2018 C L C 263
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
ABDUL HADI and 9 others ----Petitioners
Versus
ABDUL HANAN and 17 others ----Respondents
Regular First Appeal No.41 of 2011, decided on 31st August, 2017.
Specific Relief Act (I of 1877) ---
----Ss. 39, 42 & 54---Qanun- e-Shahadat (10 of 1984), Art. 64 ---Suit for cancellation of mutation
entries, declaration, possession and permanent injunction--- Inheritance to daughter ---Custom of
excluding female heirs or compensating them in t he alternate---Scope ---"Co-sharer" ---Scope ---
Daughter had not challenged inheritance in her life time---Effect ---Pleas taken in appeal different
from that at Trial Court---Effect ---Will---Proof ---Scope ---Defendants contended that through
Will of the predec essor -in-interest they were entitled for mutations in question ---Such mutations
were not challenged by the mother of plaintiffs in her life time being daughter of the
predecessor -in-interest--- Four daughters of deceased including the plaintiffs became co- shares of
the property ---Possession of one co- sharer was to be deemed to be the possession of other co-
sharers ---Heirs became co -sharers the moment the inheritance opened, even entry of mutation
was not necessary ---Defendants had pleaded, in the written sta tement, that the plaintiffs' due
share had been paid in the shape of money and transfer of some properties, which reflected that they had not denied the heir -ship of the plaintiffs through their mother; to further strengthen their
false plea with regard to the impugned mutations, the attorney for the defendants in his statement
produced a photocopy of a "Will" indicating that the predecessor -in-interest in his lifetime
through the said "Will" declared them as his heirs ---Purported "Will" had neither been pr oved
nor duly authenticated through any evidence ---Even otherwise on the basis of "Will" a person or
party could not claim heir -ship or a co -sharer ---Co -sharer was the result of devolution of
inheritance and at opening of succession the moment a person dep arted, the heirs became
through blood relation--- Defendants had failed to substantiate their claim because the photocopy
of the "Will" was not admissible which was not registered ---Such a will could not be taken into
consideration---Appellants/defendants i n the appeal had appended a pedigree table and claimed
that they were relatives of late predecessor -in-interest but mere production of pedigree table was
not sufficient unless relationship of persons mentioned therein is duly corroborated by satisfactory evidence, as required under Art.64 of the Qanun- e-Shahadat, 1984---No pedigree
table was produced during evidence by the defendants nor substantiated the same during the trial and mere filing of pedigree table along with appeal could not be taken into consi deration ---
Plaintiffs through evidence coupled with the admission of defendants, were entitled to have their sharia shares according to law and the Trial Court had decided relevant issues after proper appreciation of evidence, therefore, the findings of Tr ial Court were sustained ---In the present
case, the defendants neither alleged in the written statement the custom that excluded the female
nor led any evidence to establish custom ---Appellants/defendants in their written statement had
taken a number of contentions and in appeal a new plea had been taken and claimed the inheritance on the plea of custom ---Predecessor -in-interest of the plaintiffs having died in the
year 1954, such plea was not consistent to what had been pleaded by the appellants in their
written statement, and was an outright departure from what had been pleaded therein---
Admittedly, the averment made in the pleadings was not evidence, but evidence or plea adduced
in their support must be consistent therewith---Anything stated outside the s cope of such
averments could not be looked into---High Court upheld the impugned judgment --- Appeal was
dismissed accordingly.
2004 SCMR 392; PLD 1990 SC 1; PLD 2002 SC 823; 1991 SCMR 1369; Mst. Jannatan
and others' case PLD 2006 SC 322; Muhammad Bashir a nd others v. Mst. Latifa Bibi through
L.Rs., 2010 SCMR 1915; Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407; Muhammad Akram and 26 others v. Noor Ahmed and others, 1989 SCMR 755; Mst. Fazal Nishan and others v. Ghulam Qadir and other s, 1992 SCMR 1773; Mst. Zainab Bibi and 2
others v. Muhammad Yousaf and 4 others 1995 SCMR 868, Ismail and others v. Ghulam Qadir and others 1990 SCMR 1967; PLD 2006 SC 322 and Major (Retd.) Barkat Ali and others v. Qaim Din and others 2006 SCMR 562 ref.
