2006 PLP 1614 (CLC)

MUZAFFAR ALI, J.

I propose to dispose of both the revision petitions through this single judgment, as the parties to the suit "cause of action" and the "subject-matter" of the suit, are same but, because of unknown reasons, the legal heirs of the plaintiff Mst. Nisa have filed the revisions separately. The revisions in hand are the last episode of second round of the litigation between the parties, wherein the petitioners have impugned the judgment/decree, dated 12-4-2002 passed by the learned District Judge, Diamer in Civil Appeal No.5 of 1996. The brief facts giving rise to the instant litigation are, that Mst. Nisa daughter of Zaidullah filed the Civil Suit No.3/80 against the present respondents for recovery of 1/3rd share of her inheritance, with contention that, her father Zaidullah owned 38 Kanals, 10 Marlas of land under Khewat No.108 of Village Chongrah Astor, the father departed in Karachi leaving behind one son Ali Madad father of the defendants and two daughters plaintiff and Mst. Shama who passed away issueless, hence the plaintiff and father of the defendants Ali Madad remained the only legal heirs of late Zaidullah. The lady challenged Mutation No.1038 dated 18-3-1963 in the name of Ali Madad, father of the defendants and the Mutation No.1417, dated 7-1-1971 in the name of defendants, claiming the mutations to be illegal, revocable, ineffective, against the rights of the plaintiff and void in the eye of law. On the other hand the defendants denied the averments of the plaint by submitting their written statement with the contention that although, the plaintiff and their father Ali Madad are real sister and brother, but the plaintiff is not entitled to inherit suit-land because her father has died prior to the "enforcement of Muslim Personal Law (Shariat) Application Act" in Gilgit/Astore and Zaidullah father of plaintiff has withdrawn from his title in respect of the suit-land in favour of his son Ali Madad and Ali Madad, father of the defendants was sole owner of the disputed land and the plaintiff is estopped to claim any right against legacy of her father, the defendants further claimed that, the plaintiff has also withdrawn in favour of defendants from her right if any in respect of the suit-land. With the rider facts, the long-standing litigation started between the parties and for the first time the Civil Judge, Astore refused to grant declaration-cum-possession sought for by the plaintiff on 30-4-1983 and subsequently, the District Judge at Gilgit in first appeal on 23-6-1986 and finally the case was remanded back to the Civil Judge, Astore by the then Judicial Commissioner for trial de novo after reframing the issues on 17-2-1987. Hence the parties entered into second round of the litigation in respect of the suit-land. After de novo trial the Civil Judge, Astore granted a partial decree to the extent of 9 Kanals, 19 Marlas in favour of the plaintiff on 28-7-1991 and the defendants went to the first appeal against the judgment/decree passed by the learned Civil Judge, Astore and the learned District Judge, Chilas set aside the decree passed by the learned Civil Judge, Astore and desuited the plaintiff by accepting the appeal on 12-4-2002, hence these revisions. I heard the counsel for the parties in detail. The learned counsel for the respondents founded their arguments mainly on the two points (a) That the owner of the disputed land from whom the plaintiff, her legal heirs and the defendants claiming the title in respect of the disputed land, had died prior to the "enforcement of the Gilgit and Baltistan Muslim Personal Law (Shariat) Application Act, 1963" (hereinafter called Shariat Act) and at the time of his death the custom was prevailing in the area and according to the customary law the daughters of a deceased person were not entitled to inherit the property left by him and the present case was also governed by the customary law, hence the hereditament of the deceased Zaidullah devolved to his son Ali Madad father of the respondents excluding the daughters. (b) That, the plaintiff had gifted her share if any in the disputed land, in favour of the respondents and as such the suit is hit by the principle of estoppel. The learned counsel for the respondents raised a third point also that, the father of the plaintiff deceased Zaidullah had gifted his entire property in favour of his son Ali Madad during his lifetime, therefore, he left nothing in legacy, but not pressed it. On the other hand the learned counsel for the petitioners/plaintiffs rebutted the points raised by the counsel for the respondents and urged that, neither the father of the plaintiff nor the plaintiff herself had gifted the disputed land in favour of the father of the respondent or in favour of the respondents. The mother of the petitioners was co-sharer of the hereditament left by her father under "Islamic principle of devolution" and the petitioners being legal heirs of their mother are entitled to get actual possession of the same. Keeping in view the above arguments, I perused the record of the case and also have gone through the judgments delivered by both the lower Courts, the Civil Judge as well as the first appellate Court respectively. The learned District Judge has founded the impugned judgment entirely on Issue No.5 although he has discussed the other issues too, but for the sake of discussion only and the Issue No.5 is as under:-- Issue No.5 "if Issue No.3 is proved in negative and No.4 in affirmative, whether Zaidullah died prior to or after the enforcement of Muslim Personal Law (Shariat), Application Act in Gilgit Astore, if so to what.effect" O.P. Parties. I perused the record of the case and also have gone through the evidence, to ascertain the "substance of the impugned judgment" passed by the learned District Judge, but before going to discuss the same. It is pertinent to note here, that the parties to the suit are Muslim, their predecessor-in-interest and his forefathers were also Muslim, therefore, it could be resumed that their family matters were and are governed by Islamic law unless anything repugnant to it is proved i.e. custom, gift or alienation of the property by the owner, in holding this view I am supported by the case-laws (a) Mst. Sohab Kulli and 3 others v. Mst. Balour Jan and 8 others 1989 CLC p.408 SC (AJ&K), Khan Muhammad Khan v. Ali Muhammad and 7 others PLD 1985 SC (AJ&K) p.91. The relevant portions of both the judgments are reproduced respectively. (a) Muhammadan Law

