2017 PLP 198 (YLRN)

RAJA SAEED AKRAM KHAN, J.

The supra-titled appeal by leave of this Court has been directed against the judgment of the High Court dated 26.6.2014, whereby the appeal filed by the appellants, herein, has been dismissed.

2. The gist of the facts arising out of this appeal are that the plaintiff-appellants, herein, filed a suit against the defendant-respondents, herein, for cancellation of the gift-deed registered on 13th December 1981, executed by the mother of the respondents in respect of the land bearing khewat No.76, Khaata No.89, measuring 13 kanal, and survey No.469, measuring 2 kanal, 2 marla, total measuring 15 kanal, 2 marla, situate in village Saidpur Leepa, Tehsil Karnah, District Hattian Bala, before the Civil Judge Hattian Bala. It has been averred in the plaint that one Zaman Sheikh, father of Mst. Zaitoon, died in the life time of his father Manga during Dogra regime. Being daughter of the predeceased son of Manga, she was not entitled to the inheritance of Manga. On death of Manga, his whole property devolved upon Faqeer Sheikh, the brother of Manga Sheikh. Mst. Zaitoon was the sole child of Zaman Sheikh, who was brought up by Faqeer Sheikh, real brother of her grandfather, Manga. Sumundar Sheikh, husband of Mst. Zaitoon took the possession of the property on Ghaa Batai and thereafter, with connivance of the officials of the Revenue Department, got the property entered in the name of her wife. It was also averred that Mst. Zaitoon Khatoon could not inherit the property, as her father had died during life time of her grandfather, therefore, she had no right to execute gift-deed in favour of her sons on the basis of entries in the revenue record made by fraud. The trial Court, after necessary proceedings, through judgment and decree dated 20th August, 2007, decreed the suit to the extent of half of the property in favour of the plaintiff-appellants and set aside the gift-deed. The judgment and decree of the Civil Judge Hattian Bala was assailed by way of appeal before the District Judge Hattian Bala by both the parties. The learned District Judge Hattian Bala accepted the appeal of the defendant-respondents and set aside the decree of the trial Court through its judgment and decree dated 22nd December, 2009, whereas the appeal filed by the plaintiff-appellants was dismissed. Feeling dissatisfied, the plaintiff-appellants, herein, filed an appeal before the High Court. A learned single Judge in the High Court dismissed the appeal vide judgment and decree dated 26th June, 2014, hence this appeal by leave of the court.

3. Ms. Kaukab Al-Saba Roohi, advocate, counsel for the appellants, after narration of the necessary facts, submitted that the judgment of the High Court suffers from misreading and non-reading of the evidence as the learned single judge in the High Court failed to take into consideration the real controversy involved in the matter while handing down the judgment. She added that the learned single judge in the High Court fell in error while ignoring the fact that the question of limitation was intelligently attended to by the trial Court in the light of pleadings of the parties and the evidence brought on the record. In continuation of the arguments the learned counsel submitted that the learned first appellate Court has also not appreciated the evidence in its true perspective while accepting the appeal filed by the respondents and the same error has been committed by the High Court while recording the findings against the pleadings of the parties. She contended that the High Court failed to consider the important aspect of the case that the claim of the defendant-respondents was that their mother got the property by inheritance, whereas the High Court illegally drew the conclusion that the land has devolved upon her under the customary law, which was not the case of any party. The conclusion drawn by the High Court is against the pleadings of the parties, which is not warranted under law.

5. On the other hand, Ms. Bilqees Rasheed Minhas, advocate, counsel for the respondents, strongly controverted the arguments addressed by the counsel for the appellants, while submitting that the judgment of the High Court is well-reasoned and has been passed after due deliberation and appreciation of the record, which is not open for interference by this Court. She added that the learned District Judge Hattian Bala while accepting the appeal of the defendants-respondents, herein, has assigned cogent reasons. The findings of the District Judge have been concurred with by the High Court. She strenuously argued that the appellants failed to substantiate any misreading or non-reading of evidence, therefore, the findings recorded by the first appellate Court, which were concurred with by the High Court, cannot be disturbed by this court. She added that the suit filed by the appellants was liable to be dismissed on the point of limitation, as the same was filed beyond the period of limitation and no explanation in this regard has been brought on the record but the trial Court has not resolved the question of limitation in legal manner. In continuation of her arguments, she submitted that on the one hand, the plaintiff-appellants averred the commission of fraud but no detail of fraud has been incorporated in the plaint as required by law. The learned counsel referred to and relied upon the cases reported as Muhammad Aslam and another v. Muhammad Rashid [2006 SCR 11], Maqsood Ahmad and another v. Muhammad Razzaque and 9 others PLD 2009 SC (AJ&K) 13, Jawad Liaquat and 5 others v. Dr. Zafar Iqbal and 2 others 2001 YLR 161,Muhammad Akram v. Ghulam Murtaza and 15 others [2008 SCR 184] and Section 67 of Muhammadan Law.

