2010 PLP 18 (SCMR)

SAYED ZAHID HUSSAIN, J.

This appeal under Article 185(2)(d) of Constitution of Islamic Republic of Pakistan, 1973, seeks to assail the judgment dated 24-9-2001, passed by a learned Single Judge of the Lahore High Court, Bahawalpur Bench, in R.S.A. No.84 of 1985, whereby the appeal was accepted reversing the judgment of the First Appellate Court, dated 27-5-1985. It arises in the following background.

2. Sheikh Tufail Muhammad owned large property situated in different villages. He is said to have died in the year 1930 leaving behind three sons namely' Faiz Muhammad, Mehboob-ur-Rehman and Fazal-ur-Rehman, and seven daughters namely Iqbal Begum, Riaz Begum, Nisar Fatima, Kalsoom Begum, Ruqia Begum, Marrium Begum and Zubaida Begum. Mst. Nooran Bhari was his widow, who got 1/8th share. Each son and daughter got 14/104th and 7/104th respectively. In the year 1961, a suit for possession was instituted before the Senior Civil Judge Rahim Yar Khan by Mst. Riaz. Begum and other daughters of Sheikh Tufail Muhammad deceased regarding property situated in village Alipur and Rasulpur pleading that in the mutation of inheritance the names of the daughters and the widow had been erroneously omitted. It was pleaded that being daughters of Tufail Muhammad, they were entitled to their share in the property situated in these villages, and mutation of inheritance of the year 1931 in the name of three sons only made to their exclusion was illegal; and that sale made by Mehboob-ur-Rehman (their brother) of 1/3rd of the property in favour of Sheikh Muhammad Shafi defendant vide registered sale-deed dated 25-10-1949, was inoperative. It was pleaded that they could not be deprived of their share as they were co-owner in the property. In the suit they had impleaded their brothers and Sheikh Muhammad Shafi, the vendee, as defendants. The suit was contested only by Sheikh Muhammad Shafi, who pleaded that he was bona fide purchaser for value and sought the protection of section 41 of Transfer of Property Act, 1882 and that the suit was also barred by time. In view of the pleadings of the parties the learned trial Court framed the issues and recorded the evidence led by the parties. By means of judgment, dated 16-5-1963, the suit was decreed by the Administrative Civil Judge Rahim Yar Khan. The appeal filed by the vendee/defendant, (R.F.A. No.50 of 1963-BWP) was accepted on 19-11-1978 and the case was remanded to the trial Court for decision after framing additional issues. On remand Issues Nos.1-A, 1-B, 1-C and 1-D were framed. The suit was again decreed by the learned Senior Civil Judge, Rahim Yar Khan on 10-1-1985 where against the first appeal filed by the successors of Sheikh Muhammad Shafi was accepted by the learned District Judge, Rahim Yar Khan on 27-5-1985, primarily extending the protection of section 41 of the Transfer of Property Act, 1882. This judgment as mentioned above was assailed by the respondents before the Lahore High Court, Bahawalpur Bench, when their R.S.A. No.84 of 1985 was accepted by means of judgment dated 24-9-2001. During the pendency of the litigation the original parties to the suit having expired, their legal heirs/successors are now pursuing their respective causes.

3. Mr. Abdur Rashid Awan, Advocate Supreme Court, the learned counsel for the appellants reiterates the contention about the protection envisaged by section 41 of the Transfer of Property Act, 1882. According to him the entries in the revenue record i.e. inheritance mutation of 1931 was prima facie a document of title on the basis of which Sheikh Muhammad Shafi (late) acted to, purchase the suit property from Mehboob-ur-Rehman in the year 1949. This way the protection is sought to be invoked that he was a bona fide purchaser for valuable consideration. He places reliance upon Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 to support his contention. It is further contended that being sisters of the vendor, the respondents/plaintiffs were fully aware of the transaction of sale who failed to challenge the same till the year 1961, when they instituted the suit, which was barred by limitation.

