P L D 2011 Peshawar 78 (PLP)

SHER MUHAMMMMIAD KHAN, J.

Appellants have challenged the Judgment/order dated 27-1-2010 passed by learned Senior Civil Judge, Bannu in Civil Suit No.317/1 of 2004 vide which the suit filed by predecessor of the appellants, has been dismissed.

2. Short facts relevant for just decision of the instant appeal are that Major (R) Abdul Akbar, predecessor in interest of plaintiffs/appellants (hereinafter called the plaintiff) has filed a suit for declaration in the Court of learned Senior Civil Judge, Bannu, praying therein that plaintiff and defendants Nos. 1 to 3/respondents Nos.3, 6 and 7 are the legal heirs of deceased Major (R.) Abdul Samad and are entitled to inherit the legacy of deceased Major (R.) Abdul Samad, according to the shares fixed by Muhammadan Law. The detail of the movable and immovable property has been fully described in the heading of the plaint. To augment his claim Shari Fitwa (edict) of District Khatib Maulana Hazrat Ali has. also been annexed with the plaint. The main contention of the plaintiff is that he and defendants Nos.1 to 3/respondents Nos.3, 6 and 7 are the only legal heirs of deceased Major (R.) Abdul Samad and defendant No.4/respondent No.1 is adopted daughter of Major (R.) Abdus Samad, therefore has no right to inherit in the legacy of Major (R.) Abdus Samad of receive the amount deposited in the Banks of defendants Nos.5 and 6/respondents Nos.2 and

3. Similarly, it has also been alleged that the entry of defendant No.4/respondent No. 1 as nominee in the Bank record for receiving the deposited amount along with profits, is the result of conspiracy, collusion and fraud between defendants Nos.1, 2, 5 and 6/respondents Nos.2, 3, 6 and 7, therefore the said entries are liable to be cancelled. It is further claimed that the amount withdrawn by defendants Nos.1, 2 and 4 from the bank of respondent No.5 is also the result of fraud and is liable to be returned/deposited back. It was contention of the plaintiff that he and respondents Nos.4, 6 and 7 are entitled to receive all the deposited amount with respondent` Nos. 2 and 3 according to their shares determined by Muhammadan Hanafi School of Thought.

3. Respondents Nos.4, 6 and 7 contested the suit by filing their joint written statement denying the averments of the plaint and pleading that respondent No.1 is the real daughter, born from the wedlock of deceased Major (R) Abdus Samad and his first wife Lady Dr. Jehanzeb Khattak (late). It was further contended by respondents Nos.4, 6 and 7 that respondent No.1 is entitled to get her share in the legacy of her father deceased Major (R) Abdus Samad.

4. The learned trial Court, from the divergent pleadings of the parties, framed as many as 12 issues including the relief and then directed the parties to submit their list of witnesses and produce their respective evidence in support of their contentions. The issues framed by the learned trial Court are reproduced herein below: (1) Whether plaintiff possess cause of action? OPP (2) Whether the suit is vague as the subject matter is not ascertainable? OPD (3) Whether the suit is not maintainable in its present form? OPD (4) Whether there is another suit pertaining to the same subject matter pending before the Court of learned Civil Judge-VI, District Lakki Marwat, therefore section 10, C.P.C. is applicable? OPD (5) Whether the present suit is bad for rnis-joinder cause of action and non/mis-joinder of parties? OPD (6) Whether in connection with a succession petition, the matter is subjudice before learned District Judge, Bannu, if so, its effects upon the present suit? OPD (7) Whether plaintiff during the life time of one Major Abdul Samad deceased had taken a loan, for which a deed was scribed on 16-12-1996, which is to the tune of Rs.3,89,000- which remained unpaid as such in lieu thereof the defendants can claim share of the plaintiff in the legacy? OPD (8) Whether this Court possess jurisdiction? OPP (9) Whether this suit is frivolous and vexatious, and is liable to be dismissed with special costs under section 35-A, P.P.C., if so what mount? OPD (10) Whether defendant No.4 was the legitimate daughter of deceased Major Abdul Samad and was the sister of deceased Tariq Ahmad? OPD (11) Whether plaintiff is entitled to the decree as prayed for? OPP (12) Relief.

5. Plaintiff in support of his claim produced and examined as many as 17 witnesses, including his own statement as P.W.17. On the other hand, in support of the version of respondent No.1, 10 witnesses were examined Nazar Ali, Civil Nazir, of the Court of Senior Civil Judge, Bannu was examined as CW-1.

6. After recording evidence of the parties, the learned trial Court heard the arguments of learned counsel of the parties and dismissed the suit of the appellants vide, judgment/decree dated 27-1-2010. The appellants are aggrieved from the above mentioned judgment/decree, hence have filed the instant appeal.

