HAYAT KHAN Versus GUL REHMAN

SYED ARSHAD ALI, J.---- This Civil Revision is directed against the judgment/decree dated 01.08.2005 of learned Additional District Judge-I, Peshawar whereby appeal of the respondents/defendants against the judgment/decree dated 03.11.2004 of learned Civil Judge, Peshawar was allowed and suit of the petitioners/plaintiffs was dismissed.

2. The facts relating to this case are simple and straightforward. The plaintiffs/petitioners who are the legal heirs of Mst. Shughla and Mst. Padama daughters of Mehr Ali who was the son of Saad-ud-Din through the suit which they filed on 13.04.1993 before the Civil Court, challenged the transfer of the suit property from Saad-ud-Din to defendants Nos.1 to 13 through different transactions which were concluded/executed in 1937 and 1938. It is the claim of the present petitioners that Mst. Shughla and Mst. Padama were illegally deprived of legacy of Saad-ud-Din in active connivance of Sanober and Ghulab who were the predecessor of the defendants Nos.1 to 13. In order to comprehend the relations between the parties, it is appropriate to refer to the pedigree tables relied upon by the Trial Court:-

3. As pointed out by the learned Trial Court that the relationship between the parties as discern from the pedigree table are undisputed except the facts that Ghulab and Sanober were not the direct descendent of Ghulam Khan but were the descendent of Musafar son of Ghulam Khan, therefore, the name of Musafar is missing from the pedigree table, however, it has no bearing on the case because the property left behind by Musafar Khan was passed on to Sanober and Ghulab, the predecessor of defendants Nos.1 to 13. Furthermore, it is also evident from the record that although the defendants dispute the parentage of Mst. Shughla and Mst. Padama, however, it appears from record that Mehr Din, the original predecessor of both the parties were survived by Ghulam Khan and Ghazi Khan. The defendants Nos.1 to 13 are the descendant of Ghulam Khan whereas the present petitioners claim their legacy from Ghazi Khan the other son of Mehr Din. Ghazi Khan had three sons namely Abdul Khaliq, Ghani and Saad-ud-Din. Abdul Khaliq died issueless whereas Ghani was survived by Mst. Gul Firosha and Mst. Dilbaro both of them died issueless.

4. Whereas, during the life time of Saad-ud-Din; his only son Mehr Ali had died and the said Mehr Ali had two daughters Mst. Shughla and Mst. Padama who are the predecessor in interest of the plaintiff/petitioner.

5. The bone of contention between the parties is the inheritance of Saad-ud-Din. His inheritance Mutation No.774 dated 16.08.1937 is available on the record according to which the legacy of Saad-ud-Din was transferred in favour of Sanober etc. The petitioner has placed on record the application of Mst. Gul Firosha daughter of Ghani Khan and niece of Saad-ud-Din for correction of the said inheritance mutation to the City Magistrate. The then City Magistrate obtained the comments of Naib Tehsildar and after receipt of the comments, wherein it was recommended that true legal heir of the Saad-ud-Din was Mst. Gul Firosha, therefore, he accepted the said application and ordered for correction of the said inheritance mutation, thereby reverting the property; left behind by Saad-ud-Din; from Sanober etc to Mst. Gul Firosha. This order was followed by a proper mutation dated 23.05.1938 Ex.APW-3/1. Later, Mst. Gul Firosha through a registered deed dated 19.04.1939 exhibited as Ex.DW-1/1 had gifted the property to Sanober son of Muzaffar the predecessor of the defendants Nos. 1 to 13.

6. Thus, it discerns from record that in the entire episode the true legal heirs i.e. Mst. Padama and Mst. Shughla, the predecessor in interest were deprived of their legal and shari share in the inheritance of Saadu-ud-Din. The respondents could not controvert their legal position. Keeping in view this fact the learned Trial Court had decreed the suit whereas the learned Appeal Court has set aside the decree on altogether alien consideration. The learned Appeal Court in its impugned judgment has held that Saad-ud-Din during the life time had transferred the property more than his share in Khana Kasht, therefore, he had left behind no legacy, however, these findings are not supported by any record. The Goshwara Malkiat of Saad-ud-Din, available on the record, according to which, Saad-ud-Din had transferred only land measuring 28 Kanal 3 Marla exhibit as Ex.PW-1/16 out of his total property and according to the said Goshwara he was still recorded as owner of considerable land measuring almost 46/47 Kanal. Even otherwise, these assertions are not supported by record because pursuant to inheritance mutation reviewed by City District Magistrate, his property has devolved upon Mst. Gul Faroosha his niece, which was later transferred in the name of the predecessor of the defendants through registered deed stated above.

7. In my humble submission, the main issue in this case is the issue of limitation. The predecessor of the respondents had transferred all his property to various persons through different mutation the detail whereof is provided and Ex.PW-3/2 and thus when nothing was left in his legacy, the present plaintiffs who are the legal heirs of Mst. Shughla and Mst. Padama had filed the suit on 13.04.1993. It is pertinent to note that neither Mst. Padama nor Mst. Shughla nor Mst. Gul Firosha had challenged the said mutation during their life time. In this regard the learned counsel appearing on behalf of the plaintiffs/petitioners has argued that since it is a matter of inheritance, therefore, the question of limitation does not arise.

8. Let us have the benefit from the law enumerated by the apex Court, in the matter where the claim of a deprived legal heir in the legacy of the predecessor but raised at belated stage, was dealt with.

