2014 PLP 1441 (YLR)

ABDUL LATIF KHAN, J.

Through this revision petition, petitioners have impugned the judgment and decree dated 14-9-2011 passed by learned Additional District Judge, Paharpur District D.I.Khan vide which the appeal of respondents-defendants was accepted and reversed the judgment and decree dated 13-12-2010 passed by learned Civil Judge, Paharpur District D.I.Khan vide which the suit of the petitioners-plaintiffs was decreed.

2. Short facts of the instant revision petition are that petitioners-plaintiffs filed a suit for declaration fully detailed in the heading of the plaint. The respondents-defendants appeared before the learned trial Court and filed their written statement. The learned trial Court after framing issues, recorded evidence of the parties and hearing learned counsel for the parties, decreed the suit of the petitioners-plaintiffs on 13-12-2010.

3. The respondents-defendants dissatisfied from the above mentioned judgment and decree preferred an appeal before the appellate Court, which was accepted on 14-9-2011, hence the instant revision petition.

4. Learned counsel for the petitioners contended that appellate court has travelled beyond jurisdiction by accepting the appeal of the respondents by dint of which suit of the petitioners stands dismissed. It was contended that jurisdiction vested in the appellate court has not been exercised properly. He argued that Mst. Miran Bibi, predecessor of the petitioners-plaintiffs and Haq Nawaz, predecessor of the respondents defendants were real cousin inter se, Mst. Miran Bibi is the daughter of Akbar whereas Haq Nawaz is the son of Muhammad and both Akbar and Muhammad were the sons of Ahmed. He argued that on the death of father of Mst. Miran Bibi namely Akbar, the entire property measuring 2020 kanals was devolved upon her as per custom prevailed and in the year 1929 when she contracted marriage with Muhammad Nawaz, by dint of Mutation No.99 dated 12-2-1930 property was transferred from her name and reversed the earlier mutation. He contended that on the promulgation of North-West Frontier Province Muslim Personal Law (Shariat) Application Act (VI of 1935) and subsequent amendment introduced in it retrospective effect has been given to it. He contended that appellate court has not considered this vital aspect of the case, rather focused on the point of limitation and estoppel and dismissed the suit without hold any justification.

5. As against that, the learned counsel for respondents contended that Mst. Miran Bibi and after her death, the petitioners did not challenge the transaction within time and the appellate court has rightly non-suited the plaintiffs on the score of limitation. He argued that Haq Nawaz, predecessor of the defendants after getting the property in his name mutated further the property by dint of Mutation No.26 dated 28-3-1973 as the plaintiffs have not challenged the mutation in time and are stopped by their conduct to file the present suit. He referred to Paras Nos.4 and 5 of the plaint to this effect and argued that the plaintiffs are not entitled to any relief and has been rightly non-suited by appellate court through impugned judgment and decree.

6. I have heard the arguments of the learned counsel for the parties and perused the record with their valuable assistance.

7. Perusal of the record reveals that Mst. Miran Bibi was the only daughter of Akbar, predecessor-in-interest of the plaintiffs, who was devolved upon as sole legal heir of her father, the entire legacy of her father during the time of custom by dint of Mutation No.28 dated 20-1-1910, Ex.P.W.2/I. She contracted marriage in the year 1929 and according to custom, she was deprived from the legacy of her father and was transferred in favour of Haq Nawaz, nephew of Akbar predecessor in interest of the plaintiff by dint of Mutation No.99 dated 12-2-1930 Ex.P.W.2/3. A portion of property was left which was further mutated vide Mutation No. 104 dated 28-3-1932 Ex.P.W.2/:3.

8. On 6-12-1935, the North-West Frontier Province Muslim Personal Law (Shariat) Application Act (VI of 1935) was promulgated, which was later on amended and subsection (2) was added in section 3 of the said Act regarding succession of Muslim owner and retrospective effect was given to it with specific bar of application of custom to the succession of Muslim owner, irrespective of the fact that Muhammadan died prior to the promulgation of the Act, during the domain of customary law. It was the mandate of said provision that even if Muhammadan dies prior to promulgation of Act, being retrospective in its effect, the death would be considered as it has been occurred after the promulgation of Act. Whenever any dispute comes before the court of law with regard to the succession of the estate of a deceased Muslim, he would be deemed to have been died under the domain of Muslim Law if that death applicable in the North-West Frontier Province Muslim Personal Law (Shariat) Application Act (VI of 1935).

