Mst. Gul Muntahina through LRs & others Vs Astanosh Khan through LRs & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

C.R No. 854-M/2012

Mst. Gul Mumtahina through LRs and others

Versus

Astanosh Khan through LRs and others

Present:

Mr. Abdul Nasir, Advocate for petitioners.

Mr. Abdul Halim, ASC for respondents.

Date of hearing: 17.09.2026

JUDGME NT

QAZI JAWAD EHSANULLAH, J.- Through the instant civil revision, the petitioners have called in question the consolidated judgment and decrees dated 22.09.2012, rendered by the learned Additional District Judge/Izafi Zila Qazi-II, Swat, whereby Civil Appeal No.66/13 of 2011, preferred by the petitioners, was dismissed, whereas Civil Appeal No.65/13 of 2011, filed by respondents No.1 to 18, was accepted, thereby setting aside the judgment and decree dated 23.12.2010 passed by the learned Civil Judge/Ilaqa Qazi-VIII, Swat, in Civil Suit No.221/1 of 2006, titled Mst. Gul Mumtahina v. Astanosh Khan etc.

2.Briefly stated, the predecessor of the petitioners, Mst.

Gul Mumtahina, along with her sisters, Mst. Jehan Bakhta, Mst.

Jehan Pari and Mst. Raham Saba, instituted a suit for declaration Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

against the respondents before the learned Senior Civil Judge/Aala Ilaqa Qazi, Swat, which was subsequently entrusted to the learned Civil Judge/Ilaqa Qazi-VIII, Swat. During pendency of the suit, Mst. Gul Mumtahina died and her legal heirs were brought on record, whereafter the plaint was amended. The plaintiffs sought declaration of their inheritance rights in the estate of their propositus, Mastana son of Faujoon, fully detailed in prayer “Alif” of the plaint. They also challenged the Shajara Nasab prepared during settlement and sought their incorporation as owners in the suit property, besides cancellation of Mutation Nos.1481 and 1482 dated 25.05.2005, Mutation No.1144 dated 10.05.2001, Mutation No.127 dated 09.08.1988, Mutation No.242 dated 16.01.1990 and Mutation No.1480 dated 06.05.2005, as well as the sale deed relating to the suit house mentioned at Serial No.(vi), claiming all such transactions to be ineffective upon their rights. They further sought perpetual and mandatory injunctions, possession as consequential relief and recovery of produce of the suit property for the preceding three years and thereafter till delivery of possession. The defendants contested the suit through their respective written statements, primarily on the plea that prior to the enforcement of the Muslim Personal Law (Shariat) Application Act, 1962 in Malakand Division through Regulation-I of 1976, Riwaj prevailed in District Swat under which female legal heirs were excluded from inheritance. They also asserted that the shares Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

to three sons of Faujoon had been given to them through private partition besides a portion of the suit property was given by Foujoon to his son Talimand during his life time. The remaining defendants asserted bona fide purchase of different portions of the suit property. From the divergent pleadings, issues were framed and the parties were afforded opportunity to lead their respective oral and documentary evidence.

3.On conclusion of the trial, the learned trial Court, vide judgment and decrees dated 23.12.2010, partly decreed the suit in favour of the plaintiffs in respect of Khasra numbers 1393, Khata/Khatooni 790/905, Khasra No. 257, Khata Khatoon 791/906, Khasra No 1928 Khata Khatooni 364/426, Khata No. 263, Khata/Khatooni 901 to 904/789 along with houses, Hujra and Baitak to the extent of their shari share, while dismissed their claim regarding the remaining property. The plaintiffs as well as defendants No.1 to 18, feeling dissatisfied with the judgment and decrees to the extent adverse to them, preferred separate appeals.

During pendency of those appeals, the legal heirs of respondent Dewana Baba entered into a compromise with the petitioners. Both appeals were decided through the consolidated judgment and decrees dated 22.09.2012 by the learned Additional District Judge/Izafi Zila Qazi-II, Swat. The appeal preferred by the Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

petitioners was dismissed, whereas that filed by respondents No.1 to 18 was accepted, resulting in dismissal of the suit of the petitioners/plaintiffs. Hence the present civil revision.

4.I have heard learned counsel for the parties and examined the available record with their able assistance. The controversy involved mainly turns upon the source and devolution of the suit property. The pedigree of the parties shows Faujoon as the common ancestor, who was succeeded by four sons, namely Talimand Khan, Daulatmand Khan, Dewana and Mastana.

Talimand Khan represents the branch of respondents No.1 to 6, Daulatmand Khan that of respondents No.7 to 11, Dewana that of respondents No.12 to 18, whereas the petitioners/plaintiffs trace their claim through the fourth son Mastana. The case set up by the plaintiffs was that although the property constituted the estate of Faujoon, it came to be recorded only in the names of his three sons, namely Talimand Khan, Daulatmand Khan and Dewana, while the fourth son, Mastana, was omitted; consequently, they sought recognition of the share which ought to have devolved upon Mastana and thereafter upon his heirs.

