2018 C L C 299
[Balochistan (Sibi Bench)]
Before Abdullah Baloch, J
Mst. SEHAT BIBI ----Petitioner
Versus
BAHAR KHAN and 2 others ----Respondents
Civil Revision Petition No.(S)22 of 2016, decided on 6th October, 2017.
Specific Relief Act (I of 1877) ---
----S. 42 ---Suit for declaration ---Inheritance--- Limitation ---Gift ---Proof of ---Procedure ---Sale
of suit land to third party ---Effect ---Contention of plaintiff was that impugned mutation was
based on fraud---Suit was dismissed concurrently ---Validity ---Plaintiff and defendant being
son and daughter of the deceased were the only legal heirs ---Parties being legal heirs of
deceased were entitled for their proportionate legal share from the legacy of deceased ---
Legacy left by the deceased had to be distributed amongst the legal heirs as per Sharia ---
Defendant had failed to produce any witness of oral gift or mutation entries ---Impugned
mutation did not bear signatures of deceased donor ---Neither any witness of gift nor mutation
entries was produced by the defendant to verify gift, its acceptance and delivery of
possession ---Impugned gift had neither been proved nor authenticated through any evidence --
-No one could claim ownership title in presence of other legal heirs on the bas is of gift or
will---Parties became co -sharer after the demise of donor ---Possession of one co- sharer was
to be deemed to be the possession of other co- sharer ---When inheritance opened then entry of
mutation was not necessary ---Suit of plaintiff was not ba rred by time ---Plaintiff being co -
sharer was entitled for her legal share---Plaintiff had been deprived from her legal share in
the legacy illegally and unlawfully ---Suit land had already been sold and plaintiff was
entitled to receive her share from the s ale amount received by her brother ---Impugned
judgments and decrees passed by the Courts below were set aside and suit was decreed ---
Defendant was directed to pay the share of plaintiff according to Sharia within a period of three months ---Plaintiff could initiate execution proceedings against the defendant in case of
his failure to pay the said amount of sale consideration---Revision was allowed in circumstances.
Ghulam Ali and others v. Mst. Ghulam Sarwar Nagri PLD 1990 SC 1; 2004 SCMR
392; PLD 2002 SC 823 and 1991 SCMR 1369 rel.
Hasnain Iqbal Minhas for Petitioner.
Abul Haq Kasi and Muhammad Nasir Marri and Shai Haq, Assistant A.G. for
Respondents.
Date of hearing: 14th September, 2017.
JUDGMENT
ABDULLAH BALOCH, J. --- This judgment disposes of instant Civil Revision
Petition No.(S)22 of 2016 filed by the petitioner Mst. Sehat Bibi daughter of late Daulat
Khan against the judgment and decree dated 9th January 2016 passed by the Senior Civil Judge Sibi (hereinafter referred as, "the trial Court"), whereb y dismissed the suit of
petitioner/plaintiff and against the judgment and decree dated 18th February 2016 passed by the District Judge Sibi (hereinafter referred as, "the appellate Court"), whereby dismissed the appeal of the petitioner.
2. Brief facts ari sing from the instant petition are that on 13th February 2014 the
petitioner filed a suit for declaration, partition, cancellation of mutation entries, separate possession and permanent injunction before the learned Senior Civil Judge Sibi against the respondents on the averments that she and respondent No.1 are brother and sister and are only
surviving legal heirs of late Daulat Khan, who left in his legacy agricultural property bearing No.56, Khatta No.39/39 (3 shares), Khatta No.40/41 (5 shares) and Khat ta No.58/59 (18
shares) situated at Mohal and Mouza Bostan, Tappa Saddar, Tehsil and District Sibi.
However, respondent No.1 being only son of Daulat Khan took control of the property in
dispute, while the petitioner being a parda observing lady was not aw are of any fact and
respondent No.1 took advantage and transferred the entire property of late Daulat Khan upon
his name and later on transferred the property in the name of respondent No.2. The petitioner
asserted that the respondent No.1 deprived her from her legal rights and lastly prayed for cancellation of both the mutation entries.
3. The suit of the petitioner was contested by the respondents/defendants on legal as well as
on factual grounds, wherein vehemently denied the claim of petitioner.
4. Out of divergent pleadings of parties, following issues were framed: -
1. Whether suit of plaintiff is liable to be rejected in view of PLOs, (B) That the
suit is barred by time?
(G) That the suit of plaintiff is under value?
2. Whether property in question we re gifted to the defendant No.1 by the late
Daulat Khan after fulfilment of all codal formalities?
