2015 PLP 427 (MLD)

ROOH-UL-AMIN KHAN, J.

Through this revision petition, petitioner Muhammad Ibrahim, has called in question the legality and propriety of judgment and decree dated 3-7-2008, passed by the learned Additional District Judge-I, Karak whereby the judgment and decree of the learned trial Court/Civil Judge-III Karak, dated 14-10-2006, has been set aside and consequently, the suit of the petitioner has been dismissed.

2. Facts in brief forming the background of the instant revision petition are that plaintiff (petitioner herein) filed a suit for declaration to the effect that suit land, situated within the Revenue Estate of Moza Tappi Karak, fully described in the heading of the plaint, was originally the ownership of his father Saeed Ahmad/defendant No.13 (who is also predecessor of defendants Nos.1 to 12), but the same has wrongly been transferred in favour of defendants Nos. 1 to 12, on behalf of defendant No.13 excluding his name vide Mutation No.371 attested on 25-7-1978. Thus, the plaintiff claims his share in the property in question on the basis of inheritance, being the son of defendant No.13.

3. The suit was contested by the defendants by filing written statement, raising therein variety of objections legal as well as factual. From the divergent pleadings of the parties, issues were framed, on which the parties were invited to lead their evidence in support of their respective stance. On conclusion of trial, the learned trial Court decreed the suit of the petitioner. Being aggrieved from the judgment and decree of the trial Court, respondents preferred appeal before the learned Appellate Court, which was allowed, the judgment and decree of the learned trial Court was set aside and resultantly, the suit of the petitioner was dismissed. Hence, this revision petition.

4. I have considered the respective submissions of the learned counsel for the parties and have perused the record with their able assistance.

5. This unique controversy relates to the property of a father, who is still alive, but his off springs are hell-bent to distribute the same amongst them on the ground of inheritance. The plaintiff claims that he being the son of Saeed Ahmad, is also entitled to get his share on the basis of inheritance while he has been deprived from the same by defendants Nos.1 to 12 by excluding his name in the revenue record. Saeed Ahmad, against whose property the controversy revolves is still alive. Admittedly, the share in the property of a father can legally be claimed by way of inheritance on occasion of demise of father, thus, in these circumstances, the suit of the petitioner is not maintainable having no cause of action and is liable to ought right dismissal.

6. It appears from the record that Saeed Ahmed defendants No.13, has two wives, namely Mamana and Mst. Gulona. From Mst. Mamana, he has no male issue while from Mst. Gulona, he has three sons namely Muhammad Zarif, Abdul Hamid and Muhammad Ibrahim (the present petitioner). It appears from the record that said Saeed Ahmed defendant No.13, transferred the suit land in favour of his wife Mst. Mamana vide sale Mutation No.11208 attested on 23-8-1973, against a sale consideration of Rs.40. The other wife of Saeed Ahmed, namely, Mst. Gulona, along with her sons Muhammad Zarif and Abdul Hamid (respondents Nos.1 to 3), filed a Suit No.269/1 on 28-7-1976, which was decreed on 13-2-1978, on the basis of compromise. In consequence of the aforesaid decree, mutation in question bearing No.371 was attested on 25-7-1978, in favour of Mst. Gulona (wife of Saeed Ahmed) and her sons Muhammad Zarif and Abdul Hamid. Being aggrieved from the attestation of Mutation No.371 dated 25-7-1978, Mst. Dilshad Begum, Mst. Noor Shad Begum etc, (daughters of Saeed Ahmad), filed a declaratory suit bearing No.105/1 of 1979, decided on 31-1-1984, against Muhammad Zarif, Abdul Hamid (sons) and Mst. Gulona and Mst. Mamana (wives) of Saeed Ahmad, claiming themselves to be the legal heirs of Saeed Ahmad, as such entitled to get their shares in his property. The suit was decreed and resultantly, Mutation No.1951 dated 18-11-1990, was attested on behalf of Mst. Mamana, Mst. Gulona (wives), Muhammad Zarif and Abdul Hamid (sons) of Saeed Ahmad in favour of Dilshad Begum etc. (sisters of Saeed Ahmad). Thus, finding himself deprived in the property of his father, Muhammad Ibrahim (petitioner herein) brought the present suit seeking his share in the property of his father Saeed Ahmad.

7. From the above record and evidence, no doubt, present petitioner Muhammad Ibrahim is also the real son of Saeed Ahmad and there is no denial of his relation as son with Saeed Ahmed, on the part of the parties, and it is equally true that he has been deprived in all the mutations attested in favour of the off springs, wives and sisters of Saeed Ahmad, but the situation on the record is quite amazing that when Saeed Ahmed is still alive then how his legacy can be devolved upon his legal heirs. The Islamic Law of inheritance deals with the distribution of wealth and assets of a person, after accruing his physical death. Inheritance is an important branch of the Family Law, not only duly recognized by the Qur'aan and Sunna, but its application in Islamic Society is mandatory aspect of Divine Teaching of Islam. Allah Almighty has mentioned about inheritance in the Holy Qur'aan at 35 places. In Ayat No.4:7 Surrah An Nisa, Allah reveals, translation of which is as under:-- "There is a share for men and a share for women, from what is left by the parents and those near related, whether, the property be small or large a legal share" Hence, there is a legal share for relative of the deceased in his estate/property. From the above quoted verse of the Holy Qur'aan, it is clear than crystal that the death of a person brings about a transfer of his right to his legal heirs. The Courts below in previous litigations and the Revenue authorities have ignored this fact while decreeing and transferring the land of an alive person to his legal heirs as inheritance. Thus, in light of the available record, Mutation No.11208 attested on 23-8-1973 vide which Saeed Ahmad has transferred his property in favour of his wife Mst. Mamana and all the mutations subsequent thereto being illegal are liable to be cancelled.

8. For what has been discussed above, this revision petition is disposed of with the observations that after cancellation of mutation No.11208 attested on 23-8-1973, the property in question stands devolved upon its original owner Saeed Ahmad, who is still alive, and all the subsequent mutations to the aforesaid mutation attested on the basis of Court decrees are set aside with the direction to the Revenue authority to transfer and enter the property in the revenue record, in the name of its original owner Saeed Ahmad. No order as to costs. AG/196/P Order accordingly.