5.This aspect of the case assumes significance because the defence has based upon Riwaj, and accepted by the learned appellate Court but that conclusion does not answer the plaintiffs' foundational claim. The Riwaj pleaded by the defendants was one Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

whereby female heirs were excluded from inheritance, whereas the person whose exclusion lies at the root of the present controversy was Mastana, a son of Faujoon and not a female heir. No custom was pleaded or proved under which, amongst four sons of a proprietor, three alone would inherit to the exclusion of the fourth.

Thus, even if the defendants' plea regarding exclusion of females under the former Riwaj were taken at its highest, it could not explain how the estate of Faujoon lawfully devolved upon Talimand Khan, Daulatmand Khan and Dewana alone while Mastana was deprived of his corresponding share. The learned appellate Court, therefore, fell into error by applying a custom relating to exclusion of female heirs at a stage when the immediate heir whose entitlement required determination was a male descendant.

6.Once the defendants asserted that Mastana did not share in the estate along with his three brothers, it was incumbent upon them to establish the juridical basis of such exclusion. No gift, Tamleek, relinquishment, transfer or other recognized disposition by Faujoon in favour of the other three sons, to the exclusion of Mastana, has been shown from the record; nor was the asserted private partition proved through legally sufficient evidence. A mere entry of the property in the names of three branches could not, by itself, establish that Faujoon had divested Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Mastana of his inheritable interest. The principle applied by this Court in the connected C.R. No.169-M/2012 titled “Fazal Mabood and another v. Sultan Sikandar and others” is apposite: where a party relies upon an affirmative transaction to exclude an otherwise lawful heir, the foundational transaction itself has to be established;

subsequent revenue entries cannot supply proof of that anterior transaction. The burden of proving such an affirmative assertion rests upon the party setting it up in terms of Articles 117 and 118 of the Qanun-e-Shahadat Order, 1984.

7.The learned trial Court had appreciated the

controversy from this correct perspective. The mere fact that the revenue record stood in the names of the other branches was not treated as conclusive of title, particularly when the defendants failed to prove the transaction or arrangement through which Mastana was to be excluded. Revenue entries are primarily maintained for fiscal purposes and do not, without an independent lawful source of title, create or extinguish proprietary rights. The same principle was noticed in the judgment in the connected case with reference to Noor Din (deceased) through LRs v. Pervaiz Akhtar and others1, namely that an erroneous mutation does not confer proprietary rights and relinquishment of an heir's interest requires a positive and affirmative act; Ghulam Ali and others v.

2023 SCMR 1928

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Mst. Ghulam Sarwar Naqvi2 was also noticed regarding the proprietary character of an inherited share and the position of an heir omitted from the revenue record.

8.Another material distinction is also there which appears to have escaped the learned appellate Court. The claim of the present plaintiffs does not rest upon giving retrospective operation to the Muslim Personal Law (Shariat) Application Act, 1962 so as to reopen, merely on account of that enactment, a succession which had validly and finally devolved under a contrary custom. Their primary case is that Mastana himself was entitled as one of the four sons of Faujoon, and that his share was never lawfully extinguished. The question of the plaintiffs, being female descendants, succeeding through Mastana arises only thereafter.

The record shows that the settlement in which their rights were required to be reflected took place in 1986, by which time the ibid Act had already been extended to Swat through the Provincially Administered Tribal Areas (Application of Laws) Regulation, 1975 (Regulation I of 1976), with effect from 15.01.1976. The learned appellate Court, therefore, could not treat the former Riwaj excluding females as an independent source for extinguishing an existing proprietary interest of Mastana and thereafter use that very exclusion to deny succession through him.

PLD 1990 SC 1

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

9.The distinction is important because the reliance placed by the learned appellate Court upon Mst. Farida and others v. Rehmatullah and another3 is legally misplaced. Although in the said case this Court had held that section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was not retrospective and, therefore, daughters could not claim inheritance under Muslim law where their father had died before extension of the Act to the area, that very judgment was challenged before the Supreme Court and was reversed in Mst. Farida and others v.

Rehmatullah and another4. The Supreme Court, following Muzaffar Khan v. Roshan Jan5, held that the position in the erstwhile N.W.F.P. was not different and that, after the relevant Shariat dispensation had taken effect, whenever a dispute concerning succession to the estate of a deceased Muslim came before a Court, the deceased was to be deemed to have died under the domain of Muslim law even though his death had occurred before the relevant Shariat law came into force. It was consequently held that the fact that the Act of 1962 had not been formally extended to the area before 15.01.1976 made no difference and the daughters of Nadir Khan, who had died in 1972/1973, were entitled to inherit according to Islamic law;

necessary corrections in the record of rights were accordingly PLD 1984 Peshawar 117

PLD 1991 S.C 213

PLD 1984 SC 394

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

directed. Thus, the very precedent relied upon by the learned appellate Court stood reversed by the Supreme Court and could furnish no legal basis for non-suiting the present petitioners. This is apart from the more fundamental defect already noticed above that the defendants' plea of Riwaj concerning exclusion of female heirs did not explain the initial exclusion of Mastana, a male heir and one of the four sons of Faujoon. Unless the defendants first established a lawful basis for excluding Mastana from his father's estate, the subsequent plea of Riwaj against his female descendants could not cure that foundational defect.

