2021 PLP 1215 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

The file entails the fact that undisputedly 35 Kanals 02 Marlas area vested to Qazi Abdul Wahid, who passed away in 1967 and it solely devolved upon his son Habib Ullah vide inheritance Mutation No.574 dated 07.01.1978 (Exh.P8). The latter through his authorized agent further transferred 24 Kanals as well as 11 Kanals, 02 Marlas out of aforenoted area via Sale Deed and Exchange Deed (Exhs.P2 and 3 respectively) on 15.04.1979 to the present petitioners. The remaining land was also alienated by Habib Ullah to some others, thus he became landless. Be that as it may, around eleven years after the registration of Exhs.P2 and 3, Saeeda Begum and Siddiqa Begum (two sisters) on 07.01.1990 claiming themselves to be daughters of Qazi Abdul Wahid instituted two independent suits asserting that they had been purposely deprived of their shari shares out of the estate left by their late father, who be declared owners in possession of their inheritance right to the extent of 08 Kanals, 17 Marlas each through cancellation of inheritance mutation No.574 of 07.01.1978. The further prayer of the plaintiffs was that subsequent Sale Deed as well as Exchange Deed executed in favour of petitioners and others be also declared inoperative upon their rights. As both the suits stringed with common facts, thus conjunctively tried through settlement of consolidated issues and after evaluating the evidence made available on file were decreed by the learned Trial Court vide single judgment dated 03.02.1999. The petitioners although preferred two independent appeals, but without any success, having been dismissed on 06.03.2000. This as well as connected C.R.No.2932-2000 were arisen out of said common judgments of the learned lower fora, hence appropriate to decide the same jointly through this single judgment. However, for reference, source point will be file in hand.

3. Mr. Ashtar Ausaf Ali, Advocate, learned counsel for the civil revisioners mainly emphasized that the transaction in favour of his clients matured through registered instruments and presumption of regularity as well as correctness was attached thereto; that to rebut it, high quality evidence was required, which was not adduced; that initial onus was upon the plaintiffs to prove their case, who failed to discharge it and in absence of any trustworthy evidence, the Courts below erred in law to cancel the registered Sale Deed and Exchange Instrument. He further contended that the transaction through registered document was notice to public at large and could only be assailed within three years in terms of Article 91 of the Limitation Act, 1908, whereas suit was filed much beyond thereafter, hence sine qua non for the Courts below to consider the question of limitation even if it was not pressed, but omitted to decide it appropriately. He further emphasized that the real culprit of the plaintiffs was their brother and the Courts, at the most, could compensate them through passing of recovery decree proportionate to the value of their shares against the brother. Mr. Ashtar Ausaf Ali in support of his arguments has placed reliance upon judgments reported as Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 SC 212) and Mst. Sehat Bibi v. Bahar Khan and others (2018 CLC 299). In response, M/s. Hamid Ali Mirza, Sh. Naveed Shahryar, Anwaar Hussain Janjua, Sohail Zafar Sipra, Humera Bashir Chaudhry & Sh. Muhammad Ali Naveed, Advocates for the contesting respondents /daughters submitted that their clients/ plaintiffs were deprived of their inheritance right duly recognized by Shariah, which could not be defeated by applying law of limitation. They further argued that stance of the plaintiffs being daughters of Qazi Abdul Wahid was conclusively proved, thus the disputed inheritance mutation was managed through fraud, which could not be perpetuated, even if assailed after a century. They further submitted that evidence of the plaintiffs remained unrebutted as right of the petitioners after closure by the learned Trial Court was never revived despite being assailed upto the last forum of august Supreme Court, therefore, the Courts below perfectly cancelled the inheritance mutation while awarding right of inheritance to the plaintiffs according to their legitimate shares; that the Sale Deed and Exchange Deed executed in favour of petitioners being superstructure of the fraudulent inheritance mutation have to fall down; that the plaintiffs could not be compensated against consideration, who were joint owners in the legacy left by their deceased father, but deprived thereof by practicing fraud, thus revival of their share was the only solution and rightly done so by the Courts below and that concurrent findings of fact cannot be disturbed by this Court while exercising revisional jurisdiction.

4. Arguments heard and record perused.

5. The relationship of the plaintiffs although disputed by the petitioners through their written statement, but it is well settled that mere pleadings cannot be taken as evidence until and unless its maker appears in the witness-box to corroborate the same on oath. In this case, as disclosed by learned counsel for respondents, on 25.01.1995 the right of evidence of the petitioners/defendants was taken away by the learned Court of first instance, which was further maintained all the way upto the apex Court through orders dated 12.02.1996, 13.03.1996 and 25.02.1996 while dismissing Civil Revisions, Writ Petitions and CPLAs respectively. Moreover, to prove their relationship, the plaintiffs brought on record undisputed and unchallenged copy of Sale Deed (Exh.P7), whereby the residential unit left by their late father was jointly sold out by them along with Haib Ullah/brother, which persuasively established their such relationship. There is no cavil that sanction of inheritance mutation is not essential to determine the right of succession, rather under the law of Shariah, on death of a Muslim, his estate automatically devolves among his heirs as per their shari shares. The law of Shariah being supreme, indeed, is not subordinate to any other law, policy, rules as well as judgment pronounced by Court of law. It is, therefore, clear that on the death of said propositus, in accordance with Shariah, the plaintiffs became joint owners of half of his legacy and only remaining part was to be devolved upon their brother Habib Ullah. The inheritance mutation in dispute could only be attested as per shari shares of all the legal heirs, but it was sanctioned solely in favour of son while depriving the daughters and such mutation would not ipso facto create title of the entire estate in his favour alone, who played foul in maneuvering its further transfer to the petitioners and others. Undoubtedly, no benefit can be derived by a person acquiring title by practicing fraud, misrepresentation and concealment. It is again settled proposition of law that fraud, if established on record, is sufficient to vitiate most solemn proceedings and Court of law shall, in no eventuality endorse and perpetuate the same. See Lal and another v. Muhammad Ibrahim (1993 SCMR 710) and Khair Din v. Mst. Salaman and others (PLD 2002 SC 677).