Muhammad Aslam Chishti for Appellants.
Jameel Lodeen and Naseer Ahmed for Respondents.
Khalil- uz-Zaman, Additional A.G. for Official Respondents.
Date of hearing: 21st August, 2017.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --- The respondents Nos. 1 to 12 (plai ntiffs) filed a
suit for Declaration, Cancellation of Mutation Entries, Possession and Permanent Injunction with
the averments that one late Malik Mehmood son of Akbar by caste Kakar resident of Mullazai Kuchlak was died in the year 1954 leaving behind four daughters, namely, Gul Taman alias Gul Paro, Zubaida Bibi, Gul Fam and Gul Aram. It was further averred that late Malik Mehmood left behind various properties, description whereof has been given in the plaint, situated in Mohal Khushkaba Mullazai, Tappa Kuchlak, Tehsil Quetta entered in the revenue record at the time of Jama- Bandi for the years 1941 to 1945. It was the case of the respondents (plaintiffs) that after
the demise of Malik Mehmood, the predecessor in interest of defendant Nos. 6 to 10, namely ,
Abdul Samad and Gul Muhammad transferred the whole property of Malik Mehmood on their name through Inteqal -e-Virasat by posing themselves only the legal heirs of Malik Mehmood
through misrepresentation and by committing fraud, whereas the said Gul Muhamm ad and
Abdul Samad had no concern/relationship with Malik Mehmood. It was further averred that legal heirs of Malik Mehmood i.e. plaintiffs and defendants Nos.l to 5 (petitioners Nos.1 to 5) were entitled to have the property according to their respective shares. The late Gul Muhammad in his lifetime informed the plaintiffs, that he had some property of their predecessor in interest, which
he intended to transfer in the name of plaintiffs, as the whole property of late Malik Mehmood,
after his death, was devolved upon his legal heirs according to Sharia and law. It was further averred that the said Gul Muhammad got married with the daughter of Malik Mehmood namely Gul Aaram, the mother of defendants Nos.1 to 5 (i.e. petitioners Nos.1 to 5), while Malik Abdul
Samad also enjoyed rest of the properties, who also died leaving behind two sons and three
daughters, who were impleaded as defendants Nos.6 to 10 (defendants Nos.6 to 10). More detail
of the property in dispute had been given in Para No.1 of the plaint. It was further averred that
the defendants Nos.1 to 5 i.e. legal heirs of Gul Aaram had 3/4 shares in the property left by
Malik Mehmood, who with connivance of each other fraudulently transferred the whole property of Malik Mehmood and deprived the rest of the legal heirs from their Sharai rights and some of the properties were sold out to the defendants Nos.11 to 15 i.e. respondents Nos.13 to 17.
2. The suit was contested by the defendants Nos.1 to 10 i.e. appellants, whereas, the
remaining respondents we re declared ex -parte.
3. Out of divergent pleadings of the parties, following issues were framed:
1. Whether the suit of plaintiffs is bared by limitation?
2. Whether suit suffers from non- joinder and misjoinder of necessary parties?
3. Whether the plainti ffs except Plaintiff No.2 do not fall with in the legacy of Malik
Mehmood?
4. Whether the daughters of late Malik Mehmood have received their due shares
from the legacy of their father?
5. Whether some of the suit properties exclusively belonged to late Abdul Samad
and Gul Muhammad?
6. Whether the defendants 01 to 10 have unlawfully sold some portions of land to defendants 11 to 15?
7. Whether the plaintiffs are entitled to the relief claimed for?
8. Relief?
4. The plaintiffs produced PW -1 Faiz Muham mad representative of Sadder Qanoongo, PW -
2 Amir Ahmed representative of Tehsil, PW -3 Ajab Khan and respondent No.1 Abdul Hanan
recorded his statement, while Muhammad Humayun being attorney for plaintiff No.2 recorded his statement, whereas plaintiffs Nos. 3 to 8 through attorney Abdul Jabbar i.e. plaintiff No.5
recorded statements. In rebuttal, the appellants (defendants) produced DW -1 Muhammad Riaz,
DW-2 Syed Amir Ahmed, DW -3 Abdul Zahir, DW -4 Saadullah, DW -5 Haji Dost Muhammad
and thereafter appellants (d efendants) recorded their statements through attorney Abdul Ghani.
