2019 PLP 2728 (YLR)

SYED ARSHAD ALI, J.- Through this single judgment, I intend to dispose of the instant revision petition as well as the connected C.R No. 373-M of 2012 titled "Mst. Gul Hizara and others v. Mst. Taj Bibi and others" as both these connected petitions are arising out of one and the same judgment.

2. The chronology of this case is as follow:- On 21.05.2004, the respondent Mst. Gul Hizara and others had filed a suit in the Court of Senior Civil Judge/A'al Ilaqa Qazi, Swat for declaration, claiming therein that they are entitled to Shari share in the legacy of Fazal Rahman being the descendants of Mst. Bacha Zarina who was the sister of Fazal Rahman. It was their claim in the said suit that Fazal Rahman died some twenty (20) years prior to the institution of the suit who had no male child and was survived by his wife Mst. Bibi Zuhra, daughter Mst. Taj Bibi and a surviving sister namely Mst. Zianoor Hawa and the legal heirs (plaintiffs) of Mst. Bacha Zarina, the predeceased sister of Fazal Rahman. It was their further claim that Mst. Zianoor Hawa had died issueless some 7/8 years prior to the institution of the suit and thus they are also entitled in her legacy which she had derived from Fazal Rahman (her brother).

3. On being summoned, the present petitioners appeared and contested the suit in their written statement inter alia on legal as well as on factual grounds. The main ground of contest was:- i. That the suit property was purchased by Fazal Rahman through two deeds, one dated 15.05.1934 and the other dated 09.08.1940. ii. Through another deed dated 22.09.1980, he had distributed his property among his three legal heirs i.e. his wife Mst. Bibi Zuhra, sister Mst. Zainoor Hawa and daughter Mst. Taj Bibi. iii. They have denied the relationship of the mother of the plaintiffs with Fazal Rahman. iv. Through two registered deeds both dated 04.07.1982, Mst. Bibi Zuhra (mother of Mst. Taj Bibi, the present petitioner No. 1) and Mst. Zianoor Hawa (her aunt) had transferred their shares to Mst. Taj Bibi, the Petitioner No. 1. v. One shop out of the suit property was sold on 24.03.1984 by the petitioner No. 1.

4. A similar suit was also filed by one Inayat-ur-Rahman on 23.01.1986, claiming therein that Fazal Rahman deceased was his uncle, however in the said suit, he could not establish his relationship with Fazal Rahman deceased and the suit was dismissed vide judgment and decree dated 08.09.1987 by imposing cost of Rs. 5,000/- on him. 5. 27.10.2009: i. The plaintiffs/respondents with permission of the Court had filed an amended plaint, wherein they had changed their stance by asserting their claim on an order dated 13.01.1948 passed by the Tehsildar during the erstwhile Ruler of the Swat State wherein Fazal Rahman had acknowledged before the said Officer that Mst. Bacha Zarina was his sister and was joint owner in the suit property and whenever the legal heirs of her sister claims their rights in the property, the same will be given to them. Accordingly, the present petitioners had filed their amended written statement, wherein they had denied the execution of the said deed. Thereafter, issues were re-cast and the parties were provided an opportunity to produce their respective evidence.

6. Evidence: i. In support of the claim of the plaintiffs, the plaintiff No. 4 Ahmad Ali appeared as PW-1 who is the attorney of rest of the plaintiffs. He in his examination-in-chief produced a deed dated 13.01.1948 which was objected by learned counsel for the defendants/petitioners. In cross-examination, he has admitted that Fazal Rahman had died some 28/29 years prior to institution of the suit. He has also admitted that Mst. Zainoor Hawa had died on 01.10.1984. He has further admitted in his cross-examination that Mst. Bacha Zarina had died in the year 1945/1946. ii. Bawar Khan appeared as PW-2, he is the husband of Mst. Gul Hizara Plaintiff No. 1/respondent No.

1. He supported the claim of the plaintiffs. In cross-examination, he has admitted that Molvi Fazal Rahman during his life time had handed over his entire property to his wife, sister and daughter. Wahid Zaman appeared as PW-3, he is the husband of the plaintiff No. 7 Mst. Razia Begum and has also supported the claim of the plaintiffs. He has admitted in his cross-examination that Mst.Bacha Zarina had died in the year 1947. Dilbar son of Aslam appeared as PW-4 who is the maternal uncle of the plaintiff No. 4 Ahmad Ali and supported the claim of the plaintiffs. Bakht Zamin son of Behram appeared as PW-5, who has admitted that he is related to Dilbar (maternal uncle of the plaintiff No. 4). iii. Fazal Mabood son of Dada Gul appeared as PW-6. He has stated that Mst. Bibi Zuhra who was the wife of Fazal Rahman deceased was her maternal cousin. He has also stated that Mst. Bacha Zarina was the sister of Fazal Rahman. Mst. Bibi Zuhra was residing with her daughter and son-in-law Abdul Salam. However, their relation became strained and Mst. Bibi Zuhra widow of Fazal Rehman had left the house of her daughter and she came to his house and also given him power of attorney for initiating certain proceedings against her son-in-law Abdul Salam. He has also placed on file the said power of attorney given to him and the Court order exhibited as Ex. PW 6/1. Wazir Ahmad Advocate appeared as PW-7 who is the Notary Public and had notarized the aforesaid power of attorney which was executed in favour of Fazal Mabood by Mst. Bibi Zuhra.

