2022 Y L R 2015
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
ZAKIA BEGUM and another ---Appellants
Versus
NASIR- UL-ISLAM KHAN and others ---Respondents
R.F.A. No.41 of 2014 and Contempt Application No.62 of 2018, decided on 30th June, 2021.
(a) Islamic law ---
----Inheritance--- Will--- Appellants/ plaintiffs claimed to be owners in properties left by
their parents and had assailed Will Deed and agreement relied upon by
respondents/defendants who had already transferred some property to some other buyers ---
Suit filed by appellants/plaintiffs was dismissed by Trial Court ---Validity ---Properties in
question initially belonged to predecessor -in-interest of parties and subsequently by means of
Will were transferred in the names of respondents/ defendants in revenue record ---
Subsequent buyers after getting their satisfaction from revenue record bonafidely purchased the same--- Subsequent buyers paid sale amount to respondents/defendants and revenue
record was transferred to their names in accordance with law who had been enjoying their
peaceful possession and business over property in their possession---High Court maintained findings of Trial Court to the extent of such transfer to subsequent buyers who were bona fide purchasers, whereas appellants/plaintiffs were entitled to receive their proportionate shares from sale amount as on the date of sale transaction ---Bequest to an heir under Islamic
Law was not valid unless other heirs consented to the same after the death of testator ---Any
single heir could consent as to bind his own share ---High Court declared that
appellants/plaintiffs were co -sharers of properties left by their deceased parents to the extent
of their shares except the properties sold out to subsequent buyers but they were entitled to receive their shares from sale consideration amount as it was on sale date--- High Court
declared that Will Deed and agreement were null and void and directed to cancel revenue record entries, transactions and business carried out in pursuance to two documents ---High
Court set aside judgment and decree passed by Trial Court ---Appeal was allowed
accordingly.
Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447;
Sahib Jan and others v. Mst. Aysha Bibi through L.Rs. and others 2013 SCMR 1540; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Abdul Haq and another v. Mst. Surrya Beguma and others 2002 SCMR 1330 and Mst. Raj Bibi and others v. Province of Punjab through District Collector, Okara and 5 others 2001 SCMR 1591 ref.
(b) Islamic law ---
----Inheritance--- Applicability --- For inheritance rights of legal heirs of a deceased person in
Pakistan the Quran and Sunnah is supreme law.
(c) Islamic law ---
----Will ---Scope ---Will has no legal value with regard to legal heirs.
Book of Hadees i.e. Ain- ul-Hidaya Jadeed, Volume -VIII, page No.571 and Book of
Sunan- e-Ibn-e-Maja Shareef page No.468 Hadees No.2712 rel.
Attorney of Appellants is present in person.
Khushnood Ahmed for Respondents Nos. 2 and 1- A.
Habibullah Khan Nasar for Respondent Nos. 1- B, 1- C, 1-E, 1-G and 1 -H.
Nadir Ali Chalgari for Respondent No.1- D.
Qasim Khan for Respondents Nos. 9 to 14.
Gul Hassan Tareen and Muhammad Arif Bazai for Respondent No.15.
Mian Badar Munir for Respondents Nos. 1 to 3 (in Contempt Application No.62 of
2018).
Habibullah Gul, Additional .P.G., Shahid Baloch and Shai Haq Baloch, Additional
Advocates General for the State.
Dates of hearing: 1st April and 17th June, 2021.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of R.F.A. No.41 of 2014 filed
by the appellants against the judgment and decree dated 21st March 2014 ("the impugned
judgment") passed by the learned Senior Civil Judge -II, Quetta ("the trial Court"), whereby
fourth amended suit filed by the appellants against the respondents was dismissed.
While Contempt Application No.62 of 2018 filed by the applicants against the
respondents.
2. Brief facts of the case are that the appellants filed suit for Declaration, Possession,
Partition, Rendition of Accounts and Permanent Injunction against the respondents, which was amended from time to time and finally fourth amended plaint was filed by the appellants with the averments that the appellants -plaintiffs and defendants Nos.1 and 2 are the legal
heirs of late Abdul Salam Khan, who was died on 2nd June 1977 and left behind the legal heirs namely Jamila Begum widow of Late Abdul Salam Khan, Mehmooda Begum, Saif -ul-
Islam Khan, Shams -ul-Islam Khan, Razia Begum, Zakia Begum and Samina Saeed. The
predecessor of the parties left behind a number of properties as well as business as their
legacy, but some of them remained un- partitioned. However, the private defendants being
brothers were looking after the suit properties as well as business on behalf of appellants -
plaintiffs. The predecessor of the parties left behind the following properties (subject matter
of the suit): --
i. Agricultural land situated Mahal Khushkaba, Karaizat Sariab Tappa Kaiche Baig
Tehsil Quetta having Khatoni No.199/240, Khasra Nos.331 to 334 measuring 93 rod 8
pol, Khatoni No.64/57, Khasra No.344 measuring 4 rod 38 pol, with reference to Mutation No.842 Khatoni No.76/67, Khasra Nos.335 to 336 measuring 1 rod 7 pol.
ii Mahal Karaiz Wazir Muhammad Tappa Sadar Kansi Tehsil
Quetta having Khatoni No.50/51 Khasra No.386 measuring 1 rod 37 pol.
iii. Mahal Karaiz Kar Mouza Meyan Khan Tappa Kaiche Baig Tehsil Quetta Khatoni No.49/60 Khasra Nos.672 to 676 measuring 20 rod 30 pol.