5. The Senior Civil Judge -III, Quetta (hereinafter the "trial Court") vide judgment/decree
dated 31st May, 2011 (hereinafter the "impugned judgment/decree") decreed the suit in favour of
the respondents (plaintiffs).
6. Learned counsel for the appellants contended that Malik Mehmood was died in the year
1954 and in the said period, the daughters were not entitled to inherit to the estate of their father,
particularly in respect of agricultur al land and West Pakistan Shariat Application Act, 1962 (Act -
V of 1962) was not retrospective, therefore, the impugned right vested to the plaintiffs under the Muslim Personal Law of Inheritance is in excess of jurisdiction; that Malik Abdul Samad and Gul Muhammad were collateral of Malik Mehmood and only his legal heirs were entitled to
inherit his legacy, but this aspect of the matter has totally been ignored by the trial Court; that besides above entitlement, Will executed by late Malik Mehmood in the ye ar 1954 was also
adduced in evidence, which was 30 years old document, but the said documentary evidence in view of Article 100 of Qanun- e-Shahadat Order, 1984 (hereinafter the "Order 1984") has not
been considered; that the appellants Nos.1 to 10 were ent itled being collateral of Malik
Mehmood and the remaining daughters were not entitled for entire estate of their father; that the impugned judgment/decree is silent with regard to respondents Nos.13 to 17; that the only daughter Mst. Gul Fam had agitated her claim in the year 2009, whereas the other three daughters namely Gul Taman alias Gul Paro, Zubaida Bibi and Mst. Gul Aaram never agitated any claim to the legacy of their father, therefore, issue of limitation had been decided in the
wrong premises; tha t the daughter of Malik Mehmood had been brought up and look after by the
predecessor of the appellants namely Malik Abdul Samad and brother Gul Muhammad, further
they have also provided their share in the shape of cash, but all these aspects of the matter have
been ignored by the trial Court.
Learned counsel for the private respondents contended that the respondents/plaintiffs
were legal heirs of late Gul Paro, who was daughter of Malik Mehmood and the relationship of
mother of plaintiffs being daughter of Malik Mehmood has neither been denied in the written
statement by the appellants nor through evidence any relative of the parties appeared on behalf of the appellants to deny the rights of the plaintiffs; that admittedly after the demise of late Malik Mehmood, the property in dispute by virtue of inheritance was devolved upon four daughters of
late Malik Mehmood, but late Malik Abdul Samad and Gul Muhammad through misrepresentation and by committing fraud with connivance of Revenue officials transferred t he
whole property of late Malik Mehmood in their names, and thus, deprived the daughters of late Malik Mehmood including the plaintiffs' mother on the plea that Malik Mehmood was issueless; that in the instant case, the appellants (defendants) had taken contradictory plea with regard to their purported rights that admittedly no relationship had been disclosed on behalf of late Gul Muhammad and Abdul Samad with late Malik Mehmood, but in the written statement, it was averred that they by virtue of "Will" had become the legal heirs of late Malik Mehmood, whereas
no law exists to make legal heirs by virtue of "Will"; that the legal heirs became by virtue of devolution of inheritance; that the appellants besides relying upon the "Will" also based their right on customary right allegedly prevailing in the area at the time of death of late Malik Mehmood, but these averments had neither been pleaded in the written statement nor adduced any evidence, but taken this plea in the instant appeal, which aspect of the matt er is beyond their
pleadings, which can neither be agitated nor be considered. He further contended that section 2-A of Shariat Application Act, 1962 protects the right and entitlement of male and female so far inheritance of the property of their predeces sor prior to 1948 is concerned; that the female
including the mother of the plaintiffs were deprived by the defendants from their due shares
since 1954 and the trial Court after considering all aspects of the matter had rightly decided the
entitlement of their clue shares in the property left by late Malik Mehmood; that the findings rendered by the trial Court are based on proper appreciation of evidence. He besides referring Muslim Personal Law (Shariat) Application Act, 1937 also referred West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and stated that the parties were to be governed by
their personal law and afore -referred laws further protect the right of inheritance of the parties.
