ZAINUL HASSAN MIAN Versus KHUWAND NAKA

1. Appellants herein have challenged the review granting order passed by Additional District Judge/Izafi Zilla Qazi, Swat dated 3-9-1995 on the review petition filed by respondents Nos. l and 2, and the judgment and decree of his own dated 16-4-1995 and that of the trial Court dated 4-9-1994 were set aside, Appeal No.99/13 was accepted and the case was remanded for affording opportunity to produce additional evidence for determination of the fact that which of the property in dispute is the joint ancestral property of the parties and which of the property is the purchased property of the appellants/defendants 1 to 7.

2. The background of the case is that respondents Nos. l and 2 plaintiffs filed a suit subsequently amended by adding respondent No.7 (defendant No.34 in the trial Court) owner through purchase, claiming therein the disputed properties mentioned in the heading of the plaint to be their joint ancestral property and that they are entitled to get Shari share in the estate left by their predecessor. Further alleged that defendants have collusively entered themselves as owners in possession of the suit property through settlement staff, and they are going to transfer the same through sale and mortgage.

3. The suit was contested by the appellants/defendants by filing written statements. In view of the pleadings of the parties the trial Court framed fourteen issues including the relief as under:-

(1) Whether the suit is incompetent in its present form?

(2) Whether the plaintiffs have got a cause of action?

(3) Whether the suit is within time?

(4) Whether private partition has been effected?

(5) Whether the pedigreetable is correct?

(6) Whether the plaintiffs are estopped to sue?

(7) Whether the matter has been adjudicated upon?

(8) Whether the suit is bad for non/misjoinder of necessary/unnecessary parties?

(9) Whether the suit is properly valued for the purposes of court-fee?

(10) Whether defendants Nos. l to 7, 19 to 21 and 24 to 28 and 31 to 33 have matured their title through adverse possession?

(11) Whether the suit is bad for misjoinder of causes of action?

(12) Whether the guardian ad litem has been correctly appointed.

(13) Whether the plaintiffs are entitled to the decree as prayed for?

(14) Relief?

2. The parties produced evidence as they wished to be examined in Court The undisputed pedigreetable of the parties is as under:-

3. Saifullah (predecessor of parties)

4. Jawadullah (last full owner)

5. Abul Hassan

6. Amir Mian (died in the life time of his father).

7. Mst. Khwandnaka (respondent No. 1)

8. (Mst. Khaista Bibi (respondent No. 2.)

9. Guge

10. Mian

11. F/o

12. Dfdts/

13. 1 to 7.

14. Hazrat

15. Hassan

16. F/o

17. Dfdts.

18. Kashmir

19. F/o

20. Dfdts.

21. 12 to 18.

22. 8 to 11.

23. Tokhary

24. F/o Dfdts.

25. 19 to 29.

26. Said

27. Johar

28. Dfdt.

29. 30.

30. Umar

31. Dfdt.

32. 31

33. Mian M

34. Rasool D

35. Shah 3

36. Dfdt.32.

37. Mst. Naray

38. Dfdt.

39. 33.

4. The trial Court while deciding issues Nos. 1,4 and 13 held that since the father of plaintiffs/respondents No. 1 and 2 had died in the life time of his father Jawadullah and no property was transferred to the father of the plaintiffs while alive, plaintiffs were found not entitled to inherit Jawadullah, therefore on the death of Jawadullah his property devolved upon his brother Mian Abul Hassan. On recording the aforesaid finding the trial Court dismissed the suit of the plaintiffs/respondents Nos. l and 2. Respondent No. 1 preferred an appeal bearing No.99/13 of 1994 to the Court of District Judge Swat which was entrusted to and heard by Additional District Judge/Izafi Zilla Qazi, Swat who dismissed the same vide his judgment and decree dated 16-4-1995. It was observed in para 5 of his judgment as follows:--

5. The plaintiffs/respondents Nos. l and 2 feeling dissatisfied with the aforementioned .erroneous findings and misrepresentation of facts by the Additional District Judge/Izafi Zilla Qazi preferred a review petition before the District Judge on 15-5-1995 which was sent to the Court of Additional District Judge/Izafi Zilla Qazi for disposal on 30-5-1995. However another application for review of the decree and judgment dated 16-4-1995 was also filed in the Court of Additional District Judge on 21-6-1995.

