2007 S C M R 635

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehntan Ramday and Raja Fayyaz Ahmed, JJ

Mst. SUBAN----Appellant

Versus

ALLAH DITTA and others----Respondents

Civil Appeal No.2046 of 2001, decided on 8th January, 2007.

(On appeal from the judgment, dated 15-8-2001 of the Lahore High Court, Bahawalpur Bench,
Bahawalpur, passed in Civil Revision No.362-D of 1989/BWP).

(a) Islamic Law---

----Inheritance---Principles---Under Islamic law, as soon as someone who owns some property,

dies, the succession to his property opens and property gets automatically and immediately
vested in the heirs and such vesting was not dependent upon any intervention or any act on the
part of Revenue Authorities or any other State agency---Efflux of time does not extinguish any
right in inheritance because on the death of an owner of property, all inheritors, immediately and
automatically become co-sharers in the property---Limitation starts running not from the time of
death of predecessor-in-interest, nor even from the date of mutation, if there be any, but from the
date when right of any such co-sharers / co-inheritors in such property was denied.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 39---Record of rights---Mutation a proof of title---Scope---Mutation does not confer on

anyone any right in any property as revenue record is maintained only for realization of land
revenue and does not by itself confer any title on anyone.

(c) Civil Procedure Code (V of 1908)---

----O. XLI, R. 4---Specific Relief Act (I of 1877), S.42---Suit for declaration of title---
Relinquishment of right---Onus to prove---Minor co-sharers---Granting of relief to non-
appealing parties---After his death, owner of suit property left behind a widow and two daughters
and his landed property was situated in two different villages---In a family settlement, land in
one village was mutated in the name of widow, while that in the other village was mutated in the
name of two daughters, who were minors at that time---Some forty years later, nephews of
deceased owner and his two daughters assailed mutation of inheritance attested in favour of
widow---Trial Court dismissed the suit but Lower Appellate Court allowed the appeal and
decreed the suit in favour of plaintiffs---High Court in exercise of revisional jurisdiction, set
aside the judgment and decree passed by Lower Appellate Court and dismissed the suit---
Validity---Lower Appellate Court was right in holding that plaintiffs could not have been non-
suited on account of limitation---Onus was very heavily on the widow to establish
relinquishment by other heirs of their rights in the property which burden she had not been able
to discharge, because daughters of deceased owner were minor at the time of alleged family
settlement and also because mutation in question proceeded on dishonest and incorrect
premises---Supreme Court, in view of the provisions of [Link], R.4, C.P.C., which envisaged
grant of relief even to non-appealing parties and also in discharge of obligations to do complete
justice, declared that all those persons who qualified as heirs of deceased owner as per Sunni
faith, at the time of his death, were entitled to their respective 'Sharai' shares in each and `every
inch of land left behind by him---Judgment and decree passed by High Court was set aside---
Appeal was allowed.

(d) Administration of justice---

----Relief, grant of---Principles---After a Court had determined all legal and factual issues struck
in a civil case and when it reached final issue of grant of relief, then the court seized of lis had to
consider not only its answers to such legal and factual issues but also and equally importantly, to
keep in mind the dictates of morality, ethics, fairplay, justice and equity.

Mian Allah Nawaz, Advocate Supreme Court for Appellant.

M. Munir Peracha, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record
for Respondent No.1.

Respondents Nos.2 to 9: Ex parte.

Date of hearing: 8th January, 2007.

JUDGMENT

KHALIL-UR-REHMAN RAMDAY, J.---At the time of his death, one Gharu owned land in
two different villages of Tehsil Bahawalnagar i.e. 131 Kanals and 1 Marla of land in Mauza
Chawayka Ottarah and 558 Kanals and 19 Marlas of land in Mauza Chawayka Hittarh. He had
no male child and was thus, survived only by his widow namely, Mst. Ghulam Fatima and by his
two daughters, namely, Mst. Suban and Mst. Sardaran. Through a Mutation bearing No.86, dated
14-6-1943 (Exh.P.2), the entire above mentioned piece of land measuring 131 Kanals and 1
Marla situated in Mauza Chawayka Ottarah was mutated exclusively in favour of Mst. Ghulam
Fatima widow constituting her as the sole owner thereof while through another Mutation bearing
No.32, dated 27-6-1944 (Exh.P.1), the entire parcel of land measuring 558 Kanals and 19 Marlas
situated in Mauza Chawayka Hittarh was mutated in favour of the above mentioned two
daughters of Gharu namely, Mst. Suban and Mst. Sardaran. Through a Tamleek Nama the said
Mst. Ghulam Fatima widow was alleged to have transferred the said 131 Kanals and 1 Marla of
land situated in the above mentioned village Ottarah in favour of one Allah Ditta who was her
son but from the earlier husband, namely, Ghulam Muhammad and not from Gharu.
2. It is available on record as a fact admitted on all sides that the above mentioned Gharu also
had at least one brother by the name of Inayat.

