2005 PLP 858 (YLR)

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 and Anjum and 2 others v. Mst. Sufaidan and 3 others PLD 1989 Lah. 103 ref. Sh. Istadamat Ali for Petitioner. Instant civil revision assails the judgment and decree dated 24‑5‑2004 passed by the learned Additional District Judge, Chakwal, whereby appeal of the respondents was accepted and their suit was decreed, by reversing the judgment and decree 26‑4‑2003 of the trial Court.

2. Precisely relevant facts are that the respondents filed a suit for declaration with consequential relief of possession/permanent‑mandatory injunctions, challenging Mutation No. 616 dated 22‑7‑1977 sanctioned regarding inheritance of late Ch. Khan, grading it to be illegal, void and of no legal consequence qua their rights. It was averred in the plaint that Mst. Maqsoodan Begum being the only daughter of late Ch. Khan was entitled to inherit his estate to the extent of 1/2 share but instead the disputed mutation was attested giving her only 1/4th share and the rest of share was wrongly mutated in the names of the petitioners as descendents of collaterals. Mst. Maqsoodan Begum the original plaintiff had prayed for a decree for permanent injunction against the petitioners, restraining them from changing the nature of the suit property or to alienate the same by any means whatsoever.

3. The petitioners being defendants in the suit contested it and out of them, defendants Nos.6 to 10 and 12 to 14 filed their written statement wherein certain preliminary objections were raised and on merits, it was submitted that the last male holder i.e. Ch. Khan died before promulgation of Shariat Act, therefore, Mst. Maqsoodan Begum was not entitled to share in the property of her father. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the matter, after doing the needful, dismissed the same on the basis of his appraisal of evidence vide his judgment and decree dated 26‑4‑2003. The original plaintiff Maqsoodan Begum being aggrieved of decision of the trial Court filed an appeal before the learned Additional District Judge but pending the appeal she died. Respondents were substituted in her place, as appellants. The First Appellate Court vide judgment and decree dated 24‑5‑2003 accepted the appeal, reversing the judgment and decree of the trial Court and decreed the suit of the respondents, holding that Mst. Maqsoodan Begum being the only daughter of Ch. Khan was entitled to 1/2 share of his estate. The petitioners being aggrieved, now have filed the instant petition against the appellate judgment before this Court.

4. The learned counsel for the petitioners submitted that the original owner Ch. Khan was governed by customary law of the Punjab and died before partition of Indo‑Pak. Sub‑Continent and earlier to promulgation of Shariah Law, whereunder the daughters did not inherit the estate of their fathers, hence, the respondents were not entitled to the decree prayed. According to him, Mutation No.616 was sanctioned on 22‑6‑1977 when limited estate held by daughter of Ch. Khan was terminated on account of her marriage, hence, she was rightly given 1/4 share but a contrary view taken by the Appellate Court is not in consonance with the law. He further submitted that the predecessor of the respondents never objected to the mutation in question till the time she filed her suit on 21‑10‑1997, thus, she was estopped to challenge the same under the principle of acquiescence. The learned counsel for the petitioners also submitted that the suit by Mst. Maqsoodan was barred by limitation as the same was filed after lapse of more than two decades.

5. I have minutely considered the arguments of the learned counsel for the petitioners and have examined the record, appended herewith. Undeniably, Mst. Maqsoodan Begum was daughter of Ch. Khan who succeeded by progeny of his only daughter and the collaterals. She was entitled to 1/2 share in the legacy of her deceased father under Muslim Law of inheritance. The only controversy, which hinged for determination was' as to whether on termination of limited estate held by a widow, or daughter on marriage or death, after promulgation of Shariat Application Act 1962, who will inherit the estate and to what extent. Maqsoodan Begum being unmarried daughter was given the entire estate of 'her father under Punjab Customary law. According to showings of the petitioners themselves, it terminated on her marriage in the year 1977. Let us assume that limited estate terminated in 1977 which though under law, extinguished on promulgation of Shariat Application Act, 1962 and the property reverted back to Muslim heirs, according to their Sharai shares, who were alive at the time of death of last male owner i.e. Ch. Khan. Mst. Maqsoodan Begum was admittedly alive at the time of death of his father, as she was given property of her father fore maintenance purposes till her marriage or death, she was entitled to her Sharai share to the extent of 1/2 share in the legacy of her deceased father but instead she was given only 1/4 share which could not be justified under any law. Objection regarding estoppel against Mst. Maqsoodan Begum and regarding her suit being barred by limitation, are of substance, as on death of her father or termination of her limited interest, her share vested in her, the moment her father breathed his last on the limited interest was extinguished by this analogy, she had become a co‑sharer along with the collaterals i.e. the petitioners and no period of limitation would run against her. Similarly principle of estoppel by acquiescence would not be attracted because a co‑share in possession of joint property, will be considered to hold share of the other co‑sharers out of possession, on their behalf. My this view is fortified by the consistent judgments of the Honourable Supreme Court in the cases of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 Supreme Court 1; Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 and the judgment by this Court in the case of Anjum and 2 others v. Mst. Sufaidan and the judgment by this Court in the case of 3 others PLD 1989 Lahore 103.

6. For the reasons noted above, I have no hesitation to hold that the appellate Court correctly concluded the lis and findings returned in support of the impugned judgment are strictly in consonance with the evidence on the record and the law applicable. No illegality/irregularity amenable to revisional jurisdiction of this Court, was committed, in absence of which no interference therein, can be made under section 115, C.P.C. This petition consequently has no merit in it and is accordingly dismissed in limine. M.H./H‑56/L Revision dismissed.