1993 PLP 2298 (MLD)

(4) Whether the plaintiffs Nos. 3 to 6, 8 and 9 have locus standi to file this suit? (5) Whether the suit is barred for misjoinder of defendants? If so with what effect? OPD (6) Whether the defendant No. 32 has been impleaded in the wrong name? If so its effect? OPD‑32. (7) Whether the suit is maintainable without the prayer of the cancellations of mutations of the suit land mentioned in para. No.10 of the plaint? OPP (8) Whether the Civil Court, Gujranwala is competent to try the suit? OPP (9) Whether the plaintiff suit can proceed without the filing of latest Jamabandi of the suit land? OPP (10) Whether the defendant No. 13 is a necessary party? OPP (11) Whether the suit can proceed in presence of Suit No.192 of 1968? OPP (12) Whether Pir Muhammad deceased left ornaments and cash worth Rs.12,000 as mentioned in schedule? OPP (13) To what shares of property in suit arc the plaintiffs entitled? OPP (14) Wether the suit for the land mentioned in para. No.12 of the plaint can be entertained? OPP (15) Whether the suit is time‑barred? OPD (16) Whether the consolidation of the land mentioned in para. No.12 of the plaint is not binding on the plaintiffs? OPP (17) Whether the valuation of the suit for the purpose of court‑fee and jurisdiction is correct? OPP (18) If not, what is the correct valuation of the suit for court‑fee and jurisdiction? (19) Relief.

9. The learned Civil Judge decided Issues Nos. 1, 2 and 15 in favour of the plaintiffs; Issues Nos. 3, 8, 14 and 16 were not pressed before him. On Issues Nos. 13 and 14, the finding returned was that Sultan Saleem plaintiff was entitled to a 2/120 share in the estate of Pir Muhammad, that the plaintiff Mst. Bashir Begum was entitled to 1/20 share and Mst. Nawab Bibi plaintiff was also entitled to 1/20 share in the estate. Issues Nos. 5 and 6 were also not pressed before the learned Civil Judge. There was no evidence on issues Nos. 7, 9, 10, 11 and

12. As regards issues Nos. 17 and 18, the learned Civil Judge decided them against the plaintiffs and rejected the plaint under Order VII, rule 11 of the Code of Civil Procedure.

10. It appears that in the view of the learned Civil Judge as Fazal Qadir had died before the succession opened out, he or his heirs, plaintiffs in the suits, were not entitled to any share. Similarly the plaintiffs Irshad Ahmad and Amin Akhtar were, in the opinion of the learned Civil Judge, also not entitled to any share because their father Faiz Ahmad had died on 6‑11‑1945.

11. On the plaintiffs' appeal, the learned Additional District Judge held that, as regards issues Nos. 17 and 18, the learned Civil Judge was wrong in rejecting the plaint without determining the court‑fee and without providing an opportunity to make up the deficiency. In his view the learned Civil Judge should have first determined the correct valuation of the suit for the purposes of court‑fee and then directed the plaintiffs to pay the requisite court‑fee by a certain date. In doing so the learned Additional District Judge was plainly right. Any doubt on the point was set at rest in Siddique Khan and 2 others v. Abdul Shakur Khan and another (PLD 1984 Supreme Court 289). Nothing more, therefore, need be said on this point.

12. The learned Additional District Judge referred to the provisions of section 5 of the 1962 Shariat Act (in fact as Mst. Saleh Bibi had died in 1956 and succession had opened out then, the relevant provision was section 3 of the 1948 Shariat Act) and held that the learned Civil Judge was not right in holding that as Fazal Oadir had died before the succession had opened out, he or his heirs were not entitled to any share in the estate of Pir Muhammad. The same, so held the learned Additional District Judge, was the position as regards the plaintiffs Irshad and Amin Akhtar son and daughter of Faiz Ahmad. It may be said at once that in this view also the learned Additional District Judge was right. As has been seen above Fazal Qadir was a son of Muhammad Wazir Khan and Faiz Ahmad was a son of Muhammad Hayat Khan. Both Muhammad Wazir Khan and Muhammad Hayat Khan were alive when Pir Muhammad died. Under section 3 of the 1948 Shariat Act when the succession opened out in 1956, the estate devolved upon all persons who were entitled to inherit at the time of the death of the last full owner, Pir Muhammad, had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any such person before the termination of the limited estate, succession devolved on his heirs and successors existing at the time of the termination of the limited estate of the female "as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat)". It should follow, therefore, that Muhammad Wazir Khan and Muhammad Hayat Khan were entitled to succeed to the estate of Pir Muhammad and as they had died before the succession opened out in 1956, their shares were to devolve upon ` their heirs under Shariat.