6. The learned Additional District Judge after reappraisal of the evidence on record found his earlier judgment based on misrepresentation of facts and resulting in erroneous conclusion, held that since on the death of Saifullah his legacy opened for succession devolved upon his two sons Jawadullah and Mian Abul Hassan who jointly inherited the same without any partition. At the time of death of Jawadullah he had no son or daughter alive but the plaintiffs as his son's daughters were there. Had Jawadullah any son or daughter alive at the time of his death his legacy should have devolved on them by excluding the plaintiffs but in the absence of any son or daughter, plaintiffs were held entitled to get 2/3rd of his estate and the rest 1/3d of his estate shall devolved upon his brother as residuary, because according to Sharia in absence of son and daughter the sole grand-daughter should get 1/3rd and if grand-daughters are more than one should get 2/3rd and rest shall go to residuaries.

7. Since the purchased property of the predecessor of respondents to 7 was also included in the suit for which valid documents and oral evidence was brought on record by the contesting defendants, the learned Additional District Judge/Izafi Zilla Qazi remanded the case to the trial Court for determination of the ancestral property so that the plaintiffs should get 2/3rd in the legacy of Jawadullah their grandfather.

8. The learned counsel for the appellants raised two technical objections on the maintainability of review petition. Firstly that review petition was not maintainable as it was jointly filed by respondents Nos.l and 2 although respondent No.2 did not prefer any appeal against the judgment and decree of the trial Court and was thus satisfied from the decree and should not be aggrieved from dismissal of appeal. She was not competent to join with respondent No. 1 in filing the review petition as aggrieved person. Secondly, that the review petition against the judgment and decree of the Additional District Judge was filed in the Court of District Judge Swat although review lies to the same Court.

9. The first objection is without any substance, because in the wordings of Order XLVII rule 1 C.P.C. "Any person considering himself aggrieved ------on account of some mistake or error apparent on the face of record or for any other sufficient reason, desires to obtain a review, of the decree passed or order made against him may apply for a review of judgment to the Court which passed the decree or made the order". Respondent No.2 was party to the suit as plaintiff, and party to the appeal as respondent No.34, was competent to file a review against the judgment which was incorrect on the face of it. By not filing appeal against the decree of the trial Court does not deprive her of the right to file a review petition. This is immaterial that whether she was aggrieved of or satisfied with the decree of the trial Court. For maintainability of review petition the Court has to satisfy itself whether the petitioner was or was not a party to the order or decree reviewed against. Even this presumption that she was satisfied with the decree of the trial Court, is wrong because the same decree was under challenge in appeal filed by respondent No. 1 wherein she was also made a party. The appeal being continuation of the suit should have been given her benefit, if allowed and decree of the trial Court set aside appeal of the respondent No. 1. In presence of appeal filed by respondent No. 1 there was no need for her (respondent No.2) to file a separate appeal even in her dissatisfaction from the decree of the trial Court.

10. The second objection regarding maintainability of review petition is also without any merit, for the single reason that even if the earlier review petition filed on 15-5-1995 in the Court of District Judge/Zila Qazi Swat is taken out of consideration, another application on the same grounds was filed on 21-6-1995 (within 90 days of the decree as required under Article 173 of the Limitation Act), in the same Court which has passed the decree dated 16-4-1995. There is no dispute that the subsequent application for review was time barred.

11. On facts the learned counsel for the appellants contended that respondents Nos. l and 2 claimed share in the estate of their grandfather Jawadullah for the first time in their review application, earlier than that they were claiming the inheritance in the property of their predeceased father Amir Mian. The learned counsel conceded that in absence of male issue the grand daughters are entitled to get inheritance in the estate left by their grandfather. However, he was of the view that plaintiff/respondents 1 and 2 may file a fresh suit for their entitlement in the estate of Jawadullah. On reference to the record it revealed that plaintiffs/respondents Nos. l and 2 were seeking declaration of their inheritance right in the ancestral property left by their joint predecessor, they have nowhere mentioned in their plaint that they are claiming inheritance in the estate of their pre-deceased father Amir Mian. In fact what was claimed in the plaint is reproduced below.

40. Even the same words were reproduced in their amended plaint.

12. The appellants/defendants were conscious of the actual controversy that the plaintiffs were claiming right of inheritance in the estate of their common ancestor. In their written statement the contesting defendants/appellants denied the claim of the plaintiffs/respondents 1 and 2 in the following words.

