2018 PLP 2524 (YLR)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Undisputedly, subject land measuring 1387-Kanals 10-Marlas was titled by Lashker Din, who departed leaving behind two sons, Noor Din and Muhammad Din. The Revenue Officer while sanctioning inheritance mutation No.33 dated 28.09.1940 deprived Muhammad Din to inherit any share for the sole reason that he had been adopted by his maternal grandfather, from whom he also got some land, as such the entire estate was distributed to the other son, Noor Din. Although Muhammad Din survived for about 39 years and in his life his brother gifted out entire property to his four sons/petitioners vide mutation No.07 dated 12.03.1969, but he did not question the afore-noted mutations, however, after his death, Mst. Ashraf Bibi, respondent No.1, while claiming her to be daughter of late Muhammad Din, brought a civil suit in 1981 against the petitioners and the other legal heirs of both the brothers for the cancellation of those mutations contending therein that both the sons of Lashker Din as per Shariat and Custom were equally entitled to inherit his estate, but Noor Din in connivance with revenue field staff defrauded his illiterate brother to usurp his share. In paras Nos. 3 and 4 of the plaint, the case of the lady/respondent No.1 was fully pleaded and for better understanding her case, it would be advantageous to reproduce those here:-- In their defence, through written statement, the relationship inter se Lashker Din, Noor Din and Muhammad Din was admitted by the petitioners, but with the addition that inheritance in favour of Noor Din was rightly sanctioned as per law, however relation of respondent No.1 with Muhammad Din was disputed. The reply of afore-noted paras of the plaint was the real defence of the petitioners and for case it would be appropriate to reproduce the same here:-- The bare study of these paras is reflective of the fact that it was nowhere asserted that any custom was prevailing in the creed or the vicinity to the effect that if an adopted child got some land from the adopter, the adoptee would be deprived to inherit his share from the legacy of his natural family. Anyhow, the real contest arising out of pleadings of the rival parties was narrowed down through following issues:--

1. Whether the suit is within time? OPD

2. Whether the suit is bad due to non-description of the mutation in dispute? OPD

3. Whether the suit is bad due to non-description of the total area of the suit land, if so its effect? OPD

4. Whether the plaintiff has got no locus standi and cause of action against the defendant? OPD

5. Whether the mutation No.33 dated 28.09.1940 is illegal, void, fictitious and in-effective qua the rights of the plaintiffs? OPP

6. Whether the subsequent mutation No.7 dated 12.03.69 is illegal, void and ineffective qua the rights of the plaintiff? OPP

7. Relief. Both the parties as per desire produced their respective evidence. The Court of first instance by and large on the score of limitation, locus standi and cause of action dismissed the suit vide judgment dated 19.02.1988. Its perusal affirmed that no doubt issues Nos. 5 and 6 were also decided against the plaintiff, but without referring any law or custom to convince that a real son could be deprived of his share from the legacy of the father. Definitely the judgment of the Civil Court was assailed by respondent No.1, but it was such an unfortunate case, which was twicely remanded by the august Supreme Court and as a result of last remand order dated 11.04.2016, the matter was directly sent to the lower Appellate Court for making a decision of appeal preferred against judgment and decree dated 19.02.1988, who on 08.04.2017 allowed the appeal and decreed the suit of respondent No.1, impugned in this Civil Revision.

2. Despite the fact that it was nowhere case of the petitioners/defendants that Muhammad Din had been adopted by his maternal grandfather and for any custom he was rightly deprived of his share, but today Mr. Muhammad Mahmood Chaudhary, Advocate for the petitioners while referring certain paras of 'Customary Law' authored by "Om Prakash Aggarawala" tried to convince that an adoptee had no right to seek share of inheritance out of his natural family, but its perusal in depth depicts that this custom was prevailing in the Hindus, whereas under Muhammadan Law adoption was never recognized and even if it was made, it carried no right of inheritance. The Chief Court through its judgment reported as 'Muhammad Umar Khan and others v. Muhammaa Nia-ud-Din Khan' (126 P.R. 1912 (P.C.) has already observed that even if an adoption by a Muhammadan was permissible under any valid custom in Punjab, it could not be proved that the parties to the suit belonged to a family to which the Punjab Agricultural or other similar restrictive customs must be presumed to apply. Moreover, as per para 35 of the Book the practice of adoption was restricted to a sonless proprietor to appoint one of his kinsman to succeed him as his legal heir. In the case in hand, not an iota of evidence was examined to prove that the maternal grandfather, who allegedly adopted Muhammad Din was a sonless proprietor, whereas there is general guiding principle set up till today by the Courts of land that Muhammadan Law has to be followed unless a special custom modifying or verifying is proved. I have no doubt in mind to observe that customary appointment of an heir does not involve the transplantation of a person from one family to another. The tie of kinship with the natural family is not dissolved and the fiction of blood relationship with the members of new family has no application to the appointed one. The relationship created among the appointer and appointee is purely personal by choice and does not extend beyond the contracting parties on their sides vide inter alia.