Inheritance

Initial presumption where parties were Muslims

Custom as a rule of inheritance

Mode of proof

Muslims in Azad Jammu and Kashmir were governed vis-a-vis inheritance by personal law

Rule was, however, subject to exception of Custom

Where a particular tribe family was governed by Custom vis-a-vis inheritance of estate, it could prove Custom to the exclusion of personal law

Where exception of Custom was alleged, same had to be proved by very cogent and convincing evidence

Initial presumption would always be in favour of personal law. (c) Muhammadan Law

Custom

Inheritance burden of proof

Muslims in Dogra Regime in Jammu and Kashmir State were presumed to be governed by Muhammadan Law of Inheritance unless some custom contrary to it was proved

Burden of proving existence of such custom, held, was on person asserting same. The record of the case shows, that the parties to the suit and their witnesses have been examined thrice by the trial Court i.e. in the years 1980, 1982 and lastly in the year 1990 when the suit was remanded by the learned Judicial Commissioner N.As. after reframing of issues. I have very carefully considered the evidence adduced by the defendants/respondents neither the defendant No.1 has stated even a single word about a custom prevailing in the area derogatory to the Islamic Law nor any witness has uttered anything about such custom. The defendant No.1 and all their witnesses have emphasized on the point that the father of the plaintiff Zaidullah passed away prior to enforcement of "Shariat Act" in the area, the documentary evidence filed by the 'defendants is also perused, Exh.D.E and Exh.D.F. tendered by B the defendants are relevant to the above context. Exh.D.E. is a mutation of inheritance in the name of Ali Madad, father of the defendants and the same has not been sanctioned under custom, rather the mutation seems to be an active concealment of facts. For the reasons that, no pedigree-table has been inserted in it and the daughters of the deceased Zaidullah have not been mentioned and the father of the defendants has been shown the sole predecessor-in-interest of the deceased Zaidullah. The mutation was for the first time inserted as mutation of gift in favour of the father of respondents/defendants on 17-8-1962 in spite of the fact that the deceased Zaidullah has been shown mental patient in the same writing, and afterwards on 18-3-1963 it has been attested as mutation of inheritance to the exclusion of two daughters without ascertaining their presence at the time of attestation of mutation or abandonment of their share. Exh.D.F. is a mutation of inheritance in the name of respondents/ defendants which has been attested in the year 1971, it contains a pedigree-table as under:-- Urdu Page 1619 The above pedigree-table, if believed or accepted, it denies not only the inheritable blood of the daughters, but also jeopardizes the legitimacy of them. So the mutation is again an endeavour to conceal the facts, therefore, the respondents have hopelessly failed to prove a custom in derogation of personal law of the parties, but I am afraid, how the learned District Judge has come to the conclusion and on what material he has founded the following finding as "admittedly, in Northern Areas no female was given any share in the estate of her father under customary law hence Issue No.1 found negative". The rider finding of the learned District Judge is neither founded on a precedent nor based on any public document which may reveal a denial by a competent authority to grant a claim made by a female member for her share in an hereditament excluding her under custom established in the Northern Areas rather the learned District Judge has forgotten the fact, that it is incumbent upon a Judicial Officer to base his judgment or finding on cogent and sound grounds and he should always keep in mind the guiding principle laid down by the superior Courts in reaching into a conclusion of law and facts the higher Courts in Pakistan have fixed a test to establish a custom in derogation of personal law, and the identical and relevant case-law. Which may be cited in this case is the judgment given in the case titled Shamsuddin v. Mst. Jewan and others 1986 MLD

