2014 Y L R 553
[Balochistan]
Before Qazi Faez Isa, C J and Mrs. Syeda Tahira Safdar, J
MUHAMMAD AYUB KHAN and another ---Appellants
Versus
SECRETARY, BOARD OF DIRECTORS HASHIM KHAN TRUST, QUETTA and
others ---Respondents
Regular First Appeal No.27 of 2008, decided on 18th November, 2013.
(a) West Pakistan Land Revenue Act (XVII of 1967) ---
----S. 52 ---Limitation Act (IX of 1908), Art. 120 ---Specific Relief Act (I of 1877), S.42 ---
Mutation of inheritance ---Scope ---Suit for declaration ---Maintainability ---Inheritance ---
Limitation ---Contention of plaintiffs was that they had been deprived from inheritance by
creating trust ---Suit was dismissed by the Trial Court ---Validity ---Suit property was mutated in
the names of three sons excluding two da ughters ---Revenue Officer only mentioned three sons
but did not mention daughters of the deceased in the inheritance mutation ---Right of succession
would arise in favour of successors from the date of death of a person without any interruption
and property would automatically vest in the persons having status of legal heirs ---Time would
not affect a right of inheritance accrued in favour of legal heir ---Legal heirs would become co -
owners and co -sharers of property left by the deceased irrespective of the fa ct that who was in
possession ---Possession of one co -sharer was deemed to be possession of all co -sharers ---
Possession would neither oust the legal heirs from their entitlement nor it would make a person
in possession the exclusive owner of such property ---Entry in the mutation was not a document
of title but was a presumptive piece of evidence for establishment of the same ---Presumption of
truth would attach to the entries in the revenue record but such presumption was rebutable ---
Entry recorded in the rev enue record could be challenged on having knowledge of the same or if
a person did not consider himself to be aggrieved of such entry but having an interest in it could
approach a court when he became aggrieved of such entry or someone had denied his right ---
Date of recording entry would not be the starting point for running of the time for filing a suit for
declaration instead when grievance arose would be the relevant time ---Option would lie with the
person for filing a suit for declaration when his right was denied and every denial of right would
furnish a fresh cause of action ---Such right was to be exercised within a period of six years on
accrual of cause of action ---Time in a suit for declaration should be counted from when the right
to sue accrued an d same was refused by the other party and date of entry in the mutation would
be immaterial ---Span of time would neither extinguish right of inheritance nor adverse to the
title of legal heir ---Possession of one legal heir was deemed to be possession of al l the legal
heirs ---Right of inheritance was established by the plaintiffs and shares of all the legal heirs were
to be determined and satisfied ---Claim of plaintiffs was based on the right of inheritance,
therefore neither time would affect the same nor t here would be any question of limitation ---Suit
of plaintiffs was maintainable ---Trial Court decided the case on mere presumptions ---Plaintiffs
could not be deprived of their right due to lapse of time ---High Court framed the issues and
remanded the case t o the Trial Court with the direction to implead the Provincial Government
and then decide the same ---Appeal was accepted accordingly.
Anwar Muhammad v. Sharif Din PLD 1983 SC 62 and Ghulam Ali v. Mst. Ghulam
Sarwar PLD 1990 SC 1 rel.
(b) Limitation A ct (IX of 1908) ---
---Art. 120 ---Specific Relief Act (I of 1877), S. 42 ---Suit for declaration ---Limitation ---Period
for filing suit for declaration was six years and time was to be counted when right to sue arose.
Muhammad Yaqoob Khan for Appellants .
Syed Ayaz Zahoor and Shehak Baloch, Assistant Advocate General for official
Respondents.
Date of hearing: 25th July, 2013.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. ---The appellants assailed the judgment and
decree dated 27th May, 2008 of Senior Civil Judge -I, Quetta, which had dismissed the Suit
bearing No. 172 of 2003 for want of merit.
