BAGGO Versus HUSSAN BANO , M.S. Mahboob and M. Ilyas Siddiqui, Advocates Supreme Court and Ch. Akhtar Ali, Advocate-on-Record

1. MUHAMMAD AFZAL ZULLAH, CJ.‑‑‑ This appeal through leave of the Court is directed against the judgment dated 17‑9‑1989 of the Lahore High Court; whereby, the appellants' Regular Second Appeal No.794 of 1970 was disposed of by a learned Single Judge by an agreed order as follows:‑----

2. "The learned counsel for the parties agree that instead of passing a decree for possession in favour of the plaintiffs, the shares of parties be declared as determined above, to be given effect to by the revenue authorities in the revenue record and the learned counsel further agree that this would be the end of the litigation in the family".

3. In order to understand the dispute between the parties it will be helpful to keep in mind the following pedigree‑table made with the help of the learned counsel:

4. The facts stated by the learned counsel are: Ghulam Khan had died in 1944. Earlier he made a Will presumably under custom in 1926 giving half the Property to his son Fateh Khan (from the womb of Mst. Jan) and half to Mst. Banni Begum his other wife. The latter disposition was conditional that on the death of Mst. Banni Begum Per half would go to Ghulam Khan's daughters from the womb of Mst. Banni Begum excepting the one/s who would have married outside the family. It is stated that only Mst. Baggo married outside the family, the remaining three had not suffered any such disqualification. Mst. Banni Begum died in 1964. Her share as explained above was mutated as follows:‑--

5. "2/3rd to her daughters and 1/3rd to her other heirs."

6. Amir Khan and Mst. Hasan Bano the children of Fateh Khan who had already obtained half of the property sued the heirs of Mst. Banni Begum for possession of the property so occupied by them in inheritance from Mst. Banni Begum as well as a small area which was the subject‑matter of a gift made by her. The trial Court decreed the suit. The appellants/defendants' side filed appeal which was dismissed. It may be noted here that the plaintiff/respondents' side had not filed any appeal.

7. After hearing the learned counsel for the parties the learned Judge decided the question of law regarding inheritance vis‑a‑vis the property left by Mst. Banni Begum as follows:‑-

8. "Upon her death the property would revert back to Ghulam Khan and would devolve upon his heirs as if he had died in 1964".

9. This legal position, it is further noted in the impugned judgment, was not disputed by the learned counsel for the present appellants. Accordingly the disputed property was treated as of Ghulam Khan and it was further held that it "would devolve upon his two widows, five daughters and one son according to Muslim law shares". These shares were worked out with the help of the learned counsel for the parties as follows:‑---

10. "Mst. Banni Begum. 1/6th as widow

11. "Mst. Jan. 1/6th as widow

12. "Fateh Khan (the father of Amir Muhammad 1/4th

13. Khan and Mst. Hasan Bano, plaintiffs) (2/7 x

14. 7/8).

15. "Mst. Hasan Jan, Mst. Bagoo Mst Khair 1/8th each.

16. Khanum, Mst. Resham Jan and Mst. Shahzada

17. Begum, the daughters.

18. "1/6th share of Mst. Jan would go to her son, Fateh Khan and then onward to Amir Muhammad Khan and Mst. Shahzada Begum, her son and daughter, while the 1/16th share of Mst. Banni Begum would go to her four daughters, namely, Mst. Hasan Jan, Mst. Bagoo, Mst. Khair Khanum and Mst. Resham Jan (2/3rd) and her brother's sons, namely, Sikandar, Gulab, Muhammad Ali and Ghulam Ali (1/3rd)".

