2022 PLP 626 (CLC)
FAIZULLAH KHAN and 26 others — Petitioners Versus GUL DARAZ KHAN and 133 others — Respondents
| Citation | 2022 PLP 626 (CLC) |
| Forum / Court | Peshawar (Bannu Bench) |
| Bench Members | N/A |
| Parties | FAIZULLAH KHAN and 26 others — Petitioners Versus GUL DARAZ KHAN and 133 others — Respondents |
| Primary Law | (b) Civil Procedure Code (V of 1908), (a) Islamic law |
Q1: What are the key laws and sections cited in 2022 PLP 626 (CLC)?
This judgment primarily cites: (b) Civil Procedure Code (V of 1908), (a) Islamic law as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2022 PLP 626 (CLC)?
The case was heard and decided by the Peshawar (Bannu Bench) bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2022 PLP 626 (CLC) (FAIZULLAH KHAN and 26 others — Petitioners Versus GUL DARAZ KHAN and 133 others — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Alamzeb Khan for Petitioners.
- Jan Muhammad Khan and Hafiz Muhammad Hanif for Respondents.
- 6. Mr. Alamzeb Khan, learned counsel for petitioners contended that he is not disputing that Mst. Mastona was the mother of Mst. Nandona who was entitled to get her Shari share in the property of her daughter, however, it is an admitted fact that Deeni was paternal uncle of Mst. Nandona and was not sharer in accordance with table of sharer as provided in Muhammadan Law, thus, the inheritance of Mst. Nandona in presence of her live brothers Larmast and Titak could not be devolved upon Deni. He fizther contended that pedigree table as per inheritance mutation No. 7194 dated 21.01.1939 manifesting the true facts that Larmast and Titak were the sons of Piayo and Mst. Mastona was their mother, thus, the transfer of property in favour of Deni was not only against Sharia but also against the law of the land. He vociferated that in the matter of inheritance limitation could not create any hurdle nor the document in question, i.e., mutation No. 7794 could be considered as a document of title and the mere fact that mutation No. 7794 is thirty-year-old document does not provide a justification to upheld the wrong entries of the revenue papers. Learned counsel for petitioners in order to fortify his submissions has relied on 2005 SCMR 1217, PLD 2011 SC 119 and 2020 CLC 142.
- 7. Conversely, M/S Jan Muhammad Khan and Hafiz Muhammad Hanif Advocates, learned counsel for respondents contended that the property was rightly transferred in favour of Deni and Mst. Mastona. They contended that Larmast and Titak were not the brothers of Mst. Nandona and that her mother Mst. Mastona had contracted second marriage with Piayo, however, Mst. Nandoona was the daughter of Mst. Mastona from her first husband. thus, she would be considered as that of' Pechlag" of Piayo. They went on to say that Larmast and Titak themselves in their life time had not challenged the alienation of property in favour of Deni and that they themselves have transferred their shares in their life time as such they were aware of the transfer of property in favour of Deni but have never assailed the entries of revenue papers or challenge the validity of inheritance mutation, as such the institution of the suit after the death of Larmast and Titak, was not only incompetent but also barred by law. They relief on PLD 2002 SC 403, 2017 YLR 1160, 2017 YLR 405, 2018 YLR Note.14, 2016 YLR 279, 2015 YLR 582, 2012 YLR 1211, 2020 CLC 142 and 2014 CLC 108.
