2003 PLP 1250 (YLR)

6. After hearing the arguments of the learned counsel for the parties the lower Court in its judgement, dated 30th April, 1988 reached to the conclusion that Mst. Zainab was not the sister of deceased Lal Bux, suit filed by the applicants was maintainable, within time, and applicants had cause of action to file the suit. I has all the issues were decided in favour of applicants and their suit was decreed as prayed with costs, except in respect of certain agricultural lands mentioned in the last page of the judgment.

7. The respondents Nos. l to 3 preferred Civil Appeal No. 153 of 1988 before the District Judge, Hyderabad. which was heard and decided by learned III‑Additional District Judge, Hyderabad. who in his impugned judgment, dated 27th April, 1989 held Mst. Zainab as sister of deceased Lal Bux and found the suit not maintainable and time‑barred. Accordingly, he allowed the appeal and set aside the judgment and decree passed by the lower Court and dismissed the suit of the applicants.

8. Mr. Abdul Sattar Shaikh, the learned counsel for the applicants, in order to render proper assistance to this Court, placed on record concise pedigree of deceased Lal Bux which is reproduced as under:‑‑ Lal Bux Died 50 year back | ______________________________|____________________________________ |?????????????????????????????????????????????????????????? |?????????????????????????????????????????????????????????????????????? | Rewat khan Son ????????????????????? Mst. Waddi????????????????????????????????????????????????????? Sister Zainab Pre deceased his father Daughter ???????????????????????????????????????????? ?????????Died 40 ys back |?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? | |________________________?????????????????????????????????????????????? __________________|_____ |?????????????????????????????????????????????? |?????????????????????????????????????????????? |?????????????????????????????????? ???????? | Ahmed Khan?????????????????????????????????????????????? ???? ?????????????????? Ali Khan????????????????????????????????????????????????????? ????? ????????????????? ?Niece??????????????????????????????????? ???????????? Husband Seemre??? Plaintiff No.1????????????????????????????????????????????? __________|___________________?????????????????????????????????????????????? ????? ????????????????? ?Mst.Waddi????????????????????????? ???????????? Died 35 Ys.back?? |?????????????????????????????????? |?????????????????????????????????? |?????????????????????????????????????????????????????????? | |?????????????????????? Widow No. 1?????????????????????? Widow No. 2????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? | |?????????????????????? Fatime??????????? ??????????????????????? Miral?????????????????????????????????????????????????????????????????? | |?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? | |?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? | |?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ???????Cousins??????? ________________________|____ |?????????????????????????????????????????????????????????????????????????????????? |?????????????????????????????????????????????? ???????? |? |?????????????????????????????????????????????????????????????????????? Ghulam Ali?????????????????????????????? Haji Abdullah?? |?????????????????????????????????????????????????????????????????????? Def No 1????????????????????????????????? Def No.2 |?????????????????????????????????????????????????????????????????????????????????? | |?????????????????????????????????????????????????????????????????????????????????? son |?????????????????????????????????????????????????????????? _______________________ |?????????????????????????????????????????????????????????? Gul Muhammad Deft No.3 |_____________________________________________________________________ |?????????????????????????????????? |?????????????????????????????????? |?????????????????????? |?????????????????????????????????? ????? |???? Haji Rewat?????????????????? Ghulam Mohd????????????? Khan Mohd????? Lal Buksh???????? ??? Ali Ghulam Plt No2??????????????????????? Plt No.3?????????????????????? Plt No.4?????????? Plt No.5?????????? ???? Plt No.3