2. The appellants (plaintiffs) filed a suit for declaration of their title, on the basis of
inheritance, in respect of the property bearing Khasra Nos. 189, 190, 191 and 194 (4 Qitas)
measuring 85759 square feet (01 acre, 3 rods, 35 poles) situated at Karez Lal Khan Mahal and
Mauza Durrani, Ward No. 17 (new Ward No. 46), Tappa Urban -III, Quetta, (hereinafter "the suit
property") being the legacy of their predecessor Baz Muhammad Khan, who had died in the year
1911. The appellants also sought cancellation of the mutation entries effected in favour of the
legal heirs of Baz Muhammad, an d in favour of defendants Nos. 23 to 27 on basis of the sale
transactions of several parts of the suit property between them (defendants Nos. 23 to 27) and
defendants Nos. 2 to 8. The Deed of Trust executed on 30th July, 1990 was also claimed to be
invalid ly executed, with a request for its cancellation. The remaining claim pertains to recovery
of money deposited in the Bank account operated by Muhammad Hashim Khan of Rs.1,800,000
(Rupees one million and eight hundred thousand only) pertaining to the rent o f the premises
allegedly in the unauthorized possession of defendant No. 4, and an amount of Rs.2,400,000
(Rupees two million and four hundred thousand only) as mesne profit, the benefit gained by the
contesting respondents by use of the suit property duri ng all these years.
3. It was their (appellants') case that Baz Muhammad Khan died in the year 1911, leaving
behind as his legal heirs three sons namely Muhammad Qasim, Muhammad Hashim and
Muhammad Kazim and two daughters namely Bibi Wafa and Bibi Saeed a, therefore, on his
death all the five legal heirs were entitled to inherit the property left by him. It was further their
case that Bibi Saeeda, who died leaving behind three sons and six daughters, therefore, they
(appellants) being her legal heirs enti tled to inherit the share devolved on her (Bibi Saeeda) as
her legacy. But, on the death of Baz Muhammad Khan, the suit property was mutated in the
Revenue Record in the names of the three sons and the two daughters were excluded. The
appellants further cl aimed right of inheritance from Bibi Wafa, Hashim Khan and Qasim Khan,
who were described to died issueless. It was their (appellants') case that one of the recorded
owners Hashim Khan died in the year 1993, but prior to that he was seriously ill, and taki ng
benefit of his state of health defendant No.5 cleverly created the Trust, only to deprive them
(appellants) of their right. Further, respondents Nos. 2 to 8 except the property described as Trust
sold out all the suit property for their personal interes t with an intent to deprive them (appellants)
of their right. It was emphasized that the right of inheritance under Islamic Law neither can be
denied, nor on creation of Trust or entering into sale transaction can put it to an end.
4. In their joint repl y the defendants Nos. 1, 4, 5, 9 to 22 and 27 (the contesting respondents)
not only denied the existence of the right of inheritance with the plaintiffs (present appellants)
but the maintainability of the suit was also questioned. On merits they contended that the Trust
was created by Hashim Khan Ghilzai, in his lifetime in the name of Hashim Khan Ghilzai Trust,
and the Deed of Trust was executed on 31st July, 1990, thereby all his movable and immovable
properties and the bank accounts were transferred to t he Trust. Further, the intent behind the act
was to convert this Trust into a hospital, and to achieve the purpose a proposed site plan was also
prepared with approval of the Municipal Corporation on 30th April, 1991. Furthermore, Hashim
Khan was the Chair man of the Trust, and several other persons namely Muhammad Naeem
Khan, Dr. Inayatullah, Syed Hussain Shah, Abdul Raziq Khan, Professor Muhammad Raees and
Professor Abdullah Jan Jamaldini were nominated as its Directors. However, after Hashim
Khan's death Muhammad Hafeez (defendant No. 5) was given the authority to look after the
affairs of the Trust. While denying the claim of inheritance the only contention raised was that a
will was executed by Hashim Khan on 30th October, 1993, which neither described a ny shares
of the plaintiffs, nor the existence of any right of inheritance in their favour in respect to the suit
property.
5. Respondent No.4 (defendant No.4) Muhammad Najeeb resiled from his reply, that had
been filed jointly, and submitted a separate reply and admitted that Bibi Saeeda and Bibi Wafa
had been deprived of their shares by the three brothers. He further alleged that he was also one of
the legal heirs of Kazim Khan, and his legal share in the inherited property was also refused by
his real brothers and sisters, with the creation of the invalid Trust.
6. Defendant No. 25 (respondent No.25) in his written statement though admitted the claim
of the plaintiffs (appellants) to the extent of heir ship of deceased Baz Muhammad, and their
status a s of share holders, but stated that he had purchased a portion of the suit property from
Mst. Nasreen daughter of Muhammad Kazim Khan vide Mutation No. 2567, Khasra No.