- 9. Admittedly, the name of Mst. Nandona has not specifically been mentioned in the pedigree table being the daughter of Piayo and her mother Mst. Mastona also does not figure in inheritance mutation, however, this does not mean that Mst. Nandona was not the daughter of Mst. Mastona. Similarly, it is also undisputed that Deni, Fazli and Juma were the brothers of Piayo. It is manifested from disputed mutation that Larmast and Titak were the sons of Piayo in such an eventuality Deni, Fazli and Juma were paternal uncles of Larmast and Titak. It is an admitted fact that present controversy is in respect of the inheritance of Mst. Nandona therefore, the arguments of learned counsel for respondents that Mst. Nandona was the daughter of Mst. Mastona from her earlier husband and Piayo is not her real father as Mst. Nandona was "Peechlag" have got no relevancy in the circumstances of the case. They have also contended that her father was someone else. When confronted with the written statement, they have candidly conceded that neither this fact was categorically mentioned in the written statement nor any such evidence is available on record. No doubt a question of law can be raised at any time even before the apex court, however, the factual aspect cannot be allowed to be taken or asserted for the first time before this court. It was for them to allege this fact in their pleadings first, and then to prove it through convincing, positive and reliable evidence nonetheless, without any material in black and white, it is not permissible for either of the party to assert a new fact for the first time before this court when the matter is being heard under section 115 of the Code of Civil Procedure, 1908, when the powers of this court are limited to as whether the lower forum has committed an illegality or exercise the jurisdiction not so vested in the lower court or the order passed in excess of jurisdiction not so vested in the court below. Be that as it may, it is undisputed that property of Mst. Nandona is in question and the fact that by whom she inherited it is irrelevant. If the argument of the respondents is conceded for a while that she was not the daughter of Piayo from Mst. Mastona than in such scenario Deni, Fazli and Juma are not her paternal uncles and this property in that capacity could not have been inherited by Deni as his two other brothers were already dead and, in this capacity, the entire legacy of Mst. Nandona would have been devolved upon her mother Mst. Mastona in absence of any other legal heir. Once the legal heirs of Deni asserted that Deni was paternal uncle of Mst. Nandona than they are estopped to say that Piayo was not real father of Mst. Nandona because Piayo and Deni were real brothers and Deni could only be the paternal uncle of Mst. Nandona, if she is the daughter of Piayo. One cannot be allowed to approbate and reprobate as the respondents cannot blow hot and cold in the same breath. On one hand they were getting the benefit that Deni was real brother of Piayo and real paternal uncle of Mst. Nandona and on the other hand they are disputing her parentage, which is not permissible in eye of law.
Headnotes / Summary
Predecessors in interest of parties were four brothers ("A", "B", "C" and "D")
Petitioners were successors of "A-1" and "A-2", who were sons of "A" whereas the respondents were the successors of "B"
Inheritance of "A-3" was devolved upon her mother "A-4", her paternal uncle "B", and her brothers "A-1" and "A-2" through impugned mutation
Petitioners filed suit challenging the said mutation to the extent of "B" on the ground that the legacy of "A-3" could not be devolved upon her paternal uncle "B" in presence of her brothers "A-1" and "A-2"; that alienation of property in favour of "B" was against facts, laws and Sharia and inoperative upon their rights
District Court accepted the appeal of respondents on grounds that petitioners had not been able to prove that "A-1" and "A-2" were brothers of "A-3" and that suit was barred by law
Name of "A-3" had not specifically been mentioned in pedigree table being daughter of "A", and her mother "A-4" did not figure in inheritance mutation, but it did not mean that "A-3" was not the daughter of "A-4"
Admittedly, controversy was in respect of the inheritance of "A-3", therefore, the arguments of respondents that "A-3" was not daughter of "A-4" from her earlier husband and "A" was not her real father had got no relevance as neither such fact was categorically mentioned in their written statement nor any such evidence was available on record
Factual aspect could not be allowed to be taken/asserted for the first time before High Court
It was undisputed that property of "A-3" was in question and the fact that by whom she inherited the same was irrelevant
Once legal heirs of "B" asserted that "B" was paternal uncle of "A-3" then they were estopped to say that "A" was not real father of "A-3" because "A" and "B" were real brothers and "B" could only be the paternal uncle of "A-3" if she was the daughter of "A"
