P L D 1993 Supreme Court (AJ&K) 24 (PLP)

The trial Court dismissed the suit holding that by making statement before the Collector at the time of the attestation of the mutation she had surrendered her title in the suit land in favour of the appellants and, thus, was estopped from challenging the entries made in the Revenue Record and to seek a decree for joint possession. It was also held that the suit filed by the plaintiff‑respondent was time‑barred because the entries made in the Revenue Record could be challenged within six years of the accrual of cause of action under Article 120 of the Limitation Act. The findings of the trial Court were affirmed on appeal by the District Judge. A second appeal was preferred by the plaintiff‑respondent, Mst. Sattar Bibi, in the High Court which was accepted. The High Court opined that Mst. Sattar Bibi could transfer her title by a registered document and not by an oral declaration in view of provisions contained in the Transfer of property Act and the Registration Act. We have heard the arguments and gone through the file. It has been argued by the learned counsel for the appellants that the High Court has committed an error by holding that the suit filed by the respondent was time barred. The learned counsel has argued that there are concurrent findings of the trial Court and the first appellate Court that the respondent, Mst. Sattar Bibi, and her two sisters made statements before the Collector at the time of the attestation of the mutation whereby they surrendered their shares in the holdings to the defendants‑respondents. They stated before the Collector that they had been already compensated by receiving dowry at the time of their marriages. Thus, according to the learned counsel for the appellants, the plaintiff‑respondent was not legally entitled to any relief in view of the operation of the principle of estoppel and also because her suit was hopelessly time‑barred. The learned counsel has maintained that the suit would be governed by Article 120 of the Limitation Act and the period of limitation would start from the accrual of cause of action, i.e., the date of the attestation of the mutation and not from the date of knowledge of the entries. The learned counsel for the appellants has maintained that the relief in form of a decree for joint possession cannot be given to the plaintiff‑respondent without the correction of the entries in the Revenue Record. The learned counsel has also maintained that a decree for joint possession could not be passed in favour of the respondent after the expiry of the period of twelve years, reckoned from the date of the death of the father of the plaintiff‑respondent. The learned counsel for the respondent Mst. Sattar Bibi, has controverted the legal propositions propounded by the learned counsel for the appellants and has maintained that in case of Muslims, inheritance opens on the death of the owner and all his heirs become co‑sharers in the estate left by the deceased. He has maintained that the entries in the Revenue Record do not bestow title on the heirs; rather these are evidence of the title. Thus, if it is shown that the heirs inherited their shares from the estate of the deceased owner, the mere fact that they have not been recorded as co‑owners in the Revenue Record, their interests in the joint property would not be affected adversely and the declaratory‑ suit is maintainable on the basis of title; the cause of action would not accrue from the date of first adverse entry in the Revenue Record but from the date of actual threat to their title or the denial of the same. He has also contended that there is not question of estoppel because there is no estoppel against a statute. The learned counsel has contended that once the shares devolve upon the heirs, any one of them can alienate his share only by a registered document because the Transfer of Property Act and the Registration Act are in force in the State. Thus, the plaintiff was not bound by statement even if the same is assumed to have been made at the time of the attestation of the mutation. The learned counsel has also maintained that the possession of the appellants in the instant case would also be deemed to be on behalf of Mst. Sattar Bibi, plaintiff‑respondent, so far as her share is concerned by fiction of law. Thus, there is no force in argument that the suit by a co‑sharer for joint possession would be time‑barred if brought twelve years after the death of the father of the plaintiff. He has further argued that in such a case, the cause of action would accrue when the title of a co‑sharer out of the possession is threatened or denied and not from the date of the adverse entry in the Revenue Record. The learned counsel has relied upon a case reported as Ghulam Ali v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). We have given our due consideration to the arguments raised at Bar. The authority relied upon by the learned counsel for the respondent is on all fours to the facts of the case in hand. In the aforesaid authority the dispute was regarding the property and the facts of case were that the sister had surrendered the share in favour of her brother and, thus, she had consented to the revenue entries; she