He placed reliance on the judgments reported PLD 1990 S C 1 and 2014 SCMR 801.
7. We have heard the learned counsel for the parties and perused the record. The
respondents/plaintiffs have filed the suit with the averments that late Malik Mahmood was owner
of the property in dispute, who had four daughters (1) G ul Taman alias Gul Paro (mother of
plaintiffs Nos.1 and 9 to 12 now respondent Nos. 1 to 12, (2) Gul Fam (Plaintiff No.2/respondent No.6) (3) Zubaida Bibi (mother of plaintiffs Nos.3 to 8/respondents Nos.7 to 12) and (4) Gul Aram (mother of defendant Nos.1 to 5/appellant Nos.l to 5). Late Malik Mehmood had died in
the year 1954, leaving behind the above four daughters, but all the properties of Malik Mehmood mentioned in the plaint were transferred through inheritance of Mutation Nos. 44, 41, 35/5 and 13 Ex .P/16, Ex.P/13, Ex.P/8, Ex.P/21 and others attested on 4th August 1955 in favour of Gul
Muhammad and his brother Malik Abdul Samad, both sons of Wali Muhammad. The aforesaid
two persons posed themselves to be the legal heirs of late Malik Mehmood and sworn before the
Revenue authority that Malik Mehmood had no issue; on this assertion, the mutations of the
disputed property were transferred in favour of Gul Muhammad and Malik Abdul Samad by depriving the daughters of late Malik Mehmood. Gul Muhammad married one of the daughters
of Malik Mehmood i.e. Gul Aram and thus legal heirs of Gul Aram respondents Nos.1 to 5 also deprived rest of the daughters of late Malik Mehmood, which includes the plaintiffs. The defendants (appellants) contested the suit mainly on the ground that the suit of the respondents
(plaintiffs) is barred by time. The mutation of inheritance was properly carried out on the basis of the "Will". The defendants/ appellants further denied the claim of respondents (plaintiffs) on the ground that late Abdul Samad after the death of Malik Mehmood met all the expenses of daughters of Malik Mehmood and got their marriages by spending huge amount; further contended that they were also compensated in terms of amount and transferring of some properties.
8. The argument of the learned counsel for the appellants (defendants) with regard to
question of limitation i.e. issue No.1 that mother of the plaintiffs during her lifetime had neither raised any objection in respect of mutation in question nor demanded any share, therefore, the
plaintiffs have no right or entitlement to claim the same in the suit filed by them which was barred by time. This question as raised by the learned counsel has no force. Admittedly, after the demise of Malik Mehmood his four daug hters including the plaintiffs became co- sharers.
According to their respective share and possession of one co- shareholder is deemed to be the
possession of other co- sharers. Co -sharer become co -sharer, the moment the inheritance open,
even entry of mutati on, is not necessary as held in the case reported in 2004 SCMR 392, nor the
limitation bar comes for co -sharers as held in the cases reported in PLD 1990 SC 1, PLD 2002
SC 823 and 1991 SCMR 1369. In the case titled Mst. Jannatan and others (PLD 2006 SC 322), plaintiff and predecessor in interest of defendants in the case were brother and sister, after death of their father a mutation was attested in the year 1909, in favour of predecessor interest of defendants only excluding the sister, however, plaintiff filed a suit after 70 years, which was
dismissed by the trial Court on the sole ground of limitation, hence appellate Court accepted
appeal and decreed the suit on the ground that as the matter was governed by Sharia Laws of inheritance, which decree was m aintained by High Court as well. It was held by the Hon'ble
Supreme Court of Pakistan that plaintiff was proved to be daughter of predecessor in interest of the parties and the dispute was governed by law of Shariah under inheritance. The land
automaticall y devolved on the plaintiff and her brother the moment their father died. It was
further held that as plaintiff was co -sharer in land in dispute to the extent of her share since very
beginning the suit was not barred by time.