3. While referring para 48 of the Book ibid, the argument of Mr. Mehmood Chaudhry that Lashker Din died prior to promulgation of the West Pakistan Muslim Personal Law (Shariat) Application, Act, 1948 and the Revenue Officer was perfect to deprive Muhammad Din from the legacy of his father, when Noor Din, the other son was available, is not well founded. It would be salutary to attend to section 5 of the Punjab Laws Act (IV of 1872), which runs as follows:-- "

5. In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision shall be:-- (a) any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority; (b) the Muhammadan law, in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to". The bare perusal of provision ibid unveils that the decisions pertaining to the succession must be taken as per custom applicable to the parties concerned, otherwise, the Muslims were to be administered by the Muhammadan Law for effecting succession among them. In such situation, the petitioners were under obligation to have proved that the custom prevailed for years and years without any interruption among their tribe as per their common will and unanimous intention. In absence of its proof. an heir ordained by Sharia cannot be deprived of his legal share from inheritance, which vests in him automatically upon the death of his propositus. Benefit as provided in sub-section (a) of Section 5 of the Act, ibid can only be extended, if it is proved that the parties were governed by the practice, otherwise, Muhammadan Law was to be applied. Reverting to merits of the case, it was not the case of the petitioners through their pleadings that under a custom, Muhammad Din was not entitled to inherit his shari share. The evidence on their behalf to this extent was also lacking in totality, whereas they did not endeavor to bring on record copy of Riwaj-e-Aam or other material to prove that such a custom was prevailing. In case cited as 'Gaman and another v. Nadir Din and another' (35 P.R. 1896) on Appellate side, it was concluded that a custom with regard to adoption was not valid among Arains tribe and the conclusion of said Court is reproduced hereunder:-- In several recent cases this Court has found against the existence of the custom of adoption or appointment of an heir among the Muhammadan tribes of the district Gujrat. The question was fully considered in one of the latest of them, No.140 of 1893, and it was found, after a careful examination of the authorities, that adoption, at least eo nomine, is not recognized among those tribes. See also No.102, Punjab Record, 1893, in which it was held that among the Paswal Gujjars of Tehsil Kharian the same rule prevails, the Riwaj-i-Am in that case being worded exactly like that of the Khokhars in the present one. See also No.79, Punjab Record, 1893, where the parties were Arains of Gujrat tehsil, and No.81, Punjab Record, 1892, a case among Kalwal Jat of Kharian tehsil, the Riwaj-i-Am in both being to the same effect as in the two previous cases. The Divisional Judge has relied on No.104,Punjab Record, 1891, but that was a decision regarding the Bhatti Jats of Kharian tehsil, and its correctness was doubted in No.140 of 1893 on what we considered are cogent grounds. We are of opinion that defendants have failed to prove that Nadir Ali was competent to make a valid adoption of Imam Din by custom. No doubt, the afore-referred verdict was with regard to Arains of Gujrat tehsil, whereas the parties to the list belong to Okara tehsil, but of the same tribe. The sole defence agitated by the petitioners that respondent No.1 was not daughter of Muhammad Din was dislodged by the lady while bringing on record copy of her Birth Entry (Exh.P5). This manuscript was not rebutted through any document, which being copy of public record attained strong presumption of correctness. In such state of evidence, when relationship of father of respondent No.1 with Lashker Din stood admitted and in absence of any evidence on record that the family was governed by such a custom that an heir could be deprived of his Shari share from the legacy of his father, the impugned inheritance mutation neither could be supported nor perpetuated and this Court feels no hesitation to approve the findings of the learned Appellate Court on issues Nos.5 and 6.

