Muhammad Khan vs Dost Muhammad Deceased etc.

Stereo. H C J D A. 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE.

(JUDICIAL DEPARTMENT)

Civil Revision No.1539 of 2015 Muhammad Khan Versus Dost Muhammad (deceased) through L.Rs., etc.

Date of Hearing 20.10.2026 Petitioners M/s C.M. Sarwar & Muhammad Yousaf Qadri, Advocates. M/s Abdul Ghafoor Sheikh and Ch. Abdul Majid, Advocates for petitioners in C.R. No.1675 of 2015.

M/s Muhammad Riaz Lone and Syed Faizan Rasool, Advocates for petitioner in C.R. No.2360 & 2361 of 2015.

Mr. Muhammad Zubair Rafiq Warraich, Advocate for petitioner in C.R. No.1724 of 2015.

Respondents M/s Naveed Shaheryar Sheikh, Rehana Khalid, Fatima Malik, Zubera Bashir Chaudhry, Syed Ali Zuhair Kirmani and Muhammad Tayyab, Advocates

JUDGMENT

Asim Hafeez, J.:- This and collectively heard Civil Revision No.1724 of 2015 titled as “Mst. Bashiran Bibi v. Mst. Maqsoodan Bibi”, Civil Revision No.2360 of 2015 titled as “Ehsan Ullah, etc. v. Dost Muhammad”, Civil Revision No.2361 of 2015, titled as “Muhammad Akbar v. Dost Muhammad” and Civil Revision No.1675 of 2015 titled as “Muhammad Anar v. Dost Muhammad, etc.” are directed against concurrent decisions, whereby suit for declaration instituted by one Dost Muhammad son of Allah Daad, in 2005, was decreed. Aggrieved persons preferred appeals, which, five in numbers, were dismissed through a consolidated judgment.

2.Facts essential for adjudication of subject-matter Civil Revisions are that Shah Muhammad was the head of the family and owner of the property, part whereof is subject matter of present

proceedings, had five sons, namely, Sardara, Gamaa, Karam Daad, Mouloo and Allah Daad. Allah Daad son Dost Muhammad had instituted suit on 23.06.2005, seeking declaration against mutations No. 559 of 1961 [whereby mutation No.442 was revised] and 183 of 1950 on the premise that all siblings of Allah Daad had died before him - [It is claimed that Allah Daad died in November 1957] therefore, he was entitled to have share in the inheritance of Munir son of Nazir – [Nazir was son of Gamaa] – as nearest relative /collateral; he further claimed that inheritance of Nazir son of Gamaa was not carried accordingly and therein share of Munir was not determined as per Munir’s entitlement, therefore, said inheritance mutation of Nazir be corrected by declaring proper share of Munir and then Allah Daad share, devolving from Munir, be determined and granted accordingly.

Petitioners relied on documentary evidence to establish that brothers of Allah Daad, Nazir son of Gamma and Munir son of Nazir, all had died before Allah Daad and hence, Dost Muhammad son of Allah Daad was entitled to get share from the estate of Munir son Nazir – this precisely is the fact-in-issue.

It is appropriate to underpin a crucial fact, that subsequent to the mutations impugned hereby various mutations were executed, recorded and sanctioned, wherein rights of subsequent purchasers were acknowledged. Suit-cum-claim was contested by persons having interest in the properties including subsequent purchasers. Issues were framed and evidence recorded. Trial Court decreed the suit.

Appellate Court affirmed the decree of the Trial Court. Hence, these Civil Revisions.

3.Learned counsel for parties made respective submissions and nub thereof is that Trial Court erred in law while decreeing the claim without appreciating issues of limitation, doctrine of estoppel and acquiescence, and protection extended to bona fide purchasers, in particular due to prolonged and meaningful silence on the part of Dost Muhammad, who died pendente lite proceedings and followed by heirs. Add that Trial Court failed to appreciate failure of the claimant / respondents to prove material facts, relating to the death of Nazir and Munir, since documentary evidence produced on the statement of counsel and after completion of claimant's evidence, was inadmissible. Explains that death certificates of Nazir and Munir were not proved through direct evidence and no permission was sought to produce secondary evidence, which compromised their admissibility. Further submit that respondent 1(b) appeared as PW-1 and admitted Dost Muhammad’s knowledge of recording of mutations impugned and factum of subsequent sales, including improvements made on the land; which crucial evidence was not appreciated. Seeks support from the judgments reported as “Hafiz TASSADUQ HUSSAIN v. LAL KHATOON and others” (PLD 2011 Supreme Court 296), “Mst. KHAIR-UL-NISA and 6 others v. Malik MUHAMMAD ISHAQUE and 2 others” (PLD 1972 Supreme Court 25), “Atta Muhammad V. Maula Bakhsh and others” (2007 SCMR 1446), “Mst. Grana through Legal Heirs and others V. Sahib Kamala Bibi and others” (PLD 2014 Supreme Court 167) and “Lal Khan through Legal Heirs V. Muhammad Yousaf through Legal Heirs” (PLD 2011 Supreme Court 657).

