GUL MUHAMMAD Versus ALLAH DIWAYA (DECEASED)

CH. MUHAMMAD IQBAL, J.---- Through this civil revision, the petitioners have challenged the judgment and decree dated 27.09.2000, passed by the learned Civil Judge, Muzaffargarh whereby the suit for declaration filed by the respondents was decreed and the judgment and decree dated 29.04.2002, passed by the learned Additional District Judge, Muzaffargarh who dismissed the appeal of the petitioners.

2. Brief facts of the case are that the respondents/plaintiffs filed a suit for declaration against the petitioners contending therein that they are owners in possession of their legal share out of land measuring 16 Kanal 07 Marla, fully described in the headnote of the plaint, which was originally owned by one Lalu who died in 1917 and Mutation No.219 dated 02.01.1918 Was incorporated in the name of Mst. Satto, widow of Lalu as limited owner. Mst. Satto, transferred suit land to her daughter namely Mst. Sahib Khatoon through Mutation No.85 dated 11.06.1924. Sahib Khatoon transferred the suit land to the petitioners/defendants through Mutation Nos.86, 1097 and 1223 dated 11.06.1924, 24.05.1968 and 12.04.1974 respectively. The respondents/ plaintiffs contended that after the death of Lalu, the suit land should have been devolved upon all his legal heirs who were alive at that time instead of transferring whole land to Mst. Satto. The respondents/plaintiffs contended that being the collaterals of Lalu, they are entitled to get share from his estate. The suit was contested by the petitioners/defendants. The learned trial Court framed issues, recorded evidence of the parties and finally decreed the suit vide judgment and decree dated 27.09.2000. The petitioners filed an appeal which was dismissed by the learned appellate Court vide judgment and decree dated 29.04.2002. Hence, this civil revision.

3. Learned counsel for the petitioners submits that the suit of the respondents is hopelessly time barred; that the judgments of the learned Courts below are based on misreading and non-reading of evidence, as such, liable to be set aside.

4. The respondents have already been proceeded against ex parte.

5. I have heard the arguments of learned counsel for the petitioners and have gone through the record with his able assistance.

6. Admittedly the parties of the lis are Muslims and they are bound to Shariah. Lalu died on 12.10.1917 leaving behind his widow namely Satto and daughter Sahib Khatoon and as per Shariah, Mst. Satto was entitled to 2/16 share and Sahib Khatoon was entitled to get 7/16 share and the respondents/plaintiffs being collaterals (sons of the brothers of Lalu) are entitled to get 9/16 share. The petitioners/defendants admitted that the respondents/plaintiffs are legal heirs (sons) of brothers of Lalu deceased. Even the pedigree table mentioned in the plaint was not rebutted by the petitioners/defendants. There is no concept of limited owner in Islam. As per the ordains of Almighty Allah, as described in Sura Nisa that after the death of a Muslim, his property is to be devolved upon all his legal heirs. As such, they are also entitled to inherit from legacy of Lalu deceased. Reliance in this regard is placed on Muhammad Ishaq v. Federation of Pakistan (PLD 1981 FSC 278) and The Federation of Pakistan through Secretary Law and Parliamentary Affairs Islamabad v. Muhammad Ishaq and another (PLD 1983 SC 273). As per Article 227 the Constitution of the Islamic Republic of Pakistan, 1973, the principles of Quran and Sunnah are declared as supreme law of this country and all provisions, rules, regulations are to be legislated and framed within the precincts of Islamic principles. For reference Article 227 of the Constitution of Islamic Republic of Pakistan is reproduced as under:-

227. Provisions relating to the Holy Quran and Sunnah.-(I) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions.

1[Explanation.-In the application of this clause to the personal law of any Muslim sect, the expression "Quran and Sunnah" shall mean the Quran and Sunnah as interpreted by that sect.]

(2) Effect shall be given to the provisions of clause (I) only in the manner provided in this Part

(3) Nothing in this Part shall affect the personal law of non-Muslim citizens or their status as citizens.

Allah Almighty has ordained the Muslims to decide their dispute according to the principles of Quran (Shariah) which are made obligatory as described in following verses:

The rights or shares of each and every Muslim inheritor in the estate of his/her deceased propositus is absolutely, conclusively and finally described /determined in the Holy Quran which shares are definite in nature. In this regard it is expedient to take guidance from the Holy Quran, particularly from Surah tul Nisa Ayat Nos.7 to 11, English and Urdu translation whereof (by Marmaduke Pickthall) is reproduced as under:-

7. Unto the men (of a family) belongeth a share of that which parents and near kindred leave, and unto the women a share of that which parents and near kindred leave, whether it be little or much. A legal share.

