FAIZ AHMED Versus KHAN MUHAMMAD
The facts are that the original owner of the land measuring 906 Kanals, 19 Marlas situated in village Momeeka, Tehsil and District Bahawalnaga.r (fully described in the plaint) in question was one Ghulam Muhammad the predecessor‑in‑interest of the parties. Upon his death he was survived by Mst. Ghulam Fatima his widow and one daughter Mst. Noorai. The petitioners got attested Mutation No. 116 on 23‑1‑1973. wherein the petitioners were shown entitled to the inheritance of the propositus Ghulam Muhammad through his daughter Mst. Noorai.
2. The plaintiffs/respondents filed a suit for declaration that they are owners in possession of the suit‑land as Ghulam Muhammad was governed by custom and not by Muslim Law of inheritance and that the, Mutation of Inheritance No.116 dated 23‑1‑1973 in favour of the petitioners was illegal and ineffective upon their rights. It was also contended that Mst. Noorai daughter of Ghulam Muhammad had pre-deceased him.
3. The suit was contested by the petitioners on the ground that the suit was time‑barred; that the plaintiffs are estopped from filing the suit and that the suit suffered from non joinder of necessary parties. On facts, it was denied that Ghulam Muhammad deceased was governed by custom. It was also contended that upon his death he wars survived by Mst. Ghulam Fatima and Mst. Noorai daughter. Upon the death of Mst. Noorai, the petitioners are lawfully entitled to inherit the estate of Ghulam Muhammad to the extent of Muslim Law Share of Mst. Noorai.
4. From the pleadings of the parties, several issues were framed and the material issues for the purposes of decision of this Civil Revision are Issues Nos. l, 5 and 7 which are reproduced as under:
Issue No. l
Whether the suit is within time'' OPP
Issue No.5
Whether family of Ghulam Muhammad deceased was governed by custom? If so, what was the custom? OPP.
Issue No.7
Whether Mutation of Succession No.116 dated 23‑1‑1973 is illegal, void and ineffective qua the rights of the plaintiffs for the reasons stated in the plaint? OPP
S. In support of their contention, the plaintiffs examined Muhammad Khan as P.W.1, Fazal P.W.2 and Gul Muhammad P.W.4 in addition to the documentary evidence, important amongst which are copy of Wajib‑ul‑Arz Exh.P. copy of Register Haqdaran Zamin 1904/1908 Exh.P.2, copy of Pedigree‑table Exh.P.8. On the other hand, the petitioners/defendants produced Lai Khan D.W.1, Aalaval D.W.2, Sharah D:W.3 and Muhammad Yousaf one of the defendants as D.W.4. In documentary evidence, copies of Khasra Girdawari and Jamabandi were produced.
6. The learned trial Court basically relied upon the copy of Wajib ul‑Arz Exh.P.1 and came to the conclusion that the rule of inheritance in village Momeeka was based upon the custom of Pagwand. It was thus held that the widow of Ghulam Muhammad namely Ghulam Fatima held the land as a limited owner till her death after which the land was liable to be transferred in ownership to the male heirs of Ghulam Muhammad to the exclusion of his female heirs. It was also held that as the Mutation No.116 dated 23‑1‑1973 was basically void, no limitation would run against the same. Holding thus, the learned trial Court decreed the suit of the respondents vide judgment and decree dated 24‑2‑1986.
7. The petitioners preferred an appeal which was dismissed on 22‑1‑1987. The learned Appellate Court considered the evidence on Issue No.5 and came to the conclusion that according to Exh.P.1 the parties were governed by custom of Pagwand. The learned Appellate Court concurred with the findings of the trial Court and passed its impugned judgment.
8. Mr. A. R. Tayyib, Advocate for the petitioners and Choudhary Muhammad Afzal Cheema, Advocate for the respondents have been heard and record perused.
9. The basic document which will decide the controversy between the parties is Exh.P.I which is the copy of Wajib‑ul‑Arz of village Momeeka. The relevant extract from the said document is reproduced as under:‑‑
10. Both the 'learned lower Courts have misconstrued this document inasmuch as the pre‑condition for the application of the custom to apply is when propositus/dies issueless. It is only in this event that the custom of Pagwand would prevail. The evidence produced on the record is not sufficient to prove that Ghulam Muhammad had died issueless. A reference to the plaint would show that the plaintiffs/respondents have admitted that Mst. Noorai, the predecessor‑in‑interest of the petitioners was the daughter of Ghulam Muhammad. However; it' was contended that she had died during the lifetime of her father. There is nothing' on the record to prove that Mst. Noorai predeceased Ghulam Muhammad. To the contrary, it was on the record that Ghulam Fatima had died about 20 years after Ghulam Muhammad and Mst. Noorai died almost three years after the ddath of Mst. Ghulam Fatima.
11. Neither the trial Court nor the learned Appellate Court adverted their attention to this question of fact. It was presumed that the custom applied notwithstanding the fact that Ghulam Muhammad admittedly had a daughter namely Mst. Noorai, Apart from this Exh.P.2 which is a cop; of Register Haqdaran Zamin for the year 1904‑1908 shows the inheritance of various females of the Momeeka Caste which belies the existence of custom,
12. According to the provisions of section 5 of Punjab Laws Act, 1872, the governing rule in matters of succession to the estate of a Muslim shall be the Muslim Personal Law unless the same is proved to be altered, amended or modified by a prevailing custom. As discussed hereinbefore, the custom of Pagwand would not govern the succession of Ghulam Muhammad deceased, as it applies only to the succession of a propositus who died issueless. The impugned mutation was attested on 23‑1‑1973. The suit was filed on 17‑3‑1979 which was beyond six years of the impugned mutation. The suit was time‑barred under Article 120 of the Limitation Act having been filed beyond the period of six years. The findings of the learned lower Courts that no limitation would run against the mutation as it was void is not correct.
13. The upshot of ,the above discussion is that the judgment and decree dated I1‑1‑1987 of the Appellate Court and judgment and decree dated 24‑2‑1986 of the trial Court have been passed with material irregular exercise of jurisdiction. The Civil Revision is accepted and the judgments and decree of both the lower Courts are set aside. As a result the petitioners shall be entitled to the Muslim Law share of Mst. Noorai in the estate of Ghulam Muhammad deceased. Parties to bear their own costs.
H.B.T./F‑107/L Revision accepted.