2002 PLP 2001 (CLC)

(2) Whether the Inheritance Mutation No. 1544 is wrongful, illegal, against Sharia and custom, void and ineffective qua the rights of the plaintiff? OPP (3) Whether the Mutation No.3734 got sanctioned by defendant No. 1, in favour of defendants Nos. 2 to 7 is also ineffective qua the rights of the plaintiff? OPP (4) Whether the suit could not proceed in its present form? OPD (5) Whether the suit is barred by time? OPD (6) Whether the plaintiff has no cause of action and locus standi to bring the suit? OPD (7) Whether the plaintiff is estopped from bringing this suit own act and conduct? OPD

5. The plaintiff appeared as her own witness as P.W.1, Bakhsh appeared as P.W.2, Yousaf Ali/Record‑keeper P.W.3 and Muhammad Nawaz Shah appeared as PYA. In documentary evidence, copy of Mutation No.1310 as Exh.P.1, copy of Mutation No.1388 as Exh.P.2, copy of Wajib‑ul‑Arz as Exh.P.3, copy of Mutation No.1544 as Exh.P.4, copy of Jamabandi for the year 1947‑48 as Exh.P.5, copy of Jamabandi for the year 1979‑80 as Exh.P.7 were produced. On the other hand, respondents‑defendants produced Rasool Bakhsh D.W.1, Ghaus Bakhsh D.W.2, while Taj Muhammad appeared himself as D.W.3. Amongst the documentary evidence, the respondents mainly relied upon the copy of Wajib‑ul‑Arz placed on record as Exh.D.1.

6. The learned trial Court considered the evidence produced by the parties. and placed reliance upon copy of Wajib‑ul‑Arz brought on record as Exh.P.3 and Exh.D.l and came to the conclusion that custom of Pagwand was prevalent and that the deceased Wahid Bakhsh was governed by the said custom. According to the learned trial Court, this custom excluded the female heirs of the deceased. It was accordingly held upon Issues Nos.l and 2 that the petitioner/plaintiff had failed to prove that she was owner in possession of the suit‑land on the basis of inheritance. The impugned Mutation No.1544 was held to be in accordance with law. Consequent upon these findings, Issue No.3 was also decided in favour of the respondents‑defendants. It was also held that the suit of the petitioner was barred by time. Holding thus, the suit was dismissed vide judgment and decree, dated 21‑3‑1989.

7. Feeling aggrieved of the said judgment and decree, the petitioner preferred an appeal, which was dismissed on 12‑2‑1990. The learned Appellate Court reappraised the evidence on the record and concurred with the findings of the trial Court regarding the prevalence of custom. Regarding Sharat Wajib‑ul‑Arz Exh.D.1, it observed that it was prepared at the time of Bandobast and presumption of correctness would apply to its entries. It interpreted Exh.D.1 to imply that females were not given the share of inheritance, if there was any male issue.

8. Mr. M.A. Rashed Chaudhry, Advocate, for the petitioner and Messrs Ijaz Ahmad Chaudhry and Syed Muhammad Anwar Shah, Advocates, for the respondents have been heard. The record of the case has been examined through the assistance of the learned counsel.

9. Before commenting upon the concurrent findings arrived by both the learned Courts below, it is necessary to refer to section 5 of the Punjab Laws Act (IV of 1872), which is reproduced as under:‑‑ "Decisions in certain cases to be according to native laws.‑‑‑ In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions or any religious usage or institution, the rule of decision shall be‑ (a) any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority; (b) the Muhammadan Law, in cases where the parties are Muhammadans, and the Hindu Law, in cases where the parties are Hindus, except insofar as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above‑referred to."

10. The effect of section 5 is that Muslim Personal Law, in cases where the parties are Muslims and the Hindu Law in cases where the parties are Hindus, shall be rule of decision in matters relating to succession etc. This was subject to any modifications or alterations, which may have effectively taken place through custom.

11. It is in this legal background that Wajib‑ul‑Arz exhibited by the petitioner as Exh.P.3 and also relied upon by respondents as Exh.D.3 has to be examined. It may be observed that both the said documents are the copies of the same Wajib‑ul‑Arz in respect of Mauza Goth Mahi, Tehsil Liaquatpur. The relevant contents of the Wajib‑ul‑Arz are reproduced as under:‑‑ A close perusal of the abovesaid condition would show that:‑‑ The latter entry is to the effect that:

12. Plain reading of these provisions contained in the Wajib‑ul‑Arz will show that the latter condition is in direct conflict with the former condition, where Muslims are acknowledged to be entitled to inheritance according to Basharah Muhammadi.