4. Mr. Jaffar Hashmi, Advocate Supreme Court, the learned counsel for the respondents contends that the names of the respondents/ plaintiffs had illegally been omitted while sanctioning mutation of inheritance in these villages as being daughters of late Sheikh Tufail Muhammad, they were entitled to their due share and thus, being co-sharer along with their brothers, no question of limitation arises in the matter. According to him, vendee Sheikh Muhammad Shafi being their cousin was not entitled to seek protection of section 41 of Transfer of Property Act, 1882 as he was fully aware of their share in the property. He places reliance upon Industrial Development Bank of Pakistan v. Saadi Asmatullah and others 1999 SCMR 2874.

5. The factual background is almost undisputed as late Sheikh Tufail Muhammad had left behind three sons, seven daughters and a widow when he died. It is also established on record that Sheikh Muhammad Shafi, the vendee was their close relation i.e. cousin. The learned trial Court on consideration of the evidence recorded the findings that Sheikh Tufail Muhammad was the original owner of the suit property and that the respondents/plaintiffs being his successors/legal heirs, were entitled to share inheritance. The vendee Sheikh Muhammad Shafi (deceased) had indeed conceded that he was lessee of the land and the sisters were net present at the time of sale and that share of produce was being given to theta by Faiz Muhammad. On the question of limitation, the Court came to the conclusion that the suit having been filed within 12 years (of sale dated 25-10-1949) was within limitation; and that being a close relative of the plaintiffs, his reliance upon inheritance mutation was not enough as he was aware of the rights of the plaintiffs/respondents in the land and since the ingredients of section 41 of the Transfer of Property Act, 1882 were not met, he was of entitled to protection thereof. The decree was thus, granted in favour the respondents/plaintiffs for possession of 42/1,.4 share in the suit property. Before the Appellate Court however, the decision of the appeal centered around the provisions of section 41 of the Transfer of Property 1882 that Mehboob-ur-Rehman being the ostensible owner, had sold the land for valuable consideration its protection was available. The rest of the points were either not pressed or were conceded. Thus, findings upon Issues Nos.4 and 5 only engaged the attention of the Court. Now the points falling for determination are; the entitlement of the daughters (issue No.4) and the implications of section 41 of Transfer of Property Act, 1882, the protection under which had been claimed by the vendee at: Muhammad Shafi and his successor now (Issue No.5).

6. Let us now have before us the view of the learned High Court on this aspect, which has dealt with the same as follows:

"The most significant feature of the case is that Muhammad Shafi defendant No.7 was thy: cousin of the plaintiffs and it was in his knowledge that the plaintiffs/appellants are the legal heirs of the deceased Sh. Tufail Muhammad. In spite of the fact that the plaintiffs have been deprived of their share of land left by the deceased, he has purchased the property from Mehboob-ur-Rehman beyond his legal share and in such circumstances, he cannot take protection of section 41 of the Transfer of Property Act. There is no consent express or implied by the plaintiffs. As observed that limitation is not a bar in cases of inheritance and the wrong entries in the revenue record adverse to the interest of legal heirs would not he sufficient to infer that the plaintiffs/appellants had consented and accepted the vendor Mehboob-ur-Rehman as ostensible owner. It is settled proposition of law that wrong entries in the revenue .record after every four years would provide fresh cause of action to the legal heirs to file a suit claiming right of inheritance. All the requirements of section 41 of the Transfer of Property Act, 1882 are not available in the instant case and as observed by the superior Courts that if any of the provisions of section 41 (supra) is missing, the litigant is not entitled for the benefit of same. Since vendor Mehboob-ur-Rehman had transferred the property more than his share and the transfer to the extent of more than his share is not sustainable in law. Respondents Nos.1 to 4 L.Rs. of Muhammad Shafi are only entitled to the extent of share of Mehboob-ur-Rehman and for the remaining share respondents Nos. 1 to 4 can claim compensation From the legal heirs of Mehboob-ur-Rehman or they can be compensated from the other property of the vendor. The above legal aspect of the case and the dictum laid down, in the cases referred to above by the learned counsel for the appellants have not been adverted to by the learned lower Appellate Court. In view of the above discussion, findings on Issues Nos.4 and 5 returned by the lower Appellate Court are reversed and that of the trial Court are restored. The findings of the trial Court on Issues Nos.1-A and 1-D were conceded by the learned counsel for contesting respondents in the lower Appellate Court, therefore, there is no need to comment - further on them. The Appellate Court has observed that the suit was validly filed within period of 12 years and this finding of the lower Appellate Court has not been challenged by the appellants by filing a cross-objection under Order XLI, rule 22, C.P.C., therefore, the respondents without filing appeal/cross-objection cannot claim for setting aside the findings of the trial Court on Issue No.3 with regard to period of limitation." Before the High Court the learned counsel for the vendee conceded that the daughters were entitled to respective shares.