claimed her share in the property after a considerable time after the death of her father and also challenged the entries made in the revenue record. While dealing with the question of inheritance in case of Muslims, their Lordships observed as under: "The main points of the controversy in this behalf get resolved on the touchstone of Islamic law of inheritance. As soon as an owner dies, succession to his property opens. There is no State intervention or clergy's intervention needed for the passing of title immediately, to the heirs. Thus it is obvious that a Muslim's estates legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the 'heirs automatically, and immediately in definite shares and fraction. It is so notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic Law. It is only when the property has thus vested in the heir after the succession opens, that he or she can alienate it in a lawful manner. There is enough comment and case‑law on this point which stands accepted. Reverting to the vesting of the property in a Muslim heir, as a corollary to what has already been said, it is further to be held that if the State, the Court, the clergy, the executor, the administrator does not intervene, no other body intervenes on any other principle, authority, or relationship even of kinship." While dealing with the question of relinquishment of the share of a female in favour of her brother, following observations were made:‑‑ "The question of immorality which has also been raised by the learned counsel for the petitioners as if, in the: circumstances of this case, it favours the petitioners would be dealt with separately. Here in the light of the foregoing discussion on the Islamic point of view the so called `relinquishment' by a female of her inheritance as has taken place in this case, is undoubtedly opposed to `public policy' as understood in the Islamic sense with reference to Islamic jurisprudence. In addition it may be mentioned that Islam visualised many modes of circulation of wealth of certain types under certain strict conditions. And when commenting on one of the many methods of achieving this object, almost all commentators on Islamic System agree with variance of degree only, that the strict enforcement of laws of inheritance is an important accepted method in Islam for achieving circulation of wealth. That being so, it is an additional object of public policy. In other words the disputed relinquishment of right of inheritance, relied upon from the petitioner's side, even if proved against respondent, has to be found against public policy. Accordingly the respondent's action in agreeing to the relinquishment (though denied by her) being against public policy the very act of agreement and contract constituting the relinquishment, was void:' Their Lordships dealt exhaustively with the question of limitation in cases like the one in hand and relying upon some earlier judgments, observed as under:‑‑ "The main argument of the learned counsel in this behalf is that the mutation sanctioned in 1963 against the respondent and her failure to challenge it for a long period would constitute such a conduct which would render the petitioners' possession as adverse to her. In answer to the query that she having become a co‑sharer immediately on the death of her father the plea of adverse possession against such a co sharer would not be available to the petitioners, learned counsel further contended that the mutation which was sanctioned against her interest together with her conduct of not challenging the same for very long term, would constitute her ouster and that being so the plea of co‑sharership in this behalf would stand repelled. This controversy now standes finally settled by a recent judgment of this Court. It was held in Haji v. Khuda Yar (PLD 1987 Supreme Court 453) that a similar adverse entry and non‑participation in the profits of the property‑would not amount to an ouster. While taking note of the earlier case of Anwar Muhammad and others v. Sharif Din and others (1983 SCMR 626) in extenso, it was observed that wrong mutation conferred no right in. property as Revenue Record is maintained only for purposes of ensuring realization of land revenue'. The suit in the said case was treated as having been `based on title and not for correction of Revenue Record'. Accordingly it was not held to be a case of adverse possession and the suit was found to be within limitation. In the case of Anwar Muhammad the defendants in an inheritance case of similar nature, having failed in the High Court their plea of adverse possession and limitation was repelled by this Court with the following statement of facts, observations and findings:‑‑ `The inheritance of Lakhwera was in dispute between the parties who are descendants from the same common ancestor. The plaintiffs respondents claimed that as heirs they were entitled to a particular share in this estate of Lakhwera and the mutations attested in 1907 and 1908 with regard to the devolution of his estate were not in accordance with the law. The petitioners resisted the claim not on the ground that the plaintiffs were not heirs of Lakhwera according to Shariat or that their shares were different from those claimed