4.Learned counsel for heirs of Dost Muhammad (respondents) defended production of documents through counsel on the ground that other side had committed same mistake, which balanced the irregularity. It is emphasized that notwithstanding factum of production of documents by counsel the evidence of DW-3, Akbar son of Bashir, from the family of Sardara, one of the brothers of Allah Daad, and having special knowledge, affirmed that all sons of Shah Muhammad – [brothers of Allah Daad] - had died before the demise of Allah Daad in November 1957. Elaborates that in wake of concurrent decisions no re-appraisal of evidence is permissible under revisional jurisdiction. Adds that no instance of misreading or non- reading of evidence, likely to influence the decision, is pointed.

Submit that questions of estoppel and res judicata are not attracted in cases involving claims of inheritance – refers cases of “MUHAMMAD IQBAL and 5 others v. ALLAH BACHAYA and 18 others” (2005 SCMR 1447), “ARSHAD KHAN v. Mst. RESHAM JAN and others” (2005 SCMR 1859) and “MUHAMMAD ZUBAIR and others v. MUHAMMAD SHARIF” (2005 SCMR 1217).

Adds that plea of bona fide purchasers under section 41 of the Transfer of Property Act 1882 was rejected in cases reported as “MUHAMMAD SHAMIM through Legal Heirs v. Mst. NISAR FATIMA through Legal Heirs and others” (2010 SCMR 18) and “GHULAM RASOOL and others v. NOOR MUHAMMAD and others” (2017 SCMR 81). Elaborates that no plea of limitation is applicable qua claims in matter of inheritance and reliance is placed on decisions reported as “GHULAM QASIM and others v.

Mst. RAZIA BEGUM and others” (PLD 2021 Supreme Court 812), “Mst. GOHAR KHANUM and others v. Mst. JAMILA JAN and others” (2014 SCMR 801),

“MAHMOOD SHAH v. Syed KHALID HUSSAIN SHAH” (2015 SCMR 869), “FAYYAZ HUSSAIN and others v. Haji JAN MUHAMMAD and others” (2018 SCMR 698), “SHABLA and others v. M/s JAHAN AFROZ KHILAT and others” (2020 SCMR 352) and “NOOR DIN (DECEASED) through L.Rs. v. PERVAIZ AKHTAR and others” (2023 SCMR 1928). Submits that Allah Daad became entitled to his share, by operation of law, and such entitlement cannot be denied. Cites cases of “Mst. HUSSAIN BIB and others v. BARKAT ALI and others” (2004 SCMR 1391), “GHULAM ALI and 2 others v. Mst. GHULAM SARWAR NAQVI” (PLD 1990 Supreme Court 1). Submits that mere presence of Allah Daad at the mutations impugned or knowledge of transactions do not constitute waiver of rights, otherwise devolved by operation of law.

5.Heard. Record perused and case-law examined.

6.There are no disagreements with respect to identity of the head of the family and his five sons. Fundamental controversy is regarding entitlement pleaded by Dost Muhammad to challenge impugned mutations and legal impediments encountering alleged claim, which are issue of limitation, applicability of doctrine of estoppel, element of prolonged and conspicuous acquiescence qua the subsequent alienation and improvements carried out over period of 44-years. Primary argument of the decree holder’s counsel that limitation is no ground to defeat inheritance claims, is a sheer misconception – there is no judgment, having binding effect in terms of Article 189 of the Constitution of Pakistan, which holds that provisions of limitation Act 1908 (‘Act, 1908’) are not applicable to inheritance claims / matters. Exclusion of application of statute of

limitation and inoperability thereof are two different things; former manifest seeking of absolute immunity and latter is a specie of defence that why, in wake of peculiar circumstances, limitation would not run to dismiss claim of inheritance. Every judgment cited by respondents elucidates circumstances justifying that why limitation is not applicable to set of circumstances pleaded. Precedents have to be read and applied in the context of the facts pleaded and proved therein; appreciation whereof is determinant of the fact that whether limitation would apply to the claim and if not, why?