9. The findings of the trial C ourt with regard to issue No.1 are based on proper appreciation
of law and facts, therefore, warrant no interference. The appellants (defendants) through issue
No.3 had also tried to challenge the entitlement of plaintiffs except plaintiff No.2 that they d o not
fall in the legacy of Malik Mehmood, but have failed to substantiate the same thorugh any cogent evidence. In the written statement, the appellants (defendants) pleaded that the plaintiffs' due share had been paid in the shape of amount and transfer of some properties, which reflects that they had not denied the heir -ship of the plaintiffs through their mother. To further strengthen
their false plea with regard to the impugned mutations, the attorney for the defendants (appellants) in his statement pr oduced a photocopy of a "Will" indicating that late Malik
Mehmood in his lifetime through the said "Will" declared them as his heirs.
10. The purported "Will" has neither been proved nor duly authenticated through any
evidence, even otherwise on the basis of "Will" a person or party cannot claim heir -ship or co-
sharer. The co -sharer is the result of devolution of inheritance and succession open the moment a
person departs, the heirs become through blood relation instead of adoption. The appellants (defendan ts) have also failed to substantiate their claim through Mark: D/1, because the
photocopy was not admissible and the said "Will" was also not registered, therefore, it cannot be taken into consideration. Reference in this respect is to be made to the case titled Muhammad Bashir and others v. Mst. Latifa Bibi through L.Rs, 2010 SCMR 1915, wherein, the Hon'ble Supreme Court observed as under:: --
"It may not be out of place to mention here that this Will was written on a blank paper and could not be substantia ted by producing any reliable evidence the scribe of the Will
(Exh.D/1) was never produced. One of the witnesses by whom the Will (Exh.D/1) was attested namely Muhammad Akbar who got recorded his statement which does not seem to be worthy of credence as ac cording to him, the Will (Exh.D/1) was got reduced in
writing by Muhammad Aslam, petition writer in negation of the record as it was written by Muhammad Sadiq. The said Will (Exh.D/1) was never got registered and thus cannot be considered to determine the faith of Imam Bakhsh (late)."
11. The stand of the appellants (defendants) in their written statement was quite
contradictory, as in issue No.3, they submitted that the plaintiffs (respondents) are not fallen in the legacy of late Malik Mehmood and while r aising issue No.4, it was stated that the daughters
of late Malik Mehmood had received their due share. Such stance of the appellants itself negates their assertion, though they have produced DW -1 to DW -5, who merely stated that late Abdul
Samad met the ex penses of marriage of daughters of Malik Mehmood and also paid them their
due shares in the shape of amount. However, none of the DWs disclosed their relationship with the plaintiffs (respondents). Neither payment of any amount nor transfer of any property had
been established by the appellants (defendants). The evidence produced by the plaintiffs
(respondents), particularly the impugned mutations of inheritance i.e. Ex.P/8, Ex.P/13, Ex.P/16 and Ex.P/21, clearly reflect that aforesaid entries got recorded b y the late Abdul Samad and Gul
Muhammad was result of misrepresentation, fraud and concealment of facts, which in the circumstances of the case cannot be sustained. The defendants (appellants) have also failed to
prove the relationship of late Abdul Samad and Gul Muhammad with late Malik Mehmood, and
in this respect the evidence of the appellants is silent. Even the pedigree table annexed along
with the plaint filed by the plaintiffs (respondents) had not been rebutted by the defendants (appellants) in thei r written statement nor adduced any evidence of relative to substantiate that
late Malik Mehmood and Gul Muhammad fall in the category of heirs. The appellants in the appeal appended a pedigree table and claimed that they are relatives of late Malik Mehmoo d. It
is well settled that mere production of pedigree table is not sufficient unless relationship of persons mentioned therein is duly corroborated by satisfactory evidence, as required under Article 64 of the Order, 1984. Neither any pedigree table was produced during evidence by the defendants (appellants) nor substantiated the same during the trial and mere filing of pedigree table along with appeal cannot be taken into consideration. The plaintiffs (respondents) through evidence coupled with the admiss ion of defendants (appellants) that being legal heirs of late
Malik Mehmood, the plaintiffs are entitled to have their sharia shares according to law and in this respect the trial Court decided issue No.3 and issue No.4 after proper appreciation of evidenc e, therefore, the findings in this respect are sustained.
