2016 PLP 383 (YLR)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Messrs Saddique and Maryam had inherited land from Chughta and Raji, their father and mother in two villages i.e. Chak No.23 Bhopewal, Tehsil Pattoki and Bonga Sodiwal, Tehsil Deepalpur, the detail of inherited land is given in the plaint, the mutation of inheritance in favour of Mst.Maryam are shown 230 and 269 in both the villages; Mst.Maryam died leaving behind one son Mansha, two daughters and husband Ramzan, Mansha died on 20.9.1986, the respondents Ayesha Bibi etc. are the legal heirs of Mansha and are residing in village Sodiwal and have never visited Chak No.23 Tehsil Pattoki. Ramzan is also the resident of village Bonga Sodiwal. The respondents claim their father Mansha was not given his share out of the land of his mother Maryam who died in the year 1957 at Chak No.23 Tehsil Pattoki; this fact never came in the knowledge of their father nor the respondents were aware of this fact; their grandfather Muhammad Saddique the petitioner No.1 transferred the land in favour of his two sons Khalid Ali and Tariq Ali, the respondents a few days before the institution of the suit came to know about the above facts through one Bashir Ahmad son of Hakim Atta Muhammad; the respondents inquired the facts from Pattoki and filed the suit for declaration. The petitioners contested the suit claiming that Maryam Bibi died issueless and her estate was devolved upon her husband Ramzan; the respondents Nos.7 and 8 are not the daughters of Maryam nor the predecessor-in-interest of respondents Nos.1 to 6 were the legal heirs of Maryam.

2. Out of the pleadings of the parties, learned trial court framed the following issues:-- "ISSUES: (1) Whether the suit is false, frivolous and liable to be dismissed? OPD (2) Whether the suit is time barred? OPD (3) Whether the plaintiffs filed the present suit just to harass the defendants and defendants are entitled to recover special costs under Section 35-A, C.P.C.? OPD (4) Whether the plaintiffs have got no cause of action to file the present suit? OPD (5) Whether the mutation of inheri-tance No.329 dated 20.8.1957 in connection with Mst.Maryam Bibi village Chak No.23, Bopeywal and present mutation inheritance No.139 dated 24.5.1958 village Bonga Sodiwal Tehsil Depalpur, District Okara are false, frivolous and against the law and facts and liable to be cancellation? OPP (6) Whether Maryam Bibi declared owner of land 26 canals and 19 marlas vide mutation No.230 and mutation No.269 land measuring 4 marlas from the land measuring 1 kanal and 18 marlas? If so, its effect? OPP (7) Whether the mutation No.329 dated 20.08.1957 has been sanctioned falsely? OPP (8) Whether plaintiffs are entitled to the decree as prayed for? OPP (9) Relief"

3. Both the parties adduced their respective evidence, both verbal and documentary, the learned trial court dismissed the suit vide judgment and decree dated 29.3.2000 holding that suit is barred by time; on appeal the learned appeal court decreed the suit vide judgment and decree dated 2.7.2002; hence the present petition.

4. Learned counsel for petitioner submits that impugned judgment and decree suffer from misreading and non-reading of the record, learned trial court has held that suit is barred by time; the sanction of mutation in favour of petitioner was in the knowledge of Mansha and he never challenged the disputed mutation; the learned first appeal court has failed to appreciate this most important fact and decreed the suit. Learned counsel argues with vehemence that principle of waiver and acquiescence apply in the inheritance cases; the conduct of claimant is also relevant factor, he relied on Mst. Grana through legal heirs and others v. Sahib Kamala Bibi and others (PLD 2014 SC 167); the legal heirs have no locus standi to challenge the disputed mutation on behalf of the alleged beneficiary who himself has not challenged the inheritance mutation in his life time. Reliance is placed on Muhammad Rustam and another v. Mst.Makhan Jan and others (2013 SCMR 299) and Abdul Haq and another v. Mst.Surrya Begum and others (2002 SCMR 1330).