Indubitably Superior Courts, depending on the facts and circumstances, had variously dismissed stale inheritance claims on the grounds of limitation, estoppel, acquiescence and conspicuous silence qua further alienations and change of possession. There is no cavil that judgments, where defence of limitation was rejected, not on the ground that statute of limitation does not apply but such decisions were circumstances-specific, which makes it rule regulating a specific fact-pattern, i.e., claims of inheritance by womenfolk or vulnerable sections of society. Series of protective decisions manifest judicial intent to protect interests of daughters and sisters where they were deprived of their share through concealment, fabricated gifts and coerced relinquishments. Aforesaid established fact-pattern drew strength from the principles governing accrual of rights of inheritance based on concept of devolution by operation of law, upon death of holder of estate, and constructive possession of each of the co- owner(s), notwithstanding physical possession of any one of the co-

owner – this explanation is non-exhaustive and claim of inheritance may be based on multiple factors, depending upon the facts of each case. There is another qualification to this fact-pattern, which is that even the protective rule qua claims of inheritance has narrow application where third-party rights had intervened. Additionally, issue of applicability of limitation is adjudged in the context of mere threatened or actual denials and jurisprudence in this behalf is well settled and judicial pronouncements relevant to the issue are discussed in latter part of this decision. I conclude that statute of limitation applies to inheritance claims but whether it runs in a particular case or not, is a determinable issue, and it varies from case to case. I am afraid that to hold that limitation Act would not apply is to re-write the law, which is not the scope of judicial power. Alike issue of limitation, no absolute exclusion of application of doctrine of estoppel, acquiescence and protection available to subsequent purchasers, subject to fulfilment of requisite conditions, could be applied, across the board in inheritance matters. In some cases, plea of limitation was strictly applied where an heir of an heir, either remained indolent or had maintained conspicuous and meaningful silence, acquiesced by conduct, implied or express; and therein accrual of cause of action would be reckoned from the date of accrual of cause to the first tier of heirs. And limitation once commenced would not be suspended or held in abeyance by any alleged disability.

Reference is made to the guiding principles discussed in the case of “SAADAT KHAN and others v. SHAHID-UR-REHMAN and others” (PLD 2023

Supreme Court 362, pages 368 and 371 at paragraphs 9 and 13 thereof). In the case of “ZAKIA BEGUM and others v. NASIR-UR-ISLAM KHAN and others” (2022 SCMR 2130) protection to a bona fide purchaser, subject to the fulfilment of conditions for proving element of bona fide purchase, was extended and claimant was directed to seek compensation from a co-heir. I have examined the judgments cited by learned counsel for respondents, which share a common factual profile, involving deprivation of woman from inheritance – a pattern specific rule, where benefits were extended in wake of peculiarity of circumstances and have had no application to the facts of the case at hand.

7.Conversely, jurisprudence settled by Hon’ble Supreme Court of Pakistan, in cases, where conspicuous and deliberate silence is evident on the part of first tier of heirs, unless lack of knowledge is necessarily proved; where claimant has knowledge of hostile transfers, third-party rights but silence is maintained and where claimant’s knowledge / participation was proved in original transaction / arrangement, amply manifest application of legal impediments qua inheritance claims. And decisions cited infra reiterates guiding parameters for deciding question that whether limitation runs in a particular matter or not. Reference is made to the case of ‘KHALEELULLAH and others v. MUHAIM KHAN and others’ (PLD 2024 Supreme Court 600 at pages 604 to 607), wherein reliance was placed on the case of ‘Mst. RABIA GULA and others v. MUHAMMAD JANAN and others’ (2022 SCMR 1009 at pages 1018-1019 at paragraphs 8.12 to 8.15). And with reference to third party rights and acquiescence on the part of

claimants guidance is solicited from the case of ‘Syed KAUSAR ALI SHAH and others v. Syed FARHAT HUSSAIN SHAH and others’ (2022 SCMR 1558 at page 1565, paragraph 10 thereof). Effect of section 41 of the Transfer of Property Act 1882 and principle of acquiescence was elaborately discussed in the case of ‘INTELLIGENCE BUREAU EMPLOYEES COOPERATIVE HOUSING SOCIETY through Secretary v. SHABBIR HUSSAIN and others (2022 SCMR 877 at page 884 & 885, paragraphs 17and 18).

8.This case have peculiar facts, where claimant remained silent for over 44 years and spectacled further alienations and improvements made to the land by subsequent purchasers. In the context of aforesaid precedents, the argument that legal impediments, including but not limited to limitation, are not attracted in inheritance matters is misconceived. Courts had applied statute of limitation – [with specific discussion qua sections 2(8), 9, 18 and 120 of the Act, 1908] -, doctrine of estoppel and acquiescence, rights claimed by third-party(ies) or bona fide purchasers, depending on the facts and circumstances of each case - [with specific discussion qua sections 2(8), 9, 18 of the Act, 1908].

