2005 PLP 1814 (YLR)

Before arriving at a conclusion it is felt expedient to discuss the case law referred to by the learned counsel for the parties in order to support their respective contentions. In legal report like PLD 1993 SC (AJ&K) 24, the following observation has been made: -- "Inheritance...Property of deceased Muslin although devolved on his daughter, yet mutation was not attested in her favour because she had relinquished her share it favour of male heirs of deceased. Effect of such relinquishment Plaintiff (female heir) seeking relief pertaining to entries in "Jamabandi" Limitation... Estate left by a Muslim owner would devolve on heirs on his death; fact that such heirs did not wish to inherit was of no consequence where plaintiff wanted to transfer her share to the male heirs, she could do so as permissible under law i.e. through a registered document. Mere oral statement before Collector by plaintiff that she did not want to get share out of the estate left by her father, would not extinguish her title in the land in question and vest the same in male heirs to her exclusion ..,Plaintiff being a co-sharer with male heirs (defendants), though not so recorded in the Revenue Record, she would be deemed to be in continuous possession of her share and any adverse entry in the Revenue Record would not oblige her to challenge the same within a period of six years of the entry, for cause of action in such cases would accrue only when real threat was posed to her title i.e. when defendants denied her title in unequivocal terms ...Every fresh entry made in the Revenue Record to the detriment of plaintiff would give a new cause of action,.. Relict' sought by plaintiff pertaining to entries in Jamabandi 1981-82 would not be tune-barred when suit was instituted on 4-8-1986 i.e. within six years of entries in the said Jamabandi,.. Entries in Jamabandi 1981-82 being subsequent would be preferred to those made earlier. Azad Jammu and Kashmir Land Revenue Act, 1967, S.53 Limitation Act (IX of 1908), Art. 120," "

S.42 Entries in Revenue Record Value of .Entries in Revenue Record whether of mutation or record-of-rights, would not by themselves vest title in heirs; rather the same were evidence of title and if proved incorrect, in view of facts admitted or proved, title of an heir would not be adversely affected". "..,Decree for ,joint possession... Entitlement.., Co-sharer in joint property would be entitled to a decree for ,joint possession in spite of the fact that such co-sharer had not been recorded as such in the Revenue Record, such entries being violative of the law and void". In case titled "Mir Muhammad v. Muhammad Hashim and others" 1988 CLC 2195, the learned Judges observed as under:-- " ..Inheritance .Claim of one of the heirs in respect of property left by deceased was disputed by other heirs on the ground that deceased had settled question of inheritance during his lifetime... Such settlement is binding on heirs only if they agreed to the same after death of their predecessor as inheritance would open in favour of heirs only on death of predecessor". In the case titled "Nawab Khan and others v. Rehmat Bibi and others", the following observation has been made:-- "... S.45...Mutation of inheritance... Validity... plaintiffs were excluded from mutation of inheritance and the same was attested only in the names of the defendants... Said mutation was assailed 33 years after its attestation... Trial Court dismissed the suit being time -barred, whereas the Lower Appellate Court, after holding the mutation as void and illegal, dismissed the appeal on the point of limitation... Validity... After satisfying the shares of the defendants, the residue had to go to the plaintiffs... Revenue Officer, in circumstances, had no authority to exclude the plaintiffs from inheritance.. Judgments and decrees of both the Courts below suffered from material irregularity for Courts below refused to exercise the jurisdiction vesting in them on a wrong decision of the question of law involved in the suit and as such the same were not sustainable." "... Inheritance... Requirement of mutation... Necessity... When a Muslim owner dies; his estate passes on to the legal heirs in accordance with the Qur'anic Injunctions... No. mutation or any other act of the State or individual is required for acquisition of the proprietary rights by inheritance." "... Section 5... Void mutation... Suit against such mutation... Limitation... No limitation was prescribed for filing suit in respect of a void mutation." In legal report 2001 YLR 928 titled "Muhammad Bibi v. Munir Ahmed" the learned Judges observed as under. "... Ouster of co-sharer from the suit land... Failure to receive share in produce of such land... Effect... When succession opens, all the eligible heirs become co-sharers... Mere fact that one of the co -sharers was not being paid any share in the produce from the land would not constitute ouster." "... Section 45... co-sharer... Entry of mutation of land excluding the co-sharer... Validity... Limitation... Plaintiff was heir to the estate of the deceased owner... Defendants got the land mutated in their name excluding the plaintiff... Civil suit filed by the plaintiff was dismissed as being time-barred... Lower Appellate Court maintained the judgment and decree passed by the trial Court... Contention of the plaintiff was that she being one of the co-sharers was entitled to inherit the suit-land... validity... Where the plaintiff was admitted to be an heir as pleaded by her in the plaint the matter of limitation never, commenced against her... Disputed mutation was illegal and void and there was no question of any limitation for challenging such mutation... Concurrent findings of fact by the Courts below were reversed by High Court in exercise of revisional jurisdiction as the suit was within time." In case titled "Nawab Ali and others v. Muhammad