6. We have heard the learned counsel for the parties and perused the record.

7. The plaintiff-appellants filed a suit for cancellation of the gift-deed registered on 13th December, 1981, executed by Mst. Zaitoon Bibi in favour of her sons, respondents herein, in respect of the land bearing khewat No.76, Khaata No.89, measuring 13 kanal, and survey No.469, measuring 2 kanal, 2 marla, total measuring 15 kanal, 2 marla, situate at village Saidpur Leepa, Tehsil Karnah, District Hattian Bala. The case of the plaintiff-appellants was that Manga Sheikh, predecessor-in-interest of the parties, had the sole son Zaman Sheikh, who died during life time of his father leaving behind only one daughter, Mst. Zaitoon Bibi. After the death of Manga Sheikh, grandfather of Mst. Zaitoon Bibi, his whole property stood transferred to Faqeer Sheikh, his real brother. Zaitoon Bibi, being daughter of Manga's predeceased son, was not entitled to any share in the property left by Manga. After the death of her grandfather, Mst. Zaitoon Bibi, being minor, was brought up by Faqeer Sheikh. She was married to one Sumundar Sheikh, who obtained some land from Faqeer Sheikh on ghala batai. Mangta, the father of the plaintiff-appellants was minor at the time of death of his father Faqeer Sheikh. He was unable to look after the property. Sumundar Sheikh managed the whole property. He got entered the same in the name of his wife Zaitoon Bibi, with the intention to deprive Mangta and his legal heirs, i.e. the plaintiff-appellants. Zaitoon Bibi illegally transferred the same to her sons, respondents herein, through gift-deed dated 13th December, 1981. The plaintiff-appellants obtained the knowledge about the gift-deed, when they tried to reconstruct a house over the property and were objected. It has been prayed that the gift-deed and mutation entered on the basis of the same are forged, illegal, against the facts and record and inoperative against the rights of the plaintiff-appellants, which are liable to be set aside. After the necessary proceedings, the trial Court decreed the suit to the extent of half of the property. The appeal filed by the defendant-respondent before the District Judge Hattian Bala was accepted, while the appeal filed by the plaintiff-appellants was dismissed. On appeal, the learned High Court maintained the judgment and decree of the District Judge Hattian Bala through the impugned judgment.

8. The controversy revolves around the gift-deed registered on 13th December 1981, which was executed by Mst. Zaitoon Bibi in favour of the respondents in respect of the suit land, allegedly being owner of the whole property, which was inherited by her from her grandfather. Leave to appeal was granted to examine the question whether Mst. Zaitoon Bibi was competent to execute the gift-deed of the suit property in favour of her sons, which was left by her grandfather Manga. The case established by the plaintiff-appellants before this Court is that the two Courts below have not attended to the important aspect of the case that Zaman Sheikh, father of the executor of the gift-deed Mst. Zaitoon Bibi, had died in the life time of his father Manga. The question arises whether she was entitled to get the whole inheritance of her grandfather after the death of her father or not? There is no rebuttal on the part of the defendant-respondents that the property gifted by Mst. Zaitoon Bibi, was of Manga. The trial Court rightly reached the conclusion that Zaitoon Bibi was not competent to execute the gift-deed of the whole property in favour of her sons. According to the Islamic law of inheritance; in case, the propositus dies leaving behind only one son's daughter and one real brother, having no real daughter and no grandson, then son's daughter (granddaughter) will share half of the property and remaining half will to the real brother of the propositus. Mst. Zaitoon Bibi, being granddaughter of Manga Sheikh, was entitled to half share of the property left by her grandfather. She was competent only to transfer her own share and not as a whole. When Zaitoon Bibi, herself, was not lawful owner of the whole property, she was not entitled to execute the gift-deed of the whole property in favour of the defendant-respondents. It/has been observed in the case titled Nasir Mehmood v. Zeenat Bibi and others (Civil Appeal No.22/2011, decided on 24.4.2014), as under:-- "

6. So far the question of execution of agreement in shape of gift deed, executed by Zeenat Bi in favour of the appellant is concerned, it hardly requires any proof as the executor, Zeenat Bi has admitted the execution of deed. The document is registered one and the executor also through her attorney in Court statement admitted the execution of the document. Thus, it is proved and admitted fact that the respondent, Zeenat Bi has executed the agreement in shape of gift-deed in favour of the appellant, therefore, we do not feel any hesitation in concluding that the appellant in the light of the gift to the extent of the share of Zeenat Bi is owner of the gifted property. However, the related question whether the gift-deed is executed in excess of her share and is inoperative on the rights of other is concerned, the recital of the deed speaks that Zeenat Bi has transferred only her share through this deed in favour of he appellant. The will was executed prior to the agreement in shape of gift-deed, therefore, after excluding one-forth share of whole property executed through will if, the gift-deed is executed excess of one-third share then in that case the gift-deed to the extent of excess share shall be inoperative on the rights of plaintiff-respondents. After execution of will, the agreement in shape of gift executed by Zeenat Bi in favour of the appellant shall only be operative to the extent of the share of Zeenat Bi inherited and the agreement in excess of the share of Zeenat Bi shall be inoperative and ineffective on the rights of other legal heirs." Hence, it is concluded that the gift-deed made by Zaitoon Bibi was in excess of her share. The trial Court has thoroughly examined the proposition and has rightly come to the conclusion reproduced as under: Thus, the findings recorded by the trial Court were not open for interference by the appellate Courts.