7. There is no dispute that Sheikh Tufail Muhammad the predecessor of the respondents/plaintiffs died in the year 1930 and mutation of inheritance was sanctioned in the year 1931 about the property in these villages only in favour of his three sons to the exclusion of these respondents/plaintiffs. It has however, come on the record that they were given share in the other property and there is also the finding by the Court that the share of the produce was being given to the respondents/plaintiffs. The other important aspect of the matter is that immediately on the death of their father, they succeeded to his left over and became co-owner along with the mother and brothers. Nothing more was required to be done. Their exclusion of names while making entries in the revenue record was meaningless. The legal position about the estate of a Muslim, has elaborately been discussed and explained in Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, which deal with the rights of female co-sharers. It was observed that the devolution of property through Islamic inheritance takes place immediately without any other intervention. It was held that "In this case the respondents/petitioner's sisters became the owner of the suit property immediately on the death of her father." If at all there was any obscurity in the past about the status of the females and their rights particularly about inheritance, the same stood removed. Once it is established that respondents/plaintiffs were entitled to inherit the left over of their deceased father, they became co-sharer in the property on death of their father. They were co-owners of property to the extent of their share for all intents and purposes. Therefore, the established rule that "a co-sharer is not entitled to alienate more than his share" gets attracted as per Rab Nawaz and another v. Akbar Ali and others 1989 SCMR

93. Moreover each co-sharer is deemed to be owner in the joint property and any one of them cannot act in a manner which may constitute an invasion on the rights of the other co-sharers. Reference in this context may be made to Ali Gohar Khan v. Sher Ayaz 1989 SCMR

130. The reliance of the learned counsel upon Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 is inapt inasmuch as the learned High Court has while considering the provisions of section 41 of the Transfer of Property Act, 1882, made reference to several precedents and observed that in order to invoke the provisions of section 41 (ibid) it is necessary that the transferor should be the ostensible owner, his ownership should be consented or implied by the real owner, the transfer should be for consideration and the transferee must have acted in good faith taking reasonable care to ascertain that the transferor had the power to transfer. It may be observed that Kanwal Nain's case (supra) was considered in Muhammad Afzal v. Matloob Hussain and others PLD 2006 SC 84 and it was held that "According to section 52 of the Land Revenue Act, 1967 presumption of correctness is attached to the entries in the Record of Rights or periodical record as the same shall be presumed to be true, until contrary is proved. The presumption of truth or correctness is rebuttable. The entries are not the foundation of title but are mere items of evidence to be adduced by the vendee to prove the sale as held in Wali Muhammad and others v. Muhammad Bakhsh and others AIR 1930 Privy Council 91, which view was reiterated in Muhammad Bakhsh v. Zia Ullah and others 1983 SCMR 988,by holding the entries in the Revenue Record as not the foundation of title but some items of evidence to prove title. By no stretch of imagination "Jamabandi" can be considered as exclusive proof of ownership or allotment as ruled in judgment of Fazal Hussain v. Additional Settlement Commissioner (Lands) and 5 others PLD 2001 SC

