AHMED KHAN Versus GHULAM ALI
The facts giving rise to this civil revision application are that the applicants, through heir ancestors, claiming themselves to be the legal heirs of one late Lal Bux son of Ali Khan filed a suit for declaration, cancellation of wrong entries and injunction before the Court of Senior Civil Judge, Tando Allahyar being Suit No.37 of 1986. In the plaint they averred that Lal Bux died 50 years back leaving behind Mst. Wadi as his daughter and two grandsons Ahmed Khan and Ali Khan from his predeceased son Rawat Khan. Further case of the applicants is that deceased Lal Bux left behind agricultural lands as detailed in the Schedule Annexure "A" to the plaint. After the death of Lal Bux agricultural lands owned by him to the extent of 50 paisas, devolved on his daughter Mst. Wadi, while the remaining 50 paisas devolved on his two grandsons Ahmed Khan and Ali Khan in equal share. In the year 1929 on the basis of such right of inheritance Foti Khata of deceased Lal Bux was mutated. Later on Ali Khan in the year 1946 gifted 60 acres of land from his share to his nephews viz. applicants Nos. 2 to 5 which was accordingly mutated in the Revenue Record. Ahmed Khan also gifted 100 acres of his land to his sons Haji Rawat Khan, Khan Muhammad and Ali Ghulam, which was mutated in their names in the Revenue Record. Twenty years before the institution of suit Ali Khan also died issueless leaving behind two wives Mst. Fatima and Mst. Meeral and one brother Ahmed Khan as his legal heirs. Thus, from his remaining lands 25 paisas share devolved on his two widows and 75 paisa share was inherited by Ahmed Khan, from whom later on same also devolved upon the present applicants. Applicants further disclosed in the plaint that Ali Khan and Ahmed Khan themselves had also purchased some lands in Deh Tarahadi Taluka Tando Allahyar viz. S. Nos.477/A, B, 482, 581/1, 10, 349 and 707/1, which were not inherited by them from their father Lal Bux. The applicants averred that 2/3 days before the institution of the suit they came to know that respondents Nos. l to 3 have leased out some lands belonging to them and are trying to dispossess them from their bona fide possession. When they approached the office of Mukhtiarkar Tando Allahyar they came to know that Khata of some lands owned by applicants in the above stated manner has been changed in the name of Mst. Zainab and thereafter in the name of other persons i.e. respondents Nos. 1 to 3. The applicants urged that such change of mutation was ex parte, without any notice or their knowledge and further that they are the exclusive owners of the lands by way of inheritance from late Lal Bux and purchase and paying its land revenue. On the basis of above pleadings applicants prayed for following reliefs in the suit:‑‑
(a) ??????? To declare that the entries in the name of Mst. Zainab are illegal, void, ab initio and bad in law and so the entries in the names of the present defendants be cancelled with further declaration that the suit‑land is exclusively the sole property of the plaintiffs inherited by them from their ancestors late Lal Bux and the defendants have no right, title or interest in the suit property.
(b) ??????? That the order of the defendants Nos.4 and 5 regarding the mutation of the suit‑land in the name of late Mst. Zainab and then in the names of the present defendants is illegal, void, ab initio and bad in law the equity and is liable to be cancelled,
(c) ??????? That the defendants Nos, 1 to 3 be prohibited and restrained not to interfere into the peaceful possession of the plaintiffs or to alienate, transfer, mortgage, sale or lease out by themselves, or through their agents, servants, subordinates, relatives etc. directly or indirectly through and under them.
(d) ??????? That the costs of the suit be borne by the defendants.
(e) ??????? Any other relief this Hon'ble Court deems fit and proper be awarded to the plaintiff.