19. Although there is no serious dispute with regard to the specification of the shares if the property is treated as of Ghulam Khan and the mode of devolution is treated as under the Islamic Law of Inheritance, but the learned counsel for the appellants complained that this has been applied only to the property which went to Mst.Banni Begum and regarding which the respondents' side had filed a suit while the understanding between the parties was that it would apply to the entire property of Ghulam Khan by ignoring the devolution through the Will of 1926, because it would not have stood the test of Islamic Law of Wills. Learned counsel for the respondents while agreeing that Mst. Banni Begum's property would devolve according to the shares noted above under the Islamic Law of Inheritance, he argued, the property given to Fateh Khan in 1926 by Ghulam Khan would not be controlled by it.

20. After hearing the learned counsel for both sides at considerable length and after examining the preliminary objection that it was a consent decree and on the principles underlying section 96 of the C.P.C. could not be challenged in appeal, we have not been able to agree with the position taken by the learned counsel for the respondents/plaintiffs.

21. There are inherent features in the impugned judgment which strongly corroborate and support the position taken by the learned counsel for the appellants; namely, that the entire property left by Ghulam Khan was to be treated and dealt with in accordance with the devolution determined in the impugned judgment. The argument of the learned counsel for the respondents that the suit filed by them was only for the possession of the property left by Mst. Banni Begum and therefore the property given by Ghulam Khan to Fateh Khan could not be brought in the pool, prima facie, appears to have force but on deeper analysis it has been found that the position was otherwise. It was a final settlement of all disputes between the parties which had arisen and which could arise. This is not only supported by the use of the sentence in paragraph 6 of the impugned judgment that the impugned judgment or settlement in accordance with the Islamic Law of Inheritance "would be the end of litigation in the family" but also from the fact that the persons and parties who had not appealed before the High Court also obtained benefit. For example, Mst. Jan, the mother of Fateh Khan was given 1/6th share as widow while Mst. Hasan Bano who had also been given a share by the High Court though she was not allowed that benefit by the trial Court nor by the District Court. Not only this it appears from the language used in paragraph 6 which is the operative part of the impugned judgment by the High Court, that in order to remove the difficulty which could have arisen if a decree for possession would have been passed by the High Court in accordance with the shares determined by it because of the nature and subject‑matter of the suit that the claim for possession was given up by the respondent's side and a simple decree for declaration affecting both the parties' right of inheritance was passed. The following phrases are very important:

22. "Instead of passing a decree for possession in favour of the plaintiffs";

23. "The shares of parties be declared as determined above"; and

24. This declaration was "to be given effect to by the revenue authorities in the revenue record".

25. The impugned judgment is positive proof of the fact that the parties had consciously agreed to take the entire property left by Ghulam Khan in accordance with the shares determined by the High Court regardless of the fact: whether, the subject‑matter of the suit was only that part of the property which had gone to Mst. Banni Begum. It has not been denied that in a settlement like this in accordance with the Islamic Law of Inheritance, there is no bar to‑ the above adopted course of action for dealing with the inheritance of Ghulam Khan. Had it not been so we might have invoked the principles laid down in the case of Ghulam Ali v. Mst. Ghulam Sarwar Naqvi P L D 1990 Supreme Court 1 and it might have been held that the so called and alleged giving up of the benefit under the Islamic Law of Inheritance by the daughters of Ghulam Khan from the womb of Mst. Banni Begum, was against the protection provided to them by the Law of Contract as well as by the general principles of Islamic Law as discussed and held in the case of Mst. Naqvi. However, on account of interpretation of the impugned judgment particularly para. 6 thereof we are convinced that the entire property of Ghulam Khan was meant to be distributed in accordance with the shares determined in the impugned judgment.

26. We, accordingly, in these terms allow the appeal and the defects, if any, in the decree passed as a result of impugned judgment in this behalf shall be removed and corrected with a further declaration that the revenue authorities will give effect to the shares determined in the impugned judgment in the revenue record and the parties would take the entire property left by Ghulam Khan accordingly whether it had gone initially to Fateh Khan or Mst. Banni Begum.

27. There shall be no order as to costs.

28. AA./B‑183/S Order accordingly.