2017 PLP 292 (YLRN)

CH. MUHAMMAD MASOOD JAHANGIR, J.

There is no denial of the fact that Sarja Khan, the predecessor-in-interest of the parties, was owner of the properties situated in different revenue estates, who left behind petitioners/four sons, namely, Abdul Khaliq, Allah Yar, Ahmad Yar, Abdul Manaf, and respondent No.1/a daughter, Mst. Noor Bakhat besides widow Mst. Sardar Begum. On his demise, the revenue hierarchy attested inheritance mutation No.15 dated 13.6.1948 regarding his property situated in Mouza Dullaykay Muhar as well as mutation No.8 dated 13.6.1948 about his property falling in Mouza Kund Dullaykee Muhar, whereby Noor Bakhat, respondent No.1/daughter was deprived of her share from the said legacy, who through institution of Civil Suit No.290 of 2000 on 5.7.1999 before the Civil Court, Depalpur claimed her share while seeking cancellation of aforementioned inheritance mutations, which were only attested in favour of the petitioners/sons of the deceased, whereas mutation No. 130 dated 25.02.1956 regarding other property owned by same predecessor of the parties falling in Mouza Hammu Naoabad, Tehsil Depalpur had been attested in favour of the petitioners/sons as well as respondent No.1/daughter of the deceased. The petitioners through institution of rival declaratory suit No.26 of 2000 on 29.11.1999 sought declaration that predecessor-in-interest of the parties was governed by custom and respondent No. 1 being, female legal heir was not entitled to inherit the legacy of her father and prayed for cancellation of mutation No 130 dated 25.2.1956 to that extent.

2. The sole controversy in both the suits to be responded was whether legacy of Sarja Khan, predecessor-in-interest of the parties, was to be devolved as per Sharia or according to the alleged custom prevailing at the time of his death. The learned trial court conducted the trial of both the suits independently and through separate judgments and decrees dated 04.9.2004, suit of respondent No.1, was decreed whereas suit instituted by the petitioners was dismissed. Having felt aggrieved, two separate appeals bearing Nos.92 and 93 of 2004 dated 21.9.2004 were preferred by the petitioners before the learned lower appellate court, who vide independent judgments and decrees dated 19.10.2009 dismissed the same. Being despondent, Civil Revision No.2375 of 2009 has been filed by the petitioners against the said judgments, whereby declaratory suit instituted by respondent No.1 was decreed, whereas connected Civil Revision No.2376 of 2009 has also been preferred by the petitioners while questioning the validity of judgments through which suit instituted by petitioners was dismissed. In both the civil revisions a common question of law and facts is involved and the parties are also the same, I purport to decide the same jointly through this single judgment.

3. It is argued by Malik Noor Muhammad Awan, Advocate, learned counsel for the petitioners that Sarja Khan died prior to promulgation of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948 and the revenue hierarchy had rightly attested mutations of inheritance in their favour alone being sons as per custom prevailing at the time of his demise while depriving his daughter as well as widow and the said mutations were to be maintained, but the courts below misconstrued the evidence available on record and committed material illegality; that in the suit instituted by the petitioners, respondent No.1 while submitting her written statement did not specifically deny the date of death of Sarja Khan and the evasive denial amounted to an admission, which was not further required to be proved, but the said aspect of the case was skipped from the notice of the courts below while rendering their judgments; that inheritance mutation No.130 dated 25.2.1956 (Exh.P13) regarding other property of Sarja Khan was also attested in favour of the petitioners alone, which was never assailed by respondent No.1, who was, thus, estopped to assail the disputed mutations; that said mutations had been attested in favour of the petitioners in the year 1948, whereas suit was instituted by respondent No.1 after an elapse of fifty years, which being time barred was liable to be dismissed, but this aspect has also been disregarded by the courts below and that the impugned judgments and decrees being not free from taint of misreading and non-reading of evidence, are liable to be reversed by allowing these Civil Revisions.

4. Conversely, Mr. Jahangir A. Jhoja, Advocate, learned counsel for respondent No.1 has supported the impugned judgments and decrees while arguing that petitioners have miserably failed to prove that at the time of death of Sarja Khan, any custom for exclusion of female legal heirs to inherit the legacy was dominating in the family/tribe of the parties or vicinity and finally prayed for dismissal of these civil revisions.

