Mst.Janat Bibi vs Aslam Khan etc

IN THE PESHAWAR HIGH COURT,

BANNU BENCH.

(Judicial Department)

C.R NO.42-B of 2010 Mst. Janat Bibi through LRs.

Vs.

Aslam Khan and 13 others.

JUDGMENT

Date of hearing 20.04.2016 .

Appellant-Petitioner: Jannat Bibi By Mr. Sardar Naeem Khan, Advocate.

Respondent : Ex-Parte

HAIDER ALI KHAN, J:- Petitioners have called in question the judgment and decree dated 04.03.2010 of learned District Judge, Lakki Marwat, whereby accepting appeal against the judgment and decree dated 12.06.2008 of learned Civil Judge-IV, Lakki Marwat, dismissed the suit of respondents/ plaintiffs.

2.Brief facts of the case are that the suit land was the ownership of Ali Khan, who died in the year 1933. The revenue department attested the inheritance mutations No.2620 dated 19.12.1934 in favour of Abbas Khan and Saleh Khan, two sons of Ali Khan, while plaintiffs Mst. Said Bibi, Mst.

Peshawari and Mst. Qablai were unlawfully deprived of inheritance rights in the legacy of their father Ali Khan.

Later on demise of Saleh Khan and Abbas Khan, inheritance mutations No.5778 dated 04.01.1983 and Mutation No.5440 dated 27.06.1970 and Mutaion No.

205 dated 14. 03.2001 were attested in favour of respondents and in that way the share of plaintiffs/ petitioners and proforma defendants/ respondents, also got transferred to real respondents/ defendants. Hence, petitioners are entitled to their shari share, while the inheritance mutations are wrong, illegal and ineffective upon their rights, hence, liable to cancellation.

3.The stance of petitioners was controverted by real respondents / defendants in their written statement, wherein they raised so many objections both legal and factual. In view of divergent pleading of the parties, issues were framed and parties led pro and contra evidence in support of their respective stance.

The lower court after hearing arguments of learned counsel for the parties decreed the suit of petitioners /plaintiffs, vide judgment and decree dated 12.06.2008.

Aggrieved from the same, the respondents preferred an appeal to the learned District Judge, Lakki Marwat, who after hearing arguments of learned counsel for the parties, accepted the appeal and by setting aside the

judgment of learned trial court, dismissed the suit of petitioners, vide impugned judgment dated 04.03.2010, hence this revision petition.

4.Arguments heard and record perused.

5.Perusal of the record reveals that the claim of petitioners is that they i.e. Mst. Janat Bibi, Mst. Sayed Bibi, Mst. Peshawari and Mst. Qublai were daughters of Ali Khan, while their brothers have deprived them from their legal shari share and the inheritance mutation was attested in favour of defendants, Saleh Khan and Abbas Khan sons of Ali Khan was illegal, wrong and subsequent inheritance mutations were also against the law. The real respondents/ defendants while filing written statement did not controvert the relations of the plaintiffs and proforma defendants with Ali Khan, whose legacy is in contest. They have made some evasive denial with some vague assertions. Such evasive denial in pursuance of Order VII Rule 5 C.P.C amounts to admission. Thus in view of this admission, it can safely be concluded that plaintiffs and proforma defendants are real daughters of Ali Khan and sisters of defendants Saleh Khan and Abbas Khan.

6.The contention of learned counsel for respondents was that Ali Khan predecessor-in- interest of the parties died in the year 1933, at that time the Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, VI of 1935 was not promulgated and legacy was devolved according to custom prevailing at that time, hence inheritance mutations in their favour are in accordance with law.

To resolve this controversy, subsection 2 of section 3 of Khyber Pakhtunkhwa Act, VI of 1935, is reproduced as:

3.(2) Whenever a question relating to the succession upon the death of a Muslim arises in any court, the rule of decision shall be according to Muslim Personal Law (Shariat) as if that law had been applicable at the time of such death.

7.It is clear from above provision of law that whenever a question of succession of a Muslim arises in any court that would be resolved according to Muslims Personal Law (Shariat) Application Act, 1935 deeming it to be applicable at the time of such death. In this respect reliance is placed in cases titled “Mst. Farida and 2 others Vs Rehmatullah and another” (PLD 1991 Supreme Court 213) and

“Muhammad Anwar and two 2 others Vs Khuda Yar and 25 others”. (2008 SCMR 905) wherein it was consistently declared that the Acts has retrospective effect and whenever dispute comes before the Court of law with regard to succession to the estate of deceased Muslim, he would be deemed to have died under the domain of Muslim Law, even if death had taken place before coming into force of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act 1935.

8.In view of this legal position, daughters of Ali Khan, cannot be deprived on the basis of custom, rather they would be entitled to their shari share, as provided in Islamic Law.

9.So far as, question of limitation is concerned, the petitioners and performa respondents, being daughters of Ali Khan, were entitled to their Shari legal share under the divine law, which cannot be extinguished by any instrument of mutation. On the death of propositus, they become co-sharers in the property and possession of one co-heir/ co-sharer is deemed to be held on behalf of all co-heirs/ co- sharers. In view of this legal position, limitation would not run against the co-sharer. While every

successive adverse entry in the revenue record gives a fresh cause of action. In this respect reliance be placed on the case “Mst Suban Vs Allah Ditta and others (2007 SCMR 635), wherein it was held that:

“It is a proposition too well-established by now that as soon as someone who owns some property, dies, the succession to his property opens and the property gets automatically and immediately vested in the heirs and the said vesting was not dependent upon any intervention or any act on the part of the Revenue Authorities or any other State agencies. It is also an established proposition that a mutation did not confer on anyone any right in any property as the Revenue Record was maintained only for realization of land revenue and did not, by itself confer any title on any one. It may also be added that efflux of time did not extinguish any rights inheritance because on the death of an owner of property; all the co-inheritors, immediately and automatically, became co-sharers in the property and as has been mentioned above, limitation against them would start running not from the time of the death of their predecessor-in-interest nor even from the date of mutation, if there be any,

but from the date when the right of any such-co-sharers/ coinheritors in such land was denied by someone.”

In view of the ratio of the judgment the suit of the plaintiffs/petitioners being a matter of inheritance is well within time. No illegal act or wrong entry can be legitimized with efflux of time, howsoever long it may be.

10.In view of above discussion, it is held that learned appellate court has erred in law by setting aside, judgment and decree of the learned trial court and dismissing suit of the petitioners and thereby has committed gross illegality. Thus by accepting instant revision petition, impugned judgment and decree of learned appellate court is set-aside and that of leaned trial court is restored and consequently suit of petitioners is decreed with no order as to costs.

Announced.

*Azam/P.S*

JUDGE