2021 C L C 106
[Balochistan]
Before Nazeer Ahmed Langove, J
Dr. AZIZ UR REHMAN and others ----Petitioners
Versus
NOOR BIBI and others ----Respondents
Civil Revisions Nos.13, 22 and 56 of 2014, decided on 22nd November, 2019.
(a) Transfer of Property Act (IV of 1882) ---
----S.41 ---Transfer by ostensible owner ---Scope ---Inheritance---Gift ---Ingredients ---Proof ---
Mutation--- Co-sharer ---Bona fide purchaser ---Contention of plaintiff was that she was owner
of suit property and impugned mutations were illegal whereas defendants contended that suit
property had been transferred in their favour through gift ---Suit was decreed concurrently ---
Validity ---Limitation did not run against a void transaction nor efflux of time could
extinguish right of inheritance ---Mutati on was not a proof of title and beneficiary was bound
to prove original transaction ---Once it was established that plaintiff was entitled for
inheritance then she would become co- sharer in each and every inch of the property of
deceased predecessor ---Plain tiff was entitled to inherit the left- over of her deceased father as
she had become co -sharer in the property on death of her father to the extent of her share ---
Co-sharers could not alienate the property more than their shares ---Each co -sharer would be
deemed to be owner in joint property and anyone of them could not act against rights and
liabilities of other co -sharers ---Donee excluding any heir from inheritance was required to
establish the original transaction of gift ---Nothing was on record with regar d to declaration
of gift or its acceptance ---Mere transfer of possession to the donee was not sufficient to
constitute a valid gift--- Gift deed must justify the disinheritance of an heir which in the
present case was lacking ---Transfer of property should be for consideration and transferee
must have acted in good faith taking reasonable care to ascertain that transferor had the power to transfer the property---Subsequent purchaser of suit property had not taken care of important aspect of the matter ---Right of transferee should be protected from the share of
defendants and not from the share of plaintiff ---Principle of bona fide purchaser was based
on equity which could not be invoked in such a manner that might cause injustice to the others ---Vendees of sui t property should claim their right, if any, from their transferors -
defendants ---Plaintiff being residuary of deceased should inherit from his property under
Law of Sharia---Impugned judgments and decrees were based on correct appreciation of record ---Revi sion was dismissed, in circumstances.
Peer Bakhsh and others v. Mst. Khanzadi and others 2016 SCMR 1417; Muhammad
Iqbal v. Mukhtar Ahmed 2008 SCMR 855; Hakim Khan v. Nazeer Ahmad Lughmani 1992 SCMR 1832; Barkat Ali v. Muhammad Ismail 2002 SCMR 1938; Fare ed and others v.
Muhammad Tufail 2018 SCMR 139 and Muhammad Shamim v. Mst. Nisar Fatima 2010
SCMR 18 rel.
(b) Civil Procedure Code (V of 1908) ---
---S. 115--- Revisional jurisdiction of High Court ---Scope.
Concurrent findings of fact and law arrived at by two courts below can only be
disturbed, if Court comes to the conclusion that the same are illegal, unlawful based on misapplication of relevant provisions of law; shocking; perverse; artificial and; fanciful. High Court could not go behind concurrent findings of fact, unless it can be shown that the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any
misapplication or principle relating to appreciation of evidence or finally, if the finding could
be demonstrated to be physically impossible.
Syed Hussain Naqvi and others v. Mst. Begum Zakara Chatha and others 2015 SCMR
1081 rel.
(c) Limitation ---
----Limitation did no t run against a void transaction.
Rasool Bakhsh Baloch for Petitioners (in Civil Revision No.13 of 2014).
Rasool Bakhsh Baloch for Petitioners (in Civil Revision No.22 of 2014).
Abdul Khair Achakzai for Petitioners (in Civil Revision No.56 of 2014).
Jameel Ahmed Babai for Respondent No.1.
Abdul Zahir Kakar and Gulzar Khan Kakar for Respondent No.2.
Mir Ahmed Ali Baloch, Addl. A.G. for Official Respondent.
Date of hearing: 11th November, 2019.