One could not be allowed to approbate and reprobate as the respondents could not blow hot and cold in the same breath
When "A", "B", "C" and "D" along with "A-1" and "A-2" were named in the inheritance mutation in juxtaposition with the admission of the respondents that "A-4" was the real mother of "A-3" and that "A-4" was wife of "A" and "A-1" and "A-2" were real sons of "A" then they could not deny the fact that "A-3" was the real daughter of "A"
Paternal uncles are not in the table of sharer rather they were in the table of residuary and order of residuary was considered on the principle that nearer in relation had to exclude more remote
Inheritance would be distributed amongst the legal heirs such a way that each of the "A-4" "A-1" and "A-2" would get 2/6
Inheritance mutation was attested in year 1939 and the same was a public document
Mere 30 years old document would not be considered as gospel truth and when a document was challenged, the beneficiary was required to prove the same
Estoppel was a doctrine of law which precludes a person from denying the truth of statement formally made by him, thus, respondents were estopped by their conduct by alleging them to be the legal heirs of paternal uncle of "A-3" and asserting that "A-3" was not the daughter of "A"
Distribution of property was against law of Sharia on two-fold grounds: Firstly, that Sharia did not entitle a paternal uncle of the deceased to get the inheritance in presence of other legal heirs; and Secondly, that the perplexed version of respondents would create a hurdle/bar in between their claim in the capacity of paternal uncle and at the same time disputing the parentage of "A-3" to be the daughter of "A"
Inheritance would be devolved in consonance with Sharia and would not be hit by limitation in any manner whatsoever
Revision petition was allowed accordingly.
S.115
Raising new facts
Scope
Not permissible for either party to assert a new fact for the first time before High Court when the matter was being heard under S.115 of the Code of Civil Procedure, 1908, the powers of High Court were limited as to whether the lower forum had committed an illegality, or exercised the jurisdiction not so vested in that court, or the order passed in excess of jurisdiction not so vested in the court below.
Judgment & Decree
MUHAMMAD NAEEM ANWAR, J.
Through the instant revision petition filed under Section 115 of the Code of Civil Procedure, 1908, the petitioners have questioned the validity and correctness of the judgment and order of learned Additional District Judge-I, Bannu dated 04.11.2016, by which the appeal of respondents was allowed and the judgment and decree dated 11.05.2015 of the learned trial court was set-aside.
2. The conflict between the parties is relating to the inheritance of Mst. Nandona widow of Abbas Khan whose immovable property in the revenue estate of Ghoriwala Bannu was devolved upon Mst. Mastona her mother, Deeni her paternal uncle, Larmast and Titak through mutation No. 7794 dated 21.01.1939. It is undisputed that Guloni was survived by four sons, Piayo, Deni, Fazli and Jumma. The undisputed pedigree table of Mst. Guloni is as under: -
3. The present petitioners are the successors of Larmast and Titak whereas the respondents are the successors of Deni. Petitioners alleged that their predecessor-in-interest (Larmast and Titak) were the sons of Piayo whereas, Mst. Nandona was the daughter and Deeni was her maternal uncle whereas Mst. Mastona was their mother. Pedigree table to this effect is as under: -
4. The petitioners filed a suit that legacy of Mst. Nandona could not be devolved upon her paternal uncle Deni in presence of the brothers of deceased Mst. Nandona, therefore, the inheritance mutation to the extent of alienation of property in favour of Deni are wrong, illegal, against the fact, Sharia and inoperative upon their rights, thus, the entries of revenue papers are liable to be corrected. Suit was contested by the respondents on the ground that the inheritance mutation of Mst. Nandona was correctly attested when Deni was rightly considered to be legal and Shari sharer in the property left by deceased Mst. Nandona and that the suit of plaintiffs/ petitioners is incompetent, barred by law and that they were estopped to sue them. Learned trial court from the divergent pleadings of the parties framed the following issues:-
1. Whether plaintiffs have got a cause of action?
2. Whether suit of the plaintiffs is defective in its present form? 3 Whether suit of the plaintiffs is within time?
4. Whether plaintiffs being legal heirs of Mst. Nandona deceased, are entitled for the entire suit property?
5. Whether the inheritance mutation No. 7794 dated 21.01.1939 of Mst. Nandona deceased is wrong and is liable to be cancelled to the extent of Mr. Deni son of Guloon?
