MUHAMMAD SHARIF and others vs Mst. FATEH BANO and others

' QAZIMUHAMMAD FAROOQ, J.-This is a petition for leave to appeal from the judgment dated 16-9- 2003 passed by a learned Single Judge of the Lahore High Court, Multan Bench in Civil Revision No,166-D of 1992.

2. The dispute between the parties relates to the estate of one Wali Muhammad son of Jamal Din who had died in India before creation of Pakistan and whose mother Mst. Bibi and other relatives had migrated to Pakistan. The claim submitted by Mst. Bibi as the sole legal heir of Wali Muhammad was approved and certain land was allotted to her. Jamal Din, father of Wali Muhammad had two wives Mst. Bibi and Mst. Saleem Khatoon. He had four daughters Mst. Noor Bano, Fateh Bano, Rani and Fateh Nishan from Mst. Saleem Khatoon and a son Wali Muhammad from Mst. Bibi. Sometime in the year 1981 the legal heirs of Mst. Noor Bano filed a suit for a declaration to the effect that they were entitled to 1/6th share out of the estate of Mst. Bibi and Mutations Nos.354 and 355 attested on 30-6-1980 to the contrary were void and ineffective on their rights. The suit was resisted by Mst. Bibi mainly on the ground that her son Wali Muhammad deceased hade gifted his property to her during his life-time and also delivered its possession to her, therefore, she was a ful-fledged owner of the same and not a limited owner. However, she also contended that Mutations Nos.354 and 355 were illegally sanctioned. The suit was also resisted by Mst. Fateh Bibi, Mst..Rani and Mst. Fateh Nishan on the ground that it was the outcome of collusion between the plaintiffs and Mst. Bibi. Their standpoint was that Mst. Noor Bano hadpre-deceased Wali Muhammad and as such was not entitled to any share out of his inheritance. After a hot contest the suit was dismissed by the learned trial Court on 8-3-1987 with the findings that Mutations Nos.354 and 355, dated 30-6-1980 were also liable to be cancelled. The judgment and decree passed by the learned trial Court was assailed by the plaintiffs as well as Mst. Fateh Bano etc. Through separate appeals. The learned Appellate Court, vide judgment dated 19-11-1991, allowed the appeal filed by Abdul etc., legal heirs of Mst. Noor Balm and dismissed the appeal filed by Mst. Fateh Bano etc. Feeling aggrieved, Mst. Fateh Bano etc. Filed a revision petition before the Lahore High Court, Multan Bench which was disposed of in the following terms:-- "In view of the admitted position that the present petitioners, namely, Mst. Fateh Bano etc., are the consanguine sisters of Wali Muhammad, they are entitled to 2/3rd share in the estate of Wali Muhammad while Mst. Bibi is entitled to 1/6th share being the mother of Wali Muhammad. The principle of return also applies in the present case. As such, the impugned judgment and decree are modified and it is declared that the present petitioners are entitled to 4/5th share in the estate of Wali Muhammad being his consanguine sisters while Mst. Bibi and her successors-in- interest/vendees are entitled to 1/5th share in the said estate."

3. It was contended by the learned counsel for the petitioners that the suit of the legal heirs of Mst.

Noor Bano was badly barred by time having not been brought within one year from the date of promulgation of the Punjab Muslim Personal Law (Shariat) Application (removal of Difficulties) Act, 1975. It was further contended that the petitioners having purchased the land in dispute from Mst.

Bibi were bona fide purchasers and as such entitled to the protection envisaged by sections 41 and 54 of the Transfer of Property Act.

4. The petitioners were not impleaded as a party to the suit. However, they were impleaded as respondents at the appellate stage but they did not contest the appeals or the revision petition.

The claim set up by them is based on sale Mutation No,576, dated 10-3-1987 which having been attested during pendency of the suit is hit by the doctrine of lis pendens. Besides, the plea of gift set up by Mg. Bibi has been rejected by the Appellate Court as well as the High Court. The petitioners have no locus standi to take up cudgels on behalf of Mst. Noor Bano and seek dismissal of the suit on the ground of limitation. Consequently, the petition is dismissed and .