2016 PLP 263 (YLR)

MUHAMMAD GHAZANFER KHAN, J.

This revision petition is directed against the judgment and decree dated 22/9/2011 passed by the learned District Judge Tank, whereby appeal of Haji Muhammad Mehmood, plaintiff/respondent No.1, against the judgment and decree dated 16/4/2011 passed by the learned Civil Judge Tank was accepted.

2. According to the averments made in the plaint, briefly stated facts of the case giving rise to the instant revision petition are that the suit property bearing Old khata No.14 measuring 186 kanals and 10 marlas was the ownership of one Saleh Muhammad son of Gullo who died issueless being unmarried when the law of custom was prevailing during those days. Fateh Muhammad son of Phullo being the cousin of said Saleh Muhammad was entitled to his legacy thereunder. Before the promulgation of Shariat Application Act 1935, inheritance mutation No.5 dated 15/9/1905 was attested in favour of Mst. Jatti, widow of Gullo (mother of Saleh Muhammad) to the extent of 10/16 shares and thus the same in favour of Fateh Muhammad son of Phullo (predecessor of plaintiff) to the extent of 6/16 shares was alleged to be wrong, illegal, void, fraudulent, mala fide and ineffective upon his (plaintiff) rights and upon the rights of proforma defendants Nos. 8 to

17. It was further averred that under the Customary Law Mst. Jatti, widow of Gullo, was entitled to the extent of 1/6 shares as Life Estate Owner and thus she has wrongly and illegally alienated her 10/16 share measuring 117 kanals and 10 marlas in favour of Hakim and Allah Bakhsh vide sale mutation No.25 dated 16/12/1908. The plaintiff averred that since Hakim and Allah Bakhsh were not the lawful owners of said property, therefore, all the subsequent transactions including the inheritance mutation in favour of defendants Nos.1 to 4 coupled with the entries in the record of rights were stated to be wrong, void, illegal and liable to cancellation.

3. When summoned, defendants Nos.1 to 4 contested the suit through filing written statement while defendants Nos. 8 to 12 submitted cognovits through their special attorney and the divergent pleadings of the parties gave birth to the framing of seven issues including the relief.

4. After recording pro and contra evidence of the parties and hearing their learned counsel, the learned trial Judge dismissed the suit of the plaintiff vide judgment and decree dated 16/4/2011. Feeling aggrieved, the plaintiff challenged the said judgment and decree of the trial Court through an appeal which was accepted by the learned District Judge Tank vide judgment and decree dated 22/9/2011 and decreed the suit of the plaintiff to the extent of 11/24 share out of 5/8 share which Mst. Jatti had retained as a limited owner. In view of West Pakistan Muslim Personal Law Shariat Application Act 1962 (as amended by Ordinance XIII of 1983), Mst. Jatti was held entitled to 1/6 share in the inheritance of her son Saleh Muhammad and thus she was held to be competent to transfer only 4/24 share out 5/8 share by way of sale etc. It was further held that sale in favour of predecessor-in-interest of defendants Nos.1 to 4 to the extent of 1/6 share of Mst. Jatti in the suit land was valid while the remaining property was held to be reverted to the plaintiff as successor of said Saleh Muhammad in the capacity of his reversionary. Hence the instant revision petition by the defendants/petitioners.

5. Learned counsel for petitioners/ defendants vociferously argued that the suit of respondents/plaintiffs was time barred, as the impugned mutation was attested in the year 1905 and the present suit was instituted in the year 2009. He further contended that admittedly the suit mutation was attested in the presence of Fateh Muhammad (predecessor-in-interest of the plaintiffs and pro forma respondents), but none of their predecessor has challenged the impugned mutation in their life time, therefore, the plaintiffs and proforma respondents are now estopped to sue. He further went on to say that the predecessor of petitioners/defendants was bona fide purchaser and his rights were protected under the Transfer of Property Act. The learned counsel maintained that Shariat Application Act 1935 has wrongly been retrospective effect by the learned Appellate Court, rather the aforesaid Act was not applicable to the facts and circumstances of the case in hand. He stressed that the lower appellate Court has decided the case without proper appreciation of the evidence brought on record, therefore, its impugned judgment and decree being devoid of any force are liable to be set at naught.