242/314, measuring 2052 square feet, and had acquired a valid title having status of a bona fide
purchaser, therefore, his right may not be disturbed.
7. The trial Court framed issues on 27th September, 2004 as under: --
(i) Whether the suit is not maintainable in view of preliminary legal objections B to F of the
written statement?
(ii) Whether the sale transaction between the defendants through Mutation No, 2567 is illegal
and void?
(iii) Whether the plaintiff is entitled to the relief claimed for?
(iv) Relief.
8. The appellants, the plaintiffs in the suit, produced five witnesses and plaintiff No. 1
(appellant No. 1) Muhammad Ayub recorded his statement for himself and on behalf of the
remaining appellants as their attorney. In rebuttal defendants Nos. 1 to 3, 5 to 9, 11 to 15 and 22
produced three witnesses, and defendan t No. 5 Muhammad Hafeez got recorded his statement
for himself and for the remaining respondents being their attorney. The trial Court vide judgment
dated 27th May, 2008, held the creation of the Trust to legal and valid, and that it was
performing functio ns in terms of the will of Hashim Khan Ghilzai, and concluded that the
appellants (plaintiffs) were not entitled for the relief claimed, as no case was made out. The
appellants feeling aggrieved of the judgment preferred the appeal in hand.
9. The appell ants questioned the judgment while contending that the trial Court either
misappreciated the evidence or failed to appreciate the same in its true context, which resulted in
an erroneous decision. It was contended that though their (appellants') status as legal heirs of Baz
Muhammad was not denied, but the right of inheritance was denied by holding the suit property
being the personal property of Hashim Khan. In addition sufficient evidence in shape of oral as
well as documentary was available on the record , which cannot be ignored. Furthermore, the
relevant law was either misunderstood or misinterpreted, therefore, the findings were in
contravention thereof. The prayer was for setting aside of the impugned judgment with an order
for decree of the suit.
10. The pleadings of the contesting parties are in agreement to the extent that Baz
Muhammad Khan was the owner of the suit property, and had died in the year 1911, leaving
behind three sons namely Muhammad Qasim, Muhammad. Hashim and Muhammad Kazim and
two daughters Bibi Wafa and Bibi Saeeda as his legal heirs. Three of them namely Muhammad
Qasim, Muhammad Hashim and Bibi Wafa died issueless in the years 1940, 1993 and 1974
respectively. Muhammad Kazim was survived by respondents Nos. 2 to 8 being his sons a nd
daughters, and the appellants are the descendants of Bibi Saeeda, the second daughter, who died
in year 1981. It was also not denied that on the death of Baz Muhammad the suit property
(details whereof have been provided in para No. 1 of the judgment) w as transferred and mutated
in the revenue record in the names of his three sons namely Muhammad Qasim, Muhammad
flashim and Muhammad Kazim and by leaving out the daughters. The mutation of inheritance ( )
effected on 7th October, 1911 with report recorded on 3rd January, 1913 was produced as an
exhibit (Exh.P/1).
11. Certain additional facts collected from the pleadings are that defendants Nos.2 to 8
(respondents Nos. 2 to 8) sold out nearly all of the properties, that existed in the names of their
father or in the names of the two co -owners Hashim Khan and Qasim Khan, except the property
described to be of the Trust. The Deed of Trust described to be executed by Hashim Khan on
30th July, 1990 with reference to a will duly registered, executed on 17th Febr uary, 1987. The
contesting defendants (respondents Nos. 2 to 8) also referred to a will executed by Hashim Khan
on 3rd October, 1993. However, none of these documents were tendered in evidence nor were a
part of the record. Furthermore, the defendants Nos. 9 to 27 had purchased part of the suit
property, and some of such property was further sold out; the sale transactions were recorded in
the Revenue Record, and the extracts thereof made part of the evidence as Exh.P/6 to Exh.P/11.
The status of respondent s Nos. 2 to 8 was quite distinct to respondents Nos. 9 to 27, therefore, is
to be dealt with separately. The appellants (plaintiffs) were before the court not only for
establishment of their right of inheritance against respondents Nos. 2 to 8, but they al so
questioned the title of respondents Nos. 9 to 27, on basis of the sale transactions effected
between the two. Therefore, while determining the right of inheritance between the appellants
and respondents Nos. 2 to 8, the legality of the questioned sale t ransactions was also required to
be decided.