13. The appellants in their written statement amended written statement have not denied the pedigreetable alleged by the plaintiffs, but denied their right in inheritance on the ground, that their (plaintiffs) father Amir Mian had died in the life time of his father Jawadullah when the property was still joint and un-partitioned. For the said reason their heirship to the estate of their predecessor was disputed. Defendants 12 to 18 have given the pedigreetable as mentioned in para 3 of this judgment. It is further alleged in the written statement that Abul Hassan (the father of appellants 30 to 33 and grandfather of remaining appellants) and his brothers partitioned the ancestral property among them. It is evident from the pedigreetable noted above and the pedigreetable prepared by the revenue/settlement staff (with exclusion of plaintiffs as daughters of pre deceased Amir Mian) Exh. D.W.2/2 Abul Hassan and Jawadullah are shown as brothers (the sons of Saifullah alias Mian Gulji). Amir Mian has been shown the son of Jawadullah who undisputedly died in the life time of Jawadullah. The Revenue/Settlement staff has collusively omitted to mention the plaintiffs as daughters of said Amir Mian. Patwari Halqa who appeared as D.W.2 in the case has admitted that plaintiffs are the daughters of Amir Mian but no explanation for omission of their names was given. The appellants/defendants in their written statement as well in their statements before the Court have also admitted that plaintiffs/respondents 1 and 2 are the daughters of aforesaid Amir Mian.

14. In the aforesaid clear position the contention of the learned counsel for the appellants that respondents 1 and 2 were claiming inheritance in the estate of their predeceased father in the trial Court and for the first time they claimed inheritance in the legacy of their grandfather, 'is without substance.

15. From the facts noted in the preceding paragraphs it becomes clear that the grandfather of plaintiffs/respondents 1 and 2, namely, Jawadullah and the predecessor of appellants/defendants namely Abul Hassan were real brothers inter se and they partitioned their ancestral property among themselves after becoming owners through inheritance on the death of their father Saifullah. On the death of Jawadullah his estate was to be devolved upon his heirs. At the time of his death the plaintiffs, daughters of his predeceased son were to inherit him. Under section 4 of the Muslim Family Laws Ordinance, 1961, the plaintiffs/respondents 1 and 2 were to get the entire legacy of Jawadullah as the daughters of his predeceased son and there was no other sharer to get a share in his inheritance. Section 4 of the Ordinance ibid reads as under:-

41. "4. Succession. ---In the event of death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive."

42. In the case Fazal Jan and another v. Member Board of Revenue N.-W.F.P. (PLD 1985 Peshawar 27) it was held that the heirs of predeceased's children, on the death of grandfather becomes entitled to their father's share in property of their grandfather. While interpreting section 4 of the Muslim Family Laws Ordinance in another judgment Abdul Ghafoor and others v. Mst. Anwar (1985 CLC 818) it was held that female child of a predeceased father is entitled to inherit his entire share which he would have inherited if alive and not a share to which she was entitled under Mohemadan Law. Resultantly and in light of the dictum laid down in the aforementioned judgments the legacy of last full owner of Jawadullah the grandfather of plaintiffs/respondents 1 and 2 shall devolve upon the plaintiffs as sharers in accordance with Sharia.

43. The next contention of the learned counsel for appellants is that West Pakistan Muslim Personal Law Shariat Application Act 1962 (Act V of 1962) was applied to the Provincially Administered Tribal Areas vide Regulation I of 1976 on 5-1-1976 with no retrospective effect. In order to elaborate his contention he argued that the last full owner Jawadullah allegedly died in 1940 while the father of plaintiffs/respondents Nos. l and. 2 died in the year, 1930. Till the extension of Regulation No. V of 1962 Rewaj was holding the field and under the said rewaj womenfolks were not entitled to get landed property as inheritance. However, they were entitled to get, maintenance from those who get landed property in inheritance whether as sharer or residuaries.

44. Further stated that plaintiffs were granted one ' Nemakay' land by Abul Hassan, the predecessor of appellants vide Deed No.213 dated 23-1-1949. This deed has also been referred in the judgment of Additional Deputy Commissioner, Swat available at Page 236 of the lower Court file. It has been clarified in the statement of Patwari Halqa who appeared as D.W.2 in the case that the said ' Nemakay' land was equal to 11 Kanals 9 Marlas.

45. The contention raised at the Bar has got no substance, and has got no support from the record. The case of appellants in the trial Court as set up in their written statements was that plaintiff being the daughters of proprietors were not the legal heirs, therefore, the estate of their predecessor was inherited by them. One of the appellants (Appellant No.l) namely, Zain-ul-Hassan, who appeared as D.W.4 in his own cause as well as attorney for other appellants/defendants in the trial Court stated in the following words:--

46. "After the death of Jawadullah Mian, his property became the Shari share of the legal heirs and the plaintiffs were not entitled to get any share under the Islamic Law".

47. Further stated in his cross examination:-

48. "It is correct that if law and Shariat, allowed the plaintiffs share if they have proved their share with us then I have got no objection".

49. No other appellant appeared in the witness box.

50. All these facts negate the contention raised at the Bar, the appellants could not be allowed to raise a new plea or set-up a new defence at second appellate stage and even contrary to their earlier stand/defence set-up and pleaded at the trial.