3. Whether alleged Hiba was not in the knowledge of plaintiff?
4. Whether plaintiff is entitled to the relief claimed for?
5. Relief?
Additional issues:
1. Whether suit of plaintiff is not maintainable in view of legal objection C, F, I
raised by defendant No.2 in his written statement?
2. Relief?
5. In support of their claims, the parties produced their relevant evidence and after
hearing the part ies, the suit of petitioner was dismissed, vide judgment and decree dated 9th
January, 2016, being aggrieved the petitioner filed an appeal before the appellate Court,
which was also dismissed, vide impugned judgment dated 18th February, 2016. Whereafter,
instant petition has been filed.
6. The learned counsel for petitioner contended that the impugned judgments and
decrees passed by the Courts below suffers from misreading and non- reading of evidence;
that petitioner and respondent No.1 are the only surviving legal heirs of late Daulat Khan,
who left behind agricultural land as stated in the plaint of the petitioner that after sad demise of Dault Khan being male member of his legal heirs, the respondent No.1 transferred the entire disputed land in his name in the revenue record and further sale out the said land to the respondent No.2 without the knowledge and consent of the petitioner, that the petitioner was deprived from her legal share; that both the Courts below have drawn a wrong conclusion, while reco rding impugned judgments; that as per Sharia law, the petitioner is entitled for her
legal share and produced confidence inspiring evidence in support of her claim, but the Courts below have failed to consider the same; that the impugned judgments and decr ees are
suffering from material illegalities and irregularities, hence not sustainable and liable to be
set-aside.
7. Conversely, the learned counsel for the private respondents Mr. Muhammad Nasir
Marri and Mr. Abdul Haq Advocates, strongly opposed the arg uments so advanced by the
learned counsel for the petitioner and contended that the petitioner has failed to prove its case
and both the Courts below after proper appreciation of evidence had rightly dismissed the suit and appeal of the petitioner; that the property in question was transferred in the name of respondent No.1 by his late father Daulat Khan on his "Will" in his life time and the petitioner has raised no objection; that the husband of petitioner appeared as PW also admitted that the property wa s further sale out to respondent No.2 and given to him on Ajara
for a long period, such admission of husband of petitioner negates the version of the petitioner; that the suit of the petitioner is also barred by time and under valuation; that all the impor tant issues were decided against the petitioner and the Courts below have passed
concurrent findings against the petitioner, which otherwise are not open for interference by this Court.
8. The learned Assistant Advocate General appeared on behalf of respon dent No.3 has
also supported the concurrent findings of the Courts below and further contended that there is no interest of State involved in the disputed property.
9. I have heard the learned counsel for the parties and perused the record. The petitioner
has filed the suit with the averments that the late Daulat Khan was owner of the property in dispute, who was died in the year 1980 left behind one son and one daughter. The disputed property after the death of late Daulat Khan was transferred/inherited in the name of
respondent No.1 being son and male member of his legal heirs without the knowledge and consent of the petitioner with the connivance of official respondent in the year 1981, as such, she was deprived from her legal rights and further transferr ed the disputed property in the
name of respondent No.2 in the year 2001 once again without the consent or information of petitioner, on the other hand respondent No.1 in its written statement specifically taken three grounds; firstly that the suit land wa s gifted to him by his father in his life time; secondly that
the partition of the suit land amongst the legal heirs was carried out in presence of PW -3
Faqir Muhammad husband of petitioner; thirdly the sale of disputed property was also witnessed by the h usband of petitioner.
10. Now the overall case of the parties surrounding near the above contentions of the
parties, prior to dilate upon the such contentions of the parties, it is necessary to discuss the
ownership of disputed property belongs to the late Daulat Khan, as far as the basic ownership
of disputed property is concerned this is not disputed by either of the party rather all the parties simultaneously agreed and admitted that the property in question was ancestral property of late Daulat Khan and it is also not disputed by the parties that the petitioner and
respondent No.1 are the only legal heirs of the late Daulat Khan being his son and daughter and as per Sharia -e-Muhammadi both being legal heirs of late Daulat Khan are entitled for
their proportionate legal share from the legacy of late Daulat Khan, the legacy left behind by the late Daulat Khan has to be distributed amongst the legal heirs as per Sharia Law.
