MUHAMMAD IQBAL and 5 others vs ALLAH BACHAYA and 18 others

' MUHAMMAD NAWAZ ABBASI, J.--- This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan has been directed against the judgment, dated 24-6-2004 passed by a learned Judge in Chmabers of Lahore High Court, Multan Bench, in a civil revision arising out of a suit involving the dispute of inheritance.

2. The parties are successors of Muhammad Bakhsh, last male owner and their right of inheritance in his property in the capacity of his legal heirs, is not disputed. The suit was filed by the respondents claiming share in the property of Mst. Allah Wasai, their maternal-grandmother who was daughter of Muhammad Bakhsh. The claim of the respondents was that they were owner in possession of the land to the extent of 5/48th share and the entries in the Revenue Record to the contrary, were ineffective to their rights and as consequential relief they sought a decree for permanent injunction. Muhammad Bakhsh owned land in the two villages, namely, Kot Chatta and Basti Jam of District Dera Ghazi Khan and the suit was filed in respect of the land situated in Basti Jam which was resisted by the petitioners on the ground firstly that a portion of ancestral land was already sold but the vendees were not impleaded as party and secondly, the land in village Kot Chatta was gifted by last male owner to his sons and the partial suit in respect of the land of Basti Jam was liable to be dismissed under Order II, rule 2, C.P.C. Being not maintainable. The decree was passed in the suit by the learned trial Judge vide judgment, dated 15-4-1999 which was maintained by the Appellate Court in appeal filed by the petitioners vide judgment dated 23-7- 2003 and further the revision petition filed by them in Lahore High Court, Multan Bench, was dismissed vide impugned judgment.

3. The learned counsel for the petitioners while repeating his arguments raised in the High Court in civil revision contended that the finding of all the three Courts on the issue relating to the maintainability of suit, was not sustainable and the fact that Mst. Allah Wasai had already surrendered her share in the property in favor of her brothers was also not properly ascertained.

Learned counsel argued that an application for bringing on record as additional evidence the copy of the judgment in an earlier case on the same subject to remove the doubt in this behalf was moved but the High Court without decision of the application, dismissed the civil revision as a result of which serious prejudice was caused to the petitioners in the matter of their right in the property and prayed for remand of the case to the High Court for decision of the civil revision after disposal of the application in question. In nutshell, the argument of learned counsel was that the respondents have no legitimate right of inheritance in the property and verdict given by the Court was the result of misreading and non-reading of evidence.

4. We have heard the learned counsel for the petitioners at length and respondent No,1 in person.

The perusal of record would show that the right of inheritance of Mst. Allah Wasai, maternal- grandmother of respondents, was not disputed and nothing was brought on record to show that she had surrendered her right in the property in favor of her brothers. It may be seen that all the three Courts having undertaken the exercise of detail scrutiny of evidence, have concurrently held that the respondents would inherit through Mst. Allah Wasai and we without taking any exception to this concurrent finding, find that the petitioners by taking the plea of surrender made an attempt to defeat the right of the respondents in inheritance. Similarly, the objection regarding the defect in the suit would also be of no significance to affect the right of the parties as the land in Kot Chatta was not subject-matter of the dispute.

5. Learned counsel for the petitioners without pointing out any legal defect in the judgment vis-a- vis rights of respondents in the inheritance, attempted to argue that the suit was barred by time.

This is settled principle of law that the bar of limitation is not applicable to right of inheritance which does not extinguish by afflux of time. The right of inheritance of a female, recognized in Shariah, cannot be denie.d on the basis of oral assertion of surrender of such right by a female in favor 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. The respondents have not been successful in showing us that Mst. Allah Wasai had surrendered her right in the property in favor of her brothers in a lawful manner or the suit involving right of inheritance could be dismissed on the ground of estoppel or limitation. Learned counsel has also not been able to satisfy us that the impugned judgment was either in conflict to law of inheritance in Islam or was the result of misreading or non-reading of evidence brought on record by the parties.

6. In the light of foregoing reasons, we do not find any substance in this petition which is accordingly dismissed. Leave is refused.