7. Defence: i. In defence, the defendant No. 2 Abdul Salam appeared as DW-1 who has supported the claim of the defendants, however he has made certain improvements/ admissions regarding the contents of the deed which shall be discussed in the latter part of the judgment. He in his statement produced deed dated 15.05.1934 exhibited as Ex. DW 1/2 and deed dated 09.08.1940 exhibited as Ex. DW 1/3 and will deed dated 22.09.1980 exhibited as Ex. DW 1/4, whereby Fazal Rahman in his lifetime had distributed his property among his wife Mst.Bibi Zuhra, sister Mst. Zainoor Hawa and daughter Mst. Taj Bibi. He also produced registered gift deeds both dated 04.07.1982 exhibited as Ex. DW 1/5 and Ex. DW 1/6, whereby Mst. Bibi Zuhra (wife of Fazal Rahman) and Mst. Zainoor Hawa (sister of Fazal Rahman) had gifted their shares to Mst. Taj bibi (daughter of Fazal Rahman). He has further produced the power of attorney dated 07.03.1981 executed by Fazal Rahman exhibited as Ex. DW 1/7, CNIC of Fazal Rahman is Ex. DW 1/8, CNIC of Mst. Bibi Zuhra is Ex. DW 1/9, CNIC of Mst. Zainoor Hawa is Ex. DW 1/10, CNIC of Mst. Taj Bibi is Ex. DW 1/11, the plaint, written statement and the judgment of the earlier proceedings initiated by Inayat-ur-Rahman claiming to be the nephew of Fazal Rahman is Ex. DW 1/13 to Ex. DW 1/15. The said suit was dismissed vide judgment and decree dated 08.09.1987. ii. Muhammad Salam who is the brother of Abdul Salam appeared as DW-2. He appeared in support of the defence plea of the defendants, however he has stated nothing about the relationship of Mst. Bacha Zarina with the Plaintiffs. Shams-ur-Rahman appeared as DW-3 who has stated that he knew Fazal Rahman since 1960. Samiullah appeared as DW-4. He has also supported the defence plea of the defendants. Tapir Jan appeared as DW-5 who was the attorney of the legal heir of the defendant No. 5 i.e. defendant No. 5/3. The said legal heir had purchased certain property from Fazal Rahman through deed dated 30.12.1964 exhibited as Ex. DW 5/2. Muhammad Rashid appeared as DW-6 who has also supported the claim of the defendants Nos. 5/1 and 5/2 regarding their purchase of certain property from Fazal Rahman. In support of legal heirs of the defendant No. 5, Yasodin Jan appeared as DW-7.

8. Conclusion: On closure of the evidence, the learned Trial Court vide judgment and decree dated 21.02.2011 had decreed the suit by holding that the plaintiffs are not entitled in the legacy of Fazal Rahman, however they are entitled to their half shares in the suit property on the basis of deed dated 13.01.1948. The claim of the plaintiffs in the legacy of Mst. Zainoor Hawa to the extent of the property which she had gifted was dismissed and it was further held that if any other property was owned by Mst. Zainoor Hawa, the plaintiffs would be entitled to their shares in her legacy.

9. Both the parties had challenged the said judgment and decree before the learned appellate Court through separate appeals which were dismissed vide consolidated judgment and decree dated 05.03.2012. Hence, the present as well as the connected revision petition.

10. Arguments heard and record of the case was perused.

11. After hearing arguments of learned counsel for the parties and perusing the record, following are the issues for determination of this Court: a) Whether the plaintiffs had established deed dated 13.01.1948 before the fora below? b) Whether the plaintiffs had established the relationship of their predeceased mother Mst. Bacha Zarina with Fazal Rahman being her sister and as such are entitled to the shares in her legacy? c) Whether Mst. Bibi Zuhra and Mst. Zainoor Hawa had transferred their shares to Mst. Taj Bibi through registered gift deeds both dated 04.07.1982 and what is its effect on the present claim of the plaintiffs? d) Whether the petitioners if related to Mst. Zainoor Hawa are entitled to her legacy?