8. And when kinsfolk and orphans and the needy are present at the division (of the heritage), bestow on them therefrom and speak kindly unto them.

9. And let those fear (in their behaviour toward orphans)\ who if they left behind them weak offspring would be afraid for them. So let them mind their duty to Allah, and speak justly.

10. Lo! Those who devour the wealth of orphans wrongfully, they do but swallow fire into their bellies. And they will be exposed to burning flame.

11. Allah commands you concerning (the provision for) your children; to the male the equivalent of the portion of two females, and if there be only women more than two, then theirs is two-thirds of the inheritance, and if there be one (only) then for her is the half. And to each of his parents a sixth of the inheritance, if he have a son; and if he have no son and his parents are his heirs, then to his mother appertaineth the third; but if he have brethren, then to his mother appertaineth the sixth, after any legacy he may have bequeathed, or debt (hath been paid). Your parents and your children: Ye know not which of them is nearer unto you in usefulness. It is an injunction from Allah. Lo! Allah is knower, Wise.

Further in Surah tul Nisa, it has been ordered as under:--

Further in Sahi Bukhari Sharif Vol.III, relevant at Page No.606 Chapter No.922 the shares of the legal heirs have also been described as under:--

Even after the establishment of British Rule over Subcontinent (India) the laws relating to a community were safeguarded. The Punjab Laws Act, 1872 was promulgated, under Section 5 whereof it was maintained that the rule of decision shall be Muhammaden Law where the parties are Mohammaden. For ready reference, Section 5 of the Act ibid is reproduced-as under:

5. Decision in certain cases to be according to Native law.- In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption guardianship, minority, bastardy, family relations, wills, legacies, gifts partitions, or any religious usage or institution, the rule of decision shall be-

(a) any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority;

(b) the Muhammadan law, in cases where the parties are Muhammadans and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to."

(emphasis supplied)

Moreover according to Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, the Shariat Laws were made applicable where the parties were Muslims. Section 2 of the Act ibid is reproduced as under:

2. Application of Personal Law to Muslim.---Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubarat maintenance, dower, guardianship, gills, trusts and trust properties, and wakfs other than charities and charitable institutions and charitable and religious endowments the rule of decisions in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)

Section of 3 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948 in this regard is also reproduced "as under:

"3. In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any such person before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat);

Provided that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last owner, shall devolve on her if she loses her limited interest in the property on account of her marriage or re-marriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death."

The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was also promulgated in this regard, Section 2 whereof is reproduced as under:

2. Application of the Muslim Personal Law.----Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions, including waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims."

Reliance in this regard is placed on Muhammad Jan and another v. Rafi-ud-Din and others (PLD 1949 Privy Council 18), Abdul Karim and others v. Ghulam Ghaus (PLD 1451 Lahore 386), Mst. Qaiser Khatoon and 12 others v. Maulvi Abdul Khaliq and another (PLD 1971 SC 334) and Ghulam Haider and others v. Murad through Legal Representatives and others (PLD 2012 SC 501).

8. Now adverting to, the question of limitation contained in issue No.2, admittedly Lalu died in 1917 and the moment he closed his eyes, all his legal heirs according to Sharia become absolute owner of their respective shares in estate of the deceased and without resorting to the legal course of independent transaction, such ownership cannot be taken away by means of any unauthorized entry into revenue record and if any entry is made in clandestine manner with collusiveness of the revenue staff such entry is devoid of any legality and creating any valid right. The registration and sanctioning of mutation of inheritance is mere formality to update the official record whereas all legal heirs of a deceased become owners of the property to the extent of their respective share until and unless they themselves legally alienate their said share/right further and they also become joint owners in the estate having constructive possession over their share and no limitation runs against the inheritance matters. Reliance is placed on the cases titled as Khan Muhammad through L.Rs. and others v. Mst.Khatoon Bibi and others (2017 SCMR 1476), wherein the hon'ble Supreme Court of Pakistan held as under:-

"11. ....Similarly, in the cases of claiming right of inheritance, it is well settled that the claimant becomes co-owner/co-sharer of the property left by the predecessor along with others the moment the predecessor dies and entry of mutations of inheritance is only meant for updating the revenue record and for fiscal purposes. If a person feels himself aggrieved of such entries, he can file a suit for declaration within six years of such wrong entries or knowledge. Any such repetition of the said entries in the revenue record would again give him a fresh cause of action or when the rights of anyone in the property are denied it would also give fresh cause of action. Similarly, it is again settled by now that no limitation would run against the co-sharer. We for instance can quote few judgments covering all these aspects like Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), Riaz Ahmad and 2 others v. Additional District Jadge and 2 others (1999 SCMR 1328), Mst. Suban v. Allah Ditta and others (2007 SCMR 635), Muhammad Anwar and 2 others v. Khuda Yar and 25 others (2008 SCMR 905) and Mahmood Shah v. Syed Khalid Hussain Shah and others (2015 SCMR 869).

