2004 PLP 432 (SCMR)

MUNIR A. SHEIKH, J.‑‑‑This appeal by leave of the Court is directed against judgment dated 28‑6‑1995 whereby appeal filed by appellants has been dismissed bi Lahore High Court by upholding concurrent findings of facts recorded b the two Courts below.

2. There arose a dispute relating to inheritance of Mehr who was allotted the land in dispute in lieu of land left by him m India. He died in the year 1955 and mutation of inheritance was sanctioned by Revenue Officer in 1961 in favour of his two daughters Hurmat Bibi and Fazal Bibi, which devolved on their heirs. The present appellants who are successor‑in‑interest of Budha brother of Mehr did not object to the correctness of these mutations showing Hurmat Bibi and Fazal Bibi as two, daughters of Mehr whose successor‑in‑interest were given inheritance through them in the property of Mehr, till 1978, when an application was moved before the District Collector Sheikhupura seeking review of the said mutation alleging that Hurmat Bibi was not daughter of Mehr. Collector directed the appellants to approach the Civil Court. They in 1980 filed a suit from which this appeal has arisen for declaration that mutation of inheritance sanctioned in 1961 was obtained by the respondents namely Abdul Rahim, Hurmat Bibi, Iqbal Begum, Maqbool Begum by concealment of true facts and playing fraud. Abdul Rahim who is attorney of the other transferees further sold the land in the year 1976 to Muhammad Ramzan who further sold the same to other vendees through documents of mutation Exh.‑ D‑3 to D‑

13. The sale deed made in favour of the respondent Muhammad Ramzan of the entire land was challenged in the suit while according to learned counsel for appellants further sales were made during the pendency of the suit.

3. The suits were contested by the respondents. A number of issues were framed out of which Issues Nos. 1, 5 and 10 are relevant for disposal of this appeal, which are as follows:‑‑ (1) Whether impugned mutation dated 22‑2‑1961 is result of fraud, misrepresentation and the same is ineffective upon the rights ,of the plaintiffs? OPP (2) .................. (3) .................. (4) .................. (5) Whether the suit is barred by time? (6) ............ (7) .................. (8) .................. (9) .................. (10) Whether the defendants are bona fide purchasers for consideration without notice? OPD

4. The trial Court held that it was not proved that the said mutation of inheritance sanctioned in 1961 of Mehr was based on fraud and concealment of facts, therefore, sale of the land made by the transferee under the mutation in favour of Muhammad Ramzan and further, sales in favour of other vendees by Muhammad Ramzan were bona fide and the transferees were bona fide purchasers without knowledge. Under issue No.5, it was held that the suit was barred by time as the same should have been filed within a period of six years under' Article 120 of the Limitation Act from the date of accrual of cause of action which had accrued in 1961 when the mutation was sanctioned. The appeal filed by the appellants was dismissed by the First Appellate Court on 6‑3‑1994 and revision petition filed by them has also been dismissed on 28‑6‑1995 against which this appeal by leave of the Court is directed.

5. In the suit, the appellants also challenged the correctness of pedigree‑table given in the mutation sanctioned in 1961 of the inheritance of Mehr in which Hurmat Bibi and Fazal Bibi were recorded as daughters of Mehr. The case of the appellants was that they were wrongly and fraudulently shown as daughters of Mehr to get the mutation of inheritance sanctioned in their favour‑as such. It was rightly held that the appellants did not produce any evidence to rebut the pedigree‑table given in the mutation in which Hurmat Bibi and Fazal Bibi were recorded as daughters of Mehr. The suit was no doubt barred by time, to the extent of challenging the status of Hurmat Bibi and Fazal Bibi as daughters of Mehr as their right to inherit from Mehr as such. But learned counsel for the respondents when questioned as to how under the Mohammadan Law, two daughters in the absence of son could inherit whole of the property, had not answered. According to Mohammadan Law both the daughters could inherit 2/3rd share in the land devolved on them, therefore, the remaining 1/3rd share had devolved on the collaterals of Mehr, who had become joint owners alongwith two daughters, as such, the suit was not barred by time to the extent of declaration that sale of land made by these two ladies in excess of 2/3rd share was not valid as such ineffective against 1/3rd share of the collaterals.

6. For the foregoing reasons, this appeal is partly accepted, the suit filed by the appellants is hereby partly decreed and it is hereby declared that collaterals of Mehr inclusive of the appellants who are the grand sons and granddaughters of Budha brother of Mehr are the owners or 1/3rd share in the land and the mutation of inheritance is invalid to this extent as such, any sale made in excess of 2/3rd share is also invalid and ineffective against the rights of collaterals. The Revenue Officer shall correct the mutation sanctioned in 1961 to transfer 2/3rd share in the land to both the daughters and sanction mutation of sale to the same extent, and 1/3rd share to collaterals of Mehr after determining as to who are the collaterals if there may be other persons who are callaterals.

7. No order as to costs. M.H./F‑128/S Order accordingly.