2001 PLP 1479 (MLD)

2. Learned counsel for the petitioners contends that the learned Co below have taken a wrong view of the law while non‑suiting the petition on the basis of document Exh. D.1. It has also been argued that the evidence on record has been misread while holding that Exh. D.1 was in fact executed by Mst. Hamida Begum. According to the learned counsel both the Co below have acted with material irregularity in the exercise of to jurisdiction while passing the impugned judgments and decrees. Lear counsel for the respondents, on the other hand, argues that execution Exh.D.I was duly proved and that it was a sort of a fan arrangement/settlement whereunder Mst. Hamida Begum relinquished rights in favour of her brothers.

3. I have gone through the trial Court record, with the assistance of learned counsel for the parties. The said document referred to in the writ statement is dated 29‑4‑1967 and is available on the file as Exh. D.1 appears to have been executed by the widow, the sons and the daughters Karam Ellahi. The document has no title. According to the preamble Ellahi, Rang Elahi, Mst. Hamida Begum, Mst. Rashida Begum and 14 Zainab Bibi are the first parties while Fazal Ellahi, Khadim Hussain; Nazar Elahi are the second party. It then narrates that Karam Ellahi had d in 1966 and that the deceased had given away house No. III. V‑S‑6 to Ra Ellahi, executant No.2 and house No. III.2‑S‑13 to Noor Mai 16/17 years a and that they are in possession separately; that house No. III.2‑S‑20 had be so given in equal shares to Fazal Ellahi, Khadim Hussain and Nazar Ellahi, (these persons are described in the document as " HUM MAQRAN " Nos. 6,7,8); that this house is in the name of the deceased and had been given to the s; executants Nos.6 to 8 and the said executants are entitled to get it transfer, in their name in the taxation record. The portion attributable to Mst. Harm Begum who is executant No.3 reads as follows: 3‑A. The learned trial Court after finding that the document had in fact been executed by Mst. Hamida Begum has remained content with t following observations:‑‑ "So I find that this document can at least estop the plaintiff fro going back upon her undertaking given already vide Exh. DI."

4. Learned Court of first appeal has proceeded to dilate upon the matter as follows:‑‑ "The perusal of the deed shows that it was somewhat family settlement. Although this agreement is not registered one but at the same time it can be used for collateral purpose to prove the admission on the part of Mst. Hamida Begum that she executed the deed of her own accord. It. can also be used to prove the family settlement after the death of Karam Elahi deceased, who had died somewhat in the year 1966. " It will thus be seen that none of the Courts below have been able to hold this document either to be a surrendered deed or a deed of relinquishment or a document of transfer of title. Still they have proceeded' to non‑suit the deceased lady on the basis of the same on the ground that according to them the said statement made in the said document by the deceased lady estopped her from filing the suit.

5. I have examined the document with the assistance of the learned counsel for the parties. Of course this document is neither a surrender deed nor in any manner a deed of relinquishment and it is certainly not a document transferring the title admittedly vested in the deceased lady in favour of the contesting respondents. It does not even constitute an admission on her part of any adverse title of the contesting respondent. I have already referred to the respective pleadings of the parties above. In the written statement the plea taken is that vide the said document Exh. D.1 Mst. Hamida Begum had received her share and has surrendered her rights in the estate. In reply to para 1 it has been admitted without any demur that the entire suit property vested in Karam Ellahi and on his death Mst. Hamida Begum alongwith others inherited the same. However, Mst. Hamida Begum and others by way of a private partition received their " SHARAI HISSA " and surrender in favour of the said respondents.