iv. Al-Shams Hotel, Jinnah Road Quetta, Khasra No.2275 (New 43) measuring 992 sq.
feet Khatoni No.25/32 (New 49/88) having mutation No.496 and Khasra No.2274 (measuring 1061 sq. feet and 2273 (measuring 948 sq. feet), (New Khasra No.44, measuring 2011 sq. feet), Khatoni No.98/116 (New 33/49) having Mutation No.497, Ward No.6 (New 19), Mouza City. Tappa Urban, District Quetta.
v. Two shops, Shara Jamal -ud-Din Afghani, Khasra No. 15663/ 11619/ 2096 (New 176),
measuring, 169 sq. feet and Khasra No.15664/11619/2096 (New 175), measuring 170 sq. feet, Khatoni No.147/167, Ward No.5 (New 18) Mouza City, Tappa Circle No.1 (New Urban) District Quetta, have mutation No.592.
vi. Land measuring 6 acres 1 rod 20 pol, Khasra No.490 Khatoni No.18/21 situated at Killi Gul Muhammad, Air Port Road, Quetta.
vii. A "Business" under the title of Salam Paper and Stationary Mart situated at Shara Iqbal Quetta.
viii. A printing press under the title of Bolan Muslim Press situated at Chuhermal Road, Quetta.
ix. Khasra No. 800/345 Khatoni/ Khaiwat No.244/271, measuring 7 rod 31 pol, Mahal was Mouza Khushkaba Karaizat Sariab, Tappa Kaiche Baig, District Quetta, having Mutation No.1069.
x. Khasra Nos. 14438/11355/2288 (New 80) measuring 128 sq. feet, Khasra No.15568/ 14440/ 11355/2288 (New 78) measuring 134 sq. feet and Khasra Nos.15570 / 14440 / 11355/2288 (New 76) measuring 150 sq.feet, Ward No.6 (New 19, Khatoni No.121/140 (New 49/88), Mouza City, Tappa Urban, District Quetta, having Mutation No.498.
xi. Khasra No. 15589/ 14606/14374/ 13954/12740/ 11671/2101 (New 128) measuring 125 sq. feet, Khatoni No.85/97 (New 72/85) and Khasra No.15590/14606/ 13474/13954/12740 /11671/2101 (New 125) measuring 126 sq. feet, Khatoni No.85/97 (New 108/130), Ward No.5 (New 18), Mouza City, Tappa Circle No.1
(New Urban), District Quetta, having Mutation No.591.
xii. Khasra No.84 measuring 2757 sq. feet and Khasra No.85 measuring 2050 sq. feet,
Khatoni No.5/6, Mouza Ward No.6 (New 19), Tappa Urban, District Quetta, having Mutation No.70.
xiii. Khasra Nos.818/329 and 330, Khatoni No.236/259, measuring 33 rod 16 pol. Mahal Khushkaba Karaizat, Mouza Sariab, Tappa Kaiche Baig, District Quetta, having Mutation No.1908.
xiv. Khasra Nos.335 and 336, Khatoni No.67/72, measuring 6 rod 17 pol, Khasra No.340, Khatoni No.289/315, measuring 1 rod 0 pol and Khasra Nos.337, 338 and 339, Khatoni No.289/315 Min, measuring 5 rod 7 pol. Khushkaba Karaizat, Mouza Sariab, Tappa Kaiche Baig, District Quetta Mutation No.2622."
3. The mother of private parties (Mst. Jameela Begum widow of late Abdul Salam), who
was died on 24th August 1982, left behind the following two properties: --
i. Bungalow No.446/3/3 measuring 22,000 Sq: ft: approximately situated at Musa Road, Quetta Cantt.
ii. Agricultural Land situated at Mahal Khushkaba, Karaizat Sariab Road Tappa Kaiche
Baig, Tehsil Quetta having Khatoni No.236/196, Khasra No.818/329 and 330
measuring 11 rod 6 pol."
4. The suit was contested by the respondents -defendants by means of filing written
statements, whereby categorically admitted the above properties initially belonged to late Abdul Salam Khan and late Jameela Begum, but through Will distributed amongst the legal
heirs in their life time which was accepted by the parties.
5. Out of the pleadings of the parties the learned trial Court framed the following
issues: --
1. Whether suit is not maintainable in view of legal objection "A & B"?
2. Whether plaintiffs are entitled to share in the properties left by deceased Abdul Salam Khan and Mst. Jamila Begum?
3. Whether plaintiffs are entitled to relief claimed for?"
ADDITIONAL ISSUE:
1) Whether defendants Nos.9 to 15 are bona fide purchaser of the suit property at Khasra Nos.43 and 44 Mutation Nos.137 and 138, Ward No.19, Tappa Urban Tehsil and Distt Quetta and they are legal and lawful recorded owners in possession of the same?"
ADDITIONAL ISSUES:
1. Whether suit of the plaintiff is barred by statutory and general participle of "estoppel" in view of section 41 of the Transfer of Property Act (Act No. IV 1882 and Article 114 of the Qanun- e-Shahadat Order, 1984.?
2. Whether plaintiff's have no right and title to file the instant suit under section 42 of
the Specific Relief Act. "
6. After framing of issues and recording evidence the suit of the appellants/plaintiffs
was dismissed, vide impugned judgment and decree as mentioned above in para No.1.
7. Being aggrieved from the impugned judgment and decree the appellants filed appeal
before this Court and this Court, while accepting the appeal, remanded the matter to the
learned trial Court and the appellants were permitted to file an amended plaint before the learned trial Court, vide judgment dated 17th August 2020.