2. After service of summons respondents/defendants Nos. 1 to 3 filed their written statement wherein they denied the claim of applicants and asserted that late Lal Bux had left behind one daughter Mst. Wadi, one sister Mst. Zainab and two grandsons Ahmed Khan and Ali Khan. Mst Zainab being sister of deceased was entitled to inherit her share from the agricultural lands left behind by late Lal Bux but in. the year 1929 deliberately her name was not mentioned in the list of legal heirs of late Lal Bux, however, later on in the year 1969‑70 with the free‑will and consent of Ahmed Khan, record was mutated in her favour according to her legal share. The respondents Nos, 1 to 3 also challenged the maintainability of the suit on various grounds including the ground of. limitation.‑‑
3. On behalf of respondents Nos.4 and 5 a statement, dated 29‑8‑1986 was filed whereby they adopted the written statement filed by respondents Nos. 1 to 3 as their written statement.
4. On the pleading of the parties following issues were framed in the suit:‑
(1) ??????? Whether the suit is not maintainable in law?
(2) ??????? Whether the suit is time‑barred?
(3) ??????? Whether, the plaintiff has no cause of action?
(4) ??????? Whether the suit‑land originally belonged to Lal Bux the grandfather of plaintiff No. 1 and great grandfather of plaintiffs Nos.2 to 6?
(5) ??????? Whether Lal Bux had no sister by, name Mst. Zainab?
(6) ??????? Whether Ali Khan died issueless and be left the plaintiff No. 1 and his two wives who inherited his share in the suit‑land?
(7) ??????? Whether the defendants have fraudulently got changed the Khata of suit‑land in their names without the knowledge and notice to plaintiffs?
???????????
(8) ??????? Whether the defendants have got changed the Khata of the land gifted to them by late Ali Khan and the land viz. 100 acres gifted out by plaintiffs Nos. 1 to 4 and 6?
(9) ??????? Whether the Foti Khata of late Lal Bux was changed in the year 1929 and the plaintiffs are sole and exclusive owners of the suit‑land in its physical cultivating possession?
(10) ????? Whether the forged entry in the name of Mst. Zainab the alleged sister of late Lal Bux has been shown in the record after 40 years after the death of late Lal Bux.
(11) ????? Whether the entries in the names of present defendants as sharers in the suit‑land are illegal, void and without the knowledge and notice of the plaintiffs?
(12) ????? Whether the plaintiffs are entitled to relief claimed?
(13) ????? What should the decree be?
5. The applicants in support of their case examined applicants No.2 Haji Rawat Khan as Exh. 24, who produced documents Exh.25 to 131. They also examined one Haji Qadair Bux as Exh.141 whereafter the side of the applicants was closed by their Advocate. From the side of respondents they examined witness Abdul Majid, Clerk from the Office of Deputy Commissioner as Exh.151, who produced documents Exh.152 to 154. They also examined witness Ayyoob as Exh.155, who produced documents as Exhs.156 to 161 and witness Abdul Aziz (Tappedar) as Exh.169, who produced documents as Exh.170 to 175. Lastly respondent Ghulam Ali examined himself as Exh.176 whereafter side of respondents was closed.
6. After hearing the arguments of the learned counsel for the parties the lower Court in its judgement, dated 30th April, 1988 reached to the conclusion that Mst. Zainab was not the sister of deceased Lal Bux, suit filed by the applicants was maintainable, within time, and applicants had cause of action to file the suit. I has all the issues were decided in favour of applicants and their suit was decreed as prayed with costs, except in respect of certain agricultural lands mentioned in the last page of the judgment.
7. The respondents Nos. l to 3 preferred Civil Appeal No. 153 of 1988 before the District Judge, Hyderabad. which was heard and decided by learned III‑Additional District Judge, Hyderabad. who in his impugned judgment, dated 27th April, 1989 held Mst. Zainab as sister of deceased Lal Bux and found the suit not maintainable and time‑barred. Accordingly, he allowed the appeal and set aside the judgment and decree passed by the lower Court and dismissed the suit of the applicants.