4. It was next emphasized with great vehement by learned counsel for the petitioners while relying upon judgments rendered in cases Muhammad Sadiq and 3 others v. Mst. Seemi Bibi through Legal Heirs and others' (2017 MLD 94), 'Lal Khan through Legal Heirs v. Muhammad Yousaf through Legal Heirs' (PLD 2011 SC 657), Jamila Khatoon and others v. Aish Muhammad and others' (2011 SCMR 222) and 'Noor Din and another v. Additional District Judge, Lahore and others' (2014 SCMR 513), that mutations in dispute were challenged after 41 years and the suit on the face of record was barred by time, as such the Civil Court was perfect to dismiss it, whereas learned Appellate Court could not comprehend this legal aspect of the case, was not well founded. Not only the averments of the plaint reflected plausible grounds to institute the suit with delay, rather after a thorough probe and scrutiny the learned Additional District Judge arrived at conclusion that the impugned mutation was manipulated with some insertions as well as change of digits, which could not be efuted by Mr. Mehmood Chaudhary. Above all, when with the able assistance of learned counsel for the parties, the statement of one of the petitioners, namely, Muhammad Amin (DW- 1) was considered, there left no room that Muhammad Din, who admittedly was an illiterate person was kept unaware of the inheritance mutations. The words uttered by DW-1 in his statement were sufficient to disbelieve the inheritance mutation, but were not considered till this day at any forum, which are reproduced hereunder:-- Not only Muhammad Din, the father of respondent No.1, was confident that half of the property of his father was devolved upon him, but the father of the petitioners also solaced the latters to that effect, which they uttered in the words referred hereinabove. There is no cavil that fraud vitiates every solemn transaction and Court of law shall, in no eventuality, endorse and perpetuate a fraud once it is proved to have been committed. Any transaction found to be result of misrepresentation cannot be protected on the sole score of limitation. It is a settled principle of law that whenever such transaction is pressed into service or is pleaded, the Court has to refuse to give effect to the same, much less to endorse and acknowledge it. Reliance can be placed upon the judgments reported as `Abdul Rahim and another v. Mrs. Jannatay Bibi' (2000 SCMR 346) and Khair Din v. Mst. Salaman and others' (PLD 2002 SC 677). Moreover, limitation in case of inheritance does not apply. Reliance can be placed upon the case law reported as 'Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi' (PLD 1990 SC 1), 'Maqbool Ahmed v. Govt. of Pakistan' (1991 SCMR 2063), 'Khair Din v. Mst. Salaman and others' (PLD 2002 SC 677). 'Mst. Reshman Bibi v. Amir and others' (2004 SCMR 392), 'Mst. Gohar Khanum and others v. Mst. Jamila Jan and others' (2014 SCMR 801) and 'Noor Muhammad (decd) through L.Rs. v. Jan Muhammad (decd) through L.Rs. etc.' (PLJ 2015 SC 831), wherein it was concluded that devolution of inheritance is automatic and a co-heir becomes co-sharer, the moment inheritance opens, even the entry of mutation is also not essential. In this scenario, it is settled by now that there is no limitation for a co-sharer and the barrier of limitation will not be any hurdle in the enforcement of the rights of inheritance. The respondent No.1/plaintiff has prayed for declaring the mutation in dispute as illegal, which has been entered in the Record of Right. The entries in the Revenue Record afforded fresh cause of action to the plaintiff and adverse entries in the Revenue Record even if allowed to remain unchallenged do not necessarily extinguish the right of the party against whom such entry had been made. Every fresh entry in the record of right gives fresh cause of action to the plaintiff. This view has been affirmed by the apex Court in the judgment reported as 'Wali and 10 others v. Akbar and 5 others' (1995 SCMR 284). The case law referred by the learned counsel for petitioners does not apply to the facts and merits of the case and runs on different footing, which has also been deliberated by learned Addl. District Judge in his judgment to form a different view. Even otherwise, each case has to be decided as per its own facts.