13. The learned counsel for the petitioner has strongly challenged the veracity or genuineness of this latter condition. He invited the attention of this Court to take notice of the difference in the handwriting, which, according to him, was apparent between the main para. of the Wajib‑ul -Arz and this subsequent condition. He also referred to the statement of Yousaf Ali, Record Keeper, P.W.3, who admitted that entry regarding male issue appears to have been written by a different hand and a different pen.

14. Without entering into this controversy, suffice it to say that when the Divine Law of Inheritance in respect of Muslims has been acknowledged in the Wajib‑ul‑Arz, it is neither permissible nor justifiable to whittle down the effect of such Divine Law on the assumption of custom. A perusal of the oral and documentary evidence of both the parties does not indicate that any custom excluding the females was consistently followed in the Mauza. The mere entry in the Wajibul Arz, the genuineness of which is also not above board, and which is unsupported by any cogent and consistent evidence of custom, is not entitled to any credence. The statement of D.W.2 is also worth referring to, wherein he admitted that females were also entitled to inheritance. He also admitted that even his sisters obtained their share of inheritance. Such evidence is certainly not sufficient to prove a custom in derogation of the Muslim Personal Law of Inheritance.

15. There is yet another aspect of this case. Under the Land Record Manual, Shart Wajib‑ul‑Arz relates to terms and conditions as settled amongst the landowners or settlers in matters pertaining to the rights in and liabilities in respect of land in the estate. Such rights which properly be the subject‑matter of a Wajib‑ul‑Arz, inter alia, are the manners regarding which Shamlat Deh land is to be utilized, the manner of payment of produce, the matters relating to irrigation, matters relating to rights of the cultivators, the grazing rights, whether there is any Nazool property in the estate and the like. Custom relating to succession is not truly a subject‑matter of Shart Wajib‑ul‑Arz. In order to rely upon a custom, it must be proved that the alleged practice has continued for such a length of time continuously and uninterruptedly, so as to confer upon the said practice the common will and intention of the entire body of the owners of the estate. In the absence of such evidence and particularly when no copy of Riwaj‑i‑Aam has been produced, a female heir of a propositus cannot be deprived of her Muslim Law share of inheritance, which vests in her automatically upon the death of the propositus.

16. There is another important aspect of this proposition. The overriding effect of custom over the Muslim Law was the creation of section 5 of the Punjab Laws Act, 1872, which was promulgated at the time of foreign domination of the Indo‑Pak Sub‑Continent. This effect of custom has been done away with in different phases. Reference may be made to section 2 of the Muslim Personal Law (Shariat) Application Act (XXXVI of 1937). The next enactment in this regard is the Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), which was later amended by Act (XI of 1951). The Punjab Muslim Personal Law (Shariat) Application West Pakistan Act (V of 1962) as amended by the Punjab Ordinance (XIII of 1983), by virtue, of which section 2‑A was incorporated, has now completely done away with the effect of custom. According to the latest position, a Muslim male, no matter when he died or whether his property was self‑acquired or ancestral, as devolved upon all of his Muslin heirs in accordance with the Islamic Law of Inheritance.

17. As it is being held that the petitioner, being the real daughter of Wahid Bakhsh, was entitled to 1/3rd share by way of inheritance, she shall be deemed to be a co‑owner in the estate immediately upon the death of the deceased. In this view of the matter, the objection regarding limitation shall not be a bar to her suit.

18. According to the Muslim Law of Inheritance, respondent No.1 Taj Muhammad was entitled to only 2/3rd share in the estate of Wahid Bakhsh. He was entitled to transfer by Tamleek only the aforesaid share in favour of respondents Nos.2 to 7 and any alienation through Tamleek or otherwise shall be ineffective upon the rights of the petitioner to the extent of her 1/3rd share in the estate. In view of the foregoing discussions, this civil revision is accepted and the judgment and decree, dated 12‑2‑1990 of the Appellate Court and that of the trial Court, dated 21‑3‑1989 are hereby set aside, with the result that the suit of the petitioner stands decreed in her favour and against the respondents/defendants to the extent of her 1/3rd share in the estate of Wahid Bakhsh (deceased). Parties to bear their own costs. Q.M.H./M.A.K./S‑346/L Revision allowed.