(emphasis supplied)

The Hon'ble apex Court in the judgment reported as Mahmood Shah v. Syed Khalid Hussain Shah and others (2015 SCMR 869) has held that:-

"7. The first argument questioning the judgments of the fora below as well as High Court is that the suit being hopelessly the barred is liable to be dismissed. This argument would have been viable otherwise but not in a case where co-heirs become co-owners in the property left by their propositus on his demise. Their succession to the property of their propositus becomes a fait accompli immediately after his demise. It, thus, does not need the intervention of any of the functionaries of the Revenue Department and remains as such irrespective of what Patwari, Girdawar and Revenue Officer enter in the mutation sanctioned in this behalf. Since possession of one co-heir or any number of them would be deemed to be on behalf of even those who are out of it, preparation of every new record of rights, in their case, would confer on them a fresh cause of action. No length of time, therefore, would culminate in the extinguishment of their proprietary or possessory rights."

In Mst. Gohar Khanum and others v. Mst. Jamila Jan and others (2014 SCMR 801), the August Court observed that:-

"3(sic.) The main emphasis of the learned counsel for the appellants was that the suit was time barred having been filed 50 years after the mutation dated 31-8-1940. This contention is, however, easily dispensed with as Mst. Zarina Jan admittedly came to own 1/3rd share of the land by operation of law and not by any mutation. The mutation was meant to record the legal entitlement of Dost Muhammad and Mst. Zarina Jan. If the mutation was erroneously made in favour of Dost Muhammad, such mutation would not create title in favour of Dost Muhammad in accordance with Sharia Law of inheritance.

The Hon'ble August Court in Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729) observed that-

"4. ....It is also settled law that question of limitation does not arise in inheritance cases. See Mst. Fazal Jan's case PLD 1992 SC 811 and Ghulam Ali's case PLD 1990 SC 1."

In the case of Arshad Khan v. Mst. Resham Jan and others (2005 SCMR 1859) the Hon'ble Supreme Court held that:-

"3. ....We having examined the question of limitation, find that mutation of gift was challenged on the ground of fraud and in such cases of fraud, the limitation would start from the date of knowledge and not from the date of fraud, therefore, the dismissal of the suit involving the dispute relating to the right in respect of inherited property on the ground of limitation, would not be proper as the mere delay in claiming the share in the inherited property, would not defeat the right of a person in inheritance and if he is non-suited on such technical ground, his right of inheritance would definitely be defeated. In the light of law laid down by this Court in Ghulam Ali v. Mst. Ghulam Sanwar Naqvi PLD 1990 SC 1, we may observe that the petitioner was not only under the legal obligation to protect the right of his sisters in the suit property rather it was also his moral duty to accept their claim and deliver the possession of the land of their share to them voluntarily.

And in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) the Hon'ble august Court held that:--

This controversy now stand finally settled by a recent judgment of this Court. It was held in 'Hall v. Khuda Yar' (PLD 1987 Supreme Court 453) that a similar adverse entry and non-participation in the profits of the property would not amount to an ouster. While taking note of the earlier case of 'Anwar Muhammad and others v. Sharif Din and others' (1983 SCMR 626) in extenso, it was observed that "wrong mutation conferred no right in property as revenue record is maintained only for purposes of ensuring realization of land revenue".

..

To the similar effect is the decision in 'Najabat and others v. Saban Bibi and others' (PLD 1982 Supreme Court 187). It was held in the circumstances of that case that the co-sharers/co-owners were not at all obliged to file a suit to seek a declaration to the effect that a mutation had wrongly been sanctioned. It was also held that a suit filed, due to denial of rights of the plaintiff sharer, for declaration would be within time and the Revenue authorities on success of such suit would be required by law to correct the wrong; mutation entries.

Reliance is also placed on a recent judgment dated 13.11.2019, passed by the hon'ble Supreme Court of Pakistan in Civil Appeals Nos.1520, 1521 and 1522 of 2016 titled Shabla and others v. Mst. Jahan Afroz Khilat and others.

9. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity, mis-reading and non-reading of evidence in the impugned judgments and decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioners which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case title as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).

10. In view of above, this civil revision being devoid of any merit is dismissed. No order as to costs.

MQ/G-2/L Revision dismissed.