6. Whether the subsequent mutations mentioned in Para No.VI of the plaint are wrong, based on fraud and ineffective upon the right of plaintiffs?
7. Whether the inheritance mutation No. 7794 was correctly sanctioned on 21.01.1939 on the basis of Fitwa?
8. Whether plaintiffs are entitled to the decree as prayed for?
9. Relief?
5. After framing of issues, recording of evidence and hearing of the parties, the learned trial court has decreed the suit in favour of plaintiffs against the defendants/respondents through its judgment and decree dated 11.05.2015. Being disgruntled from the judgment and decree, the respondents have assailed the same before the learned appellate court and learned Additional District Judge-I, Bannu, through his judgment and decree dated 04.11.2016 while accepting the appeal dismissed the suit of plaintiffs/petitioners on the ground that the plaintiffs have not been able to prove that Larmast and Titak were the brothers of Mst. Nandona and that the suit was barred by time.
6. Mr. Alamzeb Khan, learned counsel for petitioners contended that he is not disputing that Mst. Mastona was the mother of Mst. Nandona who was entitled to get her Shari share in the property of her daughter, however, it is an admitted fact that Deeni was paternal uncle of Mst. Nandona and was not sharer in accordance with table of sharer as provided in Muhammadan Law, thus, the inheritance of Mst. Nandona in presence of her live brothers Larmast and Titak could not be devolved upon Deni. He fizther contended that pedigree table as per inheritance mutation No. 7194 dated 21.01.1939 manifesting the true facts that Larmast and Titak were the sons of Piayo and Mst. Mastona was their mother, thus, the transfer of property in favour of Deni was not only against Sharia but also against the law of the land. He vociferated that in the matter of inheritance limitation could not create any hurdle nor the document in question, i.e., mutation No. 7794 could be considered as a document of title and the mere fact that mutation No. 7794 is thirty-year-old document does not provide a justification to upheld the wrong entries of the revenue papers. Learned counsel for petitioners in order to fortify his submissions has relied on 2005 SCMR 1217, PLD 2011 SC 119 and 2020 CLC 142.
7. Conversely, M/S Jan Muhammad Khan and Hafiz Muhammad Hanif Advocates, learned counsel for respondents contended that the property was rightly transferred in favour of Deni and Mst. Mastona. They contended that Larmast and Titak were not the brothers of Mst. Nandona and that her mother Mst. Mastona had contracted second marriage with Piayo, however, Mst. Nandoona was the daughter of Mst. Mastona from her first husband. thus, she would be considered as that of' Pechlag" of Piayo. They went on to say that Larmast and Titak themselves in their life time had not challenged the alienation of property in favour of Deni and that they themselves have transferred their shares in their life time as such they were aware of the transfer of property in favour of Deni but have never assailed the entries of revenue papers or challenge the validity of inheritance mutation, as such the institution of the suit after the death of Larmast and Titak, was not only incompetent but also barred by law. They relief on PLD 2002 SC 403, 2017 YLR 1160, 2017 YLR 405, 2018 YLR Note.14, 2016 YLR 279, 2015 YLR 582, 2012 YLR 1211, 2020 CLC 142 and 2014 CLC 108.