13. It must be held, therefore, that the plaintiffs were entitled to inherit the estate of Pir Muhammad. The learned Additional District Judge also determined the plaintiffs' shares and no exception to the shares so determined by the learned Additional District Judge, was taken before me. I hold, therefore, that the plaintiffs were entitled to the shares as determined by the learned Additional District Judge in para. 12 of his judgment.

14. Before the learned Additional District Judge arguments were advanced only on issues Nos. 4, 13, 17 and

18. As has been noticed issues Nos. 17 and 18 related to the valuation of the suit and issues Nos. 4 and 13 related to the locus standi of the plaintiffs and their share. As in the view of the learned Additional District Judge the learned Civil Judge was as a result of his finding on issues Nos. 17 and 18 wrong in rejecting the plaint under Order VII, rule 11 of the Code of Civil Procedure, the learned Additional District Judge remanded the suit to the learned Civil Judge" with the direction that he should first determine the valuation of the suit thin ask the appellants to make good the deficiency in the court‑fee in a particular period of time and then decide these issues afresh".

15. By the same judgment dated 19‑3‑1985, the learned Additional District Judge also disposed of the cross‑objections filed by the respondents before him. They related to issue No. 2 only which was whether the plaintiffs were estopped by their words and conduct from instituting the suit. It was said that the plaintiffs Mst. Bashir Begum, Gulzar Ahmad, Nisar Ahmad and Nasim Akhtar (all heirs of Fazal Qadir) had purchased a part of the suit land and were, therefore, estopped from claiming a share in the estate of Pir Muhammad. The learned Additional District Judge dismissed the contention and in my view rightly, observing that merely because they had purchased a part of the land from other co‑sharers did not amount to estoppel. This view too appears to be unexceptionable. By purchasing land falling to the shares of others, the above named plaintiffs could not be said to have waived their right to claim their own share. Learned counsel for the appellants maintained that the transfers of in suit after the succession had opened out were not challenged. In this contention he is not right. As has been observed above, there had been no transfer of any part of land by Mst. Saleh Bibi in her lifetime. The transfers which had taken place after the opening of the succession were all mentioned in the plaints and they were also challenged. The transferees were also all made defendants in the suit. Learned counsel for the appellants also made grievance of the fact that the learned Additional District Judge had not decided Issue No.7, which was whether the plaintiffs could maintain the suit without seeking the cancellation of the mutations mentioned in para. 10 of the plaint. The plaintiffs did say in their plaint that those transfers, in so far as they affected the plaintiffs' right were ineffective. It is obvious that as the plaintiffs were entitled to succeed to the estate of Pir Muhammad, those transfers in so far as they affected their right were wholly void and were, therefore, not binding upon them. There was, therefore, hardly any need to seek their cancellation. Learned counsel for the appellants also made grievance of the fact that issues other than issues Nos. 13, 17 and 18 were not decided by the learned Additional District Judge but it has been noticed that only those issues were argued before the learned Additional District Judge; that he was not invited to decide other issues obviously means that those issues were not pressed before him.

17. For these reasons, the appeals fail and are dismissed with costs.

18. It must be clarified that the result of the above findings will be that all that remains to be done by the learned Civil Judge is to determine the correct valuation of the suit for purposes of court‑fee and jurisdiction and to direct the plaintiffs to make up the deficiency in court‑fee if any. If in pursuance of that direction, the court‑fee is paid, a decree in terms of the findings recorded by the learned Additional District Judge and affirmed in these appeals shall follow. A,A/B‑77/L Order accordingly.