9. As far the second argument regarding the findings of the High Court that the property was devolved upon Mst. Zaitoon Bibi under the customary law, is concerned, it may be observed that it was not the case of either party that the property was devolved under the customary law. There is no dispute as regard to the right of inheritance of Mst. Zaitoon Bibi. The question involved is that whether she was competent to execute the gift-deed of the property as a whole or not? Once it is settled that she had right to the extent of half share of the property left by her grandfather and not the whole, so she was not competent to transfer the whole property to the respondents. There is no cavil with the proposition that no relief beyond the pleadings can be granted. Reference in this regard can be placed on the cases reported as Azad Government and 2 others v. Syed Muhammad Afzal Shah and another 2003 YLR 1810, wherein it has been observed as under:- "

11. From the survey of case law, it becomes absolutely clear that the law stands settled on the point that the relief which is not the part of pleadings of a party cannot be given to it by the Courts as the civil law is the law of omission and commission." In the case reported as Azad Government and 6 others v. Faqir Hussain Shah and another [2004 SCR 23], it was observed as under:-- "....The contention of Raja Ibrar Hussain, learned Advocate-General, is that the impugned judgment has been based on the point which was not taken in the writ petition specifically, as such the impugned judgment cannot sustain. It is well settled that a judgment has to be based on pleadings of the parties and a Court cannot travel beyond the pleadings of the parties." Similarly in the case reported as Azad Government and 3 others v. Ayesha Shoukat and another. [2011 SCR 119], it has been observed as under:-- " The Court has to go by the pleadings of the parties and it has no jurisdiction to decide a case which has not been put forward by any party. Until and unless the party specifically prays for a relief, such relief cannot be granted."

10. While adverting to the crucial argument raised by the counsel for the respondents that the suit was filed beyond the period of limitation, it may be stated that the question of limitation has been resolved by the trial Court in a legal manner. It appears from the record that Sumundar Sheikh obtained the suit land on ghala batai. The controversy started when the plaintiff-appellants started reconstructing the house and the respondents objected to the same by alleging that they are owners of the land by virtue of the gift-deed and in this way, it cannot be held that the suit was beyond the period of limitation. It is by now a settled principle of law that in case of fraud, the limitation starts from the date of knowledge of the fraud. In the case reported as Muhammad Iqbal and 14 others v. Custodian and 23 others [2016 SCR 358], has been observed by this Court as under:-- "

11. The version of respondents regarding limitation as mentioned in the above-referred grounds of review petition, is also substantiated from the record. In this state of affairs, the counsel for the respondents has rightly submitted that the provisions of section 18 of the Limitation Act, 1908 are attracted. Thus, in the cases where the material facts have been concealed or kept out of the knowledge of the affected party by fraud, limitation has to be computed from the date when such fact firstly comes to the knowledge of affected party." In the case reported as Muhammad Miskeen and 7 others v. Shabir Hussain and 4 others 2016 MLD 365, it has been observed by this Court as under:-- "...Under the provisions of section 18 of the Limitation Act, 1908, any transaction of act based on fraud can be challenged when it is discovered to the concerned aggrieved party. Even otherwise, the substantial amendments have been introduced in section 3 of Limitation Act, 1908, according to the spirit of which the suit cannot be thrown out merely on the basis of question of limitation rather the question of limitation has to be resolved by the Court keeping in view the peculiar facts and circumstances of the case." Similarly, in the case reported as Mst. Saabran Bibi and others v. Muhammad Ibrahim and others [2005 CLC 1160] it was observed as under:-- "

5. Suffice it to mention here that in matters of inheritance, neither the limitation nor the conduct of the petitioner could estop him from claiming his legal share. Mere passage of time does not extinguish the right." Hence, the gift-deed being void and illegal deed, was rightly challenged soon after attaining the knowledge. The result of the above discussion is that we are unanimous on the point that the appellants have succeeded to prove the case of interference as the learned District Judge has committed illegality while not dilating upon the real issue involved in the matter and same illegality has been committed by the High Court while affirming the judgment of the District Judge. Resultantly the appeal is accepted and the judgment and decree of the High Court as well as the District Judge are recalled and set aside. The judgment as well as the decree passed by the trial Court is maintained. There will be no order as to the costs. MQ/41/SC(AJ&K) Appeal accepted.