8. Arguments heard; record perused.
9. Admittedly, the name of Mst. Nandona has not specifically been mentioned in the pedigree table being the daughter of Piayo and her mother Mst. Mastona also does not figure in inheritance mutation, however, this does not mean that Mst. Nandona was not the daughter of Mst. Mastona. Similarly, it is also undisputed that Deni, Fazli and Juma were the brothers of Piayo. It is manifested from disputed mutation that Larmast and Titak were the sons of Piayo in such an eventuality Deni, Fazli and Juma were paternal uncles of Larmast and Titak. It is an admitted fact that present controversy is in respect of the inheritance of Mst. Nandona therefore, the arguments of learned counsel for respondents that Mst. Nandona was the daughter of Mst. Mastona from her earlier husband and Piayo is not her real father as Mst. Nandona was "Peechlag" have got no relevancy in the circumstances of the case. They have also contended that her father was someone else. When confronted with the written statement, they have candidly conceded that neither this fact was categorically mentioned in the written statement nor any such evidence is available on record. No doubt a question of law can be raised at any time even before the apex court, however, the factual aspect cannot be allowed to be taken or asserted for the first time before this court. It was for them to allege this fact in their pleadings first, and then to prove it through convincing, positive and reliable evidence nonetheless, without any material in black and white, it is not permissible for either of the party to assert a new fact for the first time before this court when the matter is being heard under section 115 of the Code of Civil Procedure, 1908, when the powers of this court are limited to as whether the lower forum has committed an illegality or exercise the jurisdiction not so vested in the lower court or the order passed in excess of jurisdiction not so vested in the court below. Be that as it may, it is undisputed that property of Mst. Nandona is in question and the fact that by whom she inherited it is irrelevant. If the argument of the respondents is conceded for a while that she was not the daughter of Piayo from Mst. Mastona than in such scenario Deni, Fazli and Juma are not her paternal uncles and this property in that capacity could not have been inherited by Deni as his two other brothers were already dead and, in this capacity, the entire legacy of Mst. Nandona would have been devolved upon her mother Mst. Mastona in absence of any other legal heir. Once the legal heirs of Deni asserted that Deni was paternal uncle of Mst. Nandona than they are estopped to say that Piayo was not real father of Mst. Nandona because Piayo and Deni were real brothers and Deni could only be the paternal uncle of Mst. Nandona, if she is the daughter of Piayo. One cannot be allowed to approbate and reprobate as the respondents cannot blow hot and cold in the same breath. On one hand they were getting the benefit that Deni was real brother of Piayo and real paternal uncle of Mst. Nandona and on the other hand they are disputing her parentage, which is not permissible in eye of law.
10. Moreover, the second contention of the respondents was that the name of Mst. Nandona and that of Mst. Mastona do not figure in the inheritance mutation, this submission of the respondents is also of no help to them because they are beneficiary of the inheritance of Mst. Nandona in the capacity of paternal uncle who was the real brother of Piayo. When Piayo, Deni, Fazli and Jumma along with Larmast and Titak are named in the inheritance mutation in juxtaposition with the admission of the respondents that Mst. Mastona was the real mother of Mst. Nandona and that Mst. Mastona was the wife of Piayo and Larmast and Titak were real sons of Piayo then they cannot deny that Mst. Nandona was not the real daughter of Piayo by setting the facts in proper order. It has become obvious that Mst. Nandona was the daughter of Piayo from Mst. Mastona having two brothers Larmast and Titak and paternal uncle Deni than the question before this court is to whom the legacy of Mst. Nandona would be transferred. We have two tables in Muhammadan Law, as per the table of sharers respective shares are recorded therein according to which mother is at Serial No. 6, thus, Mst. Mastona being sharer of Mst. Nandona would get 1/3 share from the inheritance of her daughter Mst. Nandona as she died issueless. The brothers and paternal uncle are not in the table of sharer rather they are in the table of residuary and in consonance with Section 65 of Muhammadan Law the order of residuary is considered on the principle that nearer in relation shall exclude more remote. As per table full brother is at Serial No. 5 whereas full paternal uncle is at Serial No. 13, thus, the entire residue of Mst. Nandona would be distributed in equal shares amongst brothers of the deceased so rest of the 2/3rd share, i.e., 2/3 x 1/2 = 2/6 shall be given to each of them. Now the inheritance would be distributed amongst the legal heirs in such a way that Mst. Mastona would get 2/6, Larmast would get 2/6 and Titak would also get 2/6.