10.The plea of Riwaj raised by the respondents is otherwise of little assistance in the present controversy. Apart from the fact that such Riwaj, even on the respondents' own case, related to exclusion of female heirs and could not explain the initial exclusion of Mastana, a son of Faujoon, the Supreme Court in Haji Rana Muhammad Shabbir Ahmad Khan v. Federation of Pakistan6 has categorically recognized that customary rules excluding females from inheritance have been displaced by Muslim Personal Law and that, whenever a question relating to succession of a deceased Muslim arises before a Court, the rule of decision is Muslim Personal Law notwithstanding the former custom. The Supreme Court further observed that the Shariat law of succession operates retrospectively for such purpose. Thus, the former Riwaj

PLD 2001 SC 18

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

could neither validate the unexplained exclusion of Mastana nor constitute a lawful basis for denying his female descendants the share devolving upon them through him.

11.The learned appellate Court also attached significance to the old revenue record and the continued absence of the plaintiffs' branch therefrom. That circumstance could not substitute proof of the defendants' asserted source of exclusive title. Once Mastana's lawful share in his father's estate had not been shown to have been surrendered, transferred or otherwise extinguished, its omission from the revenue record would remain an incorrect reflection of title rather than a source of title in favour of the other branches. Likewise, mere lapse of time or continued entries in favour of some co-heirs would not, without proof of a legally recognizable ouster or relinquishment, extinguish the right of the omitted co-sharer. In Muhammad Boota (deceased) through LRs and others v. Mst. Fatima and others7, the Supreme Court reiterated that limitation does not ordinarily run against a co-sharer merely because his or her right is denied in the revenue record. The same principle was applied in the connected case.

12.The position of the subsequent purchasers also cannot be placed on a footing higher than that of their vendors. Their plea of bona fide purchase may have relevance to the particular

2023 SCMR 1901

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

transactions and properties purchased by them, but it cannot retrospectively validate the original exclusion of Mastana from the estate of Faujoon. A transferee can ordinarily acquire no better title than that possessed by the transferor. Correspondingly, the mutations and sale deed challenged by the plaintiffs have to be examined against the extent of title which their executants lawfully possessed; mere mutation or alienation cannot enlarge the share of a co-owner so as to prejudice the subsisting share of another co- owner.

13.The legal position regarding inheritance has recently been reiterated by the Supreme Court in Abrar Hussain v. Mst. Bibi Shahida and others8, where it was emphasized that inheritance vests in the legal heirs by operation of law; possession of one co- sharer is ordinarily for the benefit of all; and an inherited right is not lost merely by delay, adverse revenue entries or an unproved plea of relinquishment. The same authority was applied in the judgment in the connected revision while rejecting an attempt to defeat inheritance through revenue entries and subsequent transactions unsupported by proof of the foundational disposition.

14.Viewed cumulatively, the learned trial Court was justified in recognizing the plaintiffs' claim to the extent founded upon the share of their predecessor Mastana. The learned appellate

PLD 2026 SC 42

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Court, on the other hand, conflated two distinct successions: first, the devolution of Faujoon's estate upon his sons, including Mastana; and second, the subsequent devolution of Mastana's share upon his own heirs. The pleaded Riwaj concerning exclusion of females could not furnish a lawful basis for excluding Mastana from the first succession; the asserted private partition was not proved; and no gift, relinquishment or other lawful disposition explaining his exclusion was established. Once that premise fails, the revenue entries resting upon such exclusion cannot defeat the plaintiffs' derivative claim through Mastana. The reversal of the trial Court's findings by the learned appellate Court thus rests upon a material misapplication of the pleaded custom and non- appreciation of the real source of the plaintiffs' title, warranting interference in revisional jurisdiction under section 115, C.P.C.

15.For what has been discussed above, the learned appellate Court, while reversing the judgment and decree of the learned trial Court, proceeded on an erroneous appreciation of the pleaded Riwaj and its legal effect upon the succession in question, besides overlooking the foundational fact that Mastana, being one of the four sons of Faujoon, could not have been excluded from his father's estate on the basis of a custom pertaining to exclusion of female heirs. The respondents having failed to establish any lawful transfer, relinquishment, private partition or other recognized mode Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

whereby Mastana stood divested of his share, the learned trial Court had rightly recognized the claim flowing through him.

Consequently, the instant revision petition is allowed, the impugned judgment and decrees dated 22.09.2012 passed by the learned Additional District Judge/Izafi Zila Qazi-II, Swat, is set aside and the judgment and decree dated 23.12.2010 passed by the learned Civil Judge/Ilaqa Qazi-VIII, Swat, is restored. The parties shall bear their own costs.

Announced Dt:17.09.2026 -Sd-

JUDGE

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah