NOOR MUHAMMAD (decd.) through L.Rs. vs JAN MUHAMMAD (decd.)
This civil appeal by leave of the Court arises from concurrent findings of the lower courts regarding a dispute over inheritance and mutation. The core legal questions involve whether a challenge to a mutation of inheritance after more than seventy years is time-barred and whether limitation runs against an heir entitled under Shariat. The Supreme Court held that once it is established that a person is a legal heir entitled to a share under Shariat, title vests automatically, and limitation does not run against them or their legal heirs, as the possession of co-owners is deemed to be on behalf of all co-owners. The Court laid down the principle that co-heirs cannot exclude a female legal heir from her Shariat share in ancestral property on the grounds of limitation or prolonged non-challenge of a mutation.
- Whether limitation runs against a legal heir entitled to property under Shariat who challenges a mutation of inheritance after a prolonged period?
- Does the possession of land by some co-owners operate as adverse possession against other co-owners including female heirs?
- Can concurrent findings of fact regarding lineage and customary law be interfered with under Article 185(3) of the Constitution of Pakistan 1973?
- Article 185(3), Constitution of Pakistan 1973
ORDER
' Jawwad S. Khawaja, J.--This appeal is by leave of the Court. The relevant part of the leave granting order is reproduced as under: "Having heard learned counsel for the petitioner at some length, leave is granted, inter alia, to consider the question whether the respondents-plaintiffs could be allowed to challenge the mutation of inheritance after more than 70 years which mutation was never challenged by the predecessor-ininterest of the said respondent-plaintiffs, in her life time."
' There are three issues of relevance which arise out of the pleadings. Although in all nine issues were framed, the three issues relevant are Issues No. 3,4 and 6 which for case of reference are reproduced as under:--
3. Whether Mst. Sabul was the daughter of Nabi Bakhsh deceased?O.P.D
4. Whether the suit of the plaintiffs is time barred? O.P.P
6. Whether Nabi Bukhsh deceased was governed by custom in matter of inheritance and alienation? If so, what was that custom? O.P.D ' All three Courts below have concurrently held that Mst. Sabul Mai was indeed the daughter of Nabi Bukhsh (deceased) who was the common predecessor of the parties in the suit. No interference, therefore, in this finding is called for in exercise of our jurisdiction under Article 185(3) of the Constitution.
2. Issue No. 6 may then be taken up. The trial Court and the High Court in second appeal for cogent reasons have come to the conclusion that Nabi Bukhsh (deceased) belonged to the Laghari clan and that the said clan followed Shariat. This finding also does not fall within our jurisdiction so invoked by the appellants and, therefore, we cannot interfere with it.
3. It is-only on the question of limitation that leave appears to have been granted and it was this issue which was pressed into service by the appellants. We, however, note two aspects of this issue.
Firstly that once it is established that Mst. Sabot Mai was indeed the daughter A of Nabi Bakhsh (deceased) she automatically becomes vested with title ' in the property based on Shariat and, therefore, limitation does not run against her and her legal heirs, even, if the appellants are not paying batai. And secondly that even if the appellants are in physical possession of the land, their possession is for and on behalf of all co- owners including Mst. Sabul Mai. ' The two sons of Nabi Bakhsht cannot be allowed to exclude their sister from her sharai share in the land.
4. In view of the foregoing discussion, we find no reason to interfere in the impugned judgment of the High Court dated 4.04.2006, whereby R.S.A. No. 40/1972 was allowed. As a consequences, this appeal is dismissed.
(R.A.) .
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