11. Furthermore, there is no cavil with the proposition that the inheritance mutation was attested in the year 1939 and it is a public document, but mere 30 years old document would not be considered as gospel truth as per the provisions of Article 100 of the Qanun-e-Shahadat Order, 1984, when a document was challenged, the beneficiary is required to prove it. Reliance "Nazir Ahmed deceased through LRs v. Karim Bakhsh (Late) through LRs) 2017 SCMR 1934. Needless to mention that the document is 30 years old would be considered as correct or genuine is not a correct phenomenon. Though the respondents alleged that Mst. Nandona was not the daughter of Piayo than they were required to prove the parentage of Mst. Nandona, but their admission and conduct when they are claiming themselves to be the legal heirs of paternal uncle of Mst. Nandona, i.e., the real brother of Piayo and in that capacity getting the inheritance, principle of estoppels in accordance with Article 114 of Qanun-e-Shahadat Order, 1984 would come into play. In accordance with Black's Law Dictionary, the term "estoppels" has been defined as to be doctrine of law which precludes a person from denying the truth of statement formally made by him, thus, they are stopped by their conduct by alleging them to be the legal heirs of paternal uncle of Mst. Nandona and asserting that Mst. Nandona was not the daughter of Piayo.
12. Apart from above, before this court the dispute relates to a mutation attested in the year 1939, the then revenue officer who attested the same has categorically mentioned that it was a distribution of property in accordance with Sharia. The distribution of property as per disputed mutation was illegal and was against law of Sharia on two-fold grounds, firstly that Sharia does not entitle a paternal uncle of the deceased to get the inheritance in presence of other legal heirs and secondly the perplexed version of respondents would create a hurdle or a bar in between their claim in the capacity of paternal uncle and at the same time disputing the parentage of Mst. Nandona to be the daughter of Piayo.
13. The respondents have forcefully submitted before the court that on the basis of the case law relied upon by them, the suit of petitioners was barred being instituted in the year 2012. Undoubtedly, it was a matter of inheritance which in accordance with Section 2 of Shariat Application Act, 1935 and Khyber Pakhtunkhwa Shariat Application Act, 1962, the inheritance would be devolved in consonance with Sharia and would not be hit by limitation in any manner whatsoever. Reliance may be placed on 2016 MLD 1974, 1998 SCMR 996, 2018 CLC 254, 2014 SCMR 801, 2015 SCMR 869, 2017 MLD 1567, 2017 CLC 436, 2007 SCMR 635, PLD 1990 Supreme Court 1, 2004 SCMR 1391, PLD 2002 Supreme Court 677, 2005 SCMR 1217, 2005 SCMR 1281, 1990 SCMR 1667 and 2003 SCMR 362.
14. The case law relied upon by the petitioners keeping in view the facts and circumstances of the case are distinguishable and not applicable to the instant issue. Of course, the initial onus was upon plaintiffs/petitioners to prove their case, but even the document itself, i.e., the inheritance mutation supports their version in accordance with the facts discussed as above, in the light of afore-mentioned discussion of the facts of the case. The learned appellate court has not appreciated the evidence in true perspective by holding that the petitioners remain unable to prove their link with Mst. Nandona, as discussed in Para-3 of the judgment Mst. Nandona was daughter of Mst. Mastona and Mst. Mastona was wife of Piayo and Piayo had a brother Deni who was the paternal uncle of Mst. Nandona then this mathematical calculation has left nothing for reaching to the just conclusion that Mst. Nandona was the sister of Larmast and Titak, thus, for the reasons discussed, this petition is allowed, the judgment and decree of the learned appellate court is hereby set-aside and that of learned trial court is restored, however, with no order as to costs. ZH/8/P Revision allowed.