ORDER
NAZEER AHMED LANGOVE, J. ---This order shall dispose of Civil Revision
Petitions Nos.13/2014, 22/2014 and 56/2014, as all these petitions are directed against the
judgment and decree dated 31st November 2010 (hereinafter the "judgment"), passed by learned Senior Civil Judge, Pishi n (hereinafter the "trial court") in Civil Suit No.80/2009,
whereby the suit filed by the respondent No.1 (plaintiff) was decreed in her favour against the defendants. Assailed in Civil Appeal No.03/2011 by the petitioner (defendant No.22), Civil Appeal No .04/2011 by the petitioners (defendants Nos.12 to 16) and Civil Appeal
No.24/2011 by the petitioners (defendants Nos.8 to 10- A); vide, consolidated judgment and
decree dated 25th November 2013 (hereinafter the "impugned judgment"), passed by the
learned Ad ditional District Judge, Pishin (hereinafter the "appellate court"), whereby, the
appeals filed by the petitioners have been dismissed. Hence, these petitions with the prayer to set aside the impugned judgments and decrees, passed by the trial, as well as, appellate court
and to dismiss the suit filed by the respondent No.1 (plaintiff).
2. Facts of the case are that the respondent No.1 (plaintiff) filed a suit for declaration,
possession through partition, cancellation of mutations/agreements and permanent injunction
against the defendants (including petitioners) with the averments that the plaintiff, defendants Nos.1 and 2 are daughter and sons of late Malik Ahmed Jan, who died in the year 1980; after his demise the plaintiff and defendants Nos.1 and 2 (bei ng legal heirs) became
owners of the properties mentioned in para No.1 of the suit. It was further stated that the defendants Nos. 1 and 3 just to deprive the plaintiff from her lawful share mutated the suit properties in their names vide, Mutations Nos.38, 58, 59, 61, 62 130 and 131 and thereafter illegally transferred the same in the names of other defendants, vide, Mutation Nos.10, 31, 33, 70, 71, 94, 95, 61, 62 and 137; subsequently, the defendants Nos.1 and 2 entered into exchange with the defendant No.6 (Akhtar Muhammad) whereby the property bearing
Khasras Nos.768, 337, 339, 442, 383, 362, 360 and 7 Qitas, vide agreement dated 16th
October 1985. Hence, this suit with the following prayer:
"It is, therefore, respectfully prayed that a decree may kindl y be passed in favour of
the plaintiff against the defendants to the following effect:
a. Declaring that plaintiff is lawful and legal heir of late Malik Ahmed Jan and she is legally entitled for the due share of the properties detail whereof has been give n in
paras Nos. 1, 2 and 3;
b. Declaring that plaintiff is co -sharer in the property and she is entitled for her due
share as prescribed under the Muhammadan Law of inheritance;
c. By means of mandatory injunction the defendants be directed to partition the properties by meats and bonds and further plaintiff be put in possession of her respective share, in case of failure of defendants, official defendant be directed to partition the land and to hand over the vacant possession of the shares of plaintiff.
d. By means of permanent injunction, the defendant be restrained not to interfere in the peaceful possession shares/ properties of the plaintiff;
e. Directing the official defendant to cancel all the mutation entries detail whereof are provided in the paras Nos.1, 2 and 3 and transaction of exchange entered with
defendants inter se be cancelled and declared it illegal and void to the extent of rights of plaintiff;
f Any other relief which this Hon'ble Court deems fit and proper in the circumstances of the cas e be awarded in favour of the plaintiff against the defendants;
g. Costs of the suit be awarded."
3. On service of notices, the defendants Nos.1, 2, 3, 5, 6 the defendants 8- A to 10
(petitioners in Civil Revision No.56/2014), the defendants Nos.15, 15- b (petitioners in Civil
Revision No.22/2014), the defendants Nos.18 to 20 and defendant No.22 (petitioner) filed
their respective written statements, wherein they raised certain legal objections in respect of maintainability of the suit and contested the same on merits as well.
4. Out of pleadings of the parties, issues framed, parties exhausted their respective sides
and recorded their statements on Oath.
