2017 PLP 61 (CLCN)

ALI AKBAR QURESHI, J.

This civil revision is directed against the judgment dated 28.04.2004 passed by the learned Addl. District Judge, Karor, District Layyah whereby the application under section 12(2), C.P.C. filed by the petitioner was dismissed.

2. The necessary facts for the disposal of this petition are, that a suit for declaration was filed by Sajjad Hussain and Mst. Irshad Mai, the son and daughter of deceased Talib Hussain, respectively, against Nokar Hussain and Mazhar Abbas, sons of Wali Muhammad, on the grounds; that they are in possession of the suit land and the registered sale deed allegedly executed by their predecessor namely, Talib Hussain is illegal and be declared unlawful. The suit was contested by the defendants namely Nokar Hussain and Mulazim Hussain sons of Wali Muhammad, by filing written statement, the learned trial court after exhausting the procedure, finally dismissed the suit by way of judgment and decree dated 05.07.1993.

3. An appeal was filed by Sajjad Hussain etc. The defendants of the suit namely, Nokar Hussain etc. appeared through counsel on 28.07.1993. On 21.02.1994, the appeal was adjourned to 28.04.1994, but in the meanwhile on an odd date i.e. 29.03.1994, the appellant/plaintiff moved an application to the effect, that the parties have compromised, therefore, the suit be decreed by accepting the appeal. The learned Addl. District Judge summoned the file on same day and Nokar Hussain etc., real brother of the petitioner, appeared through another counsel namely Malik Mulazim Hussain Advocate on 29.03.1994, who recorded his statement that in view of the compromise, the appeal be accepted and the suit be decreed, the learned Addl. District Judge, accordingly, accepted the appeal on 29.03.1994.

4. Thereafter, one Khadim Hussain claiming himself the purchaser of the suit land through an agreement to sell dated 17.02.1987 executed in his favour by Nokar Hussain etc., filed another application under section 12(2), C.P.C. In reply of the aforesaid application, the claim of the applicant was accepted by Nokar Hussain etc.

5. Nokar Hussain and Mazhar Abbas, real brothers of the petitioner, also filed an application under section 12(2), C.P.C. on 01.06.1994 wherein they challenged the judgment and decree dated 29.03.1994 passed by the learned appellate court on the ground that the appellant/plaintiff by playing fraud and misrepresentation obtained their signatures and thumb impression and succeeded to get the appeal decided in their favour.

6. The present petitioner also filed an application under section 12(2), C.P.C. challenging the afore referred judgment and decree i.e. dated 29.03.1994 being daughter of deceased Wali Muhammad and real sister of Nokar Hussain and Mazhar Abbas, on the ground, that she being the daughter of Wali Muhammad is entitled to inherit the property belonging to her father and the parties to the civil suit as well as the appellant/Sajjad Hussain with the connivance of each other by playing fraud and misrepresentation, did not implead her in the litigation, therefore, any decree passed at the back of her, has no legal sanctity in the eye of law. Astonishingly, the brother of the petitioner and defendants of the civil suit namely Nokar Hussain and Mazhar Abbas not only admitted the contents of the application of the petitioner under section 12(2), C.P.C. but also admitted the claim of one Khadim Hussain who filed application under section 12(2), C.P.C., claiming himself one of the purchasers of the suit property through agreement to sell from the above referred persons namely Nokar Hussain and Mazhar Abbas.

7. The learned appellate court on 22.10.2003, framed four issues, recorded the evidence of the parties and finally dismissed the applications on the basis of the findings recorded while deciding issue No.1 vide judgment dated 28.04.2004.

8. Through this civil revision, Mst. Mumtaz Mai has come forward to challenge the validity of the findings recorded by the learned appellate court while dismissing the application under section 12(2), C.P.C. filed by the petitioner. Admittedly and not denied by the parties to the suit including Nokar Hussain and Mazhar Abbas, real brothers of the petitioner, that the petitioner is the real daughter of Wali Muhammad deceased and real sister of Nokar Hussain and Mazhar Abbas. It is also established on record, that the petitioner, although she is one of the legal heirs of deceased Wali Muhammad, neither impleaded in the suit filed by Sajjad Hussain etc. nor in appeal and so much so, the real brothers of the petitioner who were very much party in the civil suit as well as in appeal did not inform to the court neither any application to this effect was filed. It is also notable here, that even at the time of giving the consenting statement in appeal by the brother of the petitioner, the petitioner was not there neither she was informed. From the record and the conduct of the brothers of the petitioner, it appears rather proved, that the brothers of the petitioner namely Nokar Husain and Mazhar Abbas with the intention to deprive the petitioner from her right of inheritance, in connivance with Sajjad Hussain etc., the appellant in the appeal, managed all this and finally the appeal was accepted on the basis of so-called compromise, the suit was decreed and in result thereof the registered sale deed, which was in the name of father of the petitioner, was set aside.

9. The learned appellate court, as evident from the findings impugned herein, did not even bother to examine the record which establish and prove the status of the petitioner as one of the legal heirs. Further, the application under section 12(2), C.P.C. of the petitioner has been dismissed in a very cursory and casual manner which, in any circumstances, is not permitted and sustainable in law.

10. Learned counsel for the petitioner has mainly argued, that the petitioner in any case, being one of the legal heirs of the deceased Wali Muhammad, is entitled to the legacy of deceased Wali Muhammad.

11. Conversely learned counsel for the respondent tried to support the findings of learned appellate court but on court query, could not offer any satisfactory answer that as to whether the petitioner could be deprived from her right of inheritance when admittedly she is one of the co-owners.

12. I am fortified, while dealing with this proposition, by the landmark esteemed judgment of Hon'ble Supreme Court of Pakistan cited as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1). The relevant part of the judgment is reproduced as under: "

Inheritance

Co-sharer

Adverse possession

Rights of females

Pardanashin Muslim lady

Different considerations apply from those that apply between adult males even as regards adverse possession where one is concerned with pardanashin Muslim female

In the case of adult males if the possession is neither obtained by force nor by fraud nor in secret, it does not matter that it is in fact not known to the person against whom adverse possession is alleged

The law is satisfied if that person would have known had he been acquainted with what was going on in the world

In case of Purdanashin Muslim female it is necessary to find not mere adverse possession but ouster. Mst. Fardosjahan Begum v. Kazi Sharifuddin AIR 1942 Nag. 75 ref." (h) Muhammadan Law

"

Inheritance

Opening of inheritance

Right of females

Principles

Muslim's estate vests immediately on his death in his or her heirs

Brother, father, husband, son or vice versa, does not or cannot intervene as an intermediary. As soon as an owner dies, succession to his property opens. There is no State intervention on clergy's intervention needed for the passing of the title immediately to the heirs. Thus it is obvious that a Muslim's estate legally and juridically vests immediately, on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the State by an intermediary is unknown to Islamic Law of inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. It is so notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic law. It is only when the property has thus vested in the heir after the succession opens, that he or she can alienate it in a lawful manner. About the vesting of the property in a Muslim heir, if the State, the Court, the clergy, the executor, the administrator does not intervene, no other body intervenes on any other principle, authority, or relationship

even of kinship. Thus the brothers, the father, husband, son or vice versa, does not or cannot intervene as an intermediary. (i) Muhammadan Law

Inheritance

Rights of females

Brother trying, though illegally as if a guardian-in-inheritance, of a sui juris sister, on allegedly "moral" basis to oust her is prohibited by Islam-Females cannot be treated so in Pakistan-Import or application of any foreign system or common law or law of nature in preference to law in Pakistan is not possible in present constitutional and legal system of Pakistan. [p. 12] K"

13. Even otherwise, the right of inheritance is Quranic injunction, which, beyond doubts, cannot be defeated or denied or violated in any manners whatsoever.

14. Resultantly this civil revision is allowed, judgment impugned herein along with the judgment and decree passed by the learned appellate Court, in result of compromise, is set aside and, that of learned trial court, whereby the suit filed by Sajjad Hussain etc. was dismissed, is upheld, with throughout cost. ZC/M-68/L Revision allowe