8. The appellants being aggrieved assailed the judgment dated 17th August 2020 of this
Court by filing Civil Petition No.202- Q/2020 before the Hon'ble Supreme Court of Pakistan.
The Hon'ble Supreme Court, after hearing the parties, vide order dated 6th January 2021
remanded the case to this Court with the following directions:
"3. Since all the parties are in agreement that the said appeal should have been
decided by the learned Judges of the High Court themselves, therefore, by consent the impugned judgment dated 17 August 2020 is set aside and the said appeal will be deemed pending before the High Court and it shall be decided by the learned Judges themselves in accordance with law at an early date since the appeal is of the year 2014 and suit was filed in the year 2005. We are confident that the learned Judges will not unnecessarily adjourn the case and proceed with it expeditiously. This petition is converted into an appeal and allowed in the aforesaid terms."
9. It is pertinent to mention here that the case was heard and reserved for pronouncement
of judgment on 1st April 2021, however, during the course the respondent No.1 (Saif -ul-
Islam Khan) was died on 14th April 2021, thus the matter was re -fixed for hearing with
direction for filing of amended title by impleading the legal heirs of former respondent No.1 amended title was filed by the appellant and legal heirs of respondent No.1 are arrayed as respondents Nos.1 -A to 1 -H accordingly they were represented by M/S Khushnood Ahmed,
Habib Ullah Nasar, Nadir Ali Chalgari, Advocates. However, newly respondent No.1 -F Hira
Zahid was out of country, she was informed by Shuja -ul-Islam son of respondent No.2, but
she could not make her representation.
10. Mr. Azhar Ahmed Khan, Attorney of the appellants mainly contended that the
appellants and the respondents Nos.1 and 2 are the legal heirs of the late Abdul Salam Khan and Mst. Jamila Begum, who having various movable and immoveable properties in their lifetime and after their sad demise the properties in question were automatically devolved upon the legal heirs and being brothers the defendants Nos.1 and 2 looking after the properties and business and the appellants being pardanasheen ladies followed fa ith and trust
on their brothers, but unfortunately behind the back of appellants the defendants Nos.1 and 2 by means of a fraudulent "Will" transferred the revenue record of the moveable properties in their names; even otherwise, executed a false agreement ( ) on behalf of all legal heirs and through forged power of attorney transferred certain landed properties in their names by depriving the appellants and other legal heirs as well as by means of fraud transferred the business of their predecessor in interest, sold out certain properties to respondents Nos.9 to 15 without the consent and knowledge of the appellants, thus in such view deprived the
appellants from legacy of their predecessors in interest. He further contended that the
appellants are entitled to receive their due shares in the properties in question in accordance with Sharia law.
11. On the other hand, Mr. Khushnood Ahmed, Advocate learned counsel for respondents
Nos.l -A and 2 mainly contended that the properties in question were distributed by the
predecessors in interest of the parties in their lifetime through a "Will" dated 24th December, 1970 and ( ) duly executed with consent of the legal heirs of the predecessors in interest of the parties on the same date i.e. 24th December 1970, thus no question of partition would arise to the appellants. He further contended that all the transfers in revenue record were made on the basis of "Will" and the appellants were well within the knowledge and did not raise any objection for such a long period, thus suit of appellants is hopelessly time barred and also hit on the principle of estoppel. He prayed for dismissal of the appeal. Mr. Habibullah Nasar, Advocate for respondent Nos.1- B, 1-C, 1-E, 1-G, 1-H and Mr. Nadir Ali
Chalgari, Advocate for 1- D relied upon the arguments of Mr. Khushnood Ahmed, Advocate.
12. Mr. Qasim Khan Achakzai, Advocate learned counsel for respondents Nos.9 to 14 and
Mr. Gul Hassan Tareen, Advocate learned counsel for respondent No.15 unanimously contended that the respondents Nos.9 to 15 are the bona fide purchasers of the properties sell to them by the recorded owners of that time i.e. defendants Nos.1 and 2 and after getting their satisfaction from the revenue authorities the properties were purchased and the sale consideration was paid to the defendants Nos.1 and 2 and no one came forward to raise any objection and since then they are enjoying the peaceful possession of the properties in question and invested a huge amount for construction/modification and business in the properties. They mainly contended that no cause of action accrued to the appellants against
the respondents Nos.9 to 15.
13. It is pertinent to mention here that the suit and appeal was not contested by the
respondents Nos.5 to 8 and 16 to 18. Accordingly they were proceeded against ex- parte.
Likewise the newly respondent No.1- F Mst. Hira despite awareness failed to make her
representation, thus she is also proceeded against ex -parte.
