Niaz Muhammad etc vs Marwat Khan

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH.

(Judicial Department)

CR No.09 -B of 2005.

JUDGMENT

Date of hearing 22.09.2014 .

Appellant-Petitioner _________________________ Respondent ________________________________ MUHAMMAD DAUD KHAN, J:- Through this

Revision Petition, the petitioners have challenged the judgment and decree of the learned District Judge, Karak dated 20.09.2004, vide which by accepting appeal of respondents, the judgment and decree passed by the learned Civil Judge-I, Karak dated 04.04.2000 was set aside and consequently petitioners’ suit was dismissed.

2.The factual background leading the

petitioners to file this Revision Petition is that one Bachagan, owner of landed property having three sons namely Mumtala, Laiq Shah and Gulab Din. When Mumtala died in the year 1935, leaving behind four widows namely Kanzala, Lawang, Paseena and Shogrina. The inheritance mutation in respect of the landed property of the deceased Mumtala was attested only in favour of said four widows vide mutation No.4030 dated 23.07.1935 in accordance with the custom (Riwaj) prevailing at that time.

3.The petitioners/ plaintiffs, as per averments contained in the plaint are the descendents of real brothers of Mumtala, who was died issueless, being the legal Shari heirs and entitled to the share to the extent of 3/4 in the inheritance of Mumtala deceased, have brought the instant suit and challenged the validity of said mutation attested in favour of the widows as limited owners. The petitioners’ claim as per averments in the plaint is that according to Sharia,

the land should have been transferred in favour of widows as legal heirs of deceased Mumtala only to the extent of 1/4 share, while the remaining 3/4 shares should have been transferred in the name of predecessors of petitioners/plaintiffs, because they were also surviving legal heirs of the last full owner along with the said widows.

3.The defendants contested the suit by submitting written statement, raising therein variety of objections, legal as well as factual. On divergent pleadings of the parties, the learned trial court framed the following issues.

ISSUES.

1.Have the plaintiffs got a cause of action?

2.Is the suit within time?

3.Is the suit incompetent in its present form?

4.Is the suit barred by resjudicata?

5.Are the plaintiffs stopped to sue?

6.Has not this court got jurisdiction?

7.Is the suit bad for mis-joinder and non-joinder of parties?

8.Are the plaintiffs entitled to get 3/4 share by inheritance in the legacy of Mumtala died some time before1935?

9.Relief.

4.The learned trial court after recording evidence of the parties, decreed the suit of petitioners/ plaintiffs vide its judgment and decree dated

5.Aggrieved from the judgment and decree of the trial court, the respondents/defendants preferred an appeal before the District Judge, Karak which was accepted and judgment and decree of the learned trial court was set aside, resultantly, suit of the petitioners/ plaintiffs was dismissed vide judgment and decree dated 20.09.2004, which is impugned herein.

6.Mr. Abdul Mabood Khan Khattak,

learned counsel for the petitioners contended that judgment and decree of the Appellate Court is against

law and facts, hence is not maintainable. The arguments of the learned counsel for the petitioners were mainly focused that by virtue of N.W.F.P (now K.P.K) Muslim Personal Law (Shariat) Application Act,1935 and West Pakistan Muslim Personal Law (Shariat) Application Act,1962, the share of the predecessor of the petitioners cannot be extinguished, as both the laws had been given retrospective effect which have been declared as such in different judgments of the Hon’ble Supreme Court of Pakistan, thus the dictum laid down by the Supreme Court of Pakistan from time to time, the judgment of the Appellate court is illegal and liable to be set aside.

7.On the other hand Mr. Mehboob Khan, learned counsel for the respondents/defendants, denied the retrospective effect of the said laws, referred by the petitioners’ counsel. He further submitted that as the inheritance mutation was attested before the promulgation of the N.W.F.P (now K.P.K) Muslim Personal Law (Shariat) Application VI of Act 1935

dated 06.12.1935, while the petitioners instituted the instant suit in the year 1992, which is hopelessly time barred, therefore, the judgment of the learned appellate Court is well reasoned which needs not be interfered with.

8.Arguments of the learned counsel for the parties heard and with their valuable assistance record of the case perused.

9.According to the revenue record

submitted by Patwari Halqa, who appeared as PW-1, in the trial court produced and exhibited pedigree table as (EX.PW1/1), Misl-e-Haqiat (EX.PW1/2), Khasra Girdawari (Ex.PW1/3).

9.The factual aspect of the case to the extent of relation is not disputed between the parties.