6. The argument of learned counsel for the petitioners that plaintiffs were fully aware of attestation of impugned inheritance mutation as well as subsequent transactions, thus being estopped by their such silence/conduct, the suit bound to fail, is not well-founded. The succession of a deceased Muslim is a matter, which concerns about law of Sharia and cannot be defeated by any silence. This view finds support from the judgment of apex Court reported as Muhammad Saleem Ullah and others v. Additional District Judge, Gujranwala and others (PLD 2005 SC 511).

7. The next contention of Mr. Ashtar, that suit being barred by law of limitation was liable to be dismissed, is fallacious. The moment father of the plaintiffs departed, they along with their brother automatically became co-sharers in the legacy left by him. The law is well established by now that even exclusive occupation of one co-heir is considered to be constructive possession of the joint property on behalf of all the heirs and simply because the inheritance mutation was fraudulently sanctioned twelve years prior to filing of suit could not be attached due sanctity. The mutation confers no right or title in the immovable property, but at best is arrangement made on the fiscal side for ensuring realization of land revenue and securing the correctness of revenue record for that very purpose. It is well established by now that right of inheritance cannot be defeated by law of limitation. In alike proposition where brothers deprived sisters of their due shares, the apex Court decreed latter's suits while ignoring law of limitation. See Khair Din v. Mst. Salaman and others (PLD 2002 SC 677) and Mst. Gohar Khanum and others v. Mst. Jamila Jan and others (2014 SCMR 801).

8. No doubt, that subsequent Sale Deed and Exchange Deed being registered one attained some presumption of correctness, but having been found superstructure of a fraudulent mutation, whereby the legal heirs were deprived of their shari shares, cannot be maintained and lost its efficacy when its foundation slipped away. The law has been expounded on the subject by the august Supreme Court in the recent judgment reported as Baja through L.Rs. and others v. Mst. Bakhan and others (2015 SCMR 1704). For ready reference, the relevant text is referred as under:- Since the appellants have failed to prove the validity of the gift allegedly made by respondent No.1 in favour of respondents No.2 to 4, we are inclined to hold that the consequent entry in the revenue record had been managed fraudulently and thus it is void. It is a settled principle of law that any superstructure built on the basis of a fraudulent transaction must collapse on failure of such transaction. Therefore, the contention of the appellants that they are bona fide purchasers of the joint holding, including the 9-Kanals, 1-marla and owned by respondent No.1, hence, protected under section 41 of the Transfer of Property Act, 1882, does not carry any weight. In the wake of above discussion, it goes without saying that a fraudulent transaction has no basis/pedestal to stand and whenever such primary alienation is declared null and void, then the whole series as an entity built thereupon is bound to collapse.

9. The case law cited by learned counsel for the petitioners has been considered minutely, which runs on different footing as in Dr. Muhammad Javaid Shafi's case (supra), no question of inheritance was involved, whereas in the other case of Mst. Sehat Bibi (supra), the lady herself omitted to add the subsequent vendees at the time of institution of suit and her request for their impleadment made at later stage was also turned down by the Courts, as such no effective decree could be passed against them being hit by the principle of natural justice as well as maxim audi alteram partem. However, in the case in hand, the petitioners/subsequent transferees were added in the lis from inception of litigation, who by filing written defence specifically pleaded their bona fide purchase/exchange, but could not lead an iota of evidence to prove that the suit area was transferred to them in good faith while taking due care to ascertain that their transferor solely competent to deal therewith, thus no benefit of relevant section 41 of the Transfer of Property Act, 1882 was available to the petitioners. As such, both the Courts below committed nothing wrong in decreeing the suit against them as well.

10. The Courts below while evaluating the unrebutted evidence applying correct law perfectly passed the impugned decrees. The scope of interference against concurrent findings in revision is narrow and requires this Court to examine whether learned lower fora failed to exercise jurisdiction so vested or they acted in excess of the same illegally or with material irregularity besides to misread the evidence brought on record by the parties. The provision of section 115 of Code, 1908 empowering this Court revisional jurisdiction also confers an exceptional and necessary power intended to secure effective exercise of its superintendence as well as visitorial powers of correction unhindered by technicalities, which cannot be invoked against conclusion of law or fact based on the correct appraisal of evidence available on record. The learned counsel for the petitioners is unable to point out any misreading or non-reading of evidence as well as material irregularity or patent illegality and jurisdictional error on the part of Courts below while passing the concurrent decrees. Thus nothing wrong is found to be interfered with and both civil revisions having no merit and substance are dismissed with cost throughout. KMZ/I-20/L Revision dismissed.