12. The learned counsel for the appellants stated that Exh.P/1 was the basic document, which
described the legacy of their predecessor Baz Muhammad; however the male legal heirs deprived
the female heirs from their legal shares in the property, left by their deceased father. He
contended that though the mutation of inheritance was effected in the year 1913, and was not
challenged either by Bibi Saeeda or by Bibi Wafa in their life time, but a claim based on a r ight
of inheritance cannot come to an end, even if one of the legal heirs failed to raise any claim in
respect of his/her share in the legacy left by his/her predecessor. The learned counsel urged that
the admitted status of the appellants being descendant s of Bibi Saeeda, a legal heir of Baz
Muhammad, entitled them to inherit the share of Bibi Saeeda from the properties left behind by
her father Baz Muhammad. He referred to the following cases: --
Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1
Muhammad Bashir v Muhammad Hussain 2009 SCMR 1256
While addressing the objection pertaining to limitation with a reference to Article 120 of
the Limitation Act, 1908 the learned counsel stated that no time runs against a right of
inheritance that will ma ke it time barred and placed reliance on:
Shahro v. Mst. Fatima PLD 1998 SC 1512
Allah Ditta v. Aimna Bibi 2011 SCMR 1483
Haji Rana Muhammad Shabbir Ahmed Khan v. Federation of Pakistan through Attorney -
General for Pakistan PLD 2001 SC 18
He fu rther stated that the suit property being a joint holding, no question of limitation
arises, and referred to:
Arshad Khan v. Mst. Resham Jan 2005 SCMR 1859
Muhammad Qasim Khan v. Mehbooba 1991 SCMR 515
Falak Sher v. Mst. Bano Mai 2006 SCMR 884
Mst. Janntan v. Mst. Taggi through Legal heirs PLD 2006 SC 322
Nazeer Hussain v. Muhammad Iqbal 2008 MLD 278
In addition it was contended that the limitation starts running from the denial of the right
of a co -sharer by the remaining shareholders and referred to:
Abdul Ghafoor v Muhammad Shafi PLD 1985 SC 407
While referring to Fatwa Dar -ul-Aloom Doband by Aziz -ur-Rehman, principles of
Muhammadan Law by D. F. Mullah and Sunan Abu Dawood by Imam Abu Dawood, it was
asserted that a right of inherit ance never comes to an end, nor any of the legal heirs can be
deprived of his right.
Mr. Yaqoob Khan, Advocate adverted to the Deed of Trust and the wills dated 17th
February, 1987 and 3rd October, 1993 and stated that all the three documents were neith er
produced before the trial Court nor exhibited, therefore, should not be considered. The legality
and the existence of the Trust was also questioned and it was contended that the Trust was
created only to deprive the shareholders; therefore, it was of no legal effect. He referred to: --
Kathiawar Cooperative Housing Society Ltd. v. Macca Masjid Trust 2009 SCMR 574
Miskin v. Additional District Judge Mansehra 2003 SCMR 121
Jaffar Hussain v. Muhammad Hanif CLC 2001 628
Pakistan Employees Cooperat ive Housing Society v. Messrs Awami Construction Co.
Ltd. 2003 CLC 607
13. The learned Additional Advocate General, in attendance on court's notice, only submitted
that the Sub -Registrar was not made party to the proceedings; therefore, no effective decree can
be passed. He further stated that in view of non -compliance with the requirements of section 92,
C.P.C. the suit was not maintainable as part of the property was held by the Trust.
