2000 PLP 242 (YLR)

Malik Muhammad, predecessor‑in -interest of the parties owned 273 Kanals, 7 Marlas of land situated in village Rehan, Tehsil and District Gujranwala. The petitioners/plaintiffs are admittedly his grand sons while respondents/defendants are his sons. He in his lifetime transferred 1/4th share of his property by way of gift in favour of petitioners and a mutation to this effect was sanctioned on 13‑7‑1961. The said Malik Muhammad died in 1965 and mutation of his inheritance was sanctioned in favour of respondents/defendants Nos. 1 to 4 .on 18‑3‑1970 excluding the present petitioners. The petitioners/plaintiffs being legal heirs instituted a suit for possession claiming 1/4th share out of the estate left by Malik Muhammad, deceased. The suit was contested by the respondents/defendants and the learned trial Court on the divergent pleadings of the parties framed the following issues: ‑‑‑ (1) Whether the valuation of the suit for the purposes of court‑fee and jurisdiction is incorrect if so, its effect? OPD. (2) Whether the plaintiffs are estopped by their words and conduct to file the suit? OPD. (3) Whether the suit is against the provision of Muslim Personal Law? OPD. (4) Whether the suit is time‑barred? OPD. (5) Whether the suit is not maintainable in its present form? OPD. (6) Whether plaintiffs are entitled to get 1 /4 share of the property left by the deceased Malik Muhammad and entitled to the decree for the possession of the same? OPP. (7) Relief.

2. The learned trial Court after recording the respective evidence of the parties dismissed the suit vide judgment and decree, dated 20‑5‑1987. Appeal filed by the petitioners met with the same fate and was dismissed vide judgment and decree, dated 6‑12‑1988 passed by the Additional District Judge, Gujranwala. Hence this Civil Revision.

3. Learned counsel for the petitioners has contended that the petitioners have been non‑suited mainly on the principle of estoppel, which according to learned counsel is not attracted to the facts and circumstances of the present case as there is no estoppel against Statute. In support of his arguments he has referred to "Aftab Alam Khan v. The Settlement Commissioner and 3 others" (PLD 1972 Quetta 57), "Ch. Rehmat Ali and others v. Custodian, Evacuee Property, Lahore and others" PLD 1966 (W.P.) Karachi 31) and "Ocean Industries Limited and Raza Kazim v. Industrial Development Bank" (PLD 1966 Supreme Court 738). It is further contended that the petitioners were legally entitled to claim inheritance from the property left by the predecessor‑in‑interest of the parties as a valid gift does not create any bar to inheritance.

4. Conversely, learned counsel for the respondents argued that concurrent finding of facts recorded by two Courts below cannot be interfered in revisional jurisdiction as no illegality or infirmity has been committed by them. It is further, contended that no misreading or non‑reading of evidence has been pointed out by the petitioners and the learned Courts below were justified in dismissing the suit and appeal of the petitioners.

5. I have given my anxious consideration to the arguments advanced by learned counsel for the parties and have also gone through the record. Admittedly Malik Muhammad transferred 1 /4th share of his property by way of gift to the petitioners and a mutation to this effect was sanctioned on 13‑7‑1961. The gift was complete in all respect, being valid gift and having not been challenged by the respondents, the same attained finality.

6. It is settled principle that succession always opens at the death of the predecessor/right‑holder and the legal heirs claiming inheritance, would be entitled to inherit from the property left by the deceased at the time of his death. The respondents did not challenge the validity of the gift and they have also admitted the relationship of the petitioners with deceased Malik Muhammad. There is no document on record to show that the petitioners at the time of gift made any relinquishment or any renunciation regarding the property in dispute during lifetime of Malik Muhammad and even if such a renunciation is made that is not recognized under Muhammadan Law. It is well established that under the Muhammadan Law a relinquishment by any heir who has no interest in the lifetime of his ancester is invalid and void. Any deed executed by an heir renouncing his share cannot be operative so as to divert rights in inheritance when succession opens. Reference is made to "Farman Ali Khan and others v. Yousaf Ali Khan" (1980 CLC 1544). There is no evidence on record that the gift by Malik Muhammad was made on deathbed as the only restraint upon a Muslim in the matter of alienating his property imposed by Muslim Laws relates to will and gifts on death bed. In i other cases the powers of alienation of Muslim qua his property is, apart from the condition laid down by law for completing a transfer, unfettered. Almighty God in Surah IV, AI‑Nisa of Holy Quran has laid down complete law of inheritance and the limitation set by God in these verses relates to intestate succession alone. It may be impious for a Muslim to deprive some or all of his children from property by alienating it in his lifetime and it would be obviously as in all good sense if done without just cause but there is nothing anywhere in the Holy Quran to forbid such gift when made by a person not suffering from Merzal Maut. A gift may not become invalid only because it may have the effect of depriving the other heirs of their share. 6‑A. The learned Courts below while deciding Issue No.2 came to the conclusion that the petitioners/plaintiffs are estopped by their words and conduct to file the present suit. There is absolutely no evidence about the conduct of the petitioners/plaintiffs which can reach any such conclusion. Besides, there can be no estoppel against any Statute. Law of inheritance does not recognize any such estoppel as the succession opens at the death of predecessor.

7. The learned trial Court has also decided Issue No.4 regarding limitation against the petitioners/plaintiffs. There is no limitation in inheritance cases and the persons 1 claiming inheritance cannot be non‑suited merely on the point of limitation. The finding on this issue was, reversed by the learned Appellate Court which is r confirmed, however, Appellate Court in view of the finding on Issue No.2 dismissed the appeal of the petitioners. As already held that there is no estoppel against Statute, the petitioners cannot be deprived of their legal shares, which they are entitled to inherit from the estate left by Malik Muhammad, predecessor- in‑interest of the parties. The finding on Issue No.2 is not sustainable and the same is set aside.

8. In view of what has been discussed above, this Civil Revision is allowed. Resultantly the judgment and decree, dated 20‑5‑1987 and 6‑12‑1988 passed by the Courts below and Mutation No. 357, dated 18‑3‑1970 are set aside. As the shares of the parties are to be determined in accordance with law, therefore, the case is remanded to the learned District Judge. Gujranwala for deciding the same afresh in the light of the above observations. The parties shall appear before the learned District Judge on 20‑12‑1999. No order as to cost. Q.M.H./M.A.K./N‑189/L