2004 PLP 1665 (CLC)

(10) Whether the plaintiffs are legal heirs of Pir Bakhsh deceased and entitled to inherit 1/2 of the estate left by the deceased and Mutation No. 109. dated 27-12-1942 is illegal and ineffective against the legal rights of the plaintiffs? OPP

4. Both the learned Courts below have concurrently found that the land left by Pir Bakhsh was governed by custom and therefore, the lane was rightly sanctioned in favour of Allah Wasaya son of Pir Bakhsh through impugned Mutation No. 109, dated 27-12-1942.

5. Learned counsel appearing on behalf of the petitioners has raised a very important point for resolution. As per learned counsel, Pir Bakhsh deceased was himself the purchaser of this landed property and it had not devolved upon him through any inheritance from his father. So the custom to deprive the daughters, if admitted to be in vogue was not applicable. To support his contention, he has relied upon Qaisar Khatoon and 11 others v. Maulvi Abdul Khaliq and others PLD 1971 SC

334. He has also referred to the pleadings of the parties, to prove and justify his version that the property was self-required by Pir Bakhsh deceased. He has further argued that concurrent findings of the learned Courts below have been, rendered be ignoring this material and vital law point. Learned counsel has also relied upon Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 to wash off the alleged bar of limitation, which cannot be pleaded as creating an impediment in case of inheritance.

6. Refuting the arguments learned counsel for respondent No.1 has replied that there was no such law which had created any distinction that the custom was not applicable to the self-acquired land; and that the Shariat Law was to be enforced to such case of inheritance. It has also been argued that WaJib-ul-Arz Exh.D.1 had not specified any such difference, which can be found with regard to the self or with regard to the ancestral property of a deceased. So according to the learned counsel it was applicable to both the sets of the land and the concurrent findings of facts delivered by the learned Courts below cannot be upset through the instant civil revision.

7. Mr. Muhammad Uzair Chughtai, learned counsel appearing on behalf of respondents Nos.2 to 5, has stated that Mst. Zeenat Mai had not filed a suit in her life time and the suit having been filed after 40 years from the date of sanction of mutation, was not maintainable and was barred by law of limitation. He has also agitated the point with regard to the withdrawal of the suit by Mst. Kamon Mai and by getting support from this fact he has asserted that admission of custom by Mst. Kamon Mai, while withdrawal of the suit, was creative of adverse presumption against the present plaintiffs-petitioners. He has also referred to Mst. Shahzadan Bibi and others v. Amir Hussain Shah PLD 1956 SC (Pak.) 227 to contend that statement of Riwaj-e-Aam being a public record was a strong piece of evidence against the petitioners and the daughters could not inherit in presence of son, widow or 5th degree collaterals. He has also relied upon Aslam and others v. Kamalzai and others PLD 1974 SC 207 by stating that section 4 of the Shariat Law Application Act (VI of 1935) was applicable and was an obstacle in the reopening of inheritance cases.

8. After scanning of the record and examining the legal as well as factual aspects of the case and hearing the arguments of the learned counsels, have deduced the following conclusions:-- (a) In para. No. 1 of the plaint, the plaintiffs had asserted that the property in dispute was Belt-acquired property of Pir Bakhsh deceased. This fact was not clearly and unequivocally denied by the defendants/respondents in their written statement. So the provision of order VIII, rule 5 of the C.P.C providing that the material facts, if not denied specifically or by necessary implication shall be deemed admitted. So, raising this presumption it is to be declared that the lands in dispute was a self-acquired property of Pir Bakhsh deceased. (b) There is yet another supporting material found to this factual proposition. Allah Diwaya P.W.1 appeared in the witness-box and stated in his deposition that the land to dispute was purchased by Pir Bakhsh deceased himself. This material fact was not challenged in the cross-examination, which again creates ' admission on the part of the defendants-respondents. (c) P.W.3, Ghulam Qadir entered into witness-box and stated on oath that property was self-acquired property of Pir Bakhsh. Again this statement was not disputed in the cross examination. (d) Another most important deposition, which has closed this factual controversy and is going to bevy the plaintiffs, is the statement of Allah Wasaya defendant No. 1 himself, when he had appeared as D.W.5 in the witness-box. In the opening words of his statement, he had admitted that the land in dispute was purchased by his father and was not an ancestral property. So the above noted facts have proved that the land in dispute was not an inherited, which had devolved upon Pir Bakhsh deceased from his ancestors but was self-acquired property.