14. Heard the Attorney of appellants, learned counsel for the respondents as well as
learned A.A. -G. and perused the record with their valuable assistance, which reveals that the
appellants filed a suit for Declaration, Possession, Partition, Rendition of Accounts and Permanent Injunction in the trial Court, which was amended from time to time and lastly fourth amended suit was filed by the appellants with the averments that appellants -plaintiffs
and private respondents Nos.1- A to 1 -H and 2, 5 to 8 and 16 t o 18 are the legal heirs of late
Abdul Salam Khan, who died on 2nd June 1977 and Mst. Jamila Begum widow of late Abdul Salam Khan, who died on 24th August 1982 left behind various properties and business as mentioned in paras Nos.1 and 2 of the plaint as their legacy and the same was remained un-partitioned. The predecessors in interest of the parties namely late Abdul Salam Khan and late Mst. Jamila Begum left behind two sons and four daughters as legal heirs namely; (i) Saif-ul-Islam, (ii). Shams -ulIslam, (iii). Mehmooda Begum, (iv). Razia Begum, (v). Zakia
Begum and (vi). Sameena Saeed. The private respondents/defendant Nos.1 and 2 being brothers were looking after the properties as well as business on behalf of the
appellants/plaintiffs, even in the lifetime of their predecessors in interest and after the sad
demise of their predecessors in interest the whole properties as mentioned in paras Nos.1 and 2 of the plaint remained unpartitioned amongst the legal heirs and the respondents Nos.1 and 2 behind the back of the appellants and other legal heirs by means of fraud transferred all the landed immovable properties and business of their predecessors in interest in their names in
the revenue record and prepared a forged "Will", ( ) and power of attorney and by means of
these forged documents deprived the appellants from their legal rights of inherited properties,
while filing the written statement the respondents/ defendants Nos.1 and 2 admitted the contents of the paras Nos.1 and 2 with regard to properties mentioned in the plaint of plaintiffs/appellants initially belonged to late Abdul Salam Khan and late Mst. Jamila Begum, but on 24th December 1970 they distributed their all properties amongst their children through a registered "Will" dated 24th December 1970, which was also accepted by the plaintiffs and defendants Nos. 1 and 2, vide agreement dated 24th December 1970 duly executed, accepted and signed by the plaintiffs and replying defendants Nos.1 and 2 before the respectable witnesses, thus at the time of death of late Abdul Salam Khan and late Mst. Jamila Begum their all properties distributed amongst their children and they are in possession of their respective shares and the plaintiffs have never challenged the same right from 24th December 1970 because they had already received their due shares during the lifetime of their father and mother.
15. From the bare reading of para No.1 of written statement of respondents Nos.1 and 2 it
appears that they did not deny the relationship with the appellants, it also appears that the respondents/ defendants Nos. 1 and 2 have categorically admitted that the properties mentioned in the paras Nos.1 and 2 were initially belonged to late Abdul Salam Khan and Mst. Jamila Begum, but the same was distributed during their lifetime through a Will and the
possession of the respective shares were handed over to each legal heirs including the appellants.
16. To resolve the main dispute between the parties, though the learned trial Court framed
certain issues, but same are mostly irrelevant out of the pleadings of the parties and also wrongly been resolved, which was observed in our judgment dated 17th August 2020 and the matter was remanded to the learned trial Court for reframing of issues, but the above judgment was assailed by the parties before the Hon'ble Supreme Court of Pakistan and the parties shown their desire before the Hon'ble Supreme that instead of remanding the matter to the learned trial Court the Hon'ble High Court should decide the case in accordance with law and the Hon'ble Supreme Court of Pakistan remanded the matter with consent of the parties with directions to this Court to decide the appeal. Thus in view of the directions passed by the Hon'ble Supreme Court of Pakistan we are disposing of the instant appeal on the basis of available record with our zeal and zest and care and caution. To resolve the dispute between the parties first of all to dilate upon the issues framed and decided by the learned trial Court. The learned trial court has not only failed to frame proper issues, but also failed to decide the same in accordance with law. The Issue No.1 and additional Issue No.2 are with regard to maintainability of the suit on the point of limitation, which are reproduced as under: --
1. Whether suit is not maintainable in view of legal objection "A & B"?
Additional issue:
2. Whether suit of the plaintiff is barred by statutory and general participle of "estoppel"
in view of section 41 of the Transfer of Property Act (Act No. IV 1882 and Article 114 of the Qanun- e-Shahadat Order, 1984.?
The suit of appellants/plaintiffs was dismissed only on the points of limitation that the
properties in question were distributed amongst the parties on the basis of Wills, which were prepared in the year 1970 according to that Wills and Suit filed by the appellants after considerable long period, but it is settled principle of law that time of limitation, is not applicable to right of inheritance which does not extinguish such right by afflux of time. Reliance in this regard is also placed on the case of, "Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others 2005 SCMR 1447 relevant portion whereof is reproduced as under: --
Bar of limitation is not applicable to right of inheritance which does not extinguish such right by afflux of time ---Right of inheritance of a female, recognized in Shariah,
cannot be denied on the basis of oral assertion of surrender of such right by a female in favour of male member of family and in any case, there is no concept of estoppel to deprive a person from his right in the inheritance in Islam ---Party, in the present case,
had not been successful in showing that the female had surrendered her right in the property in favour of her brothers in a lawful manner or the suit involving right of
inheritance could be dismissed on the ground of estoppel or limitation--- Judgment of
the High Court was neither in conflict with Law of Inheritance in Islam nor was the
result of misreading or non- reading of evidence brought on record by the parties.