3. In the year 1984, a suit was filed by the heirs of the said Inayat as also by the above mentioned
two daughters of Gharu questioning the above mentioned Mutation No.86, dated 14-6-1943
(Exh.P.2) through which the above described 131 Kanals and 1 Marla of land had been mutated
exclusively in the name of Mst. Ghulam Fatima widow on the ground that the above mentioned
Inayat being a brother of the said Gharu and Mst. Suban and Mst. Sardaran being his daughters
were also entitled to their respective shares in the said piece of land.

4. The said suit was dismissed by a learned Civil Judge at Bahawalnagar after finding that a
Punchayat had met at the time of Qul Khawani of the said Gharu and with the assistance of the
said Punchayat, a family settlement had been reached between the said widow and the said
daughters of the said Gharu as a result whereof the above described 131 Kanals and 1 Marla of
land went to her share of Mst. Ghulam Fatima widow while 558 Kanals and 19 Marlas of [Link]
Mauza Hittarh fell to the share of the two daughters and that having received the said piece of
land in Mauza Hittarh, Mst. Suban and Mst. Sardaran could not be heard to lay claim to the suit-
land in village Ottarah.

5. In pursuance of an appeal filed by Mst. Suban plaintiff, the said judgment and decree of the
learned trial Judge were set aside and the suit of the plaintiff was decreed, as prayed. In reaching
the said conclusion, the learned Appellate Judge was influenced by the fact that Mst. Suban and
Mst. Sardaran were both minor at the time of the death of their father and thus, they could not
have legally entered into any settlement with respect to their rights in the property in question
which stood vested in them as a result of the death of their father. It had also been found that the
Mutation in question bearing No.86 transferring 131 Kanals and 1 Marla of land in favour of
Mst. Ghulam Fatima was collusive, fraudulent and unjust as it had never mentioned that the land
in question was being mutated in favour of Mst. Ghulam Fatima to the exclusion of other heirs
on the ground of some family settlement and that the said mutation had in fact been entered and
attested in favour of the said widow concealing the existence of the said two daughters of Gharu
as it had been mentioned therein that the said Gharu had died issueless. It had also been found
that the said plaintiffs being co-inheritors of the land in question would be deemed to have
been in possession of the same and that in the circumstances, the limitation would run
against them not from the date of the mutation in question but from the time of denial of
their rights in the suit-land and that it could not, therefore, be said that the suit in question
filed by the said co-sharers/co-inheritors, was barred by limitation.

6. On a petition filed by the present respondents seeking revision of the said appellate judgment,
the learned High Court set aside the same and restored the judgment and decree of the, trial
Court dismissing the suit in question.

7. Hence this appeal by Mst. Suban through leave of this Court.

8. The learned counsel for the parties have been heard and we have also perused the record in the
light of the submissions made before us.
9. What stands established/admitted on record is that Gharu had left the above mentioned two
parcels of land i.e. 131 Kanals and 1 Marla of land in village Ottarah and 558 Kanals and 19
Marlas of land in village Hittarh; that at the time of his death in the year 1942, he had been
survived by his widow, namely, Mst. Ghulam Fatima and by his two daughters, namely, Mst.
Suban and Mst. Sardaran; that no claim was ever made by any side throughout these proceedings
that the said Gharu did not profess Sunni faith; that at the time of his death he had at least one
brother, namely, Inayat; that both his daughters, namely, Mst. Suban and Mst. Sardaran were
minor at the time of entering and attestation of the mutation in question and were not competent
in law to enter into any agreement or settlement, that no one stood appointed as a guardian of the
said two females when the alleged family settlement had been reached between the said
daughters and the said widow and finally that there was nothing on record to indicate that the
said brother Inayat or any other collateral of Gharu were also a party to some such alleged family
settlement.

10. These are then the facts on the basis of which the present lis has to be decided.

11. It is a proposition too well-established by now that as soon as someone who owns some
property, dies, the succession to his property opens and the' property gets automatically
and immediately vested in the heirs and the said vesting was not dependent upon any
intervention or any act on the part of the Revenue Authorities or any other State agencies.
It is also an established proposition that a mutation did not confer on anyone any right in
any property as the Revenue Record was maintained only for realization of land revenue
and did not, by itself confer any title on anyone. It may also be added that efflux of time did
not extinguish any rights inheritance because on the death of an owner of property; all the
co-inheritors, immediately and automatically, became co-sharers in the property and as
has been mentioned above, limitation against them would start running not from the time
of the death of their predecessor-in-interest nor even from the date of mutation, if there be
any, but from the dale when the right of any such co-sharers/co inheritors in such land was
denied by someone.