6. Now this plea in the written statement is certainly not spelt out from Exh.D.1. According to the contents of this document it was Karam Ellahi who paid something to Mst. Hamida Begum in his life time which was termed as " HISSA-E-SHARAI " and in consideration for the said act of the deceased she will be having now no claim against the suit property. There is no plea and there is no evidence on record that the deceased himself settled the property upon his heirs. I also seriously doubt the legality and validity of the alleged private partition having been effected by the deceased and tried to be read into the said document Exh.D.1. Having gone through the evidence on record I am also of the opinion that the plea is absolutely bogus and the parties including the contesting respondents never were of the view that the father had distributed the property in his life time. I may here refer to the statement of Nazar Elahi, the only defendant who entered the witness box. In reply to the very first question in the cross‑examination the witness admits that the suit property has been very correctly mentioned in the plaint to have been owned by the late father. Then he proceeds to state that the father had not made any writing about the private partition or any will regarding the distribution of the property. When confronted as to what was given to Mst. Hamida Begum or the other sisters by the, father, the witness very innocently answered that while the father was effecting private partition he did not tell any one as to what he gave to their mother and sisters, He was further questioned and he was unable to say as to what was the specific purpose fork preparing the writing Exh.D.1. He stated as under:

7. It will thus be seen that the evidence on record clearly shows that the late father never made any settlement in his life time. The son of Mst. Hamida Begum (she had died before she could enter the witness box) appeared as a witness and denied any private or family arrangement or settlement even he was not specifically suggested as to what wag given to his mother allegedly by the late father. There is thus no proof on record that any consideration was paid to the lady either by the late father or by the brothers for the property she admittedly inherited from her father. No gainsaying the fact that there was no question of her giving up property in the life time of her father for the simple reason that she never had any interest in the same while the father was alive.

8. The learned Courts below have proceeded to hold that the document constitutes estoppel. Now the rule of estoppel happens to be clearly defined in Article 114 of Qanun‑e‑Shahadat Order, 1984. The Rule has been consistently interpreted as an equitable doctrine laying down that if a person has acted to his detriment or altered his position on the basis of any declaration, act or omission of any person than the said other person will not be permitted in any suit or proceedings between himself and the said other person to go back upon it to the detriment of the opposite party. I called upon the learned counsel for the respondents to demonstrate as to how the said rule is applicable in the present case on the basis of the said recital in Exh. D.1. Learned counsel are unable to say any thing except this that because of the said recital they have continued in‑possession of the properties while one of the respondents had spent some money on repairs/improvements. In my humble opinion the explanation bounds on the ridiculous.

9. Admittedly the property belonged to Karam Ellahi when he died and was inherited by his sons, daughter and widow. Mst. Hamida Begum never relinquished or surrendered her property in favour of the contesting respondents. This being so, she is entitled to inherit the share as claimed by her and to get separate possession of the same by partition.

10. As stated by me above admittedly the property belonged to Karam Elahi and devolved upon his widow, five sons and two daughters. Thus the widow inherited 14/112 share, the sons inherited 14/112 share each while the daughters inherited 7/112 share each on the death of widow her 14/112 or 1 /8 share devolved upon the five sons and two daughters each son getting 2/112 each daughter getting 1/112. Thus their shares became 8/112 each daughter and 15/112 each son. Fazal Ellahi died issueless leaving a widow. Out of his 15/115 share the widow got 1/4 and the remaining 3/4 was inherited by the four brothers and two sisters. Thus in the total property the widow got 15/48 share and each brother got 9/48 share and each daughter will get 9/96 share. Thus the said heirs of the deceased had the following shares in the property:‑‑ (i) Hamida Begum = 13/136 (ii) Rashida Begum = 13/136 (iii) Rang Ellahi = 26/136 (iv) Khadim Hussain = 26/136 (v) Nazar Elahi = 26/136 (vi) Noor Mai = 26/136 (vii) Widow of Fazal Ellahi. = 6/136

11. As a result of the above discussion I allow this Civil Revision, set aside the judgments and decrees of both the learned Courts below and pass a preliminary decree declaring the shares of the parties/their progenies as per para.10 above. No order as to costs. Office to immediately remit back the trial Court's record with a copy of this order directing the learned trial Court to proceed further in the matter for passing of a final decree after summoning the parties. Q.M.H./M.A.K./M‑525/L Petition allowed.