MUHAMMAD ASHEER KHAN Versus ALI MUHAMMAD

RAZA ALI KHAN, J. ---This appeal has been filed against the judgment and decree passed by the learned District Judge, Bagh, dated 24.02.2015, whereby, the judgment and decree passed by the learned Civil Judge Bagh, dated 05.12.2012 has been maintained.

Precise facts of the case are that the plaintiff/respondent, herein filed a declaratory suit along with joint possession against appellants herein, before Civil Judge Bagh on 01.07.2003. It was averred that suit land comprising old khewat No.99 new khewat Nos. 173, 174, 175, 184, survey No. old 2160, new 1344 measuring 5 kanals, 3 marlas, old 1362 measuring 3 kanals, 6 marlas, old 2486, 2487, 2493 new 1441 measuring 10 kanals, 3 marlas, survey No. 1396 measuring 12 kanals 1 marlas, survey No.1395 measuring 18 kanals, 5 marlas, survey No.1440 measuring 1 kanal, 2 marlas, total measuring 49 kanals, 11 marlas, old survey No.2618 new 386 measuring 19 kanals, 18 marlas, old 2962/2580 new, 456, 503, 456/1, 503/1 total measuring 27 kanals, 18 marlas, old survey No.2660 new, 1501, measuring 1 kanal, 4 marlas, old survey No.2488 new 1440/1, measuring 8 kanals, 13 marlas as total measuring 116 kanals, 8 marlas, 1/3 share total measuring 38 kanals, 16 marlas total land measuring 39 kanals, 9 marlas situated at village Topi Tehsil and District Bagh was in the ownership of Sher Ahmed Khan, who died issueless in 1963. Sher Ahmed Khan, deceased had one brother namely Muhammad Yousaf and two sisters namely Mst. Para Khatoon and Mst. Hakim Khatoon. It was submitted that on the death of Sher Ahmed Khan, mutation No.1621 was attested on 14.05.1964 in favour of his brother Muhammad Yousaf and his widow, Soha Bibi. It was contended that mothers of the plaintiffs being sisters of Sher Ahmed Khan were entitled to the extent of their shares from the inheritance of Sher Ahmed Khan, therefore, mutation No.1621 attested on 14.05.1964 is illegal, arbitrary and against the rights of the plaintiffs. It was further contended that the defendants have transferred 1 kanal, 8 marlas land from the Suit property vide sale deed dated 08.12.1966 which is also liable to be cancelled. The defendants appeared before the Court and contested the suit by filing written statement, wherein, it was submitted that the plaintiffs are estopped by their conduct to file the suit because Hakim Khatoon and Para Khatoon had already surrendered their rights and suit filed by them was dismissed for non-prosecution on 28.02.1974. It was also submitted that the suit is hopelessly time barred. The learned trial Court framed as many as 10 issues in light of pleadings of the parties, provided them opportunity to lead evidence and at the conclusion of the proceedings, set-aside mutations Nos.1621 and 1747 and decreed the suit in favour of the plaintiffs vide judgment and decree dated 05.12.2012. Feeling aggrieved, appellants herein, preferred an appeal before District Judge Bagh on 14.12.2012. The learned District Judge, Bagh, after hearing the parties, dismissed the appeal through the impugned judgment and decree dated 24.02.2015, hence, the captioned appeal.

Sardar Muhammad Suleman Khan, the learned Advocate appearing for the appellants, argued that earlier Hakim Khatoon and Para Khatoon challenged mutation No.1621 dated 14.05.1964 through civil suit, however, the matter was compromised between the parties and the suit was dismissed for non-prosecution vide order dated 28.02.1974, therefore, the plaintiffs are estopped by their conduct to file the suit and challenge mutation No.1621. The learned Advocate further argued that mutations Nos.1621 and 1747 were registered with the consent of the parties. The learned Advocate submitted that the suit was hopelessly time barred and no condonation of delay was sought by the plaintiffs but the Courts below failed to appreciate the controversy and illegally decreed the suit. The learned Advocate in support his submissions placed reliance on the following case law:

1. Mst. Shamim Akhtar v. Muhammad Shafi and 9 others (2013 SCR 1102).

2. Naseebullah v. Mumtaz Khan and others (1993 SCR 44).

3. Muhammad Ashraf Khan and 4 others v. Mst. Rehmat Jan (2001 MLD 212)

4. Muhammad Saeed Abbasi, Patwari Halqa Lawasi Muzaffarabad v. Ghulam Abbas Qureshi and others (PLJ 2015 SC(AJ&K) 129)

5. Ghulam Abbas and others v. Mohammad Shafi through LRs and others (2016 SCMR 1403).

6. Muhammad Ashraf v. Kashif Iqbal through Mst. Fakhar-un-Nisa and another (2014 MLD 109).

7. Shad Muhammad through L.Rs. and others v. Mst. Sarwara (2015 MLD 582).

The learned counsel for respondents has filed written arguments which are made part of the file.

I have heard the learned counsel for the appellants, considered written argument filed on behalf of respondents and gone through the record of the case as well as case law relied upon the learned counsel for the parties.

So far merits of the case are concerned, it is amply proved from the evidence brought on record that Hakim Khatoon and Para Khatoon were the sisters of Sher Ahmed Khan, who died issueless, therefore, being sisters Hakim Khatoon and Para Khatoon were legally entitled to their shares from the inheritance of Sher Ahmed Khan and both the Courts below have decided issue No.3, concurrently in favour of the plaintiffs and the learned counsel for the appellant has failed to point out any misreading or non-reading of evidence by both the Courts below in the impugned judgments and even to that extent, the learned counsel for the appellants has not pressed the appeal. Even otherwise, upon death of a Muslim, the legacy automatically devolves upon the legal heirs of the deceased Muslim. In this regard reliance can be placed on 2013 SCR 563 and 2015 SCR 906 and it is now well settled principle of law that in order to exclude a legal heir from inheritance very strong and convincing evidence is required, as has been held by the Hon'ble Supreme Court of Azad Jammu and Kashmir in 1997 CLC 1768.