by them but on the ground that a suit for declaration was not competent as they were in possession of the suit land and that it was hopelessly barred by time. A number of issues were framed and the two Courts dismissed the claim of the plaintiffs‑respondents but in second appeal it was held that the plaintiffs-respondents admittedly held the land jointly with the petitioners and that their possession over the land was through their co‑sharers and the declaration of the property could be obtained by them and the Revenue Record had to be consequently corrected to reflect it. The learned counsel for the petitioners has reiterated the points taken up earlier. His insistence is that in the Bhawalpur State before the enforcement of the Land Revenue Act, as the Settlement record shows, the settlement with regard to the payment of land revenue was made with those persons who were in cultivating possession over the land excluding altogether others who were out of such possession. It is contended that when Lakhwera died the petitioners were in possession of the land and were so recorded excluding the, plaintiffs‑respondents. This the learned counsel for the petitioners wants to transform into principle of inheritance. Such a claim is based neither on custom nor on Shariat. What law prevails in the matter of preparation of Revenue Record or what practice is followed by the officers cannot be determinative of the devolution of the estate of a deceased person. It appears that the plaintiffs‑respondents were the heirs of Lakhwera and entitled to inherit in the same manner as the petitioners. The land being joint there was no question of their remaining out of possession or the suit being time‑barred. The possession of the one co‑sharer is for the benefit of all the other co‑sharers and a co‑sharer is deemed to be in possession through his other co‑sharers. Simply because the mutations were attested in 1907 or 1908 does not bless the transaction with sanctity. These mutations conferred no right in the property and are at best arrangements made on the fiscal side for ensuring realization of land revenue and ensuring the correctness of the Revenue Record for that purpose.' To the similar effect is the decision in Najabat and others v. Saban Bibi and others (PLD 1982 Supreme Court 187). It was held in the circumstances of that case that the co‑sharers/co‑owners were not at all obliged to file a suit to seek a declaration to the effect that a mutation had wrongly been sanctioned. It was also held that a suit filed, due to denial of rights of the plaintiff/co‑sharer, for declaration would be within time and the Revenue authorities on success of such suit would be required by law to correct the wrong mutation entries." In the instant case the trial Court and the first appellate Court expressed the view that as the entries in the Revenue Record were challenged beyond the period of six years when the same were made, the suit was time barred. It may be observed that the entries in the Revenue Record whether of mutation or record‑of‑rights do not by themselves vest title in heirs rather the same, at the most, are an evidence of title and if those are proved incorrect in view of facts admitted or proved, the title of an heir is not adversely affected. Thus, we fully endorse the view taken by the Supreme Court of Pakistan in the above‑cited case that in case of a Muslim owner, the estate left by him would devolve on heirs on his death and the fact that such heirs did not wish to inherit is of no legal consequence. In the instant case all that can be said is that although the shares of the plaintiff‑respondent had devolved on her on the death of her father but the mutation was not attested in her favour because she had relinquished her share' in favour of the appellants. If the plaintiff‑respondent wanted to transfer her share to the appellants, she could do so as permissible under law, i.e. through a registered document. The mere oral statement before the Collector that she does not want to get share out of the estate left by her father would not extinguish her title in the suit land and vest the same in the appellants to her exclusion. As she was a co‑sharer with the appellants, though was 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, because the cause of action in such cases would accrue only when real threat is posed to her title such as when the defendants‑appellants denied her title in unequivocal terms. Even if it is assumed for the sake of argument that an adverse entry in the revenue record would furnish her with a cause of action, then every fresh entry made in the Revenue Record to her detriment would give a new cause of action to her. Thus, in that case it cannot be said that the relief sought by the plaintiff pertaining to the entries in `Jamabandi' 1981‑82, was also time‑barred, because the suit in the instant case was instituted on 4‑8‑1986 and so was within six years .of the entries made in `Jamabandi' of the year 1981‑