401. The entries in the Revenue Record are maintained mainly for fiscal purposes and they neither create nor extinguish the title to the property and are not conclusive proof of ownership as held in Muhammad Ali and 25 others v. Muhammad and 6 others PLD 1994 SC 245 and Muhammad Hussain v. Wahid Bakhsh 2004 SCMR 1137." It was further observed that "The general principle of law of Transfer of Property' is enunciated by the maxim that no man can transfer to another or can confer a right or title greater or higher than what he himself possesses and he gives not who hath not as held in Kanwal Nain's case (supra). In other words, generally a purchaser cannot take more than what the vendor has to sell. Section 41 (ibid) provides an exception to this general rule. This section underlying the principle that whenever one of the two innocent persons has to suffer by the act of third person, he who has enabled that person to occasion the loss, must sustain it or where one of the two innocent persons suffer from the fraud of third party, the loss should fall on him who has created or could have prevented the opportunity for fraud." And that "In order that this section may apply, it must be shown that (a) the Transferor is the ostensible owner. (b) He is so by consent, express or implied, of the real owner. (c) The transfer is for consideration. (d) The Transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer. If any one of the stated ingredients is wanting, then the Transferor will not be eligible to seek protection of equitable doctrine envisaged under section 41 ibid. It is not attracted unless a party claiming benefit thereof has fulfilled the aforesaid four 'conditions." In Haji Abdul Ghafoor Khan v. Ghulam Sadiq PLD 2007 SC 433 it was observed that "There is ample judicial authority in support thereof. See Muhammad Jamil and others v. Lahore Development Authority and 3 others 1999 SCMR 2015 and the case of Kanwal Nain supra relied upon by the learned counsel for the contesting respondents. In this case not only condition (b) is totally missing but also that no reasonable care and caution appears to have taken by Sandhey Shah deceased in entering into the sale transactions. The registered sale-deeds in his favour were executed and registered at Multan and not at Mailsi where the land is situate. This was noted by the learned District Judge to hold that Sandhey Shah was not a bona fide purchaser for value. Thus we have no reservation in our mind to hold that protection of section 41 was also not available to respondents Nos. 1 to 6." It may be observed that the issue of seeking protection of section 41, Transfer of Property Act has frequently arisen in a large number 'of cases. In Mst. Bilqees Begum and others v. Additional Commissioner (Revenue), Lahore and others PLD 2003 SC 899 also on consideration of large number of precedents, the Court came to the conclusion 'that the vendee cannot raise the plea of protection based on the principle of section 41 of Transfer of Property Act, 1882 and his remedy would be against the vendor. 8.? In the present case, though the names of the ladies had been excluded while entering the inheritance mutation, yet Muhammad Shafi vendee, who was their cousin had the knowledge of their due entitlement and share. If he simply acted on the basis of revenue entries, he did not adopt due care, which an ordinary buyer should have taken. The impression rather is that he took advantage of his position, being relative and lessee of the property. It may also be observed that a rightful owner of the property cannot be deprived of his/her share unless precluded to claim the same due to conscious abandonment or relinquishment. As has been noted above, the respondents/plaintiffs in the instant case were admittedly daughters of late Tufail Muhammad, they were under the law entitled to succeed and inherit the left over of the deceased and had stepped into the shoes of their father on his death and became share holders to the extent of their shares. Any of the brothers, who were also co-sharer in the property could not deprive them of their due share by alienating the property falling in their share and belonging to them. Since they continued to be paid the share in the produce, no question of limitation could arise as the limitation could not run against such a co-sharer in such an eventuality.

9. Moreover, whereas the principle that an innocent buyer should not suffer for the fraud practised by the seller; the doctrine of Caveat emptor i.e. let the buyer beware, that the purchaser has only himself to be blamed if he is wronged, due to his fault also has to be kept in view. It is also well-established that a vendor cannot pass on to the vendee anything better than he himself holds. Therefore, it is the vendee who is to apply maximum care before going for a transaction of sale/purchase. His right/title being dependent upon the strength or weakness of the title of the seller, he is to sail, swim and sink with the seller, and to pursue him for any loss suffered if he is ultimately the loser. As has been noted above, Sheikh Muhammad Shafi (deceased) was close relation of the ladies (plaintiffs) and was fully aware of their status of being daughters of Sheikh Tufail Muhammad (deceased) and their entitlement to share of inheritance. If despite that he chose to go ahead for the transaction, he himself was to be blamed for the situation in which he landed himself and his successors, the present appellants. They cannot thus succeed in the plea of being bona fide purchaser, their reliance upon section 41 of Transfer of Property Act, 1882 in the circumstances is thus entirely misplaced and misconceived. We, therefore, find no justification for interfering in the matter and uphold the judgment and decree of the High Court.

10. In view of the above, the appeal is dismissed with costs. M.H./M-84/SC??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.