9. In the case of "Ghulam Ali [PLD 1990 SC 1]", the apex Court while dealing with a case, wherein the daughter of common predecessor were excluded from the legacy of her predecessor by the brother in the year 1963, when subsequently she had challenged the said mutation depriving her from the legacy of her forefather, the apex Court has maintained that in such a situation the possession of brother, thus would be taken to be the possession of their sister unless there is an express repudiation of the claim of the sister by the brothers, therefore, the suit was held to be in time. This view was also reaffirmed in the case of "Muhammad Boota v. Allah Ditta [1998 SCMR 2764]" by the apex Court. The apex Court remained consistent in this regard as evident from the case law reported in the judgments titled "Zulfiqar Ali v. Ghulam Rasool [2004 SMR 513], Muhammad Raffique v. Muhammad Ali [2004 SCMR 704], Mst. Fatima Bibi v. Altaf Ahmad [2009 SCMR 693] and Mst. Gohar Khanum v. Mst. Jameela Jan [2014 SCMR 801]".

10. In the case of "Lal Khan v. Muhammad Yousaf [PLD 2011 SCMR 657]" the apex Court had set aside the concurrent findings of three Courts and dismissed the suit filed on 13.05.1970 being barred by time where the plaintiffs had challenged the inheritance mutation dated 13.02.1947.

11. Later, the apex Court in the case of "Mst. Grana [PLD 2014 SC 167]" while relying upon the ratio of Lal Khan case and distinguishing the law laid down by the apex Court in Ghulam Ali's case has laid the following principle relating to the acquiescence of a legal heirs when he or she does not challenge the inheritance mutation of the predecessor in time. Para 7-A of the judgment is reproduced wherein this issue has been elaborately answered.

"7-A The plaintiff had assailed the registered sale-deed dated 08.06.1916 and the sale mutation No.1273 dated 23.12.1917. She had also questioned inheritance mutations No.281 dated 05.12.1930, 2089 dated 1.09.1949 and gift mutations of 11.11.1959 and further mutations made from time to time attested on 18.01.1956, 09.12.1964, 12.12.1981, 31.01.1984 and 30.07.1987 and further all subsequent sale and gift mutations. The challenge was thrown in the year 1991 when she was more than 80 years old; as according to the evidence she was 6/7 years old when her father had died somewhere in the year 1911/12. Upon her father's death the entire property was inherited by her as limited owner, which, upon her marriage in the year 1930, she had to give up in favour of her step-sister, Mst. Bibi, born out of her mother's wedlock with one, Rasool. Since then she had remained out of possession. It cannot be said that she was unaware as to how the property was handled there-after and of her rights therein. Rather her awareness is demonstrated by the order of the Collector, Mardan, dated 15.04.1942 where she was marked personally present. In the appeal before the Collector she had questioned the permanent transfer by Mst. Bibi of certain property alleging that the respondent was a limited owner. However, she had neither then or ever questioned the sale deed of the year 1916 till filing of the suit in the year, 1991, being well aware of such transfer. Again, as the above order of the Collector shows that the plaintiff was conscious and aware that a limited owner was not empowered to transfer permanently property inherited by him or her, she did not question the gift mutation by Mst. Bibi in favour of the latter's mother, Mst. Habib Khanum, also the plaintiff's mother, in the year 1945. It may also be noted that by then the North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935 had come into force and the plaintiff could have asserted her right of inheritance. While the property was further sold and resold, constructed and reconstructed, the plaintiff took no action to annul or prevent such transfers. When she filed the suit there were as many as 251 transferees of the property. The conduct of the plaintiff clearly demonstrated acquiescence in all the impugned transfers of the property which amounting to waiver of her right. The transferees were, on account of the plaintiffs inaction, led to believe that the transferors had valid title in the suit property. The plaintiff had died during early stages of the litigation and has now represented by her legal heirs. The impugned concurrent findings of the two Courts on the above questions therefore do not call for any interference ".

12. In the case of "Mehmood Shah reported as [2015 SCMR 869]" the apex Court while dealing with the issue of limitation has also considered the law laid down by the apex Court in the earlier judgments. It is held in this judgment that succession to the property by the legal heirs to the property of their propositus becomes a fait accomply immediately after his demise and thus does not need the intervention of any of the functionally of the Revenue Department and remain as such irrespective of what Patwari/Girdawar and Revenue Official enter in mutation sanctioned in this behalf. However, in this case the judgment of the apex Court in the case of Lal Khan and Muhammad Rustom were distinguished on the reason that the descendant of propositus did not challenge their exclusion from inheritance during their life time. I have also considered the law laid down by the apex Court in the subsequent judgments reported as "Khan Muhammad v. Mst. Khatoon Bibi [2017 SCMR 1476], Asal Janan and others v. Zareef Khan and others [2020 SCMR 668] and Shabla and others v. Ms. Jahan Afroz Khilat and others [2020 SCMR 352]".

13. After perusing the aforesaid judgments of the apex Court I have reached at the conclusion that when a legal heir is deprived of his/her right of inheritance and he/she remains alive for a considerable period and does not challenge his/her deprivation from the legacy of the predecessor, then at later stage when the legacy changes many hand, the further legal heirs have no locus-standi to challenge the said inheritance mutation which remained unchallenged during the life time of their predecessor.

14. In the context of the present case, the predecessor of the present petitioners were deprived of their legacy in the year 1937, therefore, suit filed by the present petitioners in the year 1993 when the entire property had changed so many hands is not within the period of limitation.

15. Resultantly, this petition is dismissed in the above terms.

MH/85/P Revision dismissed.