12. Having thus, examined all aspects of the matter, we find that the learned Appellate Judge was
right in holding that the plaintiff heirs of the said Gharu could not have been non-suited on
account of limitation; that the onus lay very heavily on Mst. Ghulam Fatima to establish
relinquishment, by the other heirs, of their rights in the property in question which burden she
had not been able to discharge, inter alia, because the daughters in question of Gharu were minor
at the time of the alleged family settlement and also because mutation in question bearing No.86
proceeded on dishonest and incorrect premises i.e. Gharu having died issueless and Mst. Fatima
being his only surviving heir.

13. To the said extent the findings of the learned Appellate Judge i.e. the learned Additional
District Judge at Bahawalnagar were not open to any exception and the learned High Court was
thus, not justified in interfering with the same. This finding should have ordinarily led us to the
setting aside of the impugned judgment of the learned High Court and restoring the judgment
and decree passed by the learned Appellate Judge but then the question is should it be so done?
14. What we know from the record, as has been that the Gharu in question had left behind a total
of 690 Kanals of land i.e. 131 Kanals and 1 Marla in village Ottarah and 558 Kanals and 19
Marlas in village Hittarh. We also know that he had no male issue and had been survived only by
a widow and two daughters. Nobody ever claimed that the said Gharu did not profess Sunni
faith. In the circumstances, the entire estate of Gharu was to devolve upon his widow, his two
daughters and upon his collaterals/the residuaries, in accordance with their Shariee shares. What
had instead happened was that 131 Kanals and one Marla was got mutated in favour of the
widow while the remaining 558 Kanals and 19 Marlas went to the two daughters, each one of
them thus, getting 279 and 9-1/2 Marlas. The collaterals of Gharu, however, got nothing.

15. The daughters, while sitting tight over the said 558 Kanals and 19 Marlas of land, joined the
above-said brother of Gharu, namely, Inayat/his heirs and claimed further land by laying claim to
their share in 131 Kanals and 1 Marla, which had gone to the widow. Decreeing the suit in
question would, therefore, mean that the two daughters would retain 558 Kanals and 19 Marlas
or land just between the two of them and then get a further share from the '131 Kanals and 1
Marla in question out of which 131 Kanals some share would also have to go to the above
mentioned brother of Gharu who was entitled to a share not only out of the said 131 Kanals and
1 Marla but out of the total land left behind by Gharu which, as has been mentioned above, was
690 Kanals. And similar would be the position of the widow who would get her share only from
the said 131 Kanals of land as if the said was the total estate left by her late husband. This would
be highly unjust.

16. It is a principle of dispensation of justice, too well-established by now, that after a Court had
determined all the legal and factual issues struck in a civil case and when it reached the final
issue of grant of relief then the Court seized of the lis had to consider not only its answers to the
said legal and factual issues-but also and equally importantly, to keep in mind the dictates of
morality, ethics, (airplay, justice and equity.

17. Viewed in this perspective, we find that decreeing the suit of the plaintiffs as prayed as had
been commanded by the learned Appellate Judge, would lead to unjust consequences as the same
would on the one hand deprive some of what was legally due to them and would on the other
hand enrich the others by what did, not belong to them.

18. Consequently, in view of the provisions of rule 4 of Order XLI of the Code of Civil
Procedure which envisage grant of relief even to the non-appealing parties and also in discharge
of the obligations cast on this Court to do complete justice, we declare and direct:--

(a) that all those persons, who qualified as heirs of Gharu as per the Sunni faith, at the
time of his death in the year 1942, were entitled to their respective Sharai shares in each
and every inch of land left behind by the said Gharu;

(b) that the said estate would consequently devolve upon all such heirs in accordance
with the said shares are that;

(c) the District Officer. (Revenue) of Bahawalnagar shall identify/cause to be identified

all such heirs of the said Gharu and then ensure entering and attestation of
 mutation/mutations of inheritance of the said entire estate of Gharu in the name of the
said heirs or in the name of the heirs of the said heirs if any such heirs be dead by now.

19. Regarding the claim of Allah Ditta respondent who, as has been mentioned above, was a son
of Mst. Ghulam Fatima widow from her earlier husband and not from Gharu, the learned
Appellate Judge had found that the alleged Tamleek Nama allegedly executed by Mst. Ghulam
Fatima in his favour could not be declared as valid and consequently effect would not be given to
the same because Mst. Ghulam Fatima was not the exclusive and lawful owner of 131 Kanals
and I Marla of land in question. No exception could be taken to the said findings of the learned
Appellate Judge which finding is resultantly affirmed.

20. Civil Appeal No.2046 of 2001 is disposed of in the above terms and the suit in question filed
by the plaintiffs is decreed accordingly.

21. No orders as to costs.

M.H./S-4/SC Order accordingly.