2005 PLP 1173 (CLC)
RAFIQUE AHMAD — Petitioner Versus Mst. SAKHOO MAI and others — Respondents
| Citation | 2005 PLP 1173 (CLC) |
| Forum / Court | Lahore |
| Bench Members | N/A |
| Parties | RAFIQUE AHMAD — Petitioner Versus Mst. SAKHOO MAI and others — Respondents |
| Primary Law | Islamic Law |
Q1: What are the key laws and sections cited in 2005 PLP 1173 (CLC)?
This judgment primarily cites: Islamic Law as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2005 PLP 1173 (CLC)?
The case was heard and decided by the Lahore bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2005 PLP 1173 (CLC) (RAFIQUE AHMAD — Petitioner Versus Mst. SAKHOO MAI and others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- S.M. Akhtar Shah for Petitioner.
- Shamsher Iqbal Chughtai and Malik Imtiaz Mehmood for Respondents.
Headnotes / Summary
Plaintiff was the legal heir of deceased daughter of deceased original owner of suit properties, whereas defendants were legal heirs of son of deceased original owner of suit properties
On death of original owner of properties, his son, predecessor-in-interest of defendants got mutations of the entire property of deceased original owner sanctioned in his name to the exclusion of his sister, predecessor -in-interest of plaintiff
Case of plaintiff was that his predecessor-in- interest being daughter of deceased original owner was entitled to 1/3rd of suit-land but son of the deceased got two mutations recorded in his favour
Suit was resisted by defendants on the ground that inheritance in the suit property at the relevant time was governed by custom and not by Shariat or Islamic Law
Trial Court decreed the suit, but on appeal by defendants against judgment of Trial Court, Appellate Court set aside judgment of Trial Court
Wajib-ul-Arz for two Mauzas where suit properties were situated, had clearly stipulated that in respect of Muslims, Islamic Law of Inheritance was the governing law in the said Mauzas
Inheritance of original owner, in circumstances was governed by Islamic Law and not by custom
Plaintiff, was entitled to 1/3rd of suit property
Since plaintiff and before him, his mother, had become co-owners of suit-land along with defendants through inheritance, limitation would not run against them
Appellate Court, in circumstances was not justified in law to reverse findings of Trial Court
Appellate decree was set aside and that of Trial Court was restored.
Judgment & Decree
The petitioner/plaintiff impugns the appellate decree dated 18-5-1991 whereby a declaratory suit filed by him has been dismissed. The learned Appellate Court has set aside the decree of the learned trial Court, dated 7-5-1989.
2. The facts of the case are simple. The petitioner/plaintiff is the legal heir of Mst. Jindan Mai daughter of Imam Bakhsh while the respondents are the legal heirs of Ahmad Yar son of Imam Bakhsh, who died in 1935, owned the suit-land in two Mauzas i.e. 19 Kanals, 18 Marlas in Mauza Kharal and 12 Kanals, 14 Marlas in Mauza Kherpur. On the death of Imam Bakhsh, his son Ahmad Yar (predecessor-in-interest of the respondents/defendants) obtained Mutation No.51 dated 29-1-1936 and Mutation No.43 dated 2-5-1937 in respect of the entire property of Imam Bakhsh to the exclusion of Mst. Jindan Mai.
3. It is the case of the petitioner /plaintiff that Mst. Jindan Mai being a daughter and legal heir of Imam Bakhsh, was entitled to 1/3rd of the suit-land. She, therefore, , impugned the two mutations referred to B above. The suit was resisted by the respondents/defendants on the ground, firstly, that it was barred by limitation and, secondly, on the plea that the inheritance in the suit property was governed by customary law and not by Shariat or Islamic Law, learned trial Court framed as many as 8 issues on which the parties led evidence. However, only Issues Nos.3 and 6 are relevant for the purpose of deciding the present petition. Learned counsel for both sides also confined their arguments to these issues, which were in following terms:-- "(3) Whether the suit is within time? OPP (4) Whether deceased Imam Bakhsh was governed by custom in the matter of inheritance and if so what that custom was and whether the plaintiff was not entitled to inherit, Imam Bakhsh under the said custom? OPD"
4. The learned trial Court after considering the evidence of the petitioner decreed the suit and granted the declaration of title sought by the petitioner. However, an appeal filed by the respondents/defendants was allowed by the learned Appellate Court. Hence, this revision petition.
5. From the above it is evident that the decision on both issues noted above depends upon the question as to whether the inheritance of Imam Bakhsh was subject to customary law or Shariat.
6. I have gone through the evidence on record with the assistance of both learned counsel, Wajib-ul-Arz for Mauza Kherpur. (Exh.P.1) and the Wajib-ul-Arz for Mauza Kharal (Exh.P.2) clearly stipulate that in respect of Muslims the Islamic law of inheritance was the governing law in the said Muazas. To rebut this evidence, the respondents produced Mutation No.224 (Exh.D.14) and Mutation No.118 (Exh.D.17). On the basis of these documents it was argued that daughters were excluded from inheritance in the concerned Mauzas. This contention, however, is misconceived. In respect of Exh.D.14 there is no proof that propositus had daughters but were excluded by the sons because of customary law. Exh. D.14, therefore cannot be taken as proof of customary raw particularly in view of the Wajib-ul-Arz Exh. P.1 and Exh. P.2 discussed above. As to Exh. D.17, this document itself shows that the son inheriting the property mentioned therein was the sole (Aklota) son of the propositus. Thus, Exh.D.17 also cannot be taken as proof of customary law.
7. In addition to the above learned counsel for the petitioners referred to the case titled Muhammad Yousaf through legal hears and 2 others v. Mst. Karam Khatoon 2003 SCMR 1535 to show that the Islamic Law of Inheritance was relevant in the erstwhile State of Bahawalpur.
8. In view of the foregoing discussion I am not left in any doubt that the inheritance of Imam Bakhsh was governed by Islamic law and not by customary law. It follows, therefore, that the petitioner was entitled to inherit 1/3rd of the suit property. Since the petitioner and, before him Mst. Jindan Mai became co-owners of the suit land along with Ahmad Yar through inheritance, limitation did not run against them.
9. In view of the above discussion it is clear that the learned Appellate Court committed error in law by reversing the findings of the learned trial Court on Issues Nos.3 and
6. The appellate decree dated 18-5-1991 is, therefore, set aside and as a result the decree of the learned trial Court dated 7-5-1989 stands restored. The petitioner shall also be entitled to costs throughout. H.B.T./R-126/L Revision accepted