8. Mr. Abdul Sattar Shaikh, the learned counsel for the applicants, in order to render proper assistance to this Court, placed on record concise pedigree of deceased Lal Bux which is reproduced as under:‑‑
Lal Bux
Died 50 year back
|
______________________________|____________________________________
| ?????????????????????????????????????????????????????????? | ?????????????????????????????????????????????????????????????????????? |
Rewat khan Son ????????????????????? Mst. Waddi ????????????????????????????????????????????????????? Sister Zainab
Pre deceased his father Daughter ???????????????????????????????????????????? ????????? Died 40 ys back
| ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? |
|________________________ ?????????????????????????????????????????????? __________________|_____
| ?????????????????????????????????????????????? | ?????????????????????????????????????????????? | ?????????????????????????????????? ???????? |
Ahmed Khan ?????????????????????????????????????????????? ???? ?????????????????? Ali Khan ????????????????????????????????????????????????????? ????? ????????????????? ? Niece ??????????????????????????????????? ???????????? Husband Seemre ???
Plaintiff No.1 ????????????????????????????????????????????? __________|___________________ ?????????????????????????????????????????????? ????? ????????????????? ? Mst.Waddi ????????????????????????? ???????????? Died 35 Ys.back ??
| ?????????????????????????????????? | ?????????????????????????????????? | ?????????????????????????????????????????????????????????? |
| ?????????????????????? Widow No. 1 ?????????????????????? Widow No. 2 ????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? |
| ?????????????????????? Fatime ??????????? ??????????????????????? Miral ?????????????????????????????????????????????????????????????????? |
| ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? |
| ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? |
| ?????????????????????????????????????????????????????????????????????????????????????????????????????????????????????? ??????? Cousins ???????
________________________|____
| ?????????????????????????????????????????????????????????????????????????????????? | ?????????????????????????????????????????????? ???????? | ?
| ?????????????????????????????????????????????????????????????????????? Ghulam Ali ?????????????????????????????? Haji Abdullah ??
| ?????????????????????????????????????????????????????????????????????? Def No 1 ????????????????????????????????? Def No.2
| ?????????????????????????????????????????????????????????????????????????????????? |
| ?????????????????????????????????????????????????????????????????????????????????? son
| ?????????????????????????????????????????????????????????? _______________________
| ?????????????????????????????????????????????????????????? Gul Muhammad Deft No.3
|_____________________________________________________________________
| ?????????????????????????????????? | ?????????????????????????????????? | ?????????????????????? | ?????????????????????????????????? ????? | ????
Haji Rewat ?????????????????? Ghulam Mohd ????????????? Khan Mohd ????? Lal Buksh ???????? ??? Ali Ghulam
Plt No2 ??????????????????????? Plt No.3 ?????????????????????? Plt No.4 ?????????? Plt No.5 ?????????? ???? Plt No.3
9. Learned counsel contended that admittedly parties to this litigation are Sunni Muslims thus Sunni Muslim Law of Inheritance will be applicable to determine their inheritance share. Referring to the above pedigree, he contended that facts that Mst. Wadi was the only surviving daughter of late Lal Bux and Ahmed Khan and Ali Khan were the grandsons of Lal Bux from his pre?deceased son Rawat Khan have not been disputed by the respondents but their claim is that besides these legal heirs deceased Lal Bux had also left behind one sister Mst. Zainab whose right of inheritance in the lands of deceased Lal Bux was omitted at the time of Foti Khata of late Lal Bux, which took place in the year 1929. He contended that even if, for the arguments sake, Mst. Zainab is taken to be the sister of late Lal bux then too under the Sunni Muslim Law of Inheritance she was not entitled for any share in the lands left behind by deceased Lal Bux and for this short reason alone this revision application should be allowed. To fortify his submissions he referred to the table of sharers given in the Mahomedan Law by D.F. Mulla to show that Mst. Wadi the only daughter of Lal Bux was sharer as Serial No.7 of this Table thus she inherited 1/2 share in the lands of late Lal Bux. He then referred to Serial Nos. 11 and 12 of the same table to show that the share of full sister or consanguine sister was subject to the condition given in Column No.3 of the table that they will be entitled when there is no (1) child, (2) child of a son h.l.s (3) father, (4) true grandfather, or (5) full brother of deceased. Thus under the table of sharers Mst. Zainab was not entitled to inherit anything as sharer from late Lal Bux. He then came to the table of residuaries to show that son's son finds place at Serial No.2 of the list of residuaries in the order of succession, therefore, whatever was left behind after the share of Mst. Wadi was inherited by them Ahmed Khan and Ali Khan as residuary, being son's son. Referring to Serial Nos.6 and 8 of the list of residuaries, learned counsel contended that full sister or consanguine sister in the category of residuary could only inherit in the absence of persons named at Serial Nos. 1 to 5/7 in the table of residuaries. Thus in the presence of names of son's son at Serial No.2 of the table Mst. Zainab stood totally eliminated to claim any share in the agricultural lands of deceased Lai Bux, either as sharer or residuary. In order to show the preference of residuaries for the purpose of succession he referred section 52 of the principles of Mahomedan Law (Tenth Edition) by D.F. Mulla, which is reproduced as under:‑‑
"52. ????? Residuaries.‑‑‑If there are no sharers, or if there are sharers, but there is a residue left after satisfying their claims, the whole inheritance or the residue, as the case may be, devolves upon residuaries in the order set forth in the annexed table (40‑A)."