The contention of the learned Advocate appearing for the appellants that the plaintiffs were estopped by their conduct to file the suit because earlier, the suit filed by Mst. Hakim Khatoon and Para Khatoon for cancellation of mutation No.1621 dated 15.04.1964 was dismissed for non-prosecution and plaintiff, therein, did not approached the Court for restoration of the suit, has no substance because as stated earlier, Hakim Khatoon and Para Khatoon were the sisters of Sher Ahmed Khan and were entitled to the extent of their share from the inheritance of Sher Ahmed Khan and it is settled principle of law that conduct of a party cannot estopped him from claiming his legal share in the matter of inheritance. In this regard, reliance can be placed on case titled "Mst. Sabran Bibi v. Muhammad Ibrahim and 12 others" (PLD 2005 Lahore 454), wherein at page 457, the Hon'ble Lahore High Court Lahore, observed as under:

"5. Suffice it to mention here that in matters of inheritance, neither the limitation nor the conduct of the petitioner could estop him from claiming his legal share. Mere passage of time does not extinguish the right."

The reliance in this regard can also be placed on case titled "Muhammad Farooq and 5 others v. Muhammad Hanif and others" (PLJ 2011 SC 44), wherein, the Supreme Court of Pakistan observed that no law or judgment could over-ride Law of Sharia being a supreme law. The relevant observations recorded at page 47 of the judgment are reproduced as under:

"It is settled law that right of succession cannot be defeated by law of limitation or principle of res- judicata as no law or judgment could over-ride law of Sharia being a superior law."

Case titled "Muhammad Zubair and others v. Muhammad Sharif" (2005 SCMR 1217) can also be relied upon, wherein, the Supreme Court of Pakistan observed that no law or judgment can over-ride the Law of Sharia which is the superior law.

"There is no cavil to the proposition of law that on the enforcement of Muslim Personal Law (Shariat) Application Act, 1962 as amended by Act XIII of 1983, the property of last male owner subject-matter of limited interest would be deemed to have devolved upon his legal heirs on his death, and the right of succession would not be defeated by the law of limitation or the principle of res-judicata as no law or judgment can over-ride the law of Sharia which is superior law."

It may also be stated here that a perusal of the record of suit No.18/70 filed by Hakim Khatoon and Para Khatoon reveals that the suit was dismissed for non-prosecution on 28.02.1974, hence, neither the merits of the case were discussed nor the controversy was resolved on the basis of any compromise between the parties, therefore, keeping in view, the rule of law laid down by the superior Courts on the subject matter as well as overall circumstances of the case, it can safely be said that the principle of res-judicata and estoppel are not attracted in the case in hand.

The learned counsel for the appellant mainly stressed on the point that suit was time barred. In PLJ 2011 SC 44, supra the Supreme Court of Pakistan also observed that a legal heir cannot be deprived of his share on the point of limitation. The relevant observation recorded at page 47 of the report is reproduced as under--

"It has also been submitted that in the matters of succession no period of limitation is involved because on the opening of the inheritance legal heirs automatically become co-owners, whether recorded as such or not and in the present case on the termination of limited estate of Mst. Soman, the respondent No.1/plaintiff being the son of the last male owner namely Gamun shall be deemed to have become the co-owner in the land left by Gamun the moment Gamun died because on the termination of the limited estate of Mst. Soman, the inheritance of Gamun automatically opened from the date of his death."

The Supreme Court of Pakistan in a case titled "Muhammad Iqbal and 5 others v. Allah Bachaya and 18 others" (2005 SCMR 1447) also observed that in matters of inheritance, the law of limitation is not applicable. The relevant observation recorded by the Supreme Court is as under:

"This is settled principle of law that the bar of limitation is not applicable to right of inheritance which does not extinguish by afflux of time."

The learned Judge of Peshawar High Court in a case titled "Zakaria and others v. Amanullah and others (2018 CLC 1291) at page 1294 of the judgment also observed as under:

"It is settled that no limitation runs against co-sharer to enforce his rights under the inheritance."

The next argument of the learned counsel appearing for the appellants that Hakim Khatoon and Para Khatoon had abandoned their right is not supported by any record. As stated above, the suit filed by them was dismissed for non-prosecution on 28.02.1974 and there is no written agreement on behalf of Hakim Khatoon and Para Khatoon that they had abandoned their right. It is well settled principle of law that mere on oral assertion that a female has surrendered her right in favour of male member of a family, the female cannot be deprived of from her right of inheritance. In this regard, reliance can be placed on 2005 SCMR 1447, supra, wherein, the Supreme Court of Pakistan observed as under:

"The right of inheritance of a female, recognized in Shariah, cannot be denied on the basis of oral assertion of surrender of such right by a female in favour of male member of family and in any case, there is no concept of estoppel to deprive a person from his right in the inheritance in Islam. The respondents have not been successful in showing us that Mst. Allah Wasai had surrendered her right in the property in favour of her brothers in a lawful manner or that suit involving right of inheritance could be dismissed on the ground of estoppel or limitation."

In my considered view both the Courts below have appreciated the controversy in its true perspective and reached at just conclusion, which hardly require any interference by this Court, in second appeal. Thus, finding no substance in this appeal, it is hereby dismissed.

ZC/72/HC(AJ&K) Second appeal dismisse