14. The submissions of learned counsel for the respondents Nos . 2 to 8 related to the Deed of
Trust, and that the suit was time barred as the daughters during all these years never agitated
their right in respect of the suit property. Further, no evidence was produced to establish
existence of right of inheritance in their (appellants') favour. He contended that the onus was on
the appellants (plaintiffs) to establish that the Deed was a result of fraud and liable to be set
aside. The maintain -ability of the suit was also objected to by contending that as the Trust wa s
questioned by the appellants, therefore, compliance of section 92, C.P.C., which was mandatory
in nature, should have been made, but, there was failure on part of the appellants making their
suit not maintainable. Further, the Deed of Trust was admittedl y a registered document
executed on creating of Trust in 1990, in the lifetime of Hashim Khan, who died in the year
1993, with no objection from any corner, making the claim of the appellants not only barred by
time, but also without any legal basis. Furth ermore, the will dated 17th February, 1987, though it
was not made part of the record but this fact was not of much significance as it had no bearing on
the merit of the case. In addition except the land consisting of the Trust, there remained no land
to satisfy the demand of the appel -lants. The learned counsel with reference to section 92,
C.P.C. placed reliance on: --
Fakir Shah v. Mehtab Shah Pir Bukhari Masjid Committee PLD 1989 SC 283
Muhammad Hussain v. District Council, Muzaffargarh 1987 CLC La hore 1098
It was further contended that the Deed of Trust was not questioned in the suit, and the
claim of the appellants (plaintiffs) was only to the extent of their inheritance, which had become
time barred due to the fact that the suit was filed in t he year 2003. Reliance was placed on the
following cases: --
Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446
Luqman v. Gul Muhammad 1984 SCMR 63
Allah Ditta v. Aimna Bibi 2011 SCMR 1483
Article 100 of the Qanun -e-Shahadat Order, 1984 was also refer red to contend that a 30
years old document shall be presumed to be duly executed, therefore, the mutation of inheritance
effected in year 1911, need no further proof to establish its due execution, until the appellants
succeeded to establish the contrary. The learned counsel further urged that the house in
possession of Bibi Zahra, which was a part of the suit property, established satisfaction of the
share of her predecessor (Bibi Saeeda), and also negated their (appellants') claim. In addition the
Deed o f Trust was registered on 31st July, 1990 in the life time of Hashim Khan, which
remained unchallenged during all these years, nor the mutation entries in names of the three
brothers were questioned from any corner, therefore, after lapse of considerable t ime no right
remains with the appellants. With reference to section 18 of the Limitation Act, 1908 the learned
counsel contended that the appellants and their predecessor were in the knowledge of the acts,
but failed to approach the court in time, therefor e, they have to suffer the consequences. Reliance
was placed upon: --
Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446
15. In reply the learned counsel for the appellants stated that as the property devolved on the
parties on the death of their predecessor s, therefore, they (appellants) being the co -owners cannot
be deprived of their respective shares, nor the right of inheritance is affected by the law of
limitation. Further, the Trust was created with an intention to deprive them of their legal shares
describing the mala fides on part of the respondent, which cannot be ignored. Further, the trial
Court committed error while placing reliance on the documents that were not part of the record.
The Deed of Trust was not established, the marginal witnesses of t he Deed neither produced, nor
its execution was confirmed, therefore, it cannot be relied upon. As regards section 92, C.P.C. it
was replied that the said section has no application to the instant case. Furthermore, the issues
were not properly framed and they failed to cover the actual controversy between the parties,
therefore, the decision arrived by the trial Court also suffered with the same defects. The learned
counsel completed his submissions while asserting that the daughters were deprived of their right
of inheritance, an act not appreciated either by law or by Shariah.
16. The miscellaneous applications still pending were considered, and need to be decided
before giving findings on the main appeal.
17. C.M.A. No. 993 of 2008 was filed by the a ppellants seeking appointment of a receiver
during the pendency of the appeal, and to direct the tenants to deposit the rent of the premises in
their occupation with the Civil Nazir of the court. Since, the matter is now for a final decision,
therefore, is suance of any interim order would neither be appropriate nor just.
18. Through application C.M.A. No. 2829 of 2011 the appellants relinquish their right in the
properties already sold to respondents Nos. 9 to 27. The appellants state that they would not
claim their shares from those who have already purchased any part of the suit property. This
application was allowed on 1st December, 2011 in the following terms: --
"C.M.A. No.2829 of 2011: Through this application, learned counsel for the appellants
states that the appellants are forgoing the claim in respect of all such property that has been sold
out to third parties and restricts his claim only to 35,000 sq.ft. Mr. Arthur Victor, Advocate states
that 35,000 sq.ft belongs to Hashim Khan Trust', which the appellants cannot claim. The
question whether the appellants can claim or not the said property is yet to be decided. However,
the appellants are within the rights to forego any part of the claim if they so desire and as they
have foregone the claim as noted above, therefore, the application is allowed to such extent."
However, order dated 1st December, 2011 was rectified/clarified vide order dated 15th
December 2011 on the application C.M.A. No. 4166 of 2011 in terms: --
"C.M.A. No.4166 of 2011: L earned counsel states that the order passed on C.M.A.
No.2829 of 2011 on December 1, 2011 may be misconstrued as restricting the claim of the
appellants to only a portion of the area of 35000 Sq.Ft. and not to the entire 35000 Sq, Ft.