764. The relevant portion of the same is reproduced as under: (a) Customary Law

"

Special custom overriding personal law

Proof, of

Party claiming under special custom is obliged to establish valid custom by showing that it was ancient, invariable, uniform and continuous

It must be proved through clear and unambiguous evidence

Quantum of evidence necessary to prove existence of custom is greater than that required to negate it

No presumption can be made in favour of existence of a special custom Wajib-ul-Arz would be prima facie a strong piece of evidence of existence of special custom

Parties may also quote numerous instances in which alleged custom had been acted upon, exhibit judicial decisions wherein it has been recognized and rely on revenue and private record to prove or negate a special custom

Evidence must, however, be such that claim to special custom was contested and abandoned by someone who if custom had not existed would have been entitled to it

Instances and judicial decision in support of custom must be such that a party claimed under special custom but such claim was rejected

Held: In circumstances of case defendant/ petitioner had hopelessly failed to establish custom which disentitled female heirs to their right of inheritance conferred upon them by their personal law (Shariat). For what has been stated above, it can be said that, the respondents/ defendants have hopelessly failed to establish custom and even failed to establish death of their grandfather Zaidullah, prior to enforcement of personal law, for the reason that, the only documentary evidence in this regard is the Mutation No.1038 dated 18-3-1963 marked Exh. D. E., and the mutation has already been discussed above and discarded, while the oral evidence is at variance about the fact, which could not be relied. As for the point of relinquishing by the plaintiff of her share in favour of respondents/defendants is concern, the respondents/defendants have placed on the case file an "admission deed" marked Exh.D.A., which has been written on a plain paper, unregistered and having no stamp affixed on it, could not be relied upon particularly when the deed relates to alienation of share in the property by a woman like plaintiff who is admittedly illiterate, ignorant and backward. The factum of gift by the father of the plaintiff in favour of the father of respondents/defendants is also remained unproved legally. The only document in this regard is the Mutation No.1038 dated 18-3-1963 wherein some story of a gift by deceased Zaidullah in favour of his son deceased Ali Madad has been narrated, but the same has been sanctioned not as mutation of gift and the same has been disbelieved by me with the force of detailed reasons given above in this judgment and in keeping the above view, I am supported by the following rulings:-- (1) PLD 1991 SC 582; (2) 1991 SCMR 2063; (3) PLD 1991 SC 218; (4) 1996 MLD 377; (5) 1994 CLC 1357; (6) PLD 1993 Pesh. 117; (7) PLD 1989 Lah. 372 and (8) PLD 1990 SC

1. Since in my opinion, the respondents/defendants have failed to prove custom in derogation of personal law of the parties and also have failed to prove any gift by the father of the plaintiff in favour of the father of the defendants or a gift by the plaintiff in favour of the defendants in respect of the suit property, therefore, the plaintiff was co-sharer of the suit-land. Hence the suit is well within time as possession of one co-sharer is possession of all co-sharers and the same is maintainable. Accordingly, in the light of the foregoing discussion the revisions are accepted, the impugned judgment/decree passed by the District Judge, Chilas dated 12-4-2002 is set aside and the judgment/decree, dated 16-9-1991 passed by the learned Civil Judge, Astore is restored. No orders as to cost. S.M.B./111/P Petition accepted.