1992 PLP 596 (CLC)

(c) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑ ‑‑‑‑S. 164‑‑‑Revision petition time‑barred to the extent of five days‑‑‑No objection to such delay having been raised by respondents, delay was condoned and revision was decided on merits. Ch. Ilam Din for Petitioner. Ch. Muhammad Bashir for Respondent No.1. Ch. Muhammad Sarwar Yaqub for the Remaining Respondents. One Muhammad Ramzan died issueless on 9‑2‑1988. His inheritance was mutated in favour of Mst. Karamtay Bibi petitioner 1/2 share and the remaining 1/2 share was given to respondent Nos.2 to 5 being nephews of the deceased. Mst. Alam Bibi respondent No.1 was not given any share on the ground that she had been divorced by Muhammad Ramzan deceased much earlier to his death. Mutation No.639 was sanctioned accordingly. The respondent No.1 claiming to be widow of the deceased filed an appeal in the Court of Assistant Commissioner/Collector who vide his order dated i1‑10‑1988 accepted the same and remanded the case to Revenue Officer for fresh decision according to Muslim Law including respondent No.1 as one of the inheritors. That order was assailed in appeals by the petitioner and respondents Nos.2 to 5 before the Additional Commissioner who vide impugned order dated 27‑4‑1989 rejected the same. Hence this revision petition under section 164 of West Pakistan Land Revenue Act, 1967.

2. The learned counsel for the petitioner contended that Muhammad Ramzan had died issueless in 1988 and he had divorced Mst. Alam Bibi, respondent No.1, in 1978. The petitioner is the sister of the deceased whereas respondents Nos.2 to 5 are descendants of Muhammad Ramzan's two predeceased sisters. Respondent No.1 Mst. Alam Bibi could not get share of the property according to Muslim Law having been divorced much earlier by the deceased and similarly respondents Nos.2 to 5 will also not get any share due to the death of both these sisters of the deceased before the death of Muhammad Ramzan. While attesting Mutation No.639 nothing was given to Mst. Alam Bibi by the Revenue Officer holding her to have been divorced by the deceased whereas the petitioner and the other four respondents were given 1/2 share each. Respondent No.1 thereupon preferred an appeal before the Collector who held her to be a widow instead of a divorcee and therefore she is entitled to inheritance from the deceased. The appeals of the petitioner as well as of the respondents Nos. 2 to 5 were rejected by the learned Additional Commissioner. The learned counsel for the petitioner maintained that the impugned orders were defective because respondent No.1 had been divorced in 1978 according to Shariat‑e‑Muhammadi and respondents Nos.2 to 5 were not entitled to get any share from the property of the deceased as their mothers were predeceased sisters of Muhammad Ramzan. The learned counsel placed reliance on PLD 1982 Lah. 826 in which it has been held that `Talaq' becomes effective even without notice.

3. The learned counsel for respondent No.1 maintained that the alleged Talaqnama dated 20‑6‑1978, was written on a plain paper and not on stamp paper of Rs.10 because the latter would show the date of its purchase. It was a crudly forged document and hence not reliable. This Talaqnama was never communicated to the Chairman of the Union Council as required under section 7 of the Muslim Family Laws Ordinance, 1961. Obviously this Talaqnama was a forged document which was prepared after the death of Muhammad Ramzan. No notice whatsoever was sent to the Chairman, Union Council, even by post, as there was no entry in the Union Council Record. It has been held in 1970 SCMR 845, that Talaq can be effective only in accordance with the Muslim Family Laws Ordinance. Since the prescribed procedure was not followed, the Talaq had not become effective and hence respondent No. l was entitled to her share in the inheritance.

4. The learned counsel for respondents Nos 2 to 5 maintained that the case had been remanded by the Collector whose findings were endorsed by the Additional Commissioner for adducing evidence before the relevant Revenue Officer. The petitioner did not prefer an appeal against Mutation No.639 which was preferred by Alam Bibi, respondent No.1, which meant that the petitioner had conceded the fact of the answering respondents (Respondents Nos.2 to 5) getting this share from the inheritance. In the instant case the petitioner should have preferred two revision petitions because one was appeal before the learned Additional Commissioner whereas the other was a revision petition.

5. I have considered the arguments and perused the case record. Under section 308 of Mullah's Mahomedan Law, an adult Muslim can divorce his wife when he desires without assigning any cause. To that extent there is no doubt about it. However, the matters of marriage and divorce of Muslims were regulated by the Muslim Family Laws Ordinance, 1961, which is the law in force at present. In PLD 1982 Lah. 826 it was observed that the question whether provision of section 7 of the Ordinance ibid., was repugnant to Qur'an and Sunnah, should be looked into by the Federal Shariat Court, but, Talaq, if pronounced cannot be claimed to be ineffective. However, it was held by the Supreme Court in 1970 SCMR 845 that no notice of the alleged divorce having been given to the Chairman of the Local Union Council as required by section 7(1) of the Muslim Family Laws Ordinance, the Talaq had not become effective in view of the express provision of subsection (3) of section 7 ibid. Under Article 189 of the Constitution of Pakistan, the decision of the Supreme Court is binding on all other Courts in Pakistan. The learned counsel for the petitioner has not produced any authority regarding amendment of section 7 of the Muslim Family Laws Ordinance in light of the recommendations of the Federal Shariat Court, if any, and therefore no irregularity or illegality is established in the impugned orders in this score.

6. There is some substance in the contention of the respondents Nos.2 to 5 that the petitioner did not prefer any appeal against the Mutation No.639 whereby they were given 1/2 share in the inheritance of Muhammad Ramzan deceased. But, since the case has been remanded by the Collector to the concerned Revenue Officer for fresh decision, therefore, this plea can be raised before him and I would not like to pre‑empt the Revenue Officer from exercising his own independent and free finding after recording evidence on the point whether the mothers of the respondents were predeceased or not. The petitioner is also at liberty to raise this plea before the Revenue Officer. However, this act of commission or omission on part of the petitioner cannot override the Muslim Law of inheritance. As far as joining a revision and an appeal is concerned, I find from the impugned order of the Additional Commissioner that two appeals were preferred before him or at least that is what is mentioned in his order. No irregularity has been committed on this point which would prejudice the interest of respondents No.2 to 5 and it is a mere technicality.

7. The revision petition was time‑barred to the extent of 5 days. But since no objection was raised by the respondents, therefore, the delay was condoned to decide the case on merits. The upshot of the foregoing discussion is that the revision petition fails and is accordingly dismissed.

8. The orders in this case were reserved and shall be communicated to the parties. AA./396/R Revision dismissed.