As admittedly, the petitioners/plaintiffs and defendants belong to the one family as offspring of the family of Bachagan. The uncontroversial small pedigree table for convenience is reproduced as follows.

Bachagan

Gulab Din Laiq Shah Mumtala (Died in 1935)

Zardad Khan Saddar Khan Akbar Khan Kanzala (Died in 1919) (Died in 1933) (Widow) Shafar Khan Jalat Noor Lawang (Plaintiff) (Plaintiff) (Widow)

Paseena (widow)

Shogrina (Widow)

The relevant facts relied to the inheritance were that Bachagan had three sons namely Mumtala, Laiq Shah and Gulab Din. Laiq Shah had two sons Akbar Khan and Saddar Khan. Akbar Khan was died in 1933, Saddar Khan was died in 1919. The plaintiff Jalat Noor is the son of Saddar Khan and predecessor in interest of one Laiq Shah. Mumtala died in 1935, leaving behind four widows mentioned above. Plaintiff Saffar Khan is son of Zardad Khan and predecessor in interest of one Gulab Din. Both Gulab Din and Laiq Shah were the real brothers of Mumtala deceased.

10.As per the inheritance mutation No.4030 dated 23.07.1935 devolved the whole legacy of

Mumtala deceased to the four widows in accordance with the custom (Riwaj) prevailed at that time.

However, according to the Muhammadan Law of Inheritance, the four said widows were entitled only to the extent of 1/4 share and remaining 3/4 shares was to be distributed amongst the other legal and Shari heirs of Mumtala deceased. Perusal of whole documentary record as well as oral evidence reveal that there is nothing which transpire that the legacy of Mumtala deceased had been devolved amongst the other legal heirs (a) sharers (b) residuary (c) distant.

11.The learned Appellate Court dismissed the suit of the petitioners disregard with the learned trial court on the ground that by virtue of amendment of section 3 of the N.W.F.P (now K.P.K) Muslim Personal Law (Shariat) Application Act (VI of 1935) in 1950, the petitioners/ plaintiffs could claim the share of inheritance of Mumtala deceased just after amendment made in 1950, within a period of 12 years

but as the suit was filed in 1992 is badly time barred and not maintainable.

12.The basic question in the present lis that needs to be dealt with by this Court, in the light of the facts and arguments of the learned counsel for the parties, are, firstly as to whether the petitioners are entitled in the legacy of late Mumtala, their predecessor, who died issueless, when it had been transferred as whole in favour of his widows vide mutation No.4030 attested on 23.7.1935 just before promulgation of N.W.F.P Muslim Personal Law (Shariat) Application Act (VI of 935) enacted on 06.12.1935?. Secondly, whether the suit of petitioners/plaintiffs is barred by law?

13.The controversy between the parties reveals round the legal question that whether the N.W.F.P Muslim Personal Law (Shariat) Application Act (VI) of 1935 would have retrospective effect and in pursuance thereof the legacy of Mumtala would be

distributed amongst his Shari sharers (heirs) according to Shariat.

14.The N.W.F.P (now K.P.K) Muslim

Personal Law (Shariat) Application Act (VI of 1935) provides rule of decision in questions regarding succession, special marriage, property of female, betrothal, divorce, dower, guardianship, basterdy, family relation, will, legacies, gift or any religious usage or institution including waqf (trust and trust property). Section 3 of this Act is originally enacted read as under:-

“On and from the day of the enforcement of this Act. Section 27 of the N.W.F.P Law & Justice Regulation (No.VII of 1901) shall be repealed insofar as the Muslims are

concerned.”

Thus, customary law with regard to succession etc was not to be applied in the case of Muslims.

14.An amendment by the Act IX of 1950 the following sub section 2 was added in section 3 of the

N.W.F.P Muslim Personal Law (Shariat) Application Act, 1935 as follows:

“(2) Whenever question relating to succession upon the death of a Muslim arises in any court, the rule of decision shall, whether such death has taken place before or after the commencement of this Act, be the Muslim Personal Law (Shariate).”

15.This sub section 2 was again substituted by the Act II of 1953 and the substituted sub section 2 of section 3 of the N.W.F.P Muslim Personal Law (Shariat) Application Act (VI of 1935) reads as under:-

(2)Whenever a question relating to the succession upon the death of a Muslim arises in any court, the rule of decision shall be the Muslim Personal Law (Shariat) and where such death has taken place before the 6th December, 1935, the rule of succession shall be according to the Muslim Personal Law (Shariat) as if that law had been applicable at the time of such death”.