12. My findings on the aforesaid four (4) questions are as following: a) Whether the plaintiffs had established deed dated 13.01.1948 before the fora below? i. The document dated 13.01.1948 no doubt was produced in original before the learned Trial Court by PW-1 which contains an order stating that "Fazal Rahman who is the son of Amir Muhammad Shah appeared and acknowledged that Mst. Bacha Zarina who is the wife of Aslam is his sister and is co-owner with him in the purchased property. She has two legal heirs i.e. Mst. Gul Hizara and Mst. Taj Mahal, whenever they want their shares in the joint property, he will provide the same to them." However, the record is completely silent that why the need arose for Fazal Raham deceased to appear before the Officer of Ex-Ruler of Swat and to acknowledge the claim of Mst. Bacha Zarina. In this regard, no evidence has been produced by the plaintiffs. This deed/order after its execution has never been noticed by any one or acted upon. ii. Fazal Rahman who died in the year 1982 through his will dated 11.03.1981 exhibited as Ex. DW 1/4 had distributed his entire property to his then legal heirs and nobody questioned the said will deed. Therefore, after his death, his legacy devolved upon his legal heirs i.e. Mst. Bibi Zuhra (his wife), Mst. Zainoor Hawa (his sister) and Mst. Taj Bibi (his daughter). However, Mst. Bibi Zuhra and Mst. Zainoor Hawa had transferred the suit property through separate registered gift deeds both dated 04.07.1982 in favour of Mst. Taj Bibi exhibited as Ex. DW 1/5 and Ex. DW 1/6. iii. Even the present plaintiffs had filed the first suit on 21.05.2004. In the said suit, the plaintiffs did not assert their claim on the basis of deed dated 13.01.1948 exhibited as Ex. PW-1/2 but they had claimed their Shari share in the legacy of Fazal Rahman being the legal heirs of her predeceased sister. This claim of the plaintiffs for the first time surfaced in the year 2009 when they filed an application for amending their plaint which was accordingly accepted and in the amended plaint, they had claimed their rights in the property of Fazal Rahman on the basis of this deed. No doubt, this document Ex. PW-1/2 is more than thirty (30) years old and as such the Court may presume the contents of the document correct, however the said presumption is discretionary and the presumption of correctness may be raised regarding such document only when the said document and the contents therein are confidence inspiring and no circumstance appearing on the record to infer it being maneuvered. It was also a practice at the time of Ex-Ruler of Swat that such type of orders were executed/ recorded in a proper register, however, the plaintiffs had made no effort for placing on record the said register. Thus, the authenticity of this document appears to be doubtful as it was introduced at a very belated stage of proceedings and no reason was put forward that where this deed was lying during the intervening period starting from 1948 till 2009. Yet there is a mark difference between the admissibility of this document in evidence and its evidentiary value. In this regard, reliance is placed on NLR 1999 SCJ 433 titled "Lutufur Rehman and others v. Zahoor and others", wherein it has been held by the august Supreme Court of Pakistan that:- "No doubt documents thirty years old, produced from proper custody and otherwise free from suspicion proved themselves and no evidence of the handwriting, signature, sealing or delivery need, in general, be given. The presumption mentioned in Article 100 is, however, permissive and not imperative. Even if a document is 30 years old and is produced from proper custody, the Court is not bound to presume its genuineness. The Article lays down that the Court "may presume" and not that "shall presume" a document 30 years old and produced from proper custody to be genuine. It is, therefore, discretionary for the Court to raise or to refuse to raise the presumption. No doubt like any other discretion it should be raised by the Court or to refuse to raise the presumption in the exercise of judicial discretion. The Court may, however, refuse to raise the presumption where it has reasons to believe the document to be a fabrication or mere grave suspicion attaches to it. It is settled law that the effect of presumption may be weakened by circumstances which tend to raise doubts as to the authenticity of a document." The said view has been re-affirmed by the august Supreme Court of Pakistan in case titled "Satara Khan and others v. Manzar Hussain and others" (PLD 2004 Supreme Court 325) and "Allah Dad and 3 others v. Dhuman Khan and 10 others" (2005 SCMR 564). iv. The learned Courts below while admitting this document in evidence have relied upon certain admissions of DW-1 Abdul Salam who is the husband of Mst. Taj Bibi. In his cross-examination, he was confronted with this document. The said cross-examination for easy understanding the issue is reproduced as under:- The close perusal of this cross-examination appears that his opinion was sought on the contents of the document which he has stated before the Court. The said cross-examination does not give any impression that he has admitted this document. It is evident from record that the said document was never executed in his presence and when this document has never seen dawn of the day till 2009, then how can he admit the contents of this document and even if he has admitted this document as stated above, there is mark distinction between the admissibility of the document and establishing its contents. Indeed the plaintiffs could not establish before the Court that in what circumstances Fazal Rahman appeared before the then Officer of the Ex-Ruler of Swat to acknowledge the rights of their predecessor-in-interest over the suit property and if so happened, then why their father did not claim any right in the suit property because it is admitted fact on record that Mst. Bacha Zarina the predecessor of the plaintiffs had died in 1945/1946 before execution of the said deed. Thus, the findings of both the learned Courts below admitting the contents of this document are neither based on correct appreciation of evidence nor the same are legally tenable, hence are set aside. b) Whether the plaintiffs had established the relationship of their predeceased mother Mst. Bacha Zarina with Fazal Rainnan being her sister and as such are entitled to the shares in her legacy? i. The plaintiffs in the un-amended plaint had claimed that being legal heirs of the predeceased sister of Fazal Rahman, they are entitled to his legacy. This plaint was filed in 2004, however, this claim of the plaintiffs was denied by the defendants in their written statement. In support of this claim, the plaintiffs had produced oral evidence. Although some of the witnesses were closely related to the plaintiffs but in this regard, the important witness is Fazal Maboob PW-6 who is related to the defendants. He has stated that Mst. Bibi Zuhra (wife of Fazal Rahman) was his maternal cousin who was married to Fazal Rahman, He has affirmed in his statement that Mst. Bacha Zarina was the sister of Fazal Rahman. The record is silent that this witness has any mala fide or ill-will against the legal heirs of the defendants to wrongly state regarding the relationship of Mst. Bacha Zarina with the deceased Fazal Rahman. Despite the fact that the defendants had produced seven (7) witnesses but they did not state that Mst. Bacha Zarina was not the sister of Fazal Rahman. According to Article 64 of the Qanun-e-Shahadat Order, 1984, the opinion of the member family relating to the establishment of relations is relevant. The said Article is reads as under:- "