Reliance is also placed on the case of "Sahib Jan and others v. Mst. Aysha Bibi
through L.Rs. and others", 2013 SCMR 1540 wherein the suit was filed after 58 years: --
6. About the submission that the suit was barred by time, because it has been filed
after fifty eight years or more (note: - after the death of Muhammad Afzal) and from
the date of mutation, by virtue whereof, Mst. Ayesha was excluded from the inheritance, suffice it to say that upon the death of a Muslim, his legal heirs automatically shall become the co -sharers in the estate left by him and one co- sharer
cannot deprive the other from his such right. It is also not disputed that Mst. Ayesha was one of the legal heirs of Muhammad Afzal under the Shariah, if the rights of the parties were governed by the Personal law (note: not under the custom). Obviously, in the situation, when Mst. Ayesha against the mandate of Act 1935 and the Shariah was ostensibly denuded of her lawful right to the suit property as a co- sharer and was
precluded from the exercise of such rights and she had made out a case within the purview of section 18 of the Limitation Act, 1908 and nothing was brought on the record by the appellant that she had a direct or indirect knowledge of the mutation, the limitation in such peculiar circumstances shall hardly come in the way of the respondent. This is particularly so, as shall find mention in the latter part of this judgment that it is the case of the appellant that on account of some family settlement the respondent has been compensating from the legacy of her deceased brother. The plea therefore has no merits and is hereby discarded.
Likewise, in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD
1990 SC 1, it was held as under: --
This controversy now stands finally settled by a recent judgment of this Court. It was
held in 'Haji v. Khuda Yar' (PLD 1987 Supreme Court 453) that a similar adverse entry and non -participation in the profits of the property would not amount to an
ouster. While taking note of the earlier case of Anwar Muhammad and others v. Sharif Din and others' (1983 SCMR 626) in extenso it was observed that "wrong mutation conferred no right in property as revenue record is maintained only for purposes of ensuring realization of land revenue".
The suit in the said case was treated as having been "based on title and not for correction of revenue record". Accordingly it was not held to be a case of adverse possession and the suit was found to be within limitation.
In the case of Anwar Muhammad the defendants in an inheritance case of similar nature, having failed in the High Court their plea of adverse possession and limitation was repelled by this Court with the following statement of facts, observations and findings: -
The inheritance of Lakhwera was in dispute between the parties who are descendants from the same common ancestor. The plaintiff -respondents claimed that as heirs they
were, entitled to a particular share in this estate of Lakhwera and the mutations attested in 1907 and 1908 with regard to the devolution of his estate were not in accordance with the law. The petitioners resisted the claim not on the ground that the plaintiffs were not heirs of Lakhwera according to Shariat or that their shares were different from those claimed by them but on the ground that a suit for declaration was not competent as they were in possession of the suit land, and that it was hopelessly barred by time. A number of issues were framed and the two Courts dismissed the claim of the plaintiffs -respondents but in second appeal it was held that the plaintiffs -
respondents admittedly held the land jointly with the petitioners and that their possession over the land was through their co- sharers and the declaration of the
property could be obtained by them and the Revenue Record had to be consequently corrected to reflect it.
The learned counsel for the petitioners has reiterated the points taken up earlier. His insistence is that in the Bahawalpur State before the enforcement of the Land Revenue Act, as the Settlement record shows, the settlement with regard to the payment of land revenue was made with those persons who were in cultivating possession over the land excluding altogether others who were out of such possession. It is contended that when Lakhwera died the petitioners were in possession of the land and were so recor ded excluding the plaintiffs -respondents. This 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 the
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." (Underlining is ours).
In the same judgment it has been further held by the Hon'ble Supreme Court of
Pakistan with regard to depriving of women folks.
It has already been held that the devolution of property through Islamic inheritance takes place immediately without any other intervention; therefore, in this case the respondents -petitioners' sister, became the owner of the suit property immediately on
the death of her father. She is said to have relinquished her share in inheritance in petitioners (brothers) favour and accordingly as asserted by them a mutation of inheritance was sanctioned in their favour. It is interesting to note that she was not only deprived of inheritance but also her name was not mentioned in the pedigree -
table showing her as one of the heirs the claim of relinquishment of her property was asserted so strongly and accepted so readily that even her existence as a daughter, though that not otherwise denied, was not acknowledged in the documentation regarding inheritance; namely, in the mutation register and other connected documents.
It is not a stray case of its nature. It has happened with female heirs for ages and is continuing even under the Islamic dispensation. It is to be seen whether such treatment of a female's right to inherit and the so -called relinquishment, of accrued
inheritance, by her is permissible or even recognized in Islam.
The last Khutaba of the Holy Prophet (P.B.U.H) which contains several injunctions -
most of them of juridical import has already been referred generally, in another
connection. In the present context it needs somewhat detailed study as a part of 4 exclusively deals with the women, their rights and duties and status. One injunction clearly prescribed that men have rights qua women and they have similar rights qua men. The translation in Vernacular and commentary on this subject by Muhammad Mian Siddiqui Research Fellow Islamic Research Institute of International Islamic University, Islamabad, in a recently published Book 'Khutabat -e-Rasool' in relevant
parts, is as follows:
After leaving out some injunctions regarding women which are not relevant here it is further stated as follows:
This was reiteration of Quranic injunction S. 4 V. 7 which when translated reads as follows: --
Another injunction from the Khutaba with regard to the protection of the rights of women particularly regarding inheritance would be rightly understood if the background in this behalf is kept in view. The author of the 'Khutabat -e-Rasul at Page
176 of the Book stated the background as follows?
It is, inter alia, in this connection that another part of the Khutaba regarding the women, needs to be quoted here: -
Likewise, it is also quoted in the same judgment that:
For the limited discussion on this subject in the present case the reference, to the Last
Khutaba of the Holy Prophet (P.B.U.H.) at the Hajjat -ul- Wada seems enough.