9. Learned counsel contended that admittedly parties to this litigation are Sunni Muslims thus Sunni Muslim Law of Inheritance will be applicable to determine their inheritance share. Referring to the above pedigree, he contended that facts that Mst. Wadi was the only surviving daughter of late Lal Bux and Ahmed Khan and Ali Khan were the grandsons of Lal Bux from his pre?deceased son Rawat Khan have not been disputed by the respondents but their claim is that besides these legal heirs deceased Lal Bux had also left behind one sister Mst. Zainab whose right of inheritance in the lands of deceased Lal Bux was omitted at the time of Foti Khata of late Lal Bux, which took place in the year 1929. He contended that even if, for the arguments sake, Mst. Zainab is taken to be the sister of late Lal bux then too under the Sunni Muslim Law of Inheritance she was not entitled for any share in the lands left behind by deceased Lal Bux and for this short reason alone this revision application should be allowed. To fortify his submissions he referred to the table of sharers given in the Mahomedan Law by D.F. Mulla to show that Mst. Wadi the only daughter of Lal Bux was sharer as Serial No.7 of this Table thus she inherited 1/2 share in the lands of late Lal Bux. He then referred to Serial Nos. 11 and 12 of the same table to show that the share of full sister or consanguine sister was subject to the condition given in Column No.3 of the table that they will be entitled when there is no (1) child, (2) child of a son h.l.s (3) father, (4) true grandfather, or (5) full brother of deceased. Thus under the table of sharers Mst. Zainab was not entitled to inherit anything as sharer from late Lal Bux. He then came to the table of residuaries to show that son's son finds place at Serial No.2 of the list of residuaries in the order of succession, therefore, whatever was left behind after the share of Mst. Wadi was inherited by them Ahmed Khan and Ali Khan as residuary, being son's son. Referring to Serial Nos.6 and 8 of the list of residuaries, learned counsel contended that full sister or consanguine sister in the category of residuary could only inherit in the absence of persons named at Serial Nos. 1 to 5/7 in the table of residuaries. Thus in the presence of names of son's son at Serial No.2 of the table Mst. Zainab stood totally eliminated to claim any share in the agricultural lands of deceased Lai Bux, either as sharer or residuary. In order to show the preference of residuaries for the purpose of succession he referred section 52 of the principles of Mahomedan Law (Tenth Edition) by D.F. Mulla, which is reproduced as under:‑‑ "52.????? Residuaries.‑‑‑If there are no sharers, or if there are sharers, but there is a residue left after satisfying their claims, the whole inheritance or the residue, as the case may be, devolves upon residuaries in the order set forth in the annexed table (40‑A)."

10. Mr. Shaikh thus contended that this legal position going to the root of the case of respondents was completely overlooked by the First Appellate Court while passing the impugned judgment, that from no stretch of imagination the predecessor‑in‑interest of respondents Nos. 1 to 3 viz. Mst. Zainab could. inherit any share from the estate of late Lal Bux in the facts and circumstances of the present case.

11. Referring to the question of limitation raised by respondents in their written statement learned counsel made two fold submissions. Firstly he contended that the whole action of change of Khatas pertaining to the year 1929/ 1946 in the year 1969/1970 was managed behind the back of applicants thus Article 120 of the Limitation Act will be applicable and the period of limitation would start from the date of knowledge of such fraud practised by the respondents which came to the knowledge of the applicants only 2/3 days prior to the institution of the suit. Referring to the alleged statement of Ahmed Khan before the Revenue Authorities record in the year 1969/70 he contended that though the applicants have denied such statement but even if such statement of Ahmed Khan is taken into consideration on its face value then he had no where conceded for' any share in favour of Mst. Zainab from the lands of late Lai Bux and further such statement is not binding on other applicants. Mr. Shaikh next contended that when it is fully established that under the Sunni Muslim Law of Inheritance Mst. Zainab, even if she was sister of late Lal Bux, was not entitled to inherit even a single paisa share from deceased Lal Bux then the whole proceedings based on wrong legal proposition were without jurisdiction, nullity in the eye of law and ab initio void, thus there will be no period of limitation to challenge such void orders/entries. He placed reliance upon the case of Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others PLD 1994 SC 462, wherein it was held that mutation proceedings are not judicial in the sense and do not provide starting point of limitation.

12. Mr. Jhamat Jethanand, the learned counsel for respondents Nos.1 to 3 on the other hand contended that the suit instituted by the applicants before the lower Court was hopelessly time‑barred as from the statements produced on record by the respondents it is evident that change of mutation of agricultural land was effected in the year 1970 on the statement of applicant Ahmed Khan, who had full knowledge such change of mutation thus filing of suit in the year 1986 was barred by limitation and not saved by Article 120 of the Limitation Act. Learned counsel also disputed the assertion of Mr. Sattar Shaikh regarding mode of inheritance, as noted above, however despite specific directions of this Court contained in the order, dated 17‑12‑2002, he refrained from making any statement in writing before the Court to submit his point of view that how in the presence of one daughter and two grandsons under the Sunni Law of Inheritance the sister could inherit any share. He, however, placed reliance on the cases reported as Moolla Cassim Bin Moolla Ahmed v. Moolla Abdul Rahim and others reported in 32 Indian Appeals page 177 and Abdul Bari Khan and another v. Nasir Ahmed Khan and others reported in 150 Indian Cases page 330.