5. Arguments heard and record perused.

6. Before commenting upon the merits of the case, it would be advantageous to reproduce section 5 of the Punjab Laws Act, (IV of 1872) which reads 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 etc 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 etc among them. It is well established principle that the onus always lies upon the person claiming or asserting a fact positively and in the case in hand, the petitioners pleaded that the legacy of their propositus was to be devolved as per applicable custom as such they were to prove that what the custom was, which remained consistent with a length of period continuously and uninterruptedly so as to confer upon the said practice, who were also under devoir to prove that the custom was applicable among the tribe as per their common will and unanimous intention. In the absence of such evidence a female cannot be deprived of her Shari share of inheritance, which vests in her automatically through the Muhammadan Law upon the death of her propositus and while keeping in mind the aforementioned provision and its legal impact, the courts below were required to answer the sole question cropped up before them. When adverted to the pleadings of the petitioners, it emanates that they alleged therein that Sarja Khan had died in January 1948, whereas Abdul Manaf, one of the petitioners as well as other witnesses produced by them while appearing in the witness-box stated that Sarja Khan took his last breath 2 /3 months prior to the partition of sub-continent and they miserably failed to prove the exact date and time period of his death as averred in their pleadings. The courts below took a serious notice of the said lapse, but to my mind, the relevant fact to be proved was that whether on the day of death of their propositus, either died prior to partition of sub-continent or in January 1948, a custom qua the exclusion of female heirs was in usage/practice and applicable. Benefit as provided in subsection (a) of section 5 of the Act ibid could only be extended if it was proved that he was ruled by the practice, while taking decision of the succession of the deceased by the revenue hierarchy, otherwise regarding inheritance of a Muslim deceased, the Muhammadan Law was to be applied. The petitioners through their entire evidence available on the lis files only tried their level best to prove that Sarja Khan died prior to the promulgation of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, but they did not endeavour to bring on record copy of Riwaj-i-Aam or any other material to prove that deceased was governed by a custom and the female co-heir was not entitled to inherit the legacy of her propositus. 8(sic). Malik Noor Muhammad Awan, Advocate, learned counsel appearing on behalf of the petitioners has made an attempt to convince that by tabling an application before the learned lower appellate court under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 for production in additional evidence, the copies of mutations No.7 dated 25.9.1942, No.16 dated 25.01.1973 and No.18 dated 20.06.1973 the petitioners tried to bring on lis file the relevant documents to prove that tradition was prevailing among the tribe of the parties, but the said application was wrongly dismissed without taking into consideration that the said documents were necessary to arrive at a just decision and judicial notice thereof must be taken by this Court. I am afraid that no judicial notice can be taken of a fact or document, which was not proved on record. Mere presentation of a document on file without its proof while bringing into the witness-box the germane parties as well as its witnesses or the revenue officials, who sanctioned the same is per se not a proof to conclude that a custom was in usage and was also applicable towards the propositus of the parties. Moreover, the perusal of inheritance mutation No.7 dated 25.09.1942 divulges that it is silent to the extent that it was attested with reference to any custom, whereas, rest of the mutations sought to be taken into consideration are not relevant and the learned lower appellate court was perfect in disallowing the said application.

9. The next argument of learned counsel for the petitioners that in plaint of the suit instituted by the petitioners, it was specifically averred that Sarja Khan died prior to promulgation of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, which was not specifically denied by respondent No.1 in her written statement, therefore, the same was deemed to be admitted by her as per mandate of Order VIII rule 5 of the Code of Civil Procedure, 1908, but the courts below failed to attend this aspect of the case, is also not tenable. A perusal of written statement submitted by respondent No.1 shows that although time period of death of Sarja Khan was not exclusively denied, but application of alleged custom was explicitly rebuffed by her within the meaning of Order VIII rule 3 of the Code ibid and alleged evasive denial does not amount to an admission within the scope of rule 5 of aforesaid Order that Sarja Khan was administered by any custom, which was the sole important fact to be viewed in the totality of the material/evidence available on the suits files.

10. So far as the contention of Malik Noor Muhammad Awan, Advocate, learned counsel for the petitioners that the suit filed by respondent No.1 was badly time barred as well she was also estopped through her conduct and words to institute the same is concerned, suffice it to say that the right of inheritance neither can be created nor extinguished, therefore, respondent No.1 being the co-heir was entitled to get her share by way of inheritance in the estates, immediately upon the death of her propositus. In view of the matter, the objection regarding limitation raised by the learned counsel for the petitioners cannot be a bar to the suit instituted by her. Reliance can be placed upon judgments reported as Mst. Reshman Bibi v. Amir and others (2004 SCMR 392), Muhammad Zuabir and others v. Muhammad Sharif (2005 SCMR 1217), Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others (PLD 2005 Supreme Court 511) and Mst. Gohar Khanum and others v. Mst. Jamila Jan and others (2014 SCMR 801). Moreover, the principle of estoppel in inheritance matters is also not applicable.

11. The courts below rightly passed the impugned judgments with which this court cannot take any legitimate exception. The learned counsel for the petitioners is unable to point out any infirmity or perversity and any misreading or non-reading of evidence committed by the courts below while dismissing the suits of the petitioners. This Court does not normally interfere in the concurrent conclusion arrived at by the Courts below unless the same are found to be illegal, perverse or suffered from any jurisdictional defect or tainted with any misreading and non-reading of the evidence. Reliance in this respect is placed on the judgments reported as Aurangzeb through L.Rs. v. Muhammad Jaffar (2007 SCMR 236), Shafi Muhammad and others v. Khanzada Gul and others (2007 SCMR 368), Rashid Ahmad v. Said Ahmad (2007 SCMR 926) and Bashir Ahmed v. Ghulam Rasool (2011 SCMR 762).

12. Consequently, these civil revisions having no substance are dismissed with no order as to costs. WA/Q-9/L Revisions dismissed.