Mst. GOHAR KHANUM and others vs Mst. JAMILA JAN and others

' JAWWAD S. KHAWAJA, J.---The facts of the case are straightforward. The appellants herein are the legal heirs of Dost Muhammad while respondents are the legal heirs of Mst. Zarina Jan. Dost Muhammad and Mst. Zarina Jan are respectively brother and sister being the son and daughter of the deceased Hashim.

2. The dispute relates to inherited property in mouza Jatti Pind measuring a total of 16 kanals and 5 marlas. Out of this property, 9 kanals and 4 marlas were held by Hashim as an occupancy tenant.

The said Hashim died in 1940 and as a result his mutation of inheritance was recorded on 31-8- 1940. In this mutation Mst. Zarina Jan was excluded. She thereafter filed a suit on 2-9-1990 i,e, almost 50 years after the death of Hashim and the recording of the above mutation. The three Courts below have concurrently held that Mst. Zarina Jan was a legal heir and entitled to inherit from Hashim to the extent of 1/3rd of the disputed land. The occupancy tenancy was also an inheritable right.

3. The predecessor of the petitioner namely Dost Muhammad has been in occupation of the suit land and paid the amount under section 4 of the N.-W.F.P. Tenancy Act, 1950 to acquire propriety rights in respect of the tenancy rights which were previously vested in Hashim. All three Courts have concluded that the respondents being legal heirs of Mst. Zarina Jan were 1/3rd owners of the disputed property. Leave to appeal was grante in this case vide order dated 29-6-2009 on the basis of a previous order dated 17-1-2006. Both the said orders, for ease of reference, are reproduced as under:- "17-1-2006 ' Learned counsel for the petitioners alleged that the Civil Court had no jurisdiction to undo the conversion of occupancy tenancy rights into ownership through mutation No,257 attested on 2-11- 1951 and that such question could be raised at any time. That the respondents had no right to claim title after the lapse of fifty years from the devolution of inheritance and further that she had failed to avail the remedy provided to her under section 83 of N. -W.F.P. Tenancy Act of 1950, within three years from the promulgation of the Act.

' We would like to issue notice to the respondents in order to clarify the aforesaid assertion. Notice be issued accordingly."

"29-6-2009 ' Leave to appeal is granted to consider contentions recorded in our order dated 17-1-2006. Status quo shall be maintained in the meanwhile."

4. We have heard learned counsel for the parties at great length and have also gone through the impugned judgment and the record with their assistance. The relationship between the parties is undisputed. It is, therefore, clear that on the death of Hashim, in accordance with Islamic Sharia which was applicable to the question of inheritance in this case, the petitioners through their predecessor-in-interest Dost Muhammad became owners of 2/3rd of the property while the respondents through their predecessor Mst. Zarina Jan became owners through inheritance of the remaining 1/3rd of the land.

3(sic.) The main emphasis of the learned counsel for the appellants was that the suit was time barred having been filed 50 years after the mutation dated 31-8-1940. This contention is, however, easily dispensed with as Mst. Zarina Jan admittedly came to own a 1/3rd share of the land by operation of law and not by any mutation. The mutation was meant to record the legal entitlement of Dost Muhammad and Mst. Zarina Jan. If the mutation was erroneously made in favour of Dost Muhammad, such mutation would not create title in favour of Dost Muhammad in accordance with Sharia Law of inheritance. Learned counsel for the appellants repeatedly emphasized that Mst.

Zarina was fully aware of the decision and assertion of title by her brother Dost Muhammad and Dost Muhammad had also constructed a house on the disputed land. This, however, does not attract the provisions of the Limitation Act in the circumstances of the present case. Mst. Zarina Jan being the sister was co-owner and the possession/occupation of the land by her brother as the other co-owner could only be construed as possession on behalf of all co-owners including Mst.

Zarina. In order to relinquish or transfer her interest in the property, there had to be a positive and affirmative act. We have not been shown any document or deed of relinquishment, sale, transfer or gift which would establish that Zarina Jan had either relinquished her interest in the disputed property or had actually conveyed or transferred the same in favour of Dost Muhammad. In the absence of any such affirmative act on the part of Mst. Zarina Jan, it cannot be said that the property came to vest entirely in Dost Muhammad.

4. It was next contended that Mst. Zarina Jan did not appear in the witness box herself and instead her daughter in law namely Mst. Karam Jan appeared as P.W.1. The fact is that Mst. Zarina Jan was close to 100 years old and it was this exigency which required her to act through her daughter in law. Since it is not disputed that the brother and sisters were owners of the disputed land by way of inheritance, the onus squarely fell on the appellants to establish that the 1/3rd interest of Zarina had been transferred in favour of Dost Muhammad or that Zarina had relinquished her rights in the suit property. But this onus was not discharged.

5. We next come to the question of the amount which was paid by Dost Muhammad under section 4 of the N.-W.F.P. Tenancy Act to acquire proprietary rights in the suit property. The payment of such F amount could at best be treated as an act of one co-owner to secure proprietary rights in the disputed property which admittedly was undivided between Dost Muhammad and Zarina Jan.

Thus, the act of making payment was for the purpose of securing the ownership rights in the suit property. The payment in the circumstances of the case, where it was the brother who made payment at the time when the G revenue record showed him as owner/occupancy tenant of the entire land, must be seen as a payment made on behalf of the coowner/occupancy tenant as trustee by virtue of sections 82, 89, 90 and 94 of the Trusts Act, 1882.

6. In view of the foregoing discussion, we find that the conclusions arrived at concurrently by the three Courts below were consistent with the record and the law. Therefore, we find no justification for interfering in the impugned judgments. This appeal being without merit is, therefore, dismissed.

No order as to costs.