2005 PLP 1534 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Mst. Kaneezan Bibi and her five sisters, all daughters of Wall. Muhammad have filed this petition for leave to appeal against the judgment dated 25-7-2003 passed by a learned Single Judge of Lahore High Court whereby their revision petition against the judgment and decree dated 25-11-1992 of the learned Additional District Judge, Nankana, Sahib, was dismissed.

2. It is not disputed and also proved on record that the property originally belonged to Amir Khan, the grandfather of the petitioner ladies. Amir Khan had five sons named Muhammad Ramzan, Muhammad Hussain, Muhammad Hassan, Abdul Aziz and Wali Muhammad. Wali Muhammad was the father of the present six petitioners who had predeceased his father Amir Khan. Amir Khan had died in the year, 1975.

3. After the death of Amir Khan, his inheritance Mutation No.65 was attested on 23-3-1979 whereby, under the provisions of section 4 of Muslim Family Law Ordinance, the petitioners were jointly granted 1/5th share in the property of Amir Khan. After the attestation of inheritance mutation, Muhammad Ramzan brought a declaratory suit to the effect that during the lifetime of his father he had purchased the suit property from his father on 26-2-1960 and thereafter, had sold the same to respondents Nos.2 to 9 that included his brothers etc. This suit was withdrawn on 15-11-1980.

4. After withdrawal of the aforesaid suit, the present petitioners, the daughters of Wali Muhammad brought the instant suit claiming title to 1/5th of property on the basis of inheritance mutation dated 23-3-1979.

5. After contest between the parties, the learned trial Court passed a decree as prayed for on 19-6-1990 which was set aside by the learned Additional District Judge on 25-11-1992. The same was concurred by the learned Judge of High Court through the impugned order and hence this petition.

6. The registered deed in question was never produced in original and no marginal witness of sale-deed was ever examined in Court and hence the registered deed cannot be said to have been proved, specially when the same was got executed during pendency of the suit brought by Muhammad Ramzan. Muhammad Ramzan has also failed to prove the sale in his favour from his father and also as to why it was kept secret for as many as 15 years. On factual aspect, the learned trial Court have arrived at correct conclusion which was wrongly interfered with by First Appellate Court as well as the High Court.

7. The question of 'limitation is not attracted at all because through inheritance mutation dated 23-3-1979, the petitioners were granted due share and hence they were never supposed to become alarmed about anything which was never in their knowledge. Even otherwise, they had become co-sharers in the property to the extent of the Sharai share the moment Amir Khan died and hence could not have agitated any cause unless the right was denied or interfered with. For the first time such right was denied, and so came to the knowledge of the petitioners, when Muhammad Ramzan filed a suit aforesaid which was contumaciously withdrawn after when he manoeuvred to get the deeds registered. From such knowledge that happened to be obtained in the early 1980, the instant suit of the petitioners on 22-11-1980 was perfect and well within time. Ramzan had allegedly sold the property on 12-4-1980 and therefrom, as well, the suit was within time.

8. It appears that nothing remained unusual till the lifetime of Amir Khan and thereafter everything was manoeuvred only and only to deprive the daughters of predeceased son Wali Muhammad of their Sharai share of inheritance.

9. Consequently, the petition, after conversion into appeal is hereby accepted, the impugned judgment is set aside, that of the trial Court is restored and the petitioners are hereby declared to be the legal heirs of Amir Khan to the extent of 1/5th share subsequently recognized through Mutation No.65 attested on 23-3-1979. Costs to be borne by the respondents throughout. M.H./K-20/S Appeal accepte