However, in the same book (Khutabat -e-Rasul) cited earlier there are many other
injunctions, relied upon in the commentary relating to the last Khutaba, which deal with the status and rights of women; of course, along with the obligations . For further
study of similar questions reference may be made to the Sunnah injunctions contained in the "Sayings of Mohammad (P.B.U.H.) edited and translated by Mirza Abu'l -Fadl
and recently published by the National Hijra Centenary Committee with an illuminating detailed Foreword by late Mr. A.K. Brohi; together with a meaningful introduction. All the relevant index headings relating to females particularly the sub-heading "Women" can be referred to with advantage. The numbering of Ahadis under the heading "Women" in the Index does not seem to be correct. When reading under this sub- heading the correct numbering thereof may be taken as follows: --
19 to 24, 139, 167, 179 to 184, 224 to 229, 473 to 492, 581 to 586, 612, 716, 815, 951,1000 to 1003,1029 to 1041, 1046 to 1056, 1063.
It is not necessary to discuss here the general subject of treatment and rights of women. Suffice it to refer only to Ahadis Nos. 612 and 1056 which convey two elements -for perfection as a Momin it is a necessary qualification that he should be
"best among them to his women folk (in treatment). And _ when calling her "crystal" in No. 1056, the Prophet (P.B.U.H.) amongst others, wanted to give, a measure of the best treatment. 'Crystalloid' conveys a lot more than what appears on ordinary reading. In the present context, these injunctions, when read together, enjoin upon men the protection of their rights in every field. Inheritance is not an exception. In this context. Surah 4, Verse 34 also has to be interpreted in a liberal and beneficial manner vis -a-vis 'women's rights and their protection. Late Moulana Abu- ul-Ala
Moudoodi explained the word ( ) and ( ) when used in it as follows: --
Same subject has been dealt with in The Khutabat -i-Rasul in the commentary on the
last Khutaba, as follows:--
17. In the light of above quoted judgments of Hon'ble Supreme Court of Pakistan the
above issues are hereby resolved in favour of appellants/plaintiffs, the suit of appellants was well within the time.
ADDITIONAL ISSUE No.1:
"Whether defendants Nos.9 to 15 are bona fide purchasers of the suit property at Khasras Nos.43 and 44 Mutations Nos.137 and 138, Ward No.19, Tappa Urban Tehsil and Distt. Quetta and they are legal and lawful recorded owners in possession of the same?"
This issue has rightly been decided by the learned trial Court after dilating the record,
in fact the properties in question in the above issue was initially belongs to the predecessors in interest of the parties i.e. late Abdul Salam Khan, which was subsequently by means of so called Will and ( ) transferred in the name of defendants Nos.1 and 2 in the revenue record,
the respondents/defendants Nos.9 to 15 after getting their satisfaction from the revenue record
bonafidely purchased the same and the sale amount was paid to the defendants Nos.1 and 2 and the revenue record has been transferred in the name of defendants Nos.9 to 15 in accordance with law and since then they are enjoying their peaceful possession and business over the property in question. Thus we are in agreement with the findings of the learned trial
Court to the extent of this issue that the defendants Nos.9 to 15 are bona fide purchasers of
suit property bearing Khasra Nos.43, 44, Mutation Nos.137 and 138, ward No.19, Tappa
Urban Tehsil and District Quetta. However, the appellants/plaintiffs are entitled to receive their proportionate shares from the sale amount from respondents Nos.1- A to 1 -H and
respondent No.2 as it was on the date of sale transactions.
18. While, issue No.2 and additional issue No.3 are interlinked with each other have
wrongly been decided by the learned trial Court, thus fate of the same will be decided on the basis of record and evidence, for such purpose the following points for determination have also been formulated by this Court:
Issue No.2 and Additional Issue No.3:
2. Whether plaintiffs are entitled to share in the properties lefi by deceased Abdul Salam Khan and Mst. Jamila Begum?
3. Whether plaintiffs have no right and title to file the instant suit under section 42 of the
Specific Relief Act."
Point Nos.1 and 2:
1. Whether suit land was distributed amongst the legal heirs of the late Abdul Salam
Khan and Mst. Jamila Begum in accordance with Sharia law and they have received their respective shares and put into possession in the lifetime of their predecessors in interest by means of Will dated 24th December 1970 and agreement ( ) dated 24th December 1970?
2. Whether the Wills dated 24th December 1970 and agreement dated 24th December 1970 are valid documents and prepared in accordance with Sharia/Law and could have been implemented in the lifetime of testators?
19. In support of above points, the appellants/plaintiffs produced as many as eleven PWs
and also recorded statements of their attorney. All the witnesses produced the documentary evidence with regard to suit land and the business so carried out by their predecessors in interest. The testimonies of PWs supported the version of plaintiffs and despite lengthy cross -examination nothing adverse came in favour of defendants rather the defendants Nos.1
and 2 in their written statement categorically admitted that the properties mentioned in Paras
Nos.1 and 2 of the plaint, initially belonged to the predecessors in interest of the parties i.e. late Abdul Salam Khan and Mst. Jamila Begum and also admitted the relationship between the parties as legal heirs of the late Abdul Salam Khan and Mst. Jamila Begum, thus in view of the above, the appellants/plaintiffs succeeded to prove that the properties mentioned in their plaint were initially belonged to the predecessors in interest of the parties and also succeeded to est ablish that the plaintiffs and the defendants Nos.1 and 2, 5 to 8 and 16 to 18
are legal heirs of late Abdul Salam Khan and Mst. Jamila Begum, the above issue is proved
and resolved in favour of appellants/plaintiffs.
Since Points Nos.1 and 2 are inter -related with each other thus being resolved
together.