17.Bare reading of the sections clarified that whenever the question of succession of a Muslim

arises in any court, it would be resolved according to Muslim Personal Law (Shariat) Application Act, and deeming it to be applicable at the time of such death, the legacy of a Muslim would be divided amongst his heirs according to the Islamic law (Shariat) even though the deceased might have died prior to the promulgation of the Act.

18.The superior courts of the country consistently in their judgments declared said acts having retrospective effect and whenever dispute comes before the court of law with regard to the succession of estate of the deceased Muslim, he would be deemed to have died under the domain of Muslim law, even if death has taken place before coming to commencement Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Act, 1935. The Hon’ble Supreme Court of Pakistan in the case “Muzaffar Khan Vs Mst. Roshan and others” (PLD 1984 SC 394), wherein it has been held:-

“as there is now no doubt left that the N.W.F.P, Act of 1935 is to be given retrospective effect and that whenever a dispute comes before a Court of law with respect to succession to the estate of a deceased Muslim the deceased will be deemed to have died under the domain of Muslim Law, even if the death’ had taken place before the coming into force of the N.W.F.P Muslim Personal Law (Shariat) Application Act of 1935.”

This principle of law was again followed by the Hon’ble Supreme Court of Pakistan in the case “Habibullah Khan and others Vs Muhammad Hassan Khan and six others” (PLD 1991 SC 93), and this dictum was further followed by the Hon’ble Apex Court in the case of “Mst. Farida and others Vs Rehmatullah and others” (PLD 1991 SC 213) and again held:-

“In so far as the question of retrospetivity is concerned the position both in Punjab and N.W.F.P. in this behalf would not be dissimilar. It was also held that as soon as

the decision of this Court in its Shariat Appellate Bench took effect as from 30th June, 1983, the words “subject to the provisions of any enactment for the time being in force” in section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, “ceased to have effect”. As a result amongst others one consequence visualized and held in the case of Muzaffar Khan was that “the N.W.F.P Act of 1935” is to be given retrospective effect and that whenever a dispute comes before a Court of law with regard to succession to the estate of a Muslim deceased, he will be deemed to have died under the domain of Muslim Law, even if the death had taken place before coming into force of the West Pakistan Muslim Personal Law (Shariat) Application Act of 1935.”

In this behalf reliance can also be placed on case titled “Muhammad Anwar and others Vs Khudayar and others” (2008 SCMR 905) and

“Abdur Rehman Vs Mosam Khan” (2012 YLR

2710 Peshawar).

19.The learned Appellate Court while

dismissing the suit of the petitioners/plaintiffs was of the view that the instant suit is hopelessly time barred as the same has been filed after elapse of twelve years.

20.So far as objection on part of limitation is concerned, the petitioners’ predecessors are the legal heirs of deceased Mumtala and entitled to 3/4 share of his property being his Shari legal heirs. The documentary as well as oral evidence transpires that the petitioners are also co-sharers in the suit property.

Their entitlement is recognized by the divine law, which cannot be extinguished by any instrument of mutation, so they were deemed to be in possession of the property as co-sharers. Any sharer sitting in possession of joint property is holding possession on behalf of all the co-owners and limitation would not run against co-sharer while successive adverse entries in the revenue record gives a fresh cause of action. It

has been time and again declared by the Hon’ble Supreme Court of Pakistan and this dictum now become well settled principle of law, that the question of limitation would not arise in the matters of inheritance. In this respect the case of “Ghulam Ali and others Vs Mst. Ghulam Sarwar Naqvi” (PLD 1990 SC1), “Muhammad Qasim Khan and 6 others Vs Mst. Mehbooba and 6 others” (1991 SCMR 515), “Muhammad Anwar and 2 others Vs Khudayar and 25 others (2008 SCMR 905) can be relied. In the light of ratio of above said judgments, the suit of the petitioners/ plaintiffs being a matter of inheritance and petitioners being joint owners of the suit property, the suit is well within time.

21.The suit of the petitioners/ plaintiffs is not only within time but the petitioners are also entitled for legal shares of Mumtala deceased and the mutation No.4030 attested on 23.07.1935 is against Sharia.

22.In the light of above observation, the judgment and decree of the Appellate Court is against

law which is liable to be set aside, hence on acceptance the instant Revision Petition, the impugned judgment and decree of the Appellate Court is set aside, whereas the judgment and decree of the trial court is restored. Resultantly, the suit of the petitioners/ plaintiffs is decreed in their favour. No order as to costs.

Announced.

JUDGE