1999 PLP 1696 (SCMR)

SH. IJAZ NISAR, J -Leave to appeal is sought against the judgment dated 30-6-1997, passed by the Lahore High Court, Lahore, in Civil Revision No. 1355 of 1995.

2. The facts, in brief, are that the disputed Properties bearing Nos. S-3 I -R-146, McLoad Road and S-53-R-7/8, Mission Road, Lahore, were owned by Bashir Ahmad Khan deceased (husband of Mst. Ume Kalsoom petitioner). The petitioner and the respondents are the legal heirs of Bashir Ahmad Khan. On 19-7-1993 Mst. Zahida Bashir daughter of Bashir Ahmed Khan respondent No.7, filed a suit for the partition of the aforesaid properties in the Civil Court at Lahore. The learned trial Court passed a preliminary decree on 5-7-1994. and Mr. Mohsan Qazi, Advocate, was appointed as Local Commissioner. The shares of the parties were determined in accordance with Islamic Law of Inheritance as under:-- Umm-e-Kalsoom widow 1/8th,share Mst. Zahida Bashir daughter 7/64th share Zahid Bashir son 7/32nd share Mst. Musarat Khan daughter 7/64th share Mst.Abida Yousaf daughter 7/6-4th share Mst. Farida Younas daughter 7/64th share Mst. Rahat Shamim daughter 7/64th share Mst. Farhat Bashir daughter 7/64th share On 15-9-1994 the Commission submitted a report after recording the statement of Mst. Umm-e Kalosoom to the following effect:-- This statement was signed by her. Mst. Unim-e-Kalsoom petitioner filed objections on 25-9-1994, to the report of the Local Commission, seeking its cancellation and permission to adduce evidence to prove her exclusive ownership over the properties in question on the basis of gift made in her favour by her late husband on 12-2-1963. After hearing the parties the learned trial Court rejected the objection petition vide order dated 24-11-1994. Thereafter, Mst. Umm-e-Kalsoom petitioner filed an application under section 12(2), C.P.C. for setting aside the preliminary decree dated 5-7-1994. The said application was contested by all th6 respondents except Mst. Zahida Bashir. The learned trial Court vide order dated 6-6-1995 dismissed the application on the ground that no fraud or misrepresentation, as alleged by Mst. Umm-e-Kalsoom, had been committed.

3. Feeling aggrieved, she filed a Revision in the Lahore High Court which was dismissed on 30-6-1997. Hence, this petition.

4. It is contended that it was incumbent upon the trial Court to decide the application moved by the petitioner under section 12(2), C.P.C., after framing issues and recording evidence of the parties, and the learned Courts below failed to take into account that the petitioner was a woman of advanced age and did not have the facility of independent legal advice and further that unnecessary importance was attached to her statement in the previous round of litigation.

5. Bashir Ahmad Khan had died in the year 1982. On 2-7-1989 Mst. Umm-e-Kalsoom petitioner and his other legal heirs had filed a joint suit for declaration to the effect that they were the only legal heirs of Bashir Ahmad and entitled to inherit the property left by him. The said suit was decreed on 27-11-1989. In the year 1993 Mst. Zahida Bashir filed suit against her brother and sisters for partition of the properties left by her father Bashir Ahmad Khan. She also furnished a list of the legal heirs of the deceased. Mst. Umm-e-Kalsoom petitioner personally appeared before the Court and got her statement recorded on 2-3-1994, admitting that the property in dispute belonged to her deceased husband who had left six daughters and one son besides herself. She further stated to have made a will for the disposal of her property in favour of her daughter Mr Mst. Zahida Bashir. On the basis of the evidence recorded by the Civil Court, a preliminary decree was passed in favour of Mst. Zahida Bashir to the effect that she was entitled to get her share equal to 7/64th in movable and immovable properties of Bashir Ahmad Khan, while her mother would get 1/8th Zahid Bashir (son) would get 7/32nd share and the other sisters of Mst. Zahida Bashir would also get 7/64th share like her.

6. After the passage of the above decree Mst. Ume Kalsoom made an application under section 12(2), C.P.C. on 1-1-1995, alleging that it was fraudulently represented before the Court that the two properties, subject-matter of the suit, had devolved upon her son and daughters by virtue of inheritance, because their father Bashir Ahmad Khan was not owner of the said properties, as he had gifted away the same in her favour on 12-2-1963. Though this fact was in the knowledge of her children, but they suppressed it from the Court and deceitfully obtained a preliminary decree from the Court. Since the gift deed dated 12-2-1963 was 30 years old, it was presumed to be genuine and its genuineness could not be questioned or disputed. As the decree was based on fraud, it was liable to be set aside, she maintained.

7. Except Mst. Zahida Bashir, all the other respondents contested the said application which was dismissed by the Civil Court vide order dated 6-6-1995. The learned Civil Judge observed that the petitioner had been served personally in the suit filed-by her daughter Mst. Zahida Bashir, and had appeared in the Court on 31-7-1993, her signatures were obtained on the order sheet, and when she did not appear 'on the subsequent date, she was proceeded ex parte. Her statement was recorded as P.W.2 on 2-3-1994. In her statement she accepted the registration of will Exh. P. 1 in favour of Mst. Zahida Bashir. In the will and in the statement made by her she did not claim that there was any gift deed in her favour. In the registered will Exh. P. I she admitted that Mst. Zahida Bashir and others were the legal heirs of late Bashir Ahmad Khan. She also admitted that a decree in this behalf had been passed by Sh. Ahmad Farooq, the learned Civil Judge, 1st Class, on 27-11-1989. By the said will she had transferred her rights only in favour of Mst. Zahida Bashir. The learned Civil Court further observed that no appeal m. revision was filed against the preliminary decree, and Mst. Ume Kalsoom petitioner had also made a statement before the Commission on 9-6-1994. In that statement also she did not claim any right on the basis of the so-called gift deed. The learned Civil Court was of the view that the application under section 12(2), C.P.C. had been made by Mst. Umm-e-Kalsoom in collusion with Mst. Zahida Bashir merely to prolong the matter, as she was occupying a portion of the suit property and was receiving rent from the tenants.

8. The gift deed, on which the petitioner has placed reliance, is not a registered document. If she was full owner of the properties in dispute on the basis of the gift deed why she kept silent about it when she was making a statement in the Court or before the Local Commissioner. On the other hand, she admitted that all the parties were entitled to inherit the properties left by Bashir Ahmad Khan and that she had executed a will (Exh.P.1) in favour of Mst. Zahida Bashir. It was an afterthought with the intention to prolong her possession and deprive the other legal heirs of their shares in the properties in question.

9. The learned trial Court dismissed the application of the petitioner moved under section 12(2), C.P.C. after taking into consideration all the relevant factors and giving cogent reasons in support thereof. Since the learned trial Court was satisfied that there was absolutely no element of fraud or misrepresentation, and no prima facie case or reasonable grounds existed for setting aside the decree in question, it had rightly declined to frame any issue or record evidence on the application made under section 12(2), C.P.C..

10. In the circumstances narrated above the application under section 12(2), C.P.C. was misconceived, baseless and was rightly dismissed by the learned trial Court, and the order of the High Court declining to interfere with the order of the trial Court does no suffer from any lege infirmity warranting interference by this Court. In consequence the petition fails and is dismissed accordingly. M.B.A./U-16/S Petition dismissed