In view of the facts of the case petitioners failed to substantiate that their right to sue was circumscribed or prorogued by virtue of alleged fraud and not entitled to claim benefit of section 18 of the Act 1908 – even otherwise section 18 of the Act 1908 had no application to deny right of a purchaser in good faith and for consideration by virtue of exclusion in clause (b) thereof. Scope of section 18 of the Act 1908 was dealt with exhaustively in the case of

SALAMAT ALI and others v. MUHAMMAD DIN and others (PLD 2022 Supreme Court 353 at pages 362 and 363, paragraphs 20 to 23).

Hence, it is an extreme irrationality to conceive that statute of limitation has no application qua inheritance matters. This settles the legal debate.

9.Now, coming to the facts of the case. Respondents failed to bring any explanation or prove that why Allah Daad remained silent vis-à-vis mutation No.189 of 1950, wherein exclusion of Munir’s entitlement in the share of Nazir son on Gamma was an alleged mistake – [allegedly Allah Daad died in November 1957]; why Dost Muhammad remained silent till 2005, when lack of Dost Muhammad’s knowledge was not proved vis-à-vis mutation No.559 of 1961 - this silence has to be explained but no plausible reasoning / justification was established. In this case PW-1, son of Dost Muhammad, had acknowledged knowledge of Dost Muhammad qua subsequent transactions; improvements made by subsequent purchasers. PW-1 admitted alleged mistake in the mutations of inheritance of Nazir and Munir but failed to act – evidence of PW-1 is fatal, when considered in the context of inadmissibility of documents produced in the statement of counsel and after completion of evidence of claimant. It is evident that Courts committed gross irregularity and illegality, while adjudicating the lis, which are identified hereunder; narration is essential, though at the expense of burdening the text of the judgment. Though suit for declaration is hit by legal impediments but for completeness of decision defects and

deficiencies, apparent on the record, are discussed. Firstly, Courts relied upon death certificates of Nazir and Munir Exh.P-12 and Exh.P- 13 with appreciating inadmissibility thereof. Evidently, death certificates were procured through application submitted on 24.05.2010 and certificates were allegedly provided on 25.05.2010, wherein factum of death, somewhere occurring in 1948, was alleged.

Factum of death of Nazir and Munir could not be proved on the basis of said certificates, when their authenticity and genuineness was not proved, otherwise. Learned counsel for respondents heavily relied on copies of mutations to claim that the factum of inheritance mutation and date of sanctioning thereof established year of death of each of the sibling of Allah Daad. Submission is misconceived. Mere certified copy of Fard, produced on the statement of the counsel does not meet the test of admissibility, in wake of non-compliance of mandate of Article 76 of The Qanun-e-Shahadat Order, 1984. Learned counsel failed to appreciate that the disputed question is not the date of death of sons of Shah Muhammad but the date of death of Nazir and Munir, which were not proved. Irrespective of failure to prove fact-in- issue, knowledge of Dost Muhammad of mutation 559 of 1961 is established – PW-1 admitted Dost Muhammad’s presence before the Patwari and further it is alleged by PW-1 that his father objected to the factum of mutation before patwari. This demolishes the case of the claimant. Secondly, Dost Muhammad had knowledge of the mutation impugned and subsequent mutations executed. There is no explanation that why Dost Muhammad did not object when cause of

action had accrued in wake of actual denials – [possession were acquired by subsequent purchasers and they effected improvements on the land; PW-1 conceded to factum of knowledge in his testimony]. This attracts doctrine of conscious abandonment and relinquishment, which was overlooked by the Courts. Dost Muhammad remained silent for almost 44 years and thereafter questioned mutation entries on the ground that limitation is not attracted, which claim is absurd. In view of the facts and circumstances, claim was beyond limitation in terms of residuary article; Article 120 of The Limitation Act, 1908. Thirdly, focus on the evidence of DW-3, who merely stated that son of Shah Muhammad died before Allah Daad, is misplaced. Such statement cannot be construed as affirmation of date of death of Nazir and Munir, when death certificates and inheritance Fard(s) are inadmissible.

10.In view of the above, issues of limitation, estoppel and acquiescence were not properly appreciated, especially in the context of the facts of case. Illegalities narrated above are sufficient to hold that concurrent decisions suffer from gross illegalities, which needs declaration of reversal under revisional jurisdiction. Judgments referred by learned counsel for respondents do not extend any assistance in the context of the facts of the cases and jurisprudence settled vis-à-vis applicability of limitation in cases of inheritance, depending on the circumstances of each case.

11.These Civil Revisions are allowed and judgments dated 15.05.2012 and 14.05.2015 are found unsustainable in law and are,

hereby, set aside. And consequently, the suit of respondents 1(a) to 1(f) stands dismissed inter alia based on the reasoning of this judgment.

Judge.

Approved for reporting.

Signed on 27.10.2026

Judge.

A.D. Mian*