6. Conversely, learned counsel for the plaintiff/respondent vehemently defended the impugned judgment and decree of the learned appellate Court. He argued that as the plaintiff is co-owners in the suit property, therefore, according to law, no limitation runs against a co-owner. He contended that as the present controversy is in relation to inheritance, so no limitation under the law runs in inheritance cases. The learned counsel further urged that the impugned mutation was rightly adjudged by the appellate Court to be in excess of the share of Mst. Jati. His submission was that the revision petition being meritless, hence be dismissed with cost throughout.

7. I have thoroughly gone through the entire record of the case and anxiously considered the valuable arguments of learned counsel for the parties.

8. The basic controversy between the parties pertains to mutation No.5 attested on 15-9 2005. This inheritance mutation belongs to the legacy of Saleh Muhammad who died issueless and at the time of his death, his mother Mst. Jati was alive. So Saleh Muhammad was the legal heir of common ancestor, namely, Zaman, who had two sons, namely, Gulu and Phulu. The deceased Saleh Muhammad was the son of Gulu and Mst. Jati was the mother of deceased Saleh Muhammad and widow of Gulu.

9. Now question arises that what share Mst. Jati should have received from the legacy of deceased Saleh Muhammad and to what extent the present plaintiffs were entitled in his legacy?

10. It is pertinent to mention here that the suit mutation was attested much prior to the promulgation of the North West Frontier Province Shariat Application Act, 1935. So the plaintiffs are claimant under Rewaj and also as shown as first cousins of the deceased Saleh Muhammad. The present suit was instituted during the year 2009 and at the of its institution, West Pakistan Muslim Personal Law (Shariat) Application Act 1962 was in field and in its section 2, it has been provided that "Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, divorce, dower, adoption, minority, legitimacy or bastardy, family relations, will, legacy, gifts, religious usages or institutions, including waqf, trust and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims. Similarly, subjection of Section 3 of the "North West Frontier Province, Muslim Personal Law (Shariat) Application Act 1935, provides that "where a question relating to the succession upon the death of Muslim arises in any Court , the rule of decision shall be the Muslim Personal Law (Shariat), and where such death has taken place before 6th December 1935, the rule of decision shall be according to the Muslim Personal Law (Shariat), as if that laws had been applicable at the time of such death.

11. There is yet another point seriously contested by the defendant is the limitation. Now to deal with all these hotly contested points, as is evident from the provisions of law, the inheritance of a Muslim even prior to promulgation of above said law will be dealt with according to his personal law.

12. This analogy has also been discussed, decided and elaborated by their Lordships in 2008 SCMR 905, citation 'A" and in the same judgment in its citation 'B', the point of limitation has also been decided by their Lordships by holding that no limitation would run against a co-sharer. Same view has already been taken in 2000 CLC 1863 citations 'A" and 'B'.

13. According to the Schedule to para-63 of Mohammadan Law, the mother gets 1/3rd share when there is no child or child by a son etc. As is evident from the record that Saleh Muhammad has died issueless as he died bachelor and at the time of his death, he had neither any brother nor sister, so the mother shall get 1/3rd share out of his legacy instead of 1/6th and other thing which is to be noted is that prior to the death of Mst. Jatti, her husband died and his legacy was devolved upon his only son Saleh Muhammad according to Rewaj. However, as discussed above, on his death the inheritance of Gullu shall re-open and Mst. Jatti shall also get share through legacy of her husband which comes to 1/8th.

14. For the reasons discussed above, the impugned judgment and decree of the learned appellate Court is modified to the extent of share of Mst.Jatti only and the revision petition is disposed of accordingly. SL/344/P Order accordingly.