5. On conclusion of trial, the learned Senior Civil Judge, Pishin, vide judgment and
decree dated 31st Nov ember 2010, decreed the suit of plaintiff against the defendants in the
following terms:
a. It is declared that plaintiff is lawful and legal heir of late Malik Ahmed Jan and she is legally entitled for due share of the properties detail whereof has been g iven in Paras
Nos.1, 2, 3 of the plaint;
b. It is declared that plaintiff is co -sharer in the suit property and she is entitled for her
due share as prescribed under the Muhammadan law of inheritance;
c. By means of mandatory injunction the defendants are directed to partition the properties by meats and bonds and deduct/separate the share of plaintiff and that plaintiff be put in possession of her respective share, in case of failure of defendants, official defendant is directed to partition the land and to hand over the vacant
possession of the shares of plaintiff;
d. By means of permanent injunction, the defendants are restrained not to interfere in the peaceful possession shares/properties of the plaintiff;
e. The official defendant is directed to cancel all the mutation entries detail whereof are provided in the Paras Nos.1, 2 and 3 of the plaint and transaction of exchange entered with defendants inter se be cancelled and the same is declared illegal and void to the extent of share/rights of plaintiff;
f. The concerned Revenue officials are further directed that after partition and deduction of the plaintiff's share from the suit property, the due share of plaintiff be mutated/transferred on her name."
Assailed in civil app eals, but dismissed, vide impugned judgment and decree dated 25th
November 2013, passed by learned Additional District Judge, Pishin. Hence these petitions.
6. Heard the learned counsel for the parties and gone through the record with their
assistance.
It is relevant to note here that one Malik Ahmed Jan (late) died in the year 1980,
leaving behind various properties (detail whereof has been mentioned in the opening paras of the plaint); survived by two sons namely Abdul Jabbar and Nazeer Ahmed, Mst. Khair -un-
Nisa wife of Abdul Jabbar (daughter -in law) (defendants Nos.1, 2 and 3) and Noor Bibi
(plaintiff). Main dispute between the parties is that late Malik Ahmed Jan alleged to have transferred the ownership rights of one portion of his property to defendant No.1, through
Hibba which subsequently was purchased by Jameel Ahmed, Naseer Ahmed, Muneer
Ahmed, Nazeer Ahmed, Muhammad Zareef, Shah Jahan and Gulab Shah (defendants Nos.8 to 10 -A) (petitioners in Civil Revision Petition No.56/2014), on the basis whereof, the
defendants Nos.1 and 2 and purchasers named above tried to establish that daughters of late Malik Ahmed Jan had no legal and lawful right or entitlement over the property- in-dispute;
they further placed reliance on an Arbitration Award by DW- 1 Akhun dzada Abdul Mateen,
the sole Arbitrator, who in his Court statement admitted that neither he was authorized by the female members of late Malik Ahmed Jan's family nor he obtained their consent nor even asked them of the alleged Arbitration; thus, the refer red Arbitration is of no legal effect.
Apart from this, the petitioners were under legal obligation to have established ingredients of the gift claimed by them under the impugned mutations. However, no particulars whatsoever of time, date, place and witnes ses of the declaration of the gift (allegedly) made by late
Malik Ahmed Jan in favour of the defendants Nos.1 and 2 have been provided in their pleadings nor any evidence could be produced by them in this behalf; this is fatal to the petitioners' plea.
7. It is well settled law that limitation does not run against a void transaction nor efflux
of time extinguishes the right of inherence; equally a mutation is not proof of title and a
beneficiary thereunder must prove the original transaction. In this respec t reliance is placed
on the reported judgments titled; Peer Bakhsh and others v. Mst. Khanzadi and others (2016
SCMR 1417), Muhammad Iqbal v . Mukhtar Ahmed (2008 SCMR 855), Hakim Khan v. Nazeer Ahmad Lughmani (1992 SCMR 1832).
8. It is also a well known principle of law that once it is established that the plaintiff is
entitled to inherent left over of his (her) deceased father, he (she) became co -sharer in the
each and every inch of the property of deceased predecessor; thus, the plaintiff (respondent No.1) is entitled to inherent left over of her deceased father, she became co -sharer in the
property on death of her father to the extent of her share for all intents and purposes; thus co-sharers are not entitled to alienate more than their share. Moreover, each co -sharer is deemed
to be owner in joint property and any one of them cannot act in a manner, which constitute an invasion on the rights and liabilities of other co- sharers. Admittedly, the plaintiff is
daughter of late Malik Ahmed Jan (owner) and under the law entitled to succeed and inherit the left -over of the deceased. Since the plaintiff stepped into the shoes of her father and
became shareholder to the extent of her share; any of the brothers, who were also co- sharers
in the property cannot depri ve sister of her due share by alienating the property falling in her
share.