13. I have gone through these two cases and seen that in both the cases it was held that if son dies, leaving his children before opening of succession, such children will be excluded from succession in presence of their uncles and aunts. There is no cavil to their legal proposition inasmuch as if there were many sons and daughters of a deceased out of whom one son had died then in the presence other sons and daughters, who will be uncles and aunts of the grandchildren of the deceased, grandchildren will not be entitled to inheritance any share from the deceased. It is thus obvious that both the cases are distinguishable and not applicable to the facts and circumstances of the present case.

14. I have carefully considered the arguments advanced by the learned counsel for the ‑parties and with their assistance perused the whole case record and the relevant provisions of law Mahmodan Law attracted in the present case.

15. The moot point for consideration involved in this revision application is that whether in the presence of one daughter and two grandsons of deceased Lal Bux, even if Mst. Zainab was taken to be his sister, would she be entitled for any share from the agricultural lands left by deceased or not. In this context, the contention of Mr. Abdul Sattar Shaikh, which is purely legal and goes to the root of the case, that when deceased Lal Bux had left behind one daughter Mst. Wadi and two grandchildren Ahmed Khan and Ali Khan from his predeceased son Raat Khan then his alleged sister Mst. Zainab would not be entitled to inherit any share in the agricultural lands left by deceased Lai Bux finds full support from the table of sharers and residuaries given in Chapter VII (Hanfi Law of Inheritance) in the boor Principles of Mahomedan Law (Tenth Edition) by D.F. Mulla. Mr. Jhamat Jethanand, the learned counsel for respondents Nos. 1 to 3 was also unable to controvert this position. There is no cavil to this legal position and this short ground alone is sufficient to hold that the First Appellate Court while passing the impugned judgment and decree acted illegally and with material irregularity in ignoring this important feature of the case which furnishes valid ground for this Court to interfere in such judgment and decree in its revisional jurisdiction.

16. In view of the above legal position I have no hesitation to hold that all proceedings regarding change of entries in the Revenue Record (Khatas) taken by the respondents Nos. 4 and 5 in the year 1969/70, which were based on the application of respondent No. 1, dated 5‑12‑1969 (Exh. 152) were without jurisdiction, void and nullity in the eye of law, and same are liable to be cancelled. As regards the question of limitation it may be observed that under Article 120 of the Limitation Act prescribed period of limitation is to be computed from the time when the right to sue accrues to a party. Obviously in the present suit when applicants came to know about the fraudulent entries in favour of respondents Nos. 1 to 3 in the Revenue Record only 2/3 days before filing of suit then the suit instituted by them was well within time. The production of alleged statement of applicant Ahmed Khan pertaining to the year 1969/70 has not changed this position as firstly such statement, despite specific denial by applicants, has not been proved in accordance with law and secondly such statement was not binding on other applicants (plaintiffs Nos.2 to 6) in the suit. The stand of die applicants that they came to know about the disputed mutation in the Revenue Record 2/3 days before the institution of suit is supported from their evidence, thus the learned lower Court I rightly held the institution of suit by the applicants was within time. Apart from it when the proceedings initiated by the respondents Nos.4 and 5, allowing share to Mst. Zainab from the agricultural lands of late Lal Bux, are found to be without jurisdiction, void and nullity in the eye of law then even otherwise question of limitation will not come in the way of applicants in challenging such fraudulent actions of respondents. If any case‑law is needed to fortify this view reference may be made .to the following cases:‑‑ (1)??????? Syed Nazir Hassan. v. Settlement Commissioner, Layallpur and another PLD 1974 Lahore 434; (2)??????? Jamal Bhai and 2 others v. Administrator, Evacuee Trust Property and 6 others 1985 CLC 1411. (3)??????? Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962.

17. Foregoing are the reasons for the short order, dated 23‑12‑2002 whereby this revision application was allowed, the impugned judgment and decree passed by the First Appellate Court, dated 27‑4‑1989 was set aside arid that of lower Court was restored. S.A.K./A‑413/K????????????????????????????????????????????????????????????????????????????????? Revision accepted.