11. Now the question arising that whether the disputed property left as legacy by the late
Daulat Khan was distributed/partitioned between the legal heirs or otherwise according to golden principles of Islam, in this regard petitioner produced four PWs and also recorded statement of her attorney, all of them in line stated that the propert y belongs to late Daulat
Khan and same was fraudulently got transferred in the name of respondent No.1 with the
connivance of revenue authorities and only main suggestion was put upon all the PWs that
this fact was in the knowledge of husband of petitioner and petitioner had raised no objection,
but all the PWs denied the suggestion put to them, though the PW -3 Faqir Muhammad is the
husband of petitioner admitted the transfer of some of the property by the respondent No.2 in the name of other people, but voluntarily stated that he was unaware the said mutation are belonged to the property of his father in law. The PW -3 further admitted the Ajars given to
him by the respondent No.2, but he stated that the said Ajara was itself was given to respondent No.2 by the respondent No.1, who subsequently subletted the same to PW -3 not
as an owner or bonafide purchaser. In rebuttal with regard to partition of property nothing brought on record by the respondent No.1 that the property in dispute distributed amongst the
legal heirs, even a single word was not deposed by the respondents and its DWs with regard
to the partition, as such, it can safely be settled that no partition of the disputed property had taken place.
12. Next important question is whether the disputed pr operty was gifted to the respondent
No.1 by his father late Daulat Khan in his life time and mutated in his name in presence of witnesses and revenue authorities. In this regard the PWs of petitioner declared the same mutation entries as result of fraudule nt while respondent No.1 in support of his contention
failed to produce any witness of the oral gift or witness of the mutation entries took place in their presence by the will of late Daulat Khan. Even otherwise, the said mutation entry (Fard) did not bea r the signatures of late Daulat Khan and the contents of Intiqal No.56 dated 24th
March, 1981 on the back of the Intiqal showing that:
:ن� ت� دو�با�بخز� �
�� وہ� � ۔ اس� �� تا�� ا� اس� � � ىا � د� �� ش� ن� ت� دو�ن و� ر� � � اب ارا � دار�
۔�
The same entries were allegedly witnessed by one Khair Bakhsh son of Shakeel Khan, but the respondent No.1 was failed to produce the said witness to verify his signatures, from the face of record it is transpired that neither there is any witness of gift nor any witness of transfer of
mutation entries produced by the respondent No.1 to verify the gift, its delivery and acceptance the manner in which the said proceedings carried out creates serious doubts,
neither the gift nor the mutation entries are admissible.
13. The purported "Gift" has neither been proved nor duly authenticated through any
evidence, even otherwise on the basis of "Gift" or "Will" a person or party cannot claim
ownership title alone in presence of other legal heirs, in our male dominated society the male member/heirs often depriving the female parda nasheen heirs from the legacy of their parents. Reliance is placed in land mark judgment of Hon'ble Supreme Court of Pakistan in case of Ghulam Ali and others v. Mst. Ghulam Sarwar Nagri reported in PLD 1990 S.C. 01, wherein
held that:
"The main points of the controversy in this behalf get resolved on the touchstone of Islamic law of inheritance. As soon as an owner dies, succession to his property opens. There is no State int ervention or clergy's intervention needed for the passing of
the title immediately, to the heirs. Thus it is obvious that a Muslim's estates legally and juridically vests immediately on his death in his or her heirs and their rights
respectively come into separate existence forthwith. The theory of representation of
the estate by an intermediary is unknown to Islamic Law of inheritance as compared
to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs
automatically, and immediately in definite shares and fraction. It is so
notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic law. It is o nly when the property has thus vested in the heir
after the succession opens, that he or she can alinate it in a lawful manner. There is enough comment and case law on this point which stands accepted."
In the said judgment it has further been held:
"We sh all deal briefly with the rights of females to inheritance as given in the Quran.
The Prophet lays down in effect, that blood relationship is the cause of title to succession. Then the Quran goes on to describe the rights of females to succession. "Covet not the grace by which God hath preferred some of you to others; unto men there is a portion of what they have earned, and unto women the portion of what they have earned". "Men ought to have the portion of what their parents and kindred leave, women a part of what their parents and kindred leave, whether it be little or much, let
them have a determinable portion." "With regard to children, God commondeth you (to give) the male portion of two females, and if there be females more than two, they shall have 2/ 3rd or that which the deceased leaves; and if there be only one, she shall
have a half." "Half of what, your wives leave, shall be yours, if they leave no issues, but if they leave issues, then a fourth of what they leave shall be yours. And your wives sha ll have a fourth part of what you leave if you have no issues, but if you have
issues, they shall have an eight (1/8th) part of what you leave after paying the bequests and debts". In short, Quranic heirs called "shares" consist of those relations who were previously excluded in favour of the customary heirs, but whose claim on
the score of proximity was not inferior to them. They may be grouped under the following heads: -
(I) Husband or wife,
(2) Female agnatic descendants,
(3) Ancestors, including female ancestors, who are not customary heirs,
(c) Collaterals, such as full and consanguine sisters and uttering sisters and
brothers".
