RAZIA BEGUM Versus ZAHOOR AHMAD

The judgment and decree dated .9-8-1992 of the learned Additional District Judge, Chiniot have been assailed in this revision petition whereby while reversing the judgment and decree dated 30-1-1988 of the learned trial Court the suit filed by the petitioners was dismissed.

2. The dispute in this case relates to succession to the estate of Rashid Ahmed, husband of petitioner No.l, and father of petitioner No.2. He owned land in two revenue estates i.e. Chiniot-I and Chiniot-II. On his death on 6-6-1947 Mutation of Inheritance bearing No.2881 (Exh.P-7) in respect of his estate in Chiniot-1 was attested on 2-7-1949 in favour of his two widows namely Mst. Razia Begum petitioner No.l and Mst. Zubaida Begum, the only son of the deceased namely Zahoor Ahmed, respondent No.l, four daughters namely Rehmat Bibi, Jamila Bibi, Dilshad and Mst. Safia Begum petitioner No.2. In the other revenue estate Mutation of Inheritance No.4491 was attested on 15-8-1958 (Exh.P.8) exclusively in favour of Zahoor Ahmed respondent No.l, under the customary law, on the basis of the statement of respondent No.l made before the Patwari Halqa at the time of entry of the said mutation.

3. On 31-5-1980 the two petitioners herein field a suit assailing both the aforesaid mutations. Their grievance against Mutation' No.2881 was that Mst. Zubaida Begum, Mst. Rehmat Bibi and Jamila Bibi had no relationship whatsoever with the deceased and they were wrongly allowed to inherit a share in. the estate of the deceased. Regarding Mutation No.4491 their case was that the family was governed by personal law and attestation of the said mutation, A exclusively in favour of Zahoor Ahmed, respondent No. 1, was illegal. It may be noted that Mst. Zubaida. Begum, Rehmat Bibi and Jamila Bibi, were not impleaded to the suit while respondent No. l and Mst. Dilshad Begum daughter of Rashid Ahmed were impleaded as defendants Nos. l and 2 to the suit seven other persons, who had purchased part of the disputed land from respondent No. 1, were also impleaded to the suit.

4. The suit was contested by Zahoor Ahmed-respondent No. l and Muhammad Sharif-respondent No.8. Separate written statements were filed by them. While respondent No.8 claimed to be bona fide purchaser for valuable consideration, respondent No.l claimed that in accordance with the custom of their family, the widows and daughters were not entitled to inherit.

5. Necessary issues were framed and the suit was tried. The learned trial Court, on considering the evidence produced by the parties, reached the conclusion that the family was governed by, Shariat and not by custom. In so holding Mutation No.2881 was primarily relied upon. Accordingly, Mutation No.4491 was held to be illegal. Nothing was however, said about Mutation No.2881. Against the said judgment and decree respondent No.l alone filed an appeal which was allowed by the learned Additional District Judge vide judgment and decree dated 9-8-1992. Thd learned First Appellate Court came to the conclusion that 'family was governed by custom under which respondent No. l alone was entitled to inherit the estate of Rashid Ahmed to the exclusion of the petitioners. In reaching this conclusion, the learned First Appellate Court relied on Exh.D.6, suit filed by Malik Abdul Majeed (P.W.-2), the attorney of the petitioners, Exh.D.7, judgment dated 7-4-197.7 rendered in the said suit, Exh.D.2, Mutation No.193. (attested on 4-6-1928) the testimony of D. W .2, a Rajput Khokhar, and the _ statement of P. W .-2 that mutation of inheritance of his father was not entered in the name of his sister. It was also observed that Exh.P.5, Mutation No.200 attested on 15-4-1928 supported custom.

6. The learned counsel for the petitioners contends that the learned First Appellate Court misread and misinterpreted material evidence. According to him Exh.D.2, Exh.D.7 and Exh.P.5 did not establish that the family of the deceased was governed by custom; effect of attestation of Mutation No.2881 on 2-7-1949 under the personal law was also not properly considered. He particularly referred to the admission of Zahoor Ahmed-respondent No.1, who appeared as D.W.3, and stated that he had inherited the property of Bashir Ahmed, real brother of Rashid Ahmed deceased, alongwith the daughter of Bashir Ahmed. aforesaid. He further contended that the effect of section 2-A added to the Punjab Personal Law (Shariat Application) Act, 1962 by the Amendment Ordinance No.XIII -of 1983 was also not considered. The said section 2-A was enforced during the pendency of the suit, it was declaratory in nature and, therefore, applied even to the pending cases. Therefore, respondent No. l was not entitled to inherit the estate of Rashid Ahmed to the exclusion of the petitioners.