5. Next argument of learned counsel for the petitioners while referring judgments cited as 'Kala Khan and others v. Rab Nawaz and others' (2004 SCMR 517), 'Muhammad Rustam and another v. Mst. Makhan Jan and others' (2013 SCMR 299) and 'Ghulam Abbas and others v. Muhammad Shafi through L.Rs. and others' (2016 SCMR 1403) that Muhammad Din died after considerable length of time, who did not assail the impugned inheritance mutation in his lifespan, therefore, his daughter/respondent No.1 had no locus standi and cause of action to dispute the mutation, is not tenable. After perusal, it reveals that the said case law is based on different facts. In Kala Khan's case (supra), on the death of Alladad (issueless), his brother Massu Khan approached the Patwari for the entry of inheritance mutation of the deceased while disclosing that he was also survived by his widow, Mst.Jannat Bibi and in common assembly convened for that purpose, inheritance mutation No.126 in presence of Mewa Khan and Allah Dewaya brothers of the deceased was sanctioned in their favour as well as Mst. Jannat Bibi, however, after the death of Massu Khan and Allah Dewaya in whose presence the referred mutation was entered and sanctioned, the same was challenged for the first time with the stance that Alladad deceased was Shia by sect, therefore, his issueless widow, Mst. Jannat Bibi was not entitled to inherit the property of her deceased husband and the apex Court in such circumstances concluded that the L.Rs. of Massu Khan and Allah Dewaya having no locus standi as well as cause of action were estopped by the conduct of their predecessors, who raised no question qua sect of the deceased although the mutation was sanctioned in their presence, whereas in the case in hand, Muhammad Din was not shown to be available at the time when impugned mutation of inheritance was sanctioned, rather its perusal avowed that through an interlocutory order, he was summoned for a particular day, but prior to that epoch, after changing the digit, the impugned mutation was attested, as such the facts of the case under discussion are totally different with that of instant case. In Muhammad Rustam's case (supra), the inheritance mutation No.571 dated 09.07.1927 (might have been attested under customary law) was challenged by the party while claiming his share of inheritance as successor of Mst. Karam Jan, who remained alive till 1975 and the apex Court maintained the judgment of this Court while applying law of estoppel with the conclusion that it was never the case of the party (plaintiff) that either he or his predecessor-in-interest were unaware of the said mutation, whereas situation in the present case is totally different. In Ghulam Abbas's case (ibid) as per facts narrated therein, one Feroze had two wives; Mst. Bibi and Mst. Sardaran. Mst. Bibi had two sons, Muhammad Nawaz and Faqeer Muhammad, whereas Mst. Sardaran had one son, Muhammad Shafi and four daughters. After demise of Feroze, as per custom his estate devolved upon his three sons only. Subsequently, Faqeer Muhammad, one of his sons out of Mst. Bibi died issueless, but his inheritance mutation No.1147 was sanctioned in favour of his real mother, brother Muhammad Nawaz as well as step-brother and sisters, whereas under the law it was only to be attested in favour of Muhammad Nawaz and Mst. Bibi, being the real brother and mother. Being unhappy, inheritance mutation No.1147 was assailed by Muhammad Nawaz and Mst. Bibi through declaratory suit in 1957, which was withdrawn by them unconditionally under a compromise in the same year and after their departure from this world, a subsequent suit filed in 2000 by the L.Rs. of Muhammad Nawaz was dismissed and the same was maintained by the apex Court under the mandate of Order XXIII Rule 1(3) of the Code, 1908 while applying the principle of estoppel. In that case too, predecessor of the plaintiffs had filed the suit in his life to challenge inheritance mutation, so the facts on the basis of which second suit was filed were not only in the complete knowledge of their predecessor, rather he challenged it and withdrew his case, therefore, apex Court concluded that latter or his L.Rs. had no locus standi to institute a second suit on the same subject with identical prayer. The facts of the said case are again altogether different than the case in hand.

6. No other ground was agitated by learned counsel for the petitioners to make a different opinion, which was formed by learned lower Appellate Court. Moreover, his judgment has to prevail over the verdict rendered by his subordinate Court, hence, in the light of above discussion, instant Civil Revision having no merit and force is dismissed with no order as to costs. ZC/M-122/L Revision dismissed.