9. In the instant case Akbar died in the year 1910, the legacy of whom devolved upon his daughter in custom but later on deprived of the same on the eve of her marriage and transferred in favour of Haq Nawaz predecessor of the defendants in toto which was against the mandate of Sharia and the legacy of Akbar has to be devolved on Mst.Miran Bibi predecessor of the plaintiffs and Haq Nawaz predecessor of the defendants as per their respective shares in according with sharia. This vital aspect of the case has not been met by the learned appellate court in the impugned judgment and decree, rather a single word has not been uttered to this effect, which is a moot point in the case and the rights of the parties hinges upon this issue, which makes the judgment and decree nullity in the eyes of law.

10. So far as the question of limitation and waiver is concerned, the learned appellate court based its judgment and decree upon these issues but no mischief of limitation runs against person in possession of the property as legal heir. Mst. Miran Bibi being legal heir of Akbar had become co-owner of the property would be considered in possession along with Haq Nawaz predecessor of the defendants as the mutation attested under custom, had no legal effect on the promulgation of North-West Frontier Province Muslim Personal Law (Shariat) Application Act (VI of 1935) which has been given retrospective effect and would be deemed to have inherited the property way back in the year 1910 at the time of death of male Muslim owner and since then she would be presumed in possession of the property and as such bar of limitation would in no eventuality be applicable to case of inheritance like the instant one. It was observed by appellate court that she did not challenge the transaction herself and after her death, the petitioners have also delayed the lis but in peculiar circumstances of the case and in the light of averments of the plaint supported by evidence that she was given due share and was not in know of the transfer of property in her name and with special reference to the change in law on the promulgation of North-West Frontier Province Muslim Personal Law (Shariat) Application Act (VI of 1935) through which the whole scenario changed as retrospective effect was given to the new enactment by dint of which her entitlement to inheritance, stands establish right from the year 1910, at the time of the death of her father and would be presumed to be in possession of the property, therefore, she could not be said to have estopped by her own conduct or hit by the principles of acquisance, particularly when there is no case of the defence in this respect and the learned appellate court has dealt with matter on such lines of its own.

11. Now when a Muslim dies, succession to his property opens and the same automatically vests in the heirs and not dependant upon any intervention of estate agencies or revenue authorities. Efflux of time did not extinguish any right in inheritance because on the death of an owner of property becomes co-sharer in the property and limitation would run not from the date of death of successor is denied. Reliance can he placed on Mst. Suban's case reported in 2007 SCMR 635, wherein it is held that:-- "It is a proposition too well-established by now that as soon as someone who owns some property, dies, the succession to his property opens and the property gets automatically and immediately vested in the heirs and the said vesting was not dependent upon any intervention or any act on the part of the revenue authorities or any other State agencies. It is also an established proposition that mutation did not confer on anyone any right in any property as the revenue record was maintained only for realization of land revenue and did not for by itself confer any title on anyone. It may also be added that efflux of time did not extinguish any rights in inheritance because on the death of an owner of property, the co-inheritors, immediately and automatically became co-sharers in the property and as has been mentioned above, limitation against them would start running not from the time of the death of their processor in interest nor even from the date of mutation, if there be any, but from the date when the right of any such co-sharers/coinheritors in such land was denied by someone". It has been time and again declared by apex court that limitation would not arise in the matters of inheritance in this regard reliance can be placed on Ghulam Ali's case reported in PLD 1990 Supreme Court 1 and Mst.Namadar's case reported in 1998 SCMR

996. In view of ratio of these judgments of the apex court, the instant suit being a matter of inheritance is well within time.

12. For the forgoing reasons, I allow the instant revision petition and set aside the impugned judgment and decree of the learned appellate court and maintained the judgment and decree passed by the learned trial Court with no order as to cost. AG/86/P Revision allowed.