7. On the other hand; the learned counsel for respondent No.l has relied on the reasoning of the learned First Appellate Court and contends that the matter stands concluded by a finding of fact and, therefore, no interference is called for.

8. The submissions made by the learned counsel for the parties have been considered. It may be noted at the outset that no specific issue was framed on the question whether the deceased was governed by custom in the matter of succession but the parties were fully alive to the controversy and evidence was accordingly let by them. Issue No.3 however, covered the controversy on merits which is reproduced hereunder for facility of reference:--

"3.Whether the Mutations in questions Nos.4491 and 2881 sanctioned on 15-8-1958 and 2-7-1949 respectively are illegal, void and the plaintiff is entitled to the decree claimed in the plaint? OPP"

9. Against Mutation No.2881 the case of plaintiffs-petitioners was that Mst. Zubaida Begum and her daughters namely Rehmat Bibi and Jamila Bibi were not entitled to inherit the estate of Rashia Ahmed. Surprisingly, they were not impleaded to the suit. They were necessary parties without which the relief claimed by the petitioners qua Mutation No.2881 could not be granted. Therefore, as far as dismissal of the suit of the petitioners is concerned it is maintained to the extent of Mutation No.2881 attested on 2-7-1949.

10. As far as Mutation No.4491 is concerned, I have carefully examined the entire oral and documentary evidence produced by the parties. Unfortunately none of the two Courts noticed the entire material evidence. It may, however, be observed that Mutation No.4491 was attested at the instance of respondent No. 1. A perusal of the said mutation shows that even a pedigree-table was not drawn on the said mutation nor the question whether the family of the deceased was governed by custom considered by the Revenue Officer.

Exh.P-4 is Mutation No.-194 in respect of Rajput Khokhar. This mutation was entered at the instance' of Munawar Jan wife of Sultan Mehmood and was attested on 7-6-1927. According to this transaction Mst. Munawar Jan had gifted her holding in favour of her two daughters. This mutation shows that the females not only held the landed property, there was no customary restraint on their power of alienation. The learned First Appellate Court observed that mutation Exh.P-5, supported that the Rajput Khokhars were governed by custom. According to this mutation Khuda Bakhsh and two other sons of Fazal Din had lodged a report according to which their grandfather had made a will to distribute his estate according to Shariat, their two Phuphies were also heirs, from one they had purchased her share but the other was not selling it, therefore, 1/6th share should be entered in the name of Mst. Zainab Bibi, their "Phuphi". This mutation was attested on 15-4-1928. It shows that even if, initially, Rajput Khokhars of Chiniot were governed by custom, it was departed as back as 1928. At one place, the learned First Appellate Court found that Exh. P.5 was an instance that Rajput Khokhars of Chiniot were governed by Shariat. As found by the learned Trial Court Mutation No.2881 was attested on 2-7-1949 in accordance with the personal law. Respondent No.l was then a minor as admitted by P.W.-2.

However, even after getting Mutation No.4491 attested in his favour on 15-8-1958 he never agitated against Mutation No.2881. Therefore, he could not be permitted to say that Mutation No.4491 was rightly attested under the customary law. The situation will be anomalous and unacceptable that in case of one revenue estate inheritance of the deceased was settled in accordance with the personal law which was accepted by respondent No.l while in the other revenue estate his claim that it should be settled according to the customary law should be accepted.

11-A. On 13-1-1943 Rashid Ahmed.and.his brother Bashir Ahmed created a Waqaf-ul-Alal-Aulad by way of one registered deed (produced as Exh.P-9 and Exh.P-19) in respect of two houses and their agricultural land which was duly implemented in the Revenue Record vide Mutation No.2492 attested on 16=5-1944 (Exh.P-6). This deed of Waqf, inter alia, provided as follows:--

The covenants of the Waqf Deed reproduced above leave no manner of doubt that the deceased followed Personal Law. The covenant that besides the legal heirs of the Waqifs the members of family ( Khandan ) will also be entitled to maintenance allowance is, in fact, compliance of the dictates of Sharia whereby the rich are bound to maintain their poor relatives.

