Attention was drawn to entry made in Column No.12 of the mutation Exh.D.1 to assert that the inheritance of the deceased had opened somewhere before 7‑1‑1952 and that the Muslim Family Laws Ordinance, 1961, did not apply to it. Further, support for this view was sought from the testimony of the Patwari (P.W.3) who indicated that Ali Muhammad had died before consolidation proceedings taking place in 1962. On the other hand, the respondent had placed reliance upon his death entry Exh.P.4 which showed that he had died on 4‑1‑1963. I don't think the sundry entry made in Column 12 of the mutation Exh.D.1 or unwary statcment of the Patwari, P.W. as to the date of death of the propositus Ali Muhammad could possibly suffice to destroy the evidentiary value of the death entry Ex.P.4 which by its nature claimed sanctity as also veracity. The mutation as well at the Patwarr did not categorically reveal if the deceased had died before the enforcement of Muslim Family Laws Ordinance, 1961. All that was shown through them was that he died before 1962 and the same could include the possibility of his‑dying after the said Ordinance was promulgated. It was a question of fact in regard which the concurrent findings could not be easily disturbed much less on reappraisal of' evidence. Nor was it shown if the conclusion drawn by the Courts below, placing reliance upon Exh.P.4 was erroneous, wanton or insubstantial as held in Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53.

6. It was manifest that section 4 of the Ordinance applied authorising the respondent as a daughter of the pre‑deceased son of the propositus Ali Muhammad to get 14/24 the place of her father. She was entitled notionally to the exact share, which, her father, if alive, would have been given.

7. Relying upon Mst. Farishta v. The Federation of Pakistan through B Ministry of Law Islamabad PLD 1980 Pesh. 47 it was argued that section 4 of the Muslim Family Laws Ordinance, 1961 was repugnant to injunctions of Islam. This decision was upset in Federation of Pakistan v. Mst. Farishta PLD 1981 SC 120 and, therefore, could not be regarded as good law.

8. Lastly, counsel urged that the Civil Court had no jurisdiction to take seisin of the matter particularly because the propositus had yet not become full owner. There is no dearth of authority on the point that after confirmation of C allotment normal law applies and the Civil Court will have jurisdiction to deal with the matter like inheritance. Mst. Ghulam Fatima v. Muhammad Hussain and 5 others PLD 1976 SC 729 may be referred to for this purpose.

9. There is no substance in the R.S.A. and the same is dismissed leaving the parties to bear their own costs. H.B.T./T‑51/L Appeal dismissed.