2015 PLP 1225 (MLD)

ALI AKBAR QURESHI, J.

This civil revision is directed against the judgment and decree dated 29-9-1997 passed by learned Additional District Judge, Rojhan, in appeal filed by the respondents/plaintiffs, whereby the judgment and decree passed by the learned trial court, was set aside.

2. Shortly the facts for the disposal of this petition are that, the suit land was originally owned by one Imam Bakhsh who, at the time of death, survived by four sons, namely, Naseer, Sardar, Jamal and Ghullan; out of them, Naseer died issueless whereas Sardar died leaving behind Allah Wasai as widow and Mst.Gehnwar as daughter; allegedly Mst. Allah Wasai donated her share in favour of her daughter Mst. Gehnwar and by this way, the inheritance Mutation No.183 dated 6-7-1925 was sanctioned solely in favour of Mst.Gehnwar, daughter of Sardar.

3. During this period, Mst. Allah Wasai contracted second marriage and out of this wedlock, two sons, namely, Ghulam Qadir and Ghulam Sarwar, and three daughters, namely, Mst.Zohran, Mst.Ghulam Fatima and Mst.Ameer Khatoon were born, Mst. Gehnwar married with petitioner No.1, namely, Gul Muhammad and died issueless, her inheritance mutation was attested on 30-6-1957 in the name of her mother and her husband, who got their shares out of the legacy left by Mst.Gehnwar.

4. The uterine brothers and sisters of Mst. Gehnwar (sons and daughters from the second husband of Mst. Allah Wasai), filed a suit for declaration, on the ground, that at the time of death of original owner, namely, Sardar, Mst. Allah Wasai, mother of the respondents had not donated her share in favour of Mst. Gehnwar, so they are entitled to get their share from the legacy of Mst. Gehnwar, being her uterine brothers and sisters, therefore, the Mutation No.183 dated 6-7-1925 and the Mutation No.1551 dated 30-6-1956 attested after the death of Sardar son of Imam Bakhsh and Mst. Gehnwar respectively, be declared illegal and unlawful.

5. The suit was contested by the petitioner by filing written statement, wherein the maintainability of the suit filed by the respondents/plaintiffs was questioned on the ground of limitation. The learned trial court, out of the pleadings, settled down issues, recorded the evidence of the parties, and after hearing the arguments, dismissed the suit vide judgment and decree dated 17-12-1995.

6. The respondents/plaintiffs, being aggrieved of the judgment and decree passed by the learned trial court, filed an appeal before the Additional District Judge, Rojhan, which was accepted, and finally the suit was decreed in favour of the respondents/plaintiffs. Hence, this civil revision.

7. The record was perused with the assistance of learned counsel for the parties, from where it is found, that undeniably Mst.Allah Wasai was widow of deceased Sardar, whereas Mst.Gehnwar was his daughter, but the inheritance mutation was entered only in the name of Mst. Gehnwar as Mst. Allah Wasai, her mother, donated her share in her favour. Further, the respondents are heirs of Mst. Allah Wasai (sons and daughters of Allah Wasai from her second husband) who, after the death of Sardar, contracted second marriage and out of this wedlock, the respondents were born. Further, they are entitled to get share from the legacy of Mst. Gehnwar, being her uterine brothers and sisters, as her husband was only entitled to the extent of 1/2 share.

8. It would be appropriate to firstly resolve the controversy as to whether Mst. Allah Wasai, after the death of her husband, namely, Sardar, the original owner, donated her share in favour of her daughter, namely, Mst. Gehnwar. From the record, it is proved, that at the time of death of Sardar, real father of Mst. Gehnwar and husband of Mst. Allah Wasai, Mst. Gehnwar was minor and was unable to manage in connivance with anyone, to get the share of her mother, by way of donation and entry in the inheritance mutation. Therefore, it can safely be held, that Mst. Allah Wasai donated her share in favour of her only daughter, namely, Mst. Gehnwar and Mutation No.183 dated 6-7-1925 rightly entered in the revenue record.

9. Even otherwise, the factum of donating the share by Mst. Allah Wasai in favour of Mst. Gehnwar, becomes more strengthened from the conduct of Mst. Allah Wasai, who did not challenge the inheritance mutation or donation made by her, in her lifetime. Further, no fraud has been alleged, and even if alleged, could not be proved, therefore, the learned trial court committed serious jurisdictional error by not attending this aspect of the case, and wrongly interpreted the record available on the file, whereas learned appellate court rightly appreciated the record and reached to a fair conclusion, that the inheritance mutation, at the death of Sardar, the original owner, was rightly entered and no fraud was committed.

10. Learned counsel for the petitioners/defendants submits, that the respondents/plaintiffs are not entitled to inherit anything from the legacy of Mst.Gehnwar, as at the time of her death, nothing was left by her. The aforesaid contention has already been dealt with by the learned appellate court by observing, that at the time of death of Mst.Gehnwar, who died issueless, her husband, namely, Gul Muhammad was entitled to inherit 1/2 property, whereas the remaining property was to be distributed among her uterine brothers and sisters alongwith the share of their mother, namely, Mst. Allah Wasai, admittedly died before the institution of the suit, and after the death of Mst.Gehnwar, therefore, the remaining portion of the legacy of Mst.Gehnwar, after satisfying the share of her deceased husband, is to be inherited by the uterine brothers and uterine sisters.

11. From the above finding, it is crystal clear, that Mst.Gehnwar inherited the property from her father, namely, Sardar and the share of her mother, namely, Mst. Allah Wasai, and at the time of her death, the property was transferred/inherited by the husband of Mst.Gehnwar to the extent of his share and by this way, the respondents are entitled to get their share out of the legacy of Mst. Gehnwar.

12. In view of above, it is held, that the learned appellate court, after careful perusal of the record, reached to a fair and just conclusion, which is in accordance with the principles of the law of inheritance, therefore, there is hardly any reason to interfere therewith.

13. Resultantly, this civil revision is dismissed, the order passed by the learned appellate court is affirmed. No order as to costs. SL/G-11/L Petition dismissed.