Learned counsel state s that in C.M.A. No.2829 of 2011 he had prayed that, "if remaining
property measuring 35000 Sq.Ft. are decreed and ordered to be mutated in favour of the
appellants/ plaintiffs."
Learned counsel for the respondents fairly concedes to the preposition and as it was so
prayed in C.M.A. No.2829 of 2011. Accordingly, order dated December 1, 2011 is clarified to
the extent that the appellants restrict their claim to 35000 Sq.Ft. out of 88000 Sq. Ft. and pray
that the entire 35000 Sq. Ft. be decreed and mutated in their favour. It is further clarified that this
order does not mean that the appeal of the appellants has been allowed or accepted to such
extent."
19. The details of the legal heirs of late Baz Muhammad son of Atta Muhammad Khan was
filed through C. M.A. No. 2225 of 2012 by the appellants describing names and relations of such
persons with Baz Muhammad, and their status of being alive or dead, it was filed in compliance
of order dated 12th September, 2012. Since the particulars of the legal heirs are not denied there
is no need to pass any further order in this regard on the application.
20. The matter in hand pertains to a right of inheritance claimed in respect of the property left
by Baz Muhammad (the deceased). The appellants (plaintiffs) descri be themselves to be the
descendants of Bibi Saeeda, one of the legal heirs of the deceased. Baz Muhammad was survived
by his two daughters and three sons namely Bibi Saeeda, Bibi Wafa, Hashim Khan, Kazim Khan
and Qasim Khan. The appellants claimed their ri ght from Bibi Saeeda, and the status of
respondent Nos. 2 to 8 was described to be the legal heirs of Kazim Khan, one of the sons of Baz
Muhammad. The remaining legal heirs namely Bibi Wafa, Hashim Khan and Qasim Khan had
died issueless; therefore, the app ellants and respondents Nos. 2 to 8 also claimed the property in
the capacity of being the legal heirs of the remaining three.
21. The contesting defendants (respondents Nos. 2 to 8) admitted the interse relations
between the parties and of their predece ssors with Baz Muhammad Khan, but denied the
existence of right of inheritance in favour of the appellants (plaintiffs). Denial was firstly, on the
ground that due to lapse of time there remains no claim, secondly, at present no property was left
from the inheritance except the property of the Trust and, thirdly, compliance with the law while
questioning a Trust was not made by the appellants.
22. The maintainability of the suit was questioned with reference to the law of limitation
contending that the su it property was mutated in favour of Hashim Khan, Qasim Khan and
Kazim Khan in the year 1911 (attested in 1913), but was challenged in the year 2003, after a
lapse of 92 years, making the claim time barred. Article 120 of the Limitation Act, 1908 would
be relevant, as no other Article describes the period for a suit filed for declaration of a right. The
stipulated limitation period is six (6) years, while the time is to be counted when the right to sue
arises. The appellants before the court sought declarat ion in respect of their right of inheritance.
There was denial of their right from the other side with a claim of title on basis of the mutation
effected in favour of their (respondents Nos. 2 to 8's) predecessor in year 1911 finalized in 1913,
the only do cument describing title of the original owner, but, the claim was of inheritance in
respect of the suit property left by Baz Muhammad Khan and on his (Baz Muhammad) death the
suit property was entered in the names of his three sons, namely Hashim Khan, Qas im Khan and
Kazim Khan, leaving out the daughters namely Bibi Saeeda and Bibi Wafa. The relevant
mutation entry Exh.P/1 affirmed the fact. The perusal of Exh.P/1 reveals that the orders ( )
written by the concerned Tehsildar only mentions the three sons as the sole legal heirs but does
not mention the said ladies. Further, the area of the property described as
recorded in the names of Pir Muhammad & Baz Muhammad in equal shares, which was entered
in the names of three sons of the deceased in equal shares, therefore, the area thereby transferred
was described as
the total area of the suit property.
