2010 PLP 555 (CLC)

CH. NAEEM MASOOD, J.

The present civil revision is directed against the concurrent judgments and decrees dated 5-9-1995 and 17-6-1997 passed by the learned Civil Judge, Khanewal and learned Additional District Judge, Khanewal, decreeing the suit filed by the respondent.?????????

2. The synopsis resumption of the case in chronological order is that the respondent filed Suit No.188 on 15-5-1988 for declaration that the mutation dated 11-3-1984 transferring the property of Fazal Din to the petitioner/defendant was illegal and did not affect inheritance rights IA of the respondent/plaintiff.

3. The respondent/plaintiff gave the following pedigree-table:-- (i) One Budha died leaving behind Fazal Din deceased (issueless) and Nizam Din. (ii) Nizam Din died leaving behind Mst. Rashida Bibi petitioner/defendant and Mst. Barkat Bibi who had pre-deceased Fazal Din. (iii) Mst. Barkat Bibi left behind Manga respondent/plaintiff. (iv) In the suit it was claimed that the respondent/plaintiff was entitled to inherit the property of Fazal Din deceased according to Sharia and the mutation in question had been sanctioned in favour of the petitioner/defendant to deprive him of his Sharhi inheritance.

4. The suit was contested and amongst others the following two preliminary objections were raised:

(i) That the respondent/plaintiff had no cause of action. (ii) That the respondent/plaintiff's suit was not maintainable under the law. On 1-6-1987 the better statement of the respondent/plaintiff was recorded and on the basis of the said statement the following two issues were framed: (1) Whether plaintiff has no cause of action and locus standi to file the present suit? OPD. (2) Whether suit is maintainable in view of the fact that Mst. Barkat Bibi, mother of the plaintiff, had died in the life of Fazal Din deceased? OPP. It was observed by the learned trial Court that no evidence was needed to decide the above-said two issues; therefore, the case was fixed for arguments on 27-6-1987. On 27-6-1987 and 16-7-1987 the arguments could not be heard, but on 28-9-1987 the learned counsel of the parties jointly requested the learned trial Court to frame all the issues in the case including those of merits, so that the said preliminary issues should also be decided along with the other issues. Accordingly the learned trial Court framed the following issues:

(1) Whether the plaintiff has got cause of action and locus standi to file the present suit? OPD. (2) Whether suit is Maintainable in view of the fact that Mst. Barkat mother of the plaintiff had died in the life of Fazal Din deceased? OPP. (3) Whether the plaintiff has no locus standi to file the suit? OPD. (4) Whether the plaintiff is estopped to file the suit by his act and conduct? OPD. (5) Whether the suit is false and frivolous and the defendants are entitled to special costs under section 35-A, C.P.C.? If so to what extent? OPD. (6) Whether suit is under valued for the purposes of court-fee and jurisdiction. If so what is correct valuation? (7) Whether Mutation No.262 dated 11-3-1984 and entries in the Revenue Record are incorrect, against law and facts, based on fraud, fictitious, null and void and ineffective against the rights of the plaintiff? OPP. (8) Whether the plaintiff is entitled to decree for declaration as prayed for in the plaint? OPP. (9) Relief." Since then i.e. 28-6-1987 the parties are at litigation drawn for the last 22 years.

6. The parties led their respective evidence and on the basis of the evidence the learned trial Court decreed the suit of the respondent/plaintiff. The learned appellate Court also concurred with the learned trial Court and dismissed the appeal.

7. The learned counsel for the petitioner has taken me through the record of the case and has pointedly argued that the proceedings on merit were not warranted under the facts of the case. It is submitted that according Islamic law, Manga plaintiff/respondent could not inherit the property left by Fazal Din, therefore, he had no cause of action to file the suit, nor the suit was maintainable at all. It is further argued that the whole exercises taken for the last 22 years had been futile, as the matter could have been clinched at the but set in 1987 when the two preliminary issues of cause 'of action and maintainability were framed.

8. I have heard the learned counsel-and have perused the record of the case including the pedigree-table given by the respondent/plaintiff himself at the time of filing the suit. According to my analysis of the facts given by the plaintiff/respondent and the Islamic law applicable to the parties, there was no cause of action available to the respondent/ plaintiff, nor the suit was maintainable.