82. Thus the relief regarding the entries in `Jamabandi' pertaining to year 1981‑82 cannot be refused on the ground of limitation. It is also settled principle of law that subsequent entries in the record‑of‑rights are preferred to those made earlier. The natural consequence of this would be that the declaratory suit would be within the limitation so far as `Jamabandi' of the year 1981‑82 is concerned and, thus, entries in `Jamabandis' previous to year 1981‑82 would not create hindrance to decide the question of the title of the plaintiff‑respondent or to pass a decree for joint possession in her favour. There is yet another aspect of the matter. It may be observed that if the title of the plaintiff‑respondent in the suit land cannot be said to have extinguished, it cannot be argued that as the declaration regarding the entries is time‑barred, the decree for joint possession cannot be passed in favour of the plaintiff‑respondent despite the fact that she has a subsisting right to the suit land. It would be paradoxical to say that although her title as co‑sharer in the suit land exists yet she is not entitled to a decree for joint possession because in the Revenue Record she has not been recorded as such, despite the fact that it is proved on the record that the said entries are violative of law and are void. Thus, even if it is said that the relief so far as it relates to the declaration that entries in Revenue Record are void is time‑barred, the relief regarding the decree for joint possession prayed for by the plaintiff‑respondent cannot be denied. For elucidating the matter further, a reference may be made to the following authorities:‑‑ In case reported as Gul Khan v. Said Hassan Shah PLD 1968 Pesh. 148, it was held that the plaintiff was in joint possession with the defendants, his suit was for declaration that revenue entries were ineffective against him and the starting point of limitation would be not the date of entries in the Revenue Record but from the denial of plaintiff's rights from the defendant. In Midnapore Zamindary Co. Ltd. v. Secretary of State AIR 1938 Cal. 804, it was held that in case of application of Article 120 of the Limitation Act, every fresh attack on the title or invasion of right of a party would give him a fresh cause of action to sue for declaration. If there be successive attacks at intervals, time would run from each of these attacks and a suit can be brought within six years of the last such attack. In Rura v. Banta AIR 1938 Lah. 227, it was held that in case of Article 120, Limitation Act, every fresh invasion of the right would give a party concerned a fresh cause of action and, Thus, a new starting point for limitation would be available to him. In Mt. Sukhdasi Kuar v. Fateh Bahadur Singh AIR 1933 Oudh 283, it was observed that where A consented to mutation being effected in the name of B in respect of certain lands; but subsequently owing to the assertion of title by B to the land, A sued for declaration, it was held that the cause of action arose not on the date of mutation but on the date when B asserted title on the basis of entry. In S.K. Acharji Chowdhury v. Umed Ali Howaladar AIR 1922 Cal. 251, it was held that an adverse entry in the record of rights does not give rise to the starting point of limitation; the limitation would start when actual threat is posed to the title of the plaintiff. So far as the question of estoppel is concerned, it may be stated that there is no estoppel against the law. Thus, assuming that the plaintiff respondent made a statement at the time of the attestation of mutation and surrendered her share in favour of the appellants, that would not extinguish her title and estop her from claiming her share. Because in view of the provisions contained in the Transfer of Property Act and the Registration Act, Mst. Sattar Bibi could alienate her share only by a registered document and not by an oral declaration or by an unregistered document. In any such eventuality, there would be no estoppel against her if she subsequently claims her share in the estate left by her father. This is well‑established principle of law that there is no estoppel against the statute. We are supported in our view by the following authorities:‑‑ In Official Assignee v. M.E. Moolla Sons Ltd. AIR 1935 Rangoon 84, it was observed that as no valid sale or transfer could be made except by a registered instrument, the question of estoppel does not arise. In Jai Sri Singh v. Prabhu Narain Singh Benaras AIR 1935 All. 127, it was held that equitable estoppel is not operative against the provisions of a statute. When an Act requires that enhancement can be effected only by means of a registered agreement, the principle of estoppel cannot be allowed to override such a specific provision. In Darbari Lal Mudi v. Raneeganj Coal Association Ltd. AIR 1944 Pat. 30, it was observed that as permanent sale could not be made under sections 106 and 107 the Transfer of Property Act without a registered instrument and, thus, no question of estoppel arises. This principle finds support from the cases reported as Ikram Bus Service v. Board of Revenue, West Pakistan PLD 1963 SC

564. The District Magistrate, Lahore v. Faqir Sayyed Fayyazuddin PLD 1965 SC 371, Islamic Republic of Pakistan v. Israrul Haq PLD 1981 SC 531 and Muhammad Suleman v. Javed Iqbal PLD 1982 SC (AJ&K)

64. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with no order as to the costs. AA./374/S.C.A. Appeal dismissed.