23. The objection pertaining to the filing of the suit beyond the stipulated period needed to be
properly considered, as it would be the determinative factor o f the maintainability of the suit, for
grant of the relief claimed. The right of succession arises in favour of successors from the date of
death of a person, without any interruption. Property automatically, without any delay, vests in
the persons having status of heirs as per the personal law of the deceased. In view thereof the
factor of time cannot affect a right of inheritance accrued in favour of an heir. Therefore, on
death of such a person his legal heirs immediately and automatically become co -owne rs and co -
sharers of the property left behind by the deceased, irrespective of who is in possession. The
right is further strengthened by the principle that the possession by one co -sharer is deemed to be
possession by all co -sharers. Further, the fact of remaining out of possession neither ousts the
remaining legal heirs of their entitlement, nor makes a person in possession the exclusive owner
of such property. An entry in shape of mutation in the Revenue Record is not a document of title
but is a presump tive piece of evidence for establishment of title, and a presumption of truth
attaches to the entries in the revenue record made in due course. But this presumption is always
rebut able as provided under section 52 of the Land Revenue Act, 1967. Therefore, in such cases
where property is claimed on the sole basis of an entry recorded in the revenue record, it either
can be challenged on having knowledge thereof, or if a person does not consider himself to be
aggrieved of such an entry, but having an interes t in it can approach a court when he becomes
aggrieved of the entry or someone denies his right.
24. Therefore, the date of recording entry in the Revenue Record would not be the starting
point for running of the time for filing a suit for declaration of a title, instead when the grievance
arises would be the relevant time. In view thereof option lies with the person for filing a suit for
declaration of his title when his right is, denied, and in such cases every denial of right furnishes
him with a fresh cause of action. But, in each case this right is to he exercised within the period
of six (06) years as described by Article 120 of the Limitation Act, 1908 on accrual of cause of
action. Therefore, the time in a suit for declaration of such right shall b e counted from when the
right to sue accrues and the same is refused by the other side. The date of mutation entry would
be immaterial.
25. It was not denied that Bibi Saeeda and Bibi Wafa were daughters of Baz Muhammad,
therefore, entitled to inherit t he property left by him. Admittedly, while recording mutation of
succession the names of both the ladies were dropped. And no justification to exclude the names
of the daughters from the list of the legal heirs was provided. The facts, however established that
the ladies namely Bibi Saeeda and Bibi Wafa were the legal heirs of Baz Muhammad, therefore,
cannot be deprived of their right. They were entitled for their respective shares in the estate left
by their deceased father under Islamic Law. They further gained status of co -sharers, therefore,
deemed to be in continuous possession of the suit property with the remaining co -sharers.
26. In view of above discussion it is established that span of time neither can extinguish right
of inheritance nor adverse to title of a legal heir, because on death of an owner succession opens
and all the inheritors become co -sharers, and the fact that one of them is in continuous
possession neither makes him the exclusive owner nor ousts the remaining inheritors. It is a
recognized principle of law that possession of one heir is deemed to he possession by all the
legal heirs. Therefore, the possession by Kazim Khan and Hashim Khan would be deemed to be
possession also by the remaining legal heirs.
27. The worthy Judges of the honourable Supreme Court while deciding a controversy of the
same nature, set down the principles for the rights claimed under inheritance in the case of
Anwar Muhammad v. Sharif Din, reported in PLD 1983 Supreme Court page 62; they held: --
"It is c ontended that when Lakhwera died the petitioners were in possession of the land
and were so recorded excluding the plaintiffs -respondents. Thus the learned counsel for the
petitioners wants to transform into principle of inheritance. Such a claim is based neither on
custom nor on Shariat. What law prevails in the matter of preparation of Revenue Record or
what practice is followed by, the officers cannot be determinative of the devolution of the estate
of a deceased person. It appears that the plaintiffs -respondents were the heirs of Lakhwera and
entitled to inherit in the same manner as the petitioners. The land being joint there was no
question of their remaining out of possession or the suit being time -barred. The possession of the
one co -sharer is for th e benefit of all the other co -sharers and a co -sharer is deemed to be in
possession through his other co -sharers. Simply because the mutations were attested in 1907 or
1908 does not bless the transaction with sanctity. These mutations conferred no right in the
property and are at best arrangements made on the fiscal side for ensuring realization of land
revenue and ensuring the correctness of the Revenue Record for that purpose."
The same view was taken by their lordships in the case of Ghulam Ali v Mst. Ghulam
Sarwar, reported in PLD 1990 Supreme Court page 1.