9. Coming to the validity of the gift, even otherwise, the donee claiming any gift that
excluded an heir, is required by law to establish the original transaction of gift is a regi stered
deed or otherwise. In the present case, there is no evidence of declaration of gift or of its acceptance on record; mere transfer of possession to donee is not sufficient to constitute a valid gift under the law; in this context the Hon'ble Supreme Court of Pakistan, held in the
case of Barkat Ali v. Muhammad Ismail (2002 SCMR 1938) that gift deed must justify the disinheritance of an heir from the gift, which in the instant case is lacking. Further reliance is placed on the case of Fareed and others v. Muhammad Tufail (2018 SCMR 139).
10. So far bona fide purchasers are concerned, as agitated by Mr. Abdul Khair Achakzai,
learned counsel for petitioners (in Civil Revision Petition No.56/2014), in order to invoke
provisions of section 41 of Transfer of Property Act, 1882, it is necessary that transferor
should be ostensible owner, his ownership should be consented or implied by real owner, the transfer should be for consideration and transferee must have acted in good faith taking
reasonable care to ascertain that transferor had the power to transfer, but the petitioners
Jameel Ahmed, Naseer Ahmed, Muneer Ahmed, Nazeer Ahmed, Muhammad Zarif, Shah
Jahan and Gulab Shah did not take care of this important aspect of the matter and legal requirement; however, their right in view of section 41 ibid, are protected. In this respect,
reliance is placed on Hon'ble Supreme Court's judgment reported in the case of Muhammad Shamim v. Mst. Nisar Fatima (2010 SCMR 18). So the right of transferee vendee who denied their title from the petitioners are protected to their extent and would be deducted and
adjusted from the shares devolved upon the sons of late Malik Ahmed Jan and would not be deducted from the share of respondent No.1 (plaintiff).
Besides, that it being a case of deprivation of legal heir, not entered into any
conscious transaction with the vendor of the said transferee, so they may not be compensated at the cost of deprived legal heir. Principle of bona fide purchaser is based on equity, which
cannot be invo ked in such a manner that may cause injustice to the others. Equity stems out
of its roots of justice, fairplay, reasonableness and good conscious. It may not be involved as
a rule of thumb. In peculiar circumstances of the case, if this principle is appli ed against the
respondent No.1 (plaintiff) for protection of the petitioners (defendants), it would not be equity, but an oppressive phenomenon like. Rob Peter to pay Paul. Thus, they may well be advised to claim their right, if any, from their transferor. Mst. Noor Bibi (respondent
No.1/plaintiff), being residuary of Malik Ahmed Jan would inherit from his property, as of her own right under the Islamic law (Sharia). The interest of such transferees' may be
adjusted from defendants Nos.1 and 2 own property acquired from their father, but not from the share of respondent No.1 (plaintiff).
11. Furthermore, the concurrent findings of fact and law arrived at by two courts below
can only be disturbed, if this Court comes to the conclusion that the same are illega l,
unlawful based on misapplication of relevant provisions of law; shocking; perverse; artificial and; fanciful. In the instant case, learned counsel for the petitioners failed to point out any above referred grounds for interference in the judgments and decrees impugned. The Court could not go behind concurrent findings of fact, unless it can be shown that the finding is on the face of it against the evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave misc arriage of justice, or if there has been any
misapplication or principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physically impossible". No such thing could be brought on record to warrant interference by this Court. (Reliance is placed on the case of Syed Hussain Naqvi
and others v. Mst. Begum Zakara Chatha and others (2015 SCMR 1081).
12. The courts below shown to have passed well -reasoned and speaking judgments and
decrees, based on correct appreciation of the record in the light of relevant provisions of the law, thus the same are not open to any exception; hence maintained, consequently the petitions filed by the petitioners being devoid of any merit stand dismissed.
Order accordingly.
ZC/35/Bal. Revision 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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