2002 PLP 649 (CLC)

(4)??????? Whether the plaintiff has no locus standi to file the suit? (5)??????? Whether the suit is barred by limitation? OPD (6)??????? Whether the suit is mala fide? . (7)??????? Whether the defendant No. 1 got the property of Muhammad Bakhsh, husband of defendant No.5 as admitted by the son o late Muhammad Bakhsh, if so, with what effect? (8)??????? Whether the decree, dated 29‑4‑1972 is illegal, void and no binding upon the rights of the plaintiff? OPP (9) ?????? Whether the suit is insufficient valued and stamped? (9‑A) ? Whether the alienation of a portion of the suit‑land by defendants Nos. 1 to 4 in favour of defendants Nos.6 to 20 is illegal and void? (9‑B) ?? Whether defendants Nos.6 to 20 are bona‑ fide purchasers for value and without notice and their rights stand protected? (10) ???? Relief.

6. After recording evidence which was adduced before the learned trial Court by the parties, it was found that decree, dated 29‑4‑1972 passed on the basis of a compromise was altogether illegal. Respondent No. 1 had no locus standi to have filed the suit on the basis of being an adopted son of Muhammad Bakhsh. The consideration for compromise that Muhammad Yasin Gullan respondent No. 1 would relinquish his right of inheritance was also illegal. As a result, the learned trial Court decreed the suit of Ghulam Muhammad vide judgment and decree, dated 4‑3‑1984 and the impugned judgment and decree, dated 29‑4‑1972 was declared to be a result of fraud and collusion and null and void.

7. Respondents Nos.1 to 4 preferred an appeal _ against the said judgment and decree. The said appeal was accepted vide judgment and decree, dated 11‑10‑1984. The learned Appellate Court held that although the compromise dated 29‑4‑1972 which was the basis of the decree of even date could not be based upon the claim of Muhammad Yasin Gullan as an adopted son, yet for all intents and purposes, the said compromise would amount to a family settlement.

8. During the pendency of the present civil revision, the original petitioner Ghulam Muhammad died and his legal representatives were impleaded as party. Similarly, respondent No. 1 Muhammad Yasin Gullan died leaving respondents Nos.2, 3 and 4 who were already on the record as his legal representatives. Respondents Nos.5‑A and 5‑B were impleaded as legal representatives of Mst. Rabia Bibi upon her death. Respondents Nos.6 to 20 are the subsequent vendees from respondents Nos.2 to 4.

9. Ch. Naseer Ahmad, Advocate and Mr. Moeen‑ud‑Din Qureshi, Advocate appearing in support of the civil revision contended that the decree, dated 29‑4‑1972 was rightly declared to be illegal and void by the learned trial Court and there was no legal justification for the learned First Appellate Court to reverse the decree of the learned trial Court on the assumption that the compromise could be termed as a family settlement. According to the learned counsel appearing for the petitioners, it was not the case of respondents that the compromise made between Ghulam Muhammad, Mst. Rabia Bibi and Muhammad Yasin Gullan was or could be a family settlement. It was contended that the very suit brought by respondent No. 1 on the basis of being an adopted son was incompetent as no such ground is recognized by the Islamic Law'. The suit at its inception was unlawful. The alleged consideration for compromise that respondent No.1 would relinquish his right of inheritance was also unlawful. In this context, learned counsel for the petitioners relied upon the case of Muhammad Irfan Azad v. Mst. Sultana Begum and 8 others PLD 19.71 Kar. 91 and Hussain Ali Khan v. Firoza Begum PLD 1971 Dacca

112. Reliance was also placed upon the case of Binyameen and 3 others v. Ch. Hakim and another .1996 SCMR 336 to contend that no plea of family settlement was taken by the respondents in their written‑ statement and no evidence can be led or read in support of any plea not contained in the pleadings. .

10. On the other hand, Mr. Muhammad Jaffar Hashmi, Advocate and Ch. Parmoon Bashir, Advocate, the learned counsel for the respondents supported the judgment of the learned Appellate Court. According to them, Muhammad Bakhsh brother of Ghulam Muhammad had already died and according to the Islamic Law of inheritance Ghulam Muhammad as brother and Mst. Rabia as widow of Muhammad Bakhsh were the only lawful heirs and it was open to them to relinquish their shares by way of family settlement. According to the learned counsel for the respondents, the compromise, dated 29‑4‑1972 was a lawful family settlement and was rightly held to be so by the learned First Appellate Court. He further submitted that the factum of family settlement gains strength from the fact that Ghulam Muhammad had gifted his entire land amongst his other sons. It was also contended that Ghulam Muhammad original plaintiff was estopped to challenge the decree, dated 29‑4‑1972. The precise submission is that after consenting in passing of the impugned decree, dated 29‑4‑1972, it was not open for the original plaintiff to challenge the same by way of a separate declaratory suit. He placed reliance on the case of Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan PLD 1961 SC 376 in support of this proposition.

11. Arguments have been heard and record perused.

12. It is apparent from the record that the suit brought by the deceased respondent No. 1 was on the basis of being an adopted son of Muhammad Bakhsh. Obviously, no suit on such a basis was competent under the Muslim Law at its very inception. He had not claimed relief on any other basis. The suit was itself not maintainable and could not culminate in any decree muchless a compromise decree. The decree passed in such a suit is without lawful authority and null and void.

13. Coming to the contents and nature of the compromise effected by Ghulam Muhammad, Mst. Rabia Bibi and Muhammad Yasin Gullan, the same is also found to be illegal as consideration that respondent No. 1 shall forego his legal right of inheritance in the lifetime of his father was unlawful. Upon no legal principle, could the said agreement be considered to be a valid family settlement. A family settlement is an adjustment amongst the co‑sharers with an object to preserve peace and amity between the members of a family and has to be based upon legal and equitable consideration. If the family settlement is based upon an illegal consideration, it shall itself be illegal and would not create any rights inter se the parties. The compromise, dated 29‑4‑1972 cannot he considered as a lawful family settlement and cannot be given effect to as such. It is also noticed that no plea of family settlement has been taken in the pleadings by the respondents. No issue was struck in this respect. Obviously, no evidence could be led on this question. The findings of the learned Appellate Court regarding the alleged family settlement is illegal on this score as well.

14. The findings of the learned Appellate Court that the petitioners/plaintiffs were estopped to bring the suit against the compromise decree has been challenged on the ground that the very basis of claim of respondent No. 1 and the consideration of compromise was against law. A compromise in violation of a principle of law is illegal and ineffective and would not operate as estoppel against a party to that compromise.

15. Respondents Nos.6 to 20 had acquired portion of the property in question from respondents Nos.2 to 4 during the pendency of the suit knowing full well that the status of the property in question was sub judice. The said respondents cannot claim to be bona fide purchasers and cannot claim any protection under section 41 of the Transfer of Property Act, 1882. The alienation to the extent of share of respondents Nos. l to 4 shall, however, be valid.

16. The upshot of the above discussion is that the judgment and decree, dated 11‑10‑1984 passed by the learned Appellate Court cannot be sustained. As a result, the civil revision is accepted and the judgment and decree, dated 11‑10‑1984 passed in appeal is set aside and that of the learned trial Court, dated 4‑3‑1984 is restored. The parties to bear their own costs. H.B.T./G‑145/L?????????????????????????????????????????????????????????????????????????????????? Revision accepted.