12. Whereas issues Nos.5 and 6 are concerned, obviously the plaintiffs had filed the suit for
their due share from the inherited property of late Malik Mehmood and with regard to property exclusivel y owned by Malik Abdul Samad and Gul Muhammad had no nexus with the property
in dispute, therefore, issues Nos.5 and 6 were unnecessarily framed.
13. The learned counsel for the appellants during arguments for the first time raised objection
that Malik Meh mood died in the year 1954/55 and his daughters were not entitled to inherit to
the estate of their father, particularly agricultural land, as the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) (hereinafter the "Act, 1962") was not retrospective,
therefore, the decree in favour of the plaintiffs/ respondents for right of inheritance in accordance with Muslim Personal Law (Shariat) Application Act, 1937 was in excess of jurisdiction, thus late Malik Abdul Samad and Gul Muhammad being collateral of Malik Mehmood were only the
legal heirs are entitled to inherit his legacy. This contention of the learned counsel for the appellants is also not tenable. The rule before enforcement of Muslim Personal Law (Shariat) Application Act, 1937 and 1948 had been that the parties were to be governed by the rules of
their personal law unless and until it was established that the rule of personal law controlled by any custom flowing from the agricultural usages.
14. In the instant case, the appellants (defendants) neither alleged in the written statement the
custom that excludes the female nor led any evidence to establish the custom. This proposition came into consideration in Abdul Ghafoor and others v. Muhammad Shafi and others, PLD 1985 SC 407, wher ein it was observed that "section 2- A prima -facie appears to be, is ordinarily
retrospective". The ratio in Abdul Ghafoor's case was examined by the Hon'ble Supreme Court in Muhammad Akram and 26 others v. Noor Ahmed and others, 1989 SCMR 755. In this case
dealing with the "Will" made by Nabi Bakhsh the last right holder, who died in the year 1947, it
was held that succession to the estate of Nabi Bakhsh shall be determined according to the
provisions of Muslim Personal Law on account of retrospective opera tion of section 2- A of
Ordinance (XIII of 1983).
In Mst. Fazal Nishan and others v. Ghulam Qadir and others, 1992 SCMR 1773, it was
held that "the last full owner having acquired agricultural land under custom from a Muslim prior
to 15th March 1948, would be deemed to have inherited under Muslim Personal Law, his heirs
after his death would inherit in accordance with Muslim Law whether they were male or female heirs. Same view was expressed in case of Mst. Zainab Bibi and 2 others v. Muhammad Yousaf and 4 others, 1995 SCMR 868, Ismail and others v. Ghulam Qadir and others, 1990 SCMR 1967 and PLD 2006 SC 322.
15. In the instant case, if it is presumed that Malik Mehmood died in the year 1954/55, even
then the landed properties left by him shall have to be di stributed according to the provisions of
Muslim Personal Law as enunciated by the Hon'ble Supreme Court of Pakistan.
16. The other aspect of the matter is that the appellants in their written statement had taken
many stance and in appeal a new plea had been taken and claimed the inheritance on the plea of
customary right, as the predecessor in interest of the plaintiffs died in the year 1954. This plea is not consistent to what has been pleaded by the appellants in their written statement, it is an outright departure from what has been pleaded. Admittedly, the averment made in the pleading is
not evidence, but evidence or plea adduced in their support must be consistent therewith. Anything stated outside the scope of such averments cannot be looked into. In the case of Major (Retd.) Barkat Ali and others v. Qaim Din and others, 2006 SCMR 562, the Hon'ble Supreme Court held that "no party can be allowed to lead evidence/plea on the fact which has not been
specifically pleaded nor can any evidence on such fact be looked into, which is outside the scope of pleadings".
In view of the above, Regular First Appeal No. 41 of 2011 is dismissed with cost of
Rs.25,000/ - to be paid by the appellants (defendants) to the legal heirs of Mst. Gul Taman, Gul
Fam and legal heirs of Mst. Zubaida Bibi.
Decree sheet be drawn accordingly.
MQ/126/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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