Tuesday, 21 October 2014

Right of Daughter usurped in mutation challenged

PLJ 2010 Lahore 346 (DB)
[Bahawalpur Bench Bahawalpur]
Present: Abdul Shakoor Paracha & Abdul Sattar Goraya, JJ.
Mst. ZAINAB (deceased) through L.Rs.--Petitioners
versus
Mst. KUNDAN KHATOON and 5 others--Respondents
Civil Revision No. 993-D of 1994/BWP, heard on 8.4.2009.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Civil revision--Mutation of inheritance was sanctioned to exclusion of the petitioner--Petitioner being daughter of deceased was entitled to her sharai share but collusively and keeping every thing in dark, mutation of inheritance was sanctioned--Custom of pagwanda--Mutation was got sanctioned quite secretly--Validity--Custom varies from town to town, mohallah to mohallah and street to street but in the instant case, no evidence had been brought on record to establish that the custom of pagwand was existing in the vicinity, where the suit land was situated--Bald assertion in the written statement or the oral evidence, cannot be accepted on the face of document and entries embodied which shows in clear terms that there was no custom existing in the locality.    [P. 352] A
Limitation Act, 1908 (IX of 1908)--
----Arts. 120 & 141--Question of limitation--Mutation of inheritance was sanctioned to exclusion of the petitioner--Entitlement of sharia share--Suit for declaration could be filed within period of six years under Art. 141 of Limitation Act--Limitation is 12 years after the initial disposal of the property--Held: Petitioner was admittedly a co-owner of the property--Petitiner is real daughter of the deceased, had been recorded by the Courts below in clear and unambiguous term--When such fact has been established that petitioner is a daughter of the deceased whose succession devolved his son to the exclusion of petitioner daughter, the question of limitation does not arise.
      [P. 352] B
Mutation of Inheritance--
----Mutation in itself is not a document of title--Not create any title or ownership--Not necessary for the suitor to seek annulment of the mutation--Petitioner is co-owner in the suit property--Question of limitation--Mutation in itself is not document of title and the entries embodied in the mutation in favour of the person, in whose favour, it has been sanctioned--Burden would shift upon a person who claims that it was a valid transaction entered through the mutation of inheritance--Held: Limitation would not run against her.  [P. 353] C
Fraud--
----Transaction was kept concealed--Fraud and collusion--Mutation was the result of fraud and collusion and the whole transaction was kept concealed--Held: Fraud vitiates the most solemn transaction and the superstructure raised upon it shall automatically fall on the ground.
      [P. 353] D
PLD 1958 SC 104 & PLD 1975 SC 331, see.
Constituted Attorney--
----Matter of inheritance--No limitation--Petitioner was a pardah nashin lady and simple villager inasmuch as she filed a suit through her son in his capacity as a constituted attorney.   [P. 354] F
PLJ 2007 SC 797, ref.
Limitation--
----Suit was withdrawn with permission to file afresh, the limitation would start from the previous proceedings.   [P. 354] G
1992 MLD 856 & AIR 1958 Patna 217, rel.
Infringement of Right--
----Cause of action will commence from the date of inheritance--In the case of a pardah nashin lady, stand on different pedestal and would make a departure from the ordinary pedestal and would make a departure from the ordinary law or rule laid down in other case of ordinary nature.  [P. 354] H
Succession--
----It is well settled by now that the moment someone dies and owns landed property, the succession of his property automatically opens and the property gets mutated immediately and vests in the heirs and the vesting was not dependant upon any intervention of any act on the part of revenue authority or any other agency.  [P. 353] E
PLJ 2007 SC 634, rel.
Limitation--
----Law of limitation is bad law and cannot be appreciated like in the instant case [P. 354] I
Interpretation of Beneficial--
----Beneficial interpretation should be adopted--Victim of the maltreatment and an act of excess on the part of her brother, who got the whole land mutated in his own name for worldly temptations while keeping the pardah nashin lady in dark.   [P. 354] J
PLD 1990 SC 1, ref.
Documentary Evidence--
----Mutation of inheritance was sanctioned, to the exclusive of the petitioner--Entitlement to her sharai share--On overall assessment, claim of the petitioner is correct and she is justified in demanding her share from the suit property left by her deceased father--Impugned mutation is a classic example of fraud the transaction on its face value being void from its inception has the vitiative affect. [P. 354] K
Land Revenue Act, 1967 (XVII of 1967)--
----S. 42(7)--Fresh mutation