7. Before dilate upon the controversy between the parties, we deem it appropriate to highlight the relationship between the contesting parties. Respondents Nos.6 and 7 are real sisters while respondent No.4 is widow of deceased Major (R) Abdus Samad. Predecessor of the appellants was also brother of respondents Nos. 6 and 7 and deceased. Respondent No.1 claims to be the legitimate daughter of deceased Major (R.) Abdus Samad from the womb of Lady Dr. Jehanzeb Khattak (late). Plaintiff was not acknowledging her as legitimate daughter of Major (R.) Abdus Samad. During trial before the trial Court, all of them jointly tiled written statement and denied the allegations of the appellants. Respondent No.4, contested the suit on her own behalf and as guardian at litem of respondent No.1 because at that stage she was minor and incapable of defending her interests in the suit. It transpires from the record that respondent No.1 became major during trial and she contracted marriage with one Tariq Mahmud of her free will, choice and consent and gave power of attorney to father of her husband Sultan Muhamud Khan Advocate for defending her interests in the suit.

8. It seems that respondents Nos'.4, 6 and 7 became annoyed with respondent No. 1 due to her decision of marriage, therefore lost interest in the case and did not pursue the matter after marriage of respondent No.1. The learned trial Court afforded many opportunities to respondents Nos.4, 6 and 7 but they did not avail any of them, therefore their right of defence was struck off vide order dated 13-6-2007.

9. Respondents Nos.4, 6 and 7 neither challenged the interlocutory order of the trial Court dated 13-6-2007 during trial nor filed any appeal or cross objection after final decision by the learned trial Court.

10. The pleadings of the parties were so drafted that alternative relief was not prayed by plaintiff or defendants. For example the plaintiff did not mention in the plaint that in case he fails in proving the illegitimacy of respondent No.1 then in that situation, to how much share he will be entitled .in the disputed property. Similarly, respondents Nos.4, 6 and 7 also kept this aspect of the matter in dark. Therefore the learned trial Court, when found the suit of plaintiff without substance straight away dismissed the suit and did not determine the rights of all the legal heirs of the deceased, which was prime duty of the trial Court, to find out all the legal heirs of deceased Major (R) Abdus Samad and their respective shares in the legacy.

11. The appeal against the judgment/decree of the learned trial Court was vehemently argued by learned counsel for the parties on 22-9-2010 and the judgment was reserved, keeping in view the bulky evidence and intricate questions of law raised by learned counsel of the parties.

12. Before the announcement of judgment, appellants and respondents No.1 entered into private compromise; therefore learned counsel of the parties, before the date fixed, requested the Court to fix the case, on an early date for bringing on record the factum of compromise and to satisfy itself regarding the genuineness of the compromise, by recording statements of the compromising parties and to place on record the compromise deed. On their mutual request the case was fixed on 29-9-2010, on which date appellant No. 1/i on her own behalf and as guardian at litem of respondents Nos.1/ii to 1/iv, respondents No.1 with their respective counsel, appeared before the Court and recorded their joint statement, verifying the contents of compromise deed which is placed on file and exhibited as Exh. PA.

13. According to the terms of compromise, respondent No.1 agreed to surrender her shares from 1/2 to 1/3 in the legacy of Major (R) Abdus Samad (deceased). Appellants, acknowledged respondent No.1 as legitimate daughter of Major (R) Abdus Samad.

14. For disposal of the instant appeal, the statements of the appellant No.1/i and respondent No.1 are sufficient because the controversy was between the appellants and respondent No.1, regarding her status, which has been admitted by the appellants and is no more in issue. We are conscious of the fact that respondents Nos.4, 6 and 7, being widow and real sisters of the deceased are also entitled to inherit their shares, in the legacy of Major (R) Abdus Samad, whose rights have not been determined by the trial Court, therefore we feel ourselves duty bound to protect and safeguard their rights, in spite of the fact that they have not filed appeal or cross objections against the impugned judgment/decree.

15. In the trial Court, in order to prove that respondent No.1 is legitimate daughter of deceased Major (R.) Abdus Samad, sufficient documentary evidence has been brought on the record. Exh.DW2/1 is the domicile certificate of respondent No.1 and Exh.DW2/ 2 is the relevant record maintained by the concerned office. Admission form of respondent No. 1 in F. G School for women Bannu is Exh. D W3/1 and original register of admission is Exh.DW3/2. Similarly, the education record of respondent No. 1 has been produced as Exh.DW4/1 to Exh.DW4/5, in all these documents respondent No.1 has been entered as daughter of Major (R) Abdus Samad and majority of the documents were prepared either by deceased himself or on his directions duly signed by him. Respondent No.1 was also nominated by deceased as his nominee in the record maintained by respondent No.2, to receive the amount of National Saving Certificates. Some of the certificates were purchased by deceased Major (R) Abdus Samad, exclusively in the name of respondent No.1 as his daughter.

16. Under Muhammadan Law. as in all civilized system of law, the child follows the bed, that is the paternity of a child, born in lawful wedlock is presumed to be in the husband or the mother without any acknowledgment or affirmation of parentage of his part and such child follows the status of the father. The Sunni School of Thought presumes the legitimacy so strong that in cases where a child is born after six months from the date of marriage and within two years after dissolution of the marital contract, either by the death of the husband or by divorce. In support of the above mentioned proposition, it will not he out of place to quote some references from the research work of Islamic Scholars;

17. Where the paternity of a child, that is his legitimate descent from his father cannot be proved by establishing a marriage between his parents at the time of his conception or birth, the Muhammadan Law recognizes "acknowledgment" as a method whereby such marriage and legitimate descent can be established as a matter of substantive law for purposes of inheritance.