Point Nos.1 and 2:
1. Whether suit land was distributed amongst the legal heirs of the late Abdul Salam
Khan and Mst. Jamila Begum in accordance with Sharia law and they have received their respective shares and put into possession in the lifetime of their predecessors in interest by means of Will dated 24th December 1970 and agreement ( ) dated 24th December 1970?
2. Whether the Wills dated 24th December 1970 and agreement dated 24th December 1970 are valid documents and prepared in accordance with Sharia/Law and could have been implemented in the lifetime of testators?"
20. The burden of proof of these points was on the shoulders of defendants Nos.1 and 2 in
support of these points they have contended in their written statement that the properties in question were distributed amongst the legal heirs in lifetime of their predecessors in interest through registered "Wills" dated 24th December 1970 and all the legal heirs received their respective shares and came into possession, and also the legal heirs executed an agreement on the same date i.e. 24th December 1970 in support of their contentions, they produced the alleged "Wills" dated 24th December 1970 issued by late Abdul Salam Khan as Ex./D -1
through DW -1 Manzoor Ahmed, representative of Sub- Registrar Quetta and Will dated 24th
December 1970 issued by the late Mst. Jamila Begum daughter of Muhammad Naeem Khan
as Ex.D/2 through same representative of Sub -Registrar Quetta, whereby through the said
Wills the Testators advised for distribution of their properties to their legal heirs, mainly it is mentioned in both the Wills that the same will be effective after their death.
21. To justify the legality of the aforesaid Wills, the defendants also brought on record
the agreement ( ) dated 24th December 1970 as Ex.D/4 which shows to be executed between the legal heirs of late Abdul Salam Khan and Mst. Jamila Begum in presence of their predecessors in interest in their lifetime on the same day of issuance of Wills dated 24th December 1970 and in their presence they have accepted the contents of the Wills executed by their father and mother. It is pertinent to mention here that the agreement ( ) dated 24th December 1970 is unregistered document. Now we are dilating upon the legality and validity of the Wills whether same are valid Wills or otherwise. First of all Will cannot be issued for legal heirs, in this regard we are fortified by the Hadith of Muhammad (Peace Be Upon Him), which is mentioned in a Book of Hadees i.e. Ain- ul-Hidaya Jadeed, Volume -VIII,
page No.571 which reads as under: --
Another Hadith is also quoted in the Book of Sunan -e-Ibn-e-Maja Shareef in page
No.468 Hadees No.2712, which is reproduced as under:
22. From bare reading of above quoted Hadiths it is crystal clear that Quran and Sunnah
are supreme law of our country specially for determination of inheritance rights of the legal
heirs of a deceased person. In view of the above quoted Hadith, the Wills so executed
having, no legal value with regard to legal heirs. While, on the other hand, the Wills were effective after the death of the testators, but according to so called agreement ( ) dated 24th December 1970, which was produced by the defendants, same was executed on the same date in the lifetime of predecessors in interest with the consent of the parties; whereby the
contents of Wills were accepted by the parties. The perusal of agreement dated 24th
December 1970 reflects that neither the same was registered document nor Marginal
Witnesses of the said documents were produced to ascertain its genuineness nor same is admissible as the same was executed at the lifetime of predecessors in interest, while according to plaintiffs the same is fake and forged documents and at the time of execution of said agreement the age of Sameena Begum (daughter of late Abdul Salam Khan and Mst. Jamila Begum) was 12 years. Even otherwise, the said deed should have been executed after the death of testators of the Wills, but surprisingly the same was executed on the same day for execution of Wills i.e. 24th December, 1970. Even otherwise, it is settled law if one of the legal heirs do not agree and consent the agreement for acceptance the same would loose its validity being inadmissible, in this regard we are fortified by the judgment of Hon'ble Supreme Court of Pakistan on the case of "Abdul Haq and another v. Mst. Surrva Beguma and others", 2002 SCMR 1330, relevant portion whereof is reproduced as under: --
"10. The findings of the First Appellate Court that will having not been consented to by Atta Muhammad as is clear from the proceedings in mutation, the same could not be given effect to as according to Muhammadan Law, disposal of property through will by a Muhammadan in favour of one of the heirs is not effective unless the other heirs after the death of the maker of will had consented."