64. Opinion on relationship when relevant: When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Divorce Act 1869 (IV of 1869), or in prosecutions under Section 494 or 495 of the Pakistan Penal Code (Act XLV of 1860." Thus, the findings of both the Courts below that Mst. Bacha Zarina was the predeceased sister of Fazal Rahman are correct, however it is also established Islamic Principle of Inheritance that in presence of nearer blood relative, the remote blood relative is not entitled to the legacy of a deceased. At the time of the death of Fazal Rahman, he was survived by his daughter, wife and a sister. Hence, in the presence of his sister Mst. Zainoor Hawa, the legal heirs of Mst. Bacha Zarina are not entitled in the legacy of Fazal Rahman as admittedly she had died in 1945/46. c). Whether Mst. Bibi Zuhra and Mst. Zainoor Hawa had transferred their shares to Mst. Taj Bibi through registered gift deeds both dated 04.07.1982 and what is its effect on the present claim of the plaintiffs? i. In this regard, the defendants have specifically stated that Fazal Rahman had died in the year 1982 and after his demise, his legacy had devolved upon his daughter, wife and his sister Mst. Zainoor Hawa. Subsequently, the said property was transferred by Mst. Bibi Zuhra and Mst. Zainoor Hawa to Mst. Taj Bibi through registered deeds both dated 04.07.1982 exhibited as Ex. DW 1/5 and 1/6. However, despite that the plaintiffs did not specifically challenge the said deeds which were later produced in original before the Court. The said registered deeds were produced before the Court by the defendants, therefore they had established the transfer of property from Mst. Bibi Zuhra and Mst. Zainoor Hawa to the defendant No. 1 Mst. Taj Bibi. Thus, the suit filed by the plaintiffs in the year 2004 against the said deed is obviously time barred more particularly, when in the suit they had not specifically challenged the said registered deeds despite having knowledge of the same. d). Whether the petitioners if related to Mst. Zainoor Hawa are entitled to her legacy? i. In view of my findings in the first issue, it is established on record that Mst. Bacha Zarina was the sister of Mst. Zainoor Hawa, therefore on her demise the plaintiffs would be entitled to her legacy being the children of her sister provided the same property has not been transferred by her through registered gift deed dated 04.07.1982. Both the Courts below have also held them entitled in the left over property from registered deed dated 04.07.1982.

13. In view of the above, it is held that:- i. The plaintiffs could not establish deed dated 13.01.1948 Ex. PW 1/2 and thus are not entitled to any share in the property on the basis of the said deed. ii. Mst. Bacha Zarina the mother of the plaintiffs was the sister of Fazal Rahman, however the Plaintiffs under the Islamic law of inheritance are not entitled to the legacy of Fazal Rehman deceased. iii. The plaintiffs are entitled in the legacy of Mst. Zainoor Hawa, if any except the property which she had transferred to Mst. Taj Bibi through registered gift deed dated 04.07.1982.

14. Resultantly, the instant revision petition in the above terms is allowed, whereas the connected Civil Revision bearing No. 373-M of 2012 is hereby dismissed. ZC/96/P Order accordingly.