9. The next question which is legal and has arisen is, as to whether any distinction between self-acquired or ancestral property can be applied in cases of custom or not and if so what was the law applicable to it. Qaisar Khatoon and 11 others v. Moulvi Abdul Khaliq PLD 1971 SC 334 is an authoritative judgment, which has laid down law on this subject. It has responded to contentious question and has declared that the, self-acquired property was exempted from the applicability of custom. To good luck of the petitioners, the above referred case had arisen... from a dispute of those lands which were situated in ex Bahawalpur State, of Mauza Mianwali Qureshian Tehsil and District Rahimyar Khan, in which two Wajib-ul-Arzs were referred to prove the applicability of the custom, and had contained the same wordings which were found in both of these Wajib-ul-Arzs as were entered in Exh.D.1 of Wajib-ul-Arz produced in the instant case. The words are Discussing the same wordings, the Honourable Supreme Court at page 348 of the above noted judgment had clearly laid down "The contention of the learned counsel that the Wajib-ul-Arz applies only to ancestral properties unless its application to non ancestral property is also specifically mentioned therein, finds support from two decisions of the Lahore High Court as well; namely in the cases of Abdul Rehman v. Mst. Mathu ILR 13 Lah. 458 and Rani Sunder Devi v. Tej Singh ILR 17 Lah.

346. These were both cases which dealt with customs recorded in the Riwaj-e-Aam. In both it was held that unless there is a clear statement to the contrary the Riwaj-e-Aam refers only to ancestral land. There is, in principle, no difference between a Riwaj-e-Aam and a Wajibul Arz, except this tat a Wajib-ul-Arz is applicable to a particular village while a Riwaj-e-Aam is applicable to the whole District."

10. More discussion can be found at page 349 of the above noted judgment of the Apex Court also. So following the ratio decidendi of that case it is held that the land being self-acquired property of Pir Bakhsh deceased, custom was not applicable to that property and Mohammadan Law of inheritance was applicable to that property.

11. Law is settled on this point that the regulation of inheritance is an automatic and mechanical process, which comes into play without interruption of any Court or any other authority and the lands devolve upon the legal heirs of a deceased. Upon the death of Pir Bakhsh deceased, the lands had passed on to his legal heirs including Mst. Zeenat Mai, the predecessor-in-interest of the petitioners It may be' mentioned here that Revenue Record of mutation cannot be deprive any heir (owner) of the land from his ownership because the mutations are not creator of any right or title in the property or to any land, which are maintained only for fiscal purposes. To deprive an owner from the ownership of the land, there must be an intentional relinquishment of right/title of the property in dispute. As there was none to this effect, in the instant case therefore, Mst. Zeenat Mai had become owner upon the death of her father Pir Bakhsh deceased, and this right of ownership of the land could not be alienated or transferred in favour of Ata Muhammad defendant/respondent without any clear and specific statement/document. So the, subsequent transfer during the pendency of the suit in favour of his sons of the share of Mst. Zeenat was not legal/valid in the eye of law, which would be ineffective upon the rights of plaintiffs/petitioners.

12. Learned Additional District Judge while rendering the findings has passed remarks without discussing the ruling above noted of the Honourable Supreme Court in his judgment, by holding that custom equally applied to ancestral and to non-ancestral property. If above noted ruling which appears to have been in the knowledge of the learned Judge, was quoted and discussed, the fate of the decision would have been changed.

13. As far as the arguments of the learned counsel for the respondents are concerned, the ruling referred to PLD 1974 SC 207 is not applicable to the instant case as it relates to a case under North West Frontier Province Muslim Personal Law (Shariat) Application Act. (V of 1935) and discusses the case of limited owners. While for other question, the citation of PLD 1990 SC 1 (supra) provides the best reply to it.

14. So judgments delivered by both the learned Courts below, ignoring the law laid down by the Honourable Supreme Court in Qaisar Khatoon and 11 others v. Moulvi Abdul Khaliq PLD 1971 SC 334 cannot be sustained in the eye of law and the impugned judgment and decree of the learned Appellate Court below is therefore, set aside and the suit is decreed with no order as to costs. H.B.T./A-20/L Revision dismissed/suit decreed.