5. Learned counsel for respondents submits that the impugned judgment and decree is in accordance with law; the trial court has dismissed the suit on the point of limitation only and declared that disputed mutation is illegal, the petitioners have not assailed the findings of learned civil court; hence these findings attained finality; the limitation is not applicable in the case of inheritance; the respondents when came to know about the fraudulent act of petitioner No.1, they have challenged the disputed mutation. He relied on Muhammad Farooq and 5 others v. Muhammad Haneef and others (PLJ 2011 SC 44), Nawab Khan and others v. Rehmat Bibi and others (2000 YLR 621), Muhammad Younus Khan and 12 others v. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618), Majeeduddin Khan and others v. Sardar Khan and others (1990 SCMR 1031) and Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others (PLD 1994 SC 462).

6. Heard, record perused.

7. The dispute between the parties is regarding the inheritance of one Mst.Maryam, the respondents claim is that their father and husband Mansha was the son of Maryam and he was given his share in her estate at Sodiwal, whereas at Pattoki he was not given his share out of the estate of deceased Raji. The petitioner No.1 Muhammad Saddique raised his defence that Maryam Bibi died issueless; her husband Ramzan inherited his estate, Mst.Khursheed Bibi and Mst.Zohra Bibi were not the daughters of Maryam Bibi and are the daughters of the second wife of Ramzan. The learned trial court while deciding the issues Nos.5 and 7 has finally decided that Khursheed/Bibi, Zohra Bibi and Muhammad Mansha are the daughters and son of Mst.Maryam Bibi, and the mutation No.329 (disputed) was incorrectly sanctioned. The petitioners have not assailed the said findings of the learned trial court nor filed any cross objection against the decree of learned trial court; hence the findings of learned trial court that Mansha was the real son of Maryam Bibi and mutation No.329 was wrongly attested in favour of Ramzan attained finality and could not be challenged in the present revision petition. The learned trial court dismissed the respondents suit declaring that the suit is barred by time; the learned appeal court set aside the findings of learned trial court on the point of limitation; the petitioner in the present petition only can assail the findings of learned appeal court on the point of limitation and not on other issues.

8. It is a settled law that right of succession of Muslim cannot be defeated by law of limitation; the Islamic law of succession is divine law and has a preference on man made law. In Islam, the succession opens on the death of owner and his legal heirs become the owner of their respective share according to Islamic law of inheritance on the day of death of owner of estate. The disputed mutation was attested declaring that Maryam Bibi died issueless which has been proved wrong as the estate of Maryam Bibi was inherited by her two daughters, one son and husband at Sodiwal; the petitioners have not assailed the said mutation and have admitted in their statements; hence it is proved that disputed mutation is void being the outcome of fraud. The limitation against the fraudulent act starts from the day of knowledge of fraud, the respondents have specifically asserted in their plaint that they came to know about the fraudulent mutation few days before filing the suit; meaning thereby the suit is within time. It is an established principle of law that fraud vitiates all solemn acts; the Hon'ble Supreme Court of Pakistan held in Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618) as under:-- "

15. There is no cavil with the proposition that fraud vitiates all solemn acts and any instrument, deed, or judgment, or decree obtained through fraud is a nullity in the eye of law and can be questioned at any time so much so that they can be ignored altogether by any Court of law before whom they are produced in any proceedings. Fraud is defined in section 17 of the Contract Act as the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; the active concealment of a fact by one having knowledge or belief of the fact; a promise made without any intention of performing it; any other act fitted to deceive; and any such act or omission as the law specially declares to be fraudulent. It was observed by this Court in the case of Abdul Wahid v. Mst.Zamrut (PLD 1967 SC 153) that a question of fraud is never purely a question of law as it involves firstly a finding with regard to fact, that is to say conduct on the part of the party alleged to consider whether such proved conduct amounts in the circumstances of the case to fraud. The Privy Council in its judgment reported as PLD 1958 Privy Council 48, held that the burden of proof lies on the party alleging fraud and this was so declared in so many cases by this Court as well including the case of Ahsan Ali v. District Judge (PLD 1969 SC 167). In the case of Mst. Bhani v. Mian A. M. Saeed (1969 SCMR 299) this Court observed that the Courts have to be careful in coming to a finding of fraud and should normally satisfy themselves that the finding is based on reliable evidence. "

9. The upshot of the discussion is that petitioners have failed to point out any illegality or irregularity in the impugned judgment and decree; the petition thus fails and is dismissed. SL/M-187/L Petition dismissed.