51. In spite of the aforementioned clear factual aspect of the case, even under the law, the contention raised at the Bar cannot be accepted for the reason that any custom contrary to personal law of the parties cannot be acted upon unless proved through evidence. In order to prove the existence of any custom certain relevant facts as described under section 13 of the Evidence Act section 26 of Qanoon-e-Shahadat are to be proved, by the party alleging any custom.

52. Section 13 of the Evidence Act (Section 26 of Qanun-e-Shahadat) reads as follows:--

53. "Where the question is as to the existence of any right or custom the following facts are relevant.-

54. A- Any transaction by which the right of custom in question was created, claimed, modified, recognized, asserted or denied, of which was inconsistent with this existence;

55. B- Particular instances in which the right or custom was claimed, recognized or exercised or in which its exercise was disputed, asserted or departed from but there is nothing on the file to show that any such facts were brought or proved either in the trial or in the first appellate Court. "

56. Under section 48 of the Evidence Act section 62 of Qanoon-e-Shahadat the opinion of 3rd person is relevant in respect of existence of any custom but, the appellants have failed to produce any person competent to give opinion regarding the existence of custom alleged by the learned counsel for appellants. It was observed in a case Mst. Sohab Kulli and others v. Mst. Balour Jan and others (1989 CLC 407) in the following words:-

57. "It is admitted that under personal law, Mst. Ralour Jan acquired title by inheritance in half of the estate left by her deceased father. But rule of inheritance under personal law was subject to exception of custom. It was permissible that if a particular tribe or family was governed by custom viz-a-viz inheritance of the estate it could prove custom to the exclusion of personal law, the consensus is that when the exception of custom is alleged, it must be proved by very cogent and convincing evidence. This is so as the custom is preferred as an exception to the personal law."

58. There is nothing on the record to suggest that the parties to the present proceedings were not belonging to Sunni sect: As observed in Para 28 of Muhammadan Law by Mulla. Sunnis are divided into four subsects, namely, the Hanafis, the Malikis, the Shafeis and the Hambalis. The Sunni Muhammadan of India belong principally to the Hanafis sect in Para.31 of the same book. It has been noted that Muhammadan male or female who has attained the age of puberty may announce the doctrines of the sect; or subsect; to which he or she belongs and to adopt the tenets of the other sect: or in other subsect, and he or she will be thenceforth be subject to the law of the new sect or subsect. Unless otherwise proved through evidence, the initial presumption would be that every Muslim in the sub-continent belongs principally to Sunni School as observed in Sabir Hussain and others v. Afrasayyab and others (1989 CLC 1591).

59. In these circumstances, their is no hesitation for me to hold that contesting parties to the present litigation who belongs to Hanfis sect: shall be, governed by the Muslim Personal Laws of the Hanfis sect.

60. The contention of the learned counsel for appellants is self- contradictory as it is alleged that plaintiffs were granted one ' Nemakay' land by Abul Hassan, the predecessor of appellants. Had it be the custom that womenfolks were not entitled to get any share in the landed property then how the plaintiffs were given one ' Nemakay' land. It appears from the judgment of Additional Deputy Commissioner, Swat dated 8-7-1977 available at Page 236 referred to by the learned counsel at the Bar, that the said ' Nemakay' land was sold by Hilal and Faulad Mian had it ('Nemakay' Land) been granted to the plaintiffs by Abul Hassan then how the aforesaid persons sold it to Jaffar Respondent No.7. The Act V of 1962 could rightly be followed in the instant case even in absence of a provision regarding its retrospectively in effect.

61. The last contention of learned counsel for appellant, that appellants have matured their title through adverse possession is also baseless because in the facts and circumstances of the case the parties to the present litigation are co- E heir/co-sharer in the suit land and possession of one co-owner is presumed to be the possession of others and a male co-heir cannot allege adverse possession against the female co-heir. It was observed in Ghulam Ali and others v. Ghulam Sarwar Naqvi (PLD 1990 SC 1) in the following words:-

62. "The Heir in possession has to be considered to be in constructive possession of the property on behalf of all the heirs in spite of his exclusive possession e.g. the possession of the brothers would be taken to be the possession of their sisters unless there was an express repudiation of the claim of the sisters by the brothers".

63. For the aforesaid reasons, this appeal fails and is hereby dismissed. The impugned order whereby the decree and judgment of the Trial Court dated 4-9-1994 and of his own dated 16-4-1995 was set aside is up-held. The duly purchased property of the predecessor of defendants Nos.l to 7 would be bifurcated by Trial Court from the ancestral property of the parties and plaintiff respondent Nos.l and 2 shall be put in possession of their Shari share as discussed in the preceding paragraphs. In peculiar circumstances of the case parties shall bear their own costs.

64. A.A./30/P Appeal dismissed.