23. Even otherwise, according to the Article 117 of Muhammadan Law, a bequest to an
heir is not valid unless the other heir consent to the same after the death of testator. Any single heir may consent as to bind his own share. From the bare perusal of above quoted judgments so called agreement ( ) dated 24th December 1970 seems to be forged after thought and not liable to be taken into consideration. Thus in view of the above so called Wills and agreement ( ) dated 24th December 1970 are declared null and void in pursuance of said Wills and agreement the distribution of properties of the predecessors in interest of the parties so carried out was without lawful authority, illegal, unlawful having no legal effect and what so had been carried by the defendants Nos.1 and 2 on the basis of so called Wills and agreement ( ) dated 24th December 1970 are declared illegal having no legal effect and cannot be legally carried out. Even otherwise, the defendants Nos.1 and 2 are failed to bring on record any oral or documentary evidence that any property distributed amongst the legal heirs in pursuance of so called Wills and they were put into possession. It appears from the record that if at all so called Wills and agreement dated 24th December, 1970 were in field then why the defendants called Fatwah dated 7th July, 1977 from Molvi Abdul Shakoor, Nazim Madaris Arabia Taleem -ul-Quran, Khateeb Jama Masjid, which was
admitted in cross -examination of defendant No.2 that: --
It means that defendants Nos.1 and 2 were confused how to distribute the inherited
properties of their predecessors in interest, while in contrary it appears that certain properties through forged and fake power of attorney dated 5th August 1985 has been transferred and mutated by the defendants Nos.1 and 2 in their names, while at the time of executing of
forged power of attorney dated 5th August 1985 their mother Jamila Begum was not alive as
she was died on 24th August 1982, according to the death certificate produced by the PW -2
duly issued by the Municipal Corporation Quetta as Ex.P/2- A and this forgery of power of
attorney and admission of death of their mother was admitted by the defendant Shams -ul-
Islam Khan in his statement recorded before the learned trial Court, whereas he categorically
admitted in cross -examination that:
As well as regarding certain other properties he admitted in cross -examination that said
properties were not mentioned in the Wills. He further in reply of a question shown his
ignorance that: --
With regard to business he replied to a question that: -
24. All such admissions and ignorance of the fact by the defendant No.2 rendered the
entire proceedings of transfer of properties and business as doubtful, which carried out by
means of fake power of attorney and forged documents, which negates contentions of
respondents/defendants Nos.1 and 2. Such facts made it clear that no agreement was signed and executed between the parties with regard to acceptance of distribution of properties
through Wills dated 24th December 1970, which seems to be forged one. It is well settled
principle of law that any transaction based on fraud would be void and notwithstanding the bar of limitation the matter can be considered on merits. Reliance in this regard is placed on
the case of "Mst. Raj Bibi and others v. Province of Punjab through District Collector, Okara
and 5 others", 2001 SCMR 1591: --
Plea of fraud ---Burden of proof ---Where pleas of fraud, deception and
misrepresentation had been taken by the illiterate Pardahnashin ladies in alleged
disposal of their properties, the onus in such cases lay on the person who had taken
advantage of the transaction to prove the genuineness and bona fides of the document
through which transaction had been executed and the contents of such document were fully concerned and understood by the executant independently and freely.
Beneficiary party, in circum -stances , had to establish by a strong and reliable evidence
that the documents i.e. disputed mutations were genuine and bona fide and had been
voluntarily and freely entered and attested at the free -will of the executants ---Where
the evidence of the beneficiaries in the record was not only unsatisfactory but was incredible, such evidence could not be attached any credence ---Pardahnashin ladies, in circumstances, were not a party to the mutations and they were totally kept in dark about the transactions and fictitious mutations were got attested with the connivance of the Revenue Staff ---Mutation proceedings wherein the two ladies had denied their
participation were not only in gross violation of section 42(7) of the West Pakistan Land Revenue Act, 1967 but were also false and fictitious, as such, the mutations being illegal, the entire structure built on them would fall to the ground---Fraud vitiates even the most solemn transaction as such any transaction based on fraud would be void and notwithstanding the bar of limitation the matter could be considered on merits so as not to allow fraud to perpetuate.
The contradictory statements of the said witnesses make the transaction doubtful. The respondents being beneficiaries of the transactions, their evidence was imbued with interest and such evidence cannot be attached any credence. From the evidence on record, an irresistible conclusion can be drawn that the appellants were not a party to
the mutations and they were totally kept in dark about the so- called transactions and
fictitious mutations were got attested by the defendants in their favour with the
connivance of the revenue staff, of the entire land of the plaintiffs at their back as neither the mutation register, Roznamcha Waqiati nor the disputed mutations bear the thumb impressions of a appellants.
25. In view of the above detailed discussion, the issues Nos.2 and 3 and additional issue
No.2 in the light of evidence and record together with points for determination resolved in favour of appellants/plaintiffs being legal heirs of late Abdul Salam Khan and Mst. Jamila Begum, the appellants are entitled to receive their proportionate shares from legacy of their
predecessors in interest as mentioned in paras Nos.1 and 2 of the plaint.
For the reasons discussed hereinabove, the appeal is accepted and the impugned
judgment and decree dated 21st March 2014 passed by learned trial Court is set aside and the
suit of plaintiffs/appellants is decreed in the following terms: --
i. It is declared that the appellants/ plaintiffs are legal heirs of late Abdul Salam Khan and Mst. Jamila Begum and co -sharers of the properties described in paras Nos.1 and
2 of the plaint to the extent of their shares, except the properties sold out to the defendants Nos.9 to 15, however, they are entitled to receive their shares from the sale consideration amount as it was on the date of sale.
ii. It is declared that so called Wills dated 24th December 1970 and so called agreement dated 24th December 1970 are null and void and revenue entries and any transaction and business carried out in pursuance to the above documents are also declared null and void. The Mutation entries and revenue record being outcome of the above Wills
and agreement as well as subsequent forged power of attorney dated 5th August 1985 are hereby directed to be cancelled and the names of appellants be inserted in the revenue record afresh by defendant No. 3, except the properties sold out to respondent Nos.9 to 15.
iii. The respondent No. 3 is also directed that after doing so the appellants/plaintiffs be put into possession of properties to the extent of their shares.
iv. It is also declared that the appellants/plaintiffs are entitled to receive their due shares from the account of business of Salam papers and Bolan Muslim Press for that period, when the business was lastly owned by late Abdul Salam Khan. The defendants are also directed to submit rendition of accounts before the executing Court.
Since all the Miscellaneous Applications including the contempt application have
been merged with the instant appeal and decree so passed will served the purpose, consequently the contempt Application No.62 of 2018 is dismissed.
The appeal is disposed of in the above terms with no order as cost.
MH/124/Bal Appeal alloweThis 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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