28 A right of inheritance was established in favour of Bibi Saeeda, and through whom it
devolved on the appellants, who stand entitled to inherit the share of their predecessor Bibi
Saeeda and al so entitled to inherit from the shares of Qasim Khan, Hashim Khan and Bibi Wafa,
which devolved on their death to Bibi Saeeda. Therefore, the shares of all the legal heirs need to
be determined in view of their personal law, and need to be satisfied. The c laim of the appellants,
based on a claim of right of inheritance, therefore, neither can be affected by time, nor there
would be any question of limitation, the suit was very much maintainable.
29. The trial Court decided the case on mere presumptions. T he findings in respect of
existence of right of inheritance and the claim being time barred is neither based on the law nor
is in conformity with the facts. As discussed hereinabove a right of inheritance existed in favour
of Bibi Saeeda, which neither can be denied nor the appellants, being her legal heirs, can be
deprived of their right due to lapse of time, to this extent the appellants had established their
case. The question however remains that from which property the shares of the appellants be
satisfied. The existence of Trust, on a part of the suit property devolved as a share of Hashim
Khan, is not a denied fact. However, the legality of the Trust and its effect on right of the
appellants is yet to be determined. The fact evident from the record is that the Trust Deed,
cancellation whereof was prayed, was not made part of the record, as it was neither tendered in
evidence nor exhibited. The legality of the alleged Trust Deed has to be also decided.
30. C.M.A. No. 1307 of 2009 sought framing of add itional issues, as the trial Court failed to
frame proper issues, to cover the actual controversy between the parties. The request for re -
framing of issues was followed by the proposed issues as under: --
"(1) Whether property in dispute is inherited left by predecessor of appellant/respondent
namely Baz Muhammad Khan his and issueless sons and daughters?
(2) That name of predecessor of appellant being legal heir of Baz Muhammad has been
excluded at the time of attestation of Intiqal -e-Warasat Mutation N o. 4 dated
3-1-1913 of property in dispute.
(3) Whether remaining property in dispute fall in the share of appellant?
(4) Whether alleged Trust is established just to usurp the property right of appellant?"
The re -framing of the issues were strongl y objected to by the learned counsel for the
contesting respondents, but thereafter he conceded that the issues framed by the trial Court had
failed to cover the matter in dispute between the parties.
31. The main controversy between the parties was the existence of right of inheritance in the
appellants and their shares in the property left behind by Baz Muhammad. However, the issues
framed by the trial Court failed to cover the actual controversy. The issues proposed by the
appellants also do not cover the dispute between the parties. It has already been decided that a
right of inheritance existed in favour of the appellants and their claim to said extent was not hit
by law of limitation. The respective shares of the parties and legality of the wills and the Trust
yet to be determined, therefore, the issues are re -framed as under:
"(1) Whether the wills dated 17th February, 1987 and 3rd October, 1993 were executed by
late Hashim Khan and if so to what effect?
(2) Whether the property left behind by late Baz Muhammad or any part thereof could be
transferred/ assigned/granted to the Trust set up by Muhammad Hashim Khan Ghilzai?
(3) If issue No. 2 is decided in negative what would be the share of the plaintiffs in the said
property?
(4) What should the decree be?
32. The appeal is, therefore, partly allowed. The impugned judgment dated 27th May, 2008
of Senior Civil Judge -I, Quetta is hereby set aside. It is declared that the suit property is legacy of
Baz Muhammad, and the appellants are entitled to inherit the share of Bibi Saeeda devolved on
her on death of her father Baz Muhammad. It is further declared that Bibi Saeeda was entitled to
inherit from the shares of Hashim Khan, Qasim Khan and Bibi Wafa, along with her surviving
brother Kazim Khan, the predecessor of respondents Nos. 2 to 8, to the extent of their respective
shares.
33. The case is remanded to the trial Court with direction to decide the issues framed in
paragraph 31 above. As far as the relief pertaining to cancellation of mutatio n entries existed in
favour of respondent Nos. 22 to 27 is concerned, the relief to the extent was relinquished by the
appellants, therefore, the entries shall not be disturbed and to remain intact. Further, as a Trust
and its Deed is under question, there fore, it would be appropriate to make Government of
Balochistan, through concerned Secretary a party to the suit. The appellants (plaintiffs in the suit)
are directed to file amended plaint excluding defendant Nos. 22 to 27 and the properties
purchased by them and by arraying the Government of Balochistan as a party. The trial Court is
directed to proceed with the suit expeditiously since it is quite an old matter.
There shall be no orders as to costs.
Decree sheet be prepared.
AG/121/Bal Case remanded.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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