The last Khutbah of Holy Prophet (P.B.U.H.) contains several injunctions, referred as
under:
ر� !�� ۔""اے � ق� � ں�ر� رى� � � ح� �، اور ا� ق� � رے� � ں�ر� ى
۔� ىا�ىد� د� � اس� دار� ہز � (� � خازل� ن�� � اث�) � ٰ�� �! ا��" ”
اس� � � � ں�ر� اور�تزاببت وا
� باپ اور� ں� �� ڑ� � � اس� � � � دوں�" � �
"۔� ا� ر� � � ى� ا� ىادہ،�ىا ذ�ڑا� اہ وہ� ،�تزاببت وا
� باپ اور� ں� ��ڑ�
۔ اور اس� �ا� ىز �رى ز� وہ� ں� ،� ر�پا � ھمبىسشہ� � � تا وُ�بز� � ا�� � ں�ر� دار۔ ۔ ۔ ۔ ۔ ۔�"
ں�ر� ،�� د� ت�� � ا� � � � ا� � ،� ر� ڈر� � ا� �� � بخت� ا� �ا� ن
۔ ۔ ۔ ۔ ۔ ۔ ۔"� � �� � ر� �
14. As far as the arguments of learned counsel for private respondents with regard to
question of limitation are concerned that the petitioner neither raised any objection in respect
of mutation in question nor demanded any share, therefore, petitioner has no right or
entitlement to claim the same in suit filed by her after 33 years of death of her father. This question as raised by the learned counsel has no force. Admittedly, after the demise of Daulat Khan his son and daughter became co -sharer, according to their respective shares and
possession of one shareholder is deemed to be the possession of another co- sharer. The
moment the inheritance is open, even entry of mutation is not necessary as held in the case reported in 2004 SCMR 392, nor the limitation bar comes for co- sharer as held in the case
reported in PLD 1990 SC page 1, PLD 2002 SC 823 and 1991 SCMR 1369. In the case titled Mst. Janatan and others (PLD 2006 SC 322), it was held that, "...plaintiff and predecessor in interest of defendants in the case were brother and sister, after death of their forefather a mutation was attested in the year 1909, in favour of predecessor interest of defendants only exclu ding the sisters, 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 the appeal and decreed the suit on the ground that as the matter was governed by Shari a Law of Inheritance,
which decree was maintained by High Court as well as 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 dispute was governed by law of Sharia under Inheritance. The land automatically devolved on the plaintiff and her brothers the moment their father died."
15. In view of above dictum laid down by the Hon'ble Supreme Court of Pakistan, the suit
of plaintiff/petitioner was not barred by time and she being co -sharer is entitled for her legal
share.
16. Now the question remains that whether the petitioner being co sharer is entitled to
receive her legal share from the legacy of her father, as per her claim on strength of mutation entries recorded in her father's name, which were subsequently mutated and transferred in the name of respondent No.1 and thereafter the respondent No.1 sold out the disputed property to
respondent No.2 on consideration of Rs.13,00,000/ - and thereafter the respondent No.2
furth er sold out to 9/10 other people and also got mutated and transferred the record in their
names, though the petitioner made efforts to array the same as party, but her application was
turned down till this Court and attained finality, under the such circum stances for what relief
the petitioner deserved or entitled.
17. After thorough analysis of record this Court reached to the conclusion that the
petitioner being legal co -sharer was deprived from her legal share in the legacy left by her
father and respondent No.1 illegally and unlawfully transferred, mutated and sold out the
entire disputed property to the respondent No.2 and thereafter the respondent No.2 further sale out the same to others, as such, third party interest have been created, to the extent of making them party the application of petitioner was already dismissed and upheld up to this Court, under such circumstances the petitioner has no locus standi against the purchasers, however, she is entitled to receive her share from the sale amount of R s.13,00,000/ - received
by her brother respondent No.1 on consideration of sale of disputed property.
In view of the above, the civil revision petition is accepted and the impugned judgments and decrees passed by the Courts below are set -aside and the suit of petitioner/plaintiff is decreed
in her favour and against the respondent No.1, to receive her share of amount from Rs.13,00,000/ - (rupees thirteen lacs), the respondent No.1 is directed to pay the said amount
to the petitioner/plaintiff according to her share as per Sharia Law within a period of three
months, in case of failure the petitioner/plaintiff is allowed to initiate execution proceedings against the respondent No. 1 .
Decree sheet be drawn accordingly. The parties to bear their own costs.
ZC/16 0/Bal. Revision allowed.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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