10. Mr. Shaikh thus contended that this legal position going to the root of the case of respondents was completely overlooked by the First Appellate Court while passing the impugned judgment, that from no stretch of imagination the predecessor‑in‑interest of respondents Nos. 1 to 3 viz. Mst. Zainab could. inherit any share from the estate of late Lal Bux in the facts and circumstances of the present case.
11. Referring to the question of limitation raised by respondents in their written statement learned counsel made two fold submissions. Firstly he contended that the whole action of change of Khatas pertaining to the year 1929/ 1946 in the year 1969/1970 was managed behind the back of applicants thus Article 120 of the Limitation Act will be applicable and the period of limitation would start from the date of knowledge of such fraud practised by the respondents which came to the knowledge of the applicants only 2/3 days prior to the institution of the suit. Referring to the alleged statement of Ahmed Khan before the Revenue Authorities record in the year 1969/70 he contended that though the applicants have denied such statement but even if such statement of Ahmed Khan is taken into consideration on its face value then he had no where conceded for' any share in favour of Mst. Zainab from the lands of late Lai Bux and further such statement is not binding on other applicants. Mr. Shaikh next contended that when it is fully established that under the Sunni Muslim Law of Inheritance Mst. Zainab, even if she was sister of late Lal Bux, was not entitled to inherit even a single paisa share from deceased Lal Bux then the whole proceedings based on wrong legal proposition were without jurisdiction, nullity in the eye of law and ab initio void, thus there will be no period of limitation to challenge such void orders/entries. He placed reliance upon the case of Moolchand and 9 others v. Muhammad Yousuf (Udhamdas) and 3 others PLD 1994 SC 462, wherein it was held that mutation proceedings are not judicial in the sense and do not provide starting point of limitation.
12. Mr. Jhamat Jethanand, the learned counsel for respondents Nos.1 to 3 on the other hand contended that the suit instituted by the applicants before the lower Court was hopelessly time‑barred as from the statements produced on record by the respondents it is evident that change of mutation of agricultural land was effected in the year 1970 on the statement of applicant Ahmed Khan, who had full knowledge such change of mutation thus filing of suit in the year 1986 was barred by limitation and not saved by Article 120 of the Limitation Act. Learned counsel also disputed the assertion of Mr. Sattar Shaikh regarding mode of inheritance, as noted above, however despite specific directions of this Court contained in the order, dated 17‑12‑2002, he refrained from making any statement in writing before the Court to submit his point of view that how in the presence of one daughter and two grandsons under the Sunni Law of Inheritance the sister could inherit any share. He, however, placed reliance on the cases reported as Moolla Cassim Bin Moolla Ahmed v. Moolla Abdul Rahim and others reported in 32 Indian Appeals page 177 and Abdul Bari Khan and another v. Nasir Ahmed Khan and others reported in 150 Indian Cases page 330.