12. The learned First Appellate Court relied on Exh. D.2, Mutation No.193 attested on 4-6-1928. This also pertains to Rajput Khokhars of Chiniot. This mutation was entered at the instance of Noor Nabi who reported to the Patwari that Mst. Ghulam Babay widow of Ghulam Rasul had died without leaving behind any male issue while she nad two daughters who had already died. This mutation also doeq not show that the question that Rajput Khokhars were governed by custom was decided. Exh.D.3, Mutation No.2909 of the estate of Mst. Zainab Bibi (mother of the deceased) daughter of Abdul Rahim was sanctioned in favour of Rashid Ahmed deceased and his brother Bashir Ahmed on 30-6-1929. In the column of ownership Mst. Zainab Bibi has been shown to be owner . of the property as daughter of Abdul Rahim which establishes that the mother of the deceased had inherited the property from her father. None of the two Courts considered Exh. P.4, Exh. P.9 and Exh. P.19, Exh. D.3 and while making the observation that Exh. P.5 supported custom it was misread.. As far as Exh. D.2 is concerned, estate of Ghulam Babay was mutated in favour of Noor Nabi but this could hardly be accepted that the family of Rashid Ahmed decreased was governed by custom.

13. As far as suit earlier filed by Malik Abdul Majeed, the attorney of the petitioner, is concerned, the plaint in the said suit was placed on the record as Exh.D.6. A perusal of para.l thereof shows that mutation of inheritance of Ghulam Mustafa was initially settled under the Personal Law in favour of all his legal heirs including Mst Umt-ul-Hafeez, his widow. She agitated the matter against the said mutation and succeeded in getting a declaration that she held the entire estate of Ghulam Mustafa for life under custom. The grievance in the said suit was that on her death, mutation was sanctioned in favour of the legal heirs of Mst. Urtit-ul-Hafeez instead of the legal heirs of Qhulam Mustafa. This suit was decreed on 7-4-1977 (Exh.D.7). The judgment by which it was held that the family of Ghulam Mustafa was governed by custom was primary evidence in this case but it was not produced on the record. Neither from the plaint nor from the aforesaid judgment' it could be said that the family of- Rashid Ahmed was also governed by the custom.

Therefore, the learned Additional District Judge while relying on the judgment Exh.D.7 misinterpreted the said judgment. In any case this was adequately rebutted by the evidence noted by me in the preceding paragraphs.

14. The learned First Appellate Court relied on the statement of P.W.-2 to the effect that mutation of inheritance of the estate of his father was not entered in favour of his sister. His entire statement was, however, not read because he also stated that he had given a share in the inheritance to his sister.

15. In view of the documentary evidence produced by the petitioner the oral evidence is not of any consequence. It may, however, be observed that petitioner No.2 is the wife of Abdul Majeed (P.W.-2) while petitioner No.l is his mother-in-law. According to the statement of D.W.-2 he supports Zahoor Ahmed respondent No.1 and admitted that he was involved in criminal and civil litigation with aforesaid Abdul Majeed. Therefore, his bare word that the family of the deceased was governed by custom could not be' relied.upon. The learned First Appellate Court did not even note that D. W.-2 had a motive to support the case of respondent No. 1.

16. After considering the evidence produced in the case I have nol doubt in my mind that succession to the estate of Rashid Ahmed was governed by personal law and the learned First D Appellate Court while reaching a conclusion to the contrary either alli together ignored material evidence or misread it. The contention of learned counsel for respondent No.l that the matter stands concluded by finding of fact has, therefore, no merit. In view of my above findings it is not considered necessary to examine the effect of section 2-A of the Punjab Muslim Personal Law (Shariat) Application Act, 1962 inserted by Punjab Muslim Personal Law Act No.XIII of 1983. .

17. For what has been stated above, this revision petition is partly allowed the impugned judgment and decree dated 9-8-1992 are modified and the suit of the petitioners is decreed to the extent of E Mutation No.4491 attested on 15-8-1958. However, to the extent of Mutation No.2881 attested on 2-7-1949 the suit of the petitioners is dismissed. No order as to costs.

H.B.T./R-215/L Order accordingly.