9. My reasoning to arrive at the above conclusions are given in the ensuring paragraphs.

10. Taking the plaint on the face of it the respondent/plaintiff is related to Fazal Din deceased through his mother Mst. Barkat Bibi, who had predeceased Fazal Din. From the plaint and the better statement together, it has come on the record that Barkat Bibi, the mother of the plaintiff/respondent, died before the death of Fazal Din. Fazal Din died after the creation of Pakistan and Barkat Bibi died before that in India. Thus, the respondent/plaintiff was not entitled to inherit Fazal Din in, the presence of Mst. Rashidan, the petitioner/defendant, who is daughter of Nizam Din, the real brother of Fazal Din deceased. According to Hanfi Law of inheritance, both the petitioner and respondent fall in the category of distant kindred. Neither of them is sharer or residuary. According to the law of inheritance the nearer in degree: excludes more remote. Hence, the petitioner is nearer in degree to Fazal Din deceased, whose property is in dispute, the respondent/plaintiff being the son of the daughter of the brother of the deceased stands excluded by the petitioner. I am fortified in my view by the provisions of sections 67 and 68 regarding Distant Kindred of Mohammendan Law of Inheritance by Mulla. Section 68 demarcates 4 classes of Distant Kindred, classes I and II are not related and the III is relevant to the present case, which is reproduced as under:--??????????? . "III. Descendants of parents: 1.?? Full brothers' daughters and their descendants. 2.?? Con. Brothers' daughters and their descendants. 3.?? Uterine brothers' children and their descendants. 4.?? Daughters of full brothers' sons his, and their descendants. 5.?? Daughters of con., brother's sons his, and their .descendants. 6.?? Shares' (f. c, or ut), children and their descendants. Serial No.4 deals with the question of inheritance of the petitioner and respondent/plaintiff's mother. Rules of exclusion given in section 73 and order of succession given in section 74 of Mohammendan Law are relevant in the case which are re-produced below:

"

73. Rules of exclusion.

If there be no Distant Kindred of the first or second class, the estate devolves upon Distant Kindred of the third class. This class comprises such of the descendants of brothers and sisters as are neither Sharers nor Residuaries. The order of succession in this class is to be determined by applying the following three rules in order. Rule (1)

The nearer in degree excludes the more remote.

74. Order of succession.

The above rules lead to the following order or succession among Distant Kindred of the third class:

(1) Full brother's daughters, full sisters' children and children of uterine brothers and sisters. (2) Full sisters' children, children of uterine brothers and sisters, consanguine brothers' daughters and consanguine sisters' children, the consanguine group taking the residue (if any). (3) Consanguine brothers' daughters, consanguine sisters' children,' and children of uterine brothers and sisters. (4) Full brothers' sons' daughters (children of Residuaries). (5) Consanguine brothers' sons' daughters4children of Residuaries). (6) Full brothers' daughters' children, full sisters' grandchildren, and grandchildren of uterine brothers and sisters.? (7) Full sisters' grandchildren, grandchildren of uterine brothers and sisters, consanguine brothers daughters children and consanguine sisters' grandchildren, the consanguine' group taking the residue (if any). (8) Consanguine brothers' daughters' children, consanguine sisters' grandchildren, and grandchildren of uterine brothers and sisters. (9) Remoter descendants of brothers and sisters in like order." The petitioner comes in the category of serial No.1 being full brother's daughters and respondent come under serial No.6 full brothers' daughters' children. Thus according to the afore-mentioned provisions of Islamic Law the petitioner is nearer in degree and excludes the more remote i.e. the respondent/plaintiff.

11. As the respondent was not an heir of the deceased Fazal Din and could not inherit in the presence of the petitioner, therefore, he had no cause of action to file the suit nor the suit was maintainable in the light of the plaint and better statement given by him. The suit was thus liable to be dismissed on these two preliminary issues in 1987 and futile exercise has been taken through for deciding the case on other issues which had become redundant in the presence of the decision on these two issues.

12. Ordinarily the current judgments are not set, aside unless the same are replete with gross illegality and irregularity and are inconsistent with the law applicable to the facts of the case. Here in the present case a gross illegality has been committed in misinterpreting Islamic Law, therefore, according to the dictum laid down by the Honourable apex Court in various judgments, the impugned judgments which suffer from material illegality and irregularity are liable to be set aside, even in the exercise of revisional jurisdiction.

13. In sequel thereof, the instant civil revision is accepted and the judgments and decrees of the learned trial Court as well as that of learned lower, appellate Court are set aside leaving the parties to bear their own expenses. H.B.T./R-85/L???????????????????????????????????????????????????????????????????????????????????? Petition accepted.