13. I have gone through these two cases and seen that in both the cases it was held that if son dies, leaving his children before opening of succession, such children will be excluded from succession in presence of their uncles and aunts. There is no cavil to their legal proposition inasmuch as if there were many sons and daughters of a deceased out of whom one son had died then in the presence other sons and daughters, who will be uncles and aunts of the grandchildren of the deceased, grandchildren will not be entitled to inheritance any share from the deceased. It is thus obvious that both the cases are distinguishable and not applicable to the facts and circumstances of the present case.
14. I have carefully considered the arguments advanced by the learned counsel for the ‑parties and with their assistance perused the whole case record and the relevant provisions of law Mahmodan Law attracted in the present case.
15. The moot point for consideration involved in this revision application is that whether in the presence of one daughter and two grandsons of deceased Lal Bux, even if Mst. Zainab was taken to be his sister, would she be entitled for any share from the agricultural lands left by deceased or not. In this context, the contention of Mr. Abdul Sattar Shaikh, which is purely legal and goes to the root of the case, that when deceased Lal Bux had left behind one daughter Mst. Wadi and two grandchildren Ahmed Khan and Ali Khan from his predeceased son Raat Khan then his alleged sister Mst. Zainab would not be entitled to inherit any share in the agricultural lands left by deceased Lai Bux finds full support from the table of sharers and residuaries given in Chapter VII (Hanfi Law of Inheritance) in the boor Principles of Mahomedan Law (Tenth Edition) by D.F. Mulla. Mr. Jhamat Jethanand, the learned counsel for respondents Nos. 1 to 3 was also unable to controvert this position. There is no cavil to this legal position and this short ground alone is sufficient to hold that the First Appellate Court while passing the impugned judgment and decree acted illegally and with material irregularity in ignoring this important feature of the case which furnishes valid ground for this Court to interfere in such judgment and decree in its revisional jurisdiction.
16. In view of the above legal position I have no hesitation to hold that all proceedings regarding change of entries in the Revenue Record (Khatas) taken by the respondents Nos. 4 and 5 in the year 1969/70, which were based on the application of respondent No. 1, dated 5‑12‑1969 (Exh. 152) were without jurisdiction, void and nullity in the eye of law, and same are liable to be cancelled. As regards the question of limitation it may be observed that under Article 120 of the Limitation Act prescribed period of limitation is to be computed from the time when the right to sue accrues to a party. Obviously in the present suit when applicants came to know about the fraudulent entries in favour of respondents Nos. 1 to 3 in the Revenue Record only 2/3 days before filing of suit then the suit instituted by them was well within time. The production of alleged statement of applicant Ahmed Khan pertaining to the year 1969/70 has not changed this position as firstly such statement, despite specific denial by applicants, has not been proved in accordance with law and secondly such statement was not binding on other applicants (plaintiffs Nos.2 to 6) in the suit. The stand of die applicants that they came to know about the disputed mutation in the Revenue Record 2/3 days before the institution of suit is supported from their evidence, thus the learned lower Court I rightly held the institution of suit by the applicants was within time. Apart from it when the proceedings initiated by the respondents Nos.4 and 5, allowing share to Mst. Zainab from the agricultural lands of late Lal Bux, are found to be without jurisdiction, void and nullity in the eye of law then even otherwise question of limitation will not come in the way of applicants in challenging such fraudulent actions of respondents. If any case‑law is needed to fortify this view reference may be made .to the following cases:‑‑
(1) ??????? Syed Nazir Hassan. v. Settlement Commissioner, Layallpur and another PLD 1974 Lahore 434;
(2) ??????? Jamal Bhai and 2 others v. Administrator, Evacuee Trust Property and 6 others 1985 CLC 1411.
(3) ??????? Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962.
17. Foregoing are the reasons for the short order, dated 23‑12‑2002 whereby this revision application was allowed, the impugned judgment and decree passed by the First Appellate Court, dated 27‑4‑1989 was set aside arid that of lower Court was restored.
S.A.K./A‑413/K ????????????????????????????????????????????????????????????????????????????????? Revision accepted.