18. The Apex Court has also recognized, adopted and followed the injunctions of Islam regarding acknowledgment. Some of the dictums are listed here below;-- (1) Mst. Asma Naz v. Muhammad Younas Qureshi 2005 SCMR 401. (2) Rahmat Khan and 3 others v. Rahmat Khan and another PLD 1991 Supreme Court 275. (3) Manzur Hussain v. Zahur Ahmad and 4 others 1992 SCMR 1191 and (4) Bashir and others v. Alim Din PLD 1988 Supreme Court 8. (5) Mst. Hameeda Begum v. Murad Begun and others PLD 1975 Supreme Court 624.

19. Now the appellants also acknowledged her as real daughter of deceased Major (R.) Abdus Samad. Respondents Nos.4, 6 and 7 not only in their joint written statement but also in the Court of Guardian Judge have acknowledge her status as real daughter of Major (R.) Abdus Samad deceased, therefore this issue has been settled once for all and there is no need to waste further time in discussing it.

20. The only question to be determined by this Court is that who is entitled to how much share in the legacy of deceased Major (R.) Abdus Samad. Admittedly, deceased were survived by his daughter (respondent No.1), brother (predecessor in interest of the appellants), widow (respondent No.4), and two sisters (respondents Nos.6 and 7). As per rule of Hanafi Sect of Muhammadan Law the above mentioned legal heirs are entitled in the legacy of deceased as follow: (i) Daughter 1/2 share equivalent to 48/96 shares. (ii) Widow 1/8 share equivalent to 12/96 shares. (iii) Appellants and respondents Nos.6 and 7 jointly 6/16 share out of which plaintiffs share is equivalent to 18/96 and respondents Nos.6 and 7 each are entitled 9/96 shares.

21. Per terms of compromise deed, executed between the appellants and respondent No.1, respondents No.1 has surrendered some of her shares in favour of other legal heirs of the deceased in all other properties except in the cash amount deposited in National Saving Certificates with respondent No.2. The share of respondent No.1 has been reduced from 1/2 to 1/3, in the entire legacy except the cash amount deposited in National Saving Certificates where respondent No.1 shall get her full share to the extent of 1/2 shares.

22. In the light of the shares surrendered by respondent No. 1, the shares of all other legal heirs will be enhanced in the following manner. (i) Abdul Akbar (predecessor of the appellants) 26/96 shares. (ii) Respondent No.4 Mst. Rukhsana 12/96 shares. (iii) Respondent No.6 Mst. Qamar Jabeen 13/96 shares. (iv) Respondent No.7 Mst. Parveen Akhtar 13/96 shares (v) Respondent No.1 Mst. Maryam Khushboo 32/96 shares.

23. Keeping in view the above mentioned emerged scenario, we modify the judgment/decree of the trial Court and the findings on Issues Nos.9 and 10, which are modified in a manner that respondent No.1 has been rightly declared to be legitimate child of Major (R.) Abdus Samad. Appellants, respondents Nos.1, 4, 6 and, 7 are his legal heirs of Major (R.) Abdus Samad and are entitled in his legacy according to sharia, of the following shares; (i) Daughter 1/2 share equivalent to 48/96 shares. (ii) Widow 1/8 share equivalent to 12/96 shares. (iii) Appellants and respondents Nos.6 and 7 jointly 6/16 share out of which plaintiffs share is equivalent to 18/96 and respondents Nos.6 and 7 each are entitled 9/96 shares.

24. However, per terms of compromise deed Exh. PA, executed between appellants, respondents Nos.1 and 4 the shares of all the legal heirs have been enhanced as below; (i) Abdul Akbar (predecessor of the appellants) 26/96 shares. (ii) Respondent No.4 Mst. Rukhsana 12/96 shares. (iii) Respondent No.6 Mst. Qamar Jabeen 13/96 shares. (iv) Respondent No.7 Mst. Parveen Akhtar 13/96 shares (vi) Respondent No.1 Mst Maryam Khushboo 32/96 shares.

25. The enhanced shares of appellants. respondents Nos.4, 6 and 7 will not affect the shares of respondent No.1 in cash amount deposited in National Saving Certificate with respondent No.2 wherein she has not surrendered any of her shares in favour of other legal heirs, therefore she will receive 1/2 share in the said amount.

26. The appellants No.1/ii to 1/iv are minors, on whose behalf appellant No.1/i, as guardian at litem, has entered into compromise with respondent No.l. The contents and substance of the compromise are in the best interest of the minor appellants because their shares in the legacy have been enhanced, therefore we accept the compromise Exh.PA, being in the best interest of minor appellants.

27. With the above observations and modification the judgment/decree passed by learned trial Court on 27-1-2010 is hereby maintained and the appeal filed by the appellants dismissed with no order as to costs. M.H./408/P Appeal dismissed.