Sharif and others" the following observation has been made:-- "...Gift... Estoppel... Suit for possession through inheritance... predecessor-in-interest of the parties was grandfather of the plaintiffs and father of the defendants... During the lifetime of the predecessor-in-interest of the parties 1/4 share of his property was transferred in favour of the plaintiffs by way of gift and a mutation to that effect was sanctioned... After the death of the predecessor-in-interest of the parties mutation of inheritance was sanctioned in favour of the defendants excluding the plaintiffs... Trial Court dismissed the suit on the basis of estoppel and the appeal before the Lower Appellate Court also met the same fate... Validity... Where 1/4th share of the property was transferred to the plaintiffs and the mutation was also sanctioned, such gift was valid and complete in all respect, as the same was not challenged by the defendant and the same attained finality... Plaintiffs could not be deprived of their legal shares, which they were entitled to inherit from the estate left by their predecessor-in interest,., No estoppel against statute... Finding of both the Courts below on the issue of estoppel were not sustainable and the judgments and decrees passed by both the Courts below were set aside. " "...Gift... Validity... Depriving other heirs of their shares... Impious for a Muslim to deprive some or all of his children from property by alienating same in his lifetime and it will be so in all good sense if done without just cause... Islamic law does not forbid such gift when made by a person not suffering from "Marz-ul Maut"... Gift may not become invalid only because it may, have the effect of depriving the others of their share. Inheritance..., Limitation... No. 1imitation in inheritance cases and person claiming inheritance cannot be non-suited merely on the point of limitation. In all the precedent cases it is held that a Muslim cannot be deprived of his/her right simply because he/she relinquished the same or a private settlement disinherited him/her for legacy of a deceased Muslim devolves upon legal heirs on his/her death irrespective of the fact that a mutation is sanctioned in his/her favour or not and he/she is recorded as owner in the Revenue Record or not. A Muslim owner is Competent to alienate or transfer his/her property only through the modes recognized under law and not otherwise. Any adverse wry m the Revenue Record would not oblige him/her to challenge the same within a period of 6 years of the entry, for cause of action in such cases would accrue only when real threat was posed to his/her title i.e. when defendant denied his/her title in unequivocal terms. Every fresh entry made in the Revenue Record to the detriment of plaintiff would give a new cause of action. This is the view expressed by our own Supreme Court in a case titled "Boston and others v. Mst. Sattar Bibi and others" (PLD 1993 SC (AJ&K) 24) referred hereinbefore. Under the Constitution, it is law of the State. This view stands supported by different judgments from Pakistan jurisdiction also. The present case when tested on the touchstone of the above referred settled principle of law, it may safely be said that suit by the appellant is within time in view of Articles 91, 95 and 120. The plaintiff appellant, as stated earlier, is found to have pleaded to acquire knowledge in the year 1996 and she has also pleaded that 6 months prior to institution of the suit the defendants categorically denied her right which caused to bring the present suit, categorically denied her right. The defendants failed to rebut claim about knowledge put forwarded by the appellant in her plaint therefore, irresistible conclusion is that she acquired knowledge of all that depriving her of her legitimate right in the year, 1996 when she knocked at the door of the Court. She is found to have been deprived of her right on the ground of illegal practice adopted by the defendants behind her back and without her knowledge. Coming to the law cited at bar by the learned counsel for the respondents, it may be observed that no doubt, Supreme Court of AJ&K has held that, even a void order or transactions is required to be challenged within reasonable time in order to get rid of it nevertheless the fact remains that the learned Judges while pronouncing the judgments relied upon by the learned counsel categorically, observed that reasonable time from the date of knowledge. According to Hon'ble Judges, if a void order adversely affecting the rights of a person is in his knowledge he is required to challenge the same within reasonable time from the date of knowledge or from the date of order if pronounced in his presence. Here in this case, as stated earlier, all the transactions are found to have been made behind the back of the appellant and without her knowledge. She, as earlier as possible, after acquiring knowledge knocked at the door of the Court through the present suit. Therefore, the case-law in view of the peculiar circumstance of the case in hand has no relevancy here. The result therefore, is that the appellant though she is not recorded as co- sharer in the joint estate left by her father yet on his death the property under Muslim law has also devolved, upon her in view of Mohammadan Law. She thus, is declared as co-sharer in the joint estate left by her deceased father. She is entitled to a decree for joint possession however, her share in the property after its determination by the I Revenue department shall be satisfied through regular partition in view of this decree for joint possession. The judgments and decrees passed by the Courts below are hereby set aside and the Aaknama executed in the year 1956 and all the transactions made thereafter are declared to be ineffective and inoperative to the rights of the appellant to the estate left by her father. H.B.T.137/AJ&K Appeal allowed.