2012 PLP 1944 (CLC)

NISAR HUSSAIN KHAN, J.

Petitioner Mosam Khan has challenged the judgment of learned Additional District Judge, Lakki Marwat, dated 12-5-2011, vide which by accepting appeal of respondents, the judgment and decree passed by the learned Civil Judge, dated, 29-1-2011, was set aside and consequently, petitioner's suit was dismissed.

2. The resume of facts forming the background of instant petition is that, one Shuja had two sons namely, Khoidad and Adam Khan. Adam Khan had no male issue. He was survived by one widow Mst. Sarkizara and a daughter Mst. Kalam Bibi. While Khoidad had one son Shah Nawaz. On the death of Adam Khan, his whole property was mutated in favour of his widow and daughter as limited owners, vide Mutation No.2956, dated 22-2-1926. Later on this property, being the legacy of Adam Khan, was transferred in the name of Mst, Sarkaizara, vide Mutation No. 3278, attested on 22-3-1927 and on the same date, vide Mutation No.3279, the whole property was transferred in the name of Shah Nawaz, nephew of Adam Khan, as per entries, in the mutation, both the ladies entered into marriage and remarriage respectively. Petitioner being the son of Kalam Bibi challenged both the later Mutations Nos.3278 and 3279 by filing a declaratory suit, alleging therein that both the mutations are illegal, unlawful and ineffective upon his rights and Revenue Record is liable to be corrected. He claimed that he came to know about these wrong entries in the Revenue Record, two months prior to the institution of suit, when he consulted the Revenue Record in connection with a pre-emption suit. The suit was contested by the defendants by raising variety of objections, legal as well as factual in their written statement, which generated into framing of issues. The parties adduced evidence in support of their respective stance and on conclusion of evidence of the parties, suit was decreed by the trial Court in favour of plaintiff and pro forma defendants. Feeling dissatisfied with the judgment of trial court, defendants/respondents filed appeal, which was allowed and judgment and decree of trial Court was set aside. Hence, this revision petition.

3. Learned counsel for petitioner argued that by virtue of N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 and West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the share of Mst. Kalam Bibi, the daughter of Adam Khan cannot be extinguished, as both the laws had been given retrospective effect, which have been declared as such in different pronouncements of the Supreme Court. Thus judgment of appellate court is illegal and liable to be set aside.

4. Conversely, learned counsel for the respondents/defendants argued that N.-W.F.P. Muslim Personal Law (Shariat) Application Act, had no retrospective effect and amendment introduced by the Punjab is equally applicable to the cases of N.-W.F.P. now Khyber Pakhtunkhwa. He contended that both, mother and daughter did not challenge the said mutations in their life time, though they lived long after attestation of suit mutation. He maintained that suit of the petitioner is hopelessly time-barred. Thus impugned judgment of learned appellate court is well-reasoned, which needs not be interfered with. He maintained that suit mutation has been attested in 1927, much prior to the promulgation of N.-W.F.P. Muslim Personal Law (Shariat) Application Act (VI of 1935). Hence, it is past and closed transaction, which cannot be reopened after more than eighty years.

5. I have given my anxious consideration to the respective arguments of learned counsel for the parties and have gone through the record and scanned the law on the subject with their valuable assistance.

6. The factual aspect of the case, to the extent of relations is not disputed between the parties. As admittedly plaintiff Mosam Khan and Pro forma defendants are legal heirs of Mst. Kalam Bibi, who was daughter of Adam Khan. While Mst. Sarkaizara was widow of Adam Khan. On the other hand Khoidad was the real brother of Adam Khan, who had one son Shah Nawaz. On the death of Adam khan, his property was mutated in favour of his daughter Mst. Kalam Bibi and widow Mst. Sarkaizara, vide Mutation No.2956, dated 22-2-1926. Then this property was transferred in the name of Mst. Sarkaizara, widow of Adam Khan, from Mst. Kalam Bibi as she entered into marriage and on the same date second Mutation No.3279 was attested, vide which whole property was transferred in the name of Shah Nawaz, nephew of Adam Khan, by virtue of customary law, as widow of Adam Khan also entered into remarriage. The controversy between the parties revolves round the legal question that: whether N.-W.F.P. Act, VI of 1935 and Muslim Personal Law (Shariat) Application Act, 1962 would have retrospective effect and in pursuance thereof the legacy of Adam Khan, would be distributed amongst his legal heirs in accordance with Shari shares or it would be governed by customary law by virtue of which Mutation No.3279 has been sanctioned in favour of Shah Nawaz in 1927? Secondly; whether the suit of petitioner is hit by bar of limitation? And thirdly, whether subsequent transfers are protected under section 41 of Transfer of Property Act, 1882?

7. Before promulgation of N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935, the matters of inheritance of .the Muslims were governed by the customary laws in vogue. To bring the matters of inheritance and succession of Muslims in conformity with the injunctions of Islam, N.-W.F.P. Muslim Personal Law (Shariat) Application Act, VI of 1935 was promulgated on 6th December, 1935, as customary laws on the subject of succession were not only oppressive, but were offending the commandments of Qura'nic text on the subject. By virtue of section 4 of ibid Act, the status of legal heirs at the time of death of their propositus was restored with full force on the termination of limited interest of the female, holding the property as limited owner, by virtue of customary law. Section 4(2) of the ibid Act leaves no room of any doubt with regard to the inheritance of a deceased person, that it would be governed in accordance with Islamic Law, as it obtained its position on the date of his death, regardless of the date of termination of limited interest.

8. Likewise, by virtue of subsection 2 of section 3 of N.-W.F.P. Act, VI of 1935, it is further clarified that whenever a question of succession of a Muslim arises in any court that would be resolved according to Muslim Personal Law (Shariat) Application Act, deeming it to be applicable at the time of such death. Both the sections are complimentary as well as supplementary inter se to give effect that legacy of Muslims would be distributed/divided amongst his heirs according to Islamic Law (Shariat), even though, he might have died prior to the promulgation of Act. By virtue of proviso of section 4 of the ibid Act, the share of female limited owner on occasion of termination of her limited interest has been protected, as what she would have inherited in terms of Islamic Law (Shariat). In 1948 the West Punjab Muslim Personal Law (Shariat) Application Act, 1948 was promulgated in Punjab, to cope with the similar question of succession etc. In 1962, both the laws of N.-W.F.P. and Punjab along with others were repealed on promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, which was .applicable to the whole of the then West Pakistan, now Pakistan. In pursuance of declaration in judgment of Hon'ble Supreme Court, in case titled "Federation of Pakistan v. Muhammad Ishaq" (PLD 1983 SC 273), section 2-A was added by Punjab amendment. Although corresponding amendment was not introduced by the Govt. of N.-W.F.P./Khyber Pakhtunkhwa, but declaration of Shariat Appellate Bench of the Supreme Court has taken effect on the date fixed and words "subject to the provisions of any enactment for the time being in force" occurring in section 2 of the ibid Act had ceased to exist. Both these Acts No.VI of 1935 and Act, V of 1962 came under consideration of august Supreme Court, in cases titled "Ismail and another v. Ghulam Qadir and others" (1990 SCMR 1667), "Habibullah Jan and 3 others v. Muhammad Hassan Khan and 6 others" (PLD 1991 Supreme Court 93), "Muzaffar Khan v. Mst. Roshan Jan and others" (PLD 1984 SC 394), "Mst. Farida and 2 others v. Rehmatullah and another" (PLD 1991 Supreme Court 213) and "Muhammad Anwar and 2 others v. Khuda Yar and 25 others". (2008 SCMR 905) and it was consistently declared that both the Acts have retrospective effect and whenever dispute comes before the Court of law with regard to succession of the estate of deceased Muslim, he would be deemed have died under the domain of Muslim Law, even if death had taken place before coming into force of N.-W.F.P. Muslim Personal Law (Shariat) Application Act 1935 or Act V of 1962.

9. In view of this legal position, on the occasion of remarriage of Sarkai Zara, widow of Adam Khan, the property of Adam Khan was to be distributed amongst his actual legal heirs ,under Islamic Law, which were 1/8 of the widow, Sarkaizara 1/2 would have gone to Kalam Bibi, the sole daughter and the residue would have gone to Shah Nawaz, the nephew of Adam Khan. But instead thereof, the whole property was mutated in favour of Shah Nawaz.

10. So far as, objection of bar of limitation is concerned, Mst. Kalam Bibi being the daughter of Adam Khan, was entitled to 1/2 share of his property being his Shari legal heir and thus was co-sharer in the suit property. Her that entitlement is recognized by the law, rather the divine law, which cannot be extinguished by any instrument of mutation, so she was deemed to be in possession of the property as co- sharer. Any co-sharer sitting in possession of joint property is holding possession on behalf of all the co-owners. And limitation would not run against the co-sharer. While every successive adverse entry in the Revenue Record gives a fresh cause of action. It has been time and again declared by august Supreme Court that question of limitation would not arise in the matters of inheritance. In this respect cases of "Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi" (PLD 1990 SC 1), "Muhammad Qasim Khan and 6 others v. Mst. Mehbooba and 6 others" (1991 SCMR 515), and "Muhammad Anwar and 2 others v. Khuda Yar and 25 others" (2008 SCMR 905) can be referred. In view of the ratio of these judgments the suit of the plaintiff/petitioner being a matter of inheritance is well within time. Once it is held that, limitation does not run in matters of inheritance, volume of span of time elapsed becomes immaterial. No illegal act or wrong entry be legitimized with efflux of time, howsoever long it may be.

11. It is contended that interest of purchasers defendants/respondents is protected under section 41 of Transfer of Property Act, being bona fide purchasers, and the suit is liable to be dismissed. It is imperative for the purchasers who claim protection of section 41 of Transfer of Property Act, to inquiry about title of his vendor and then enter into any transaction. It is also settled law that nobody can transfer a better title, then that he himself possesses. When vendor of the transferee himself has right in the suit property, he could have not alienated the same to transferee. In this respect reliance placed on case titled "Abdul Hameed through L.Rs. and others v. Shamsuddin and others" (PLD 2008 SC 140).

12. Besides that it being a case of deprivation of legal heirs, who have not entered into any conscious transaction with the vendor of the said transferee, so they may not be compensated at the cost of deprived legal heirs. Principle of bona fide purchase is based on equity which cannot be invoked in such a manner that may cause injustice to the others. Equity stems out of its roots of justice, fairplay, reasonableness and good conscious. It may not be invoked as a rule of thumb. In peculiar circumstances of the case, if this principle is applied against the petitioner for protection of defendants/respondents, it would not be equity, but an oppressive phenomenon like: Rob Peter to pay Paul. Thus they may well be advised to claim their right, if any, from their transferor. Shah Nawaz being residuary of Adam Khan, would inherit from his property, as of his own right under the Islamic law (Sharia). The interest of such transferee's may be adjusted from his share or from his own property acquired from his father, but not from the share of petitioner/plaintiff.

13. For what has been discussed above, this petition is allowed, impugned, judgment and decree of the learned appellate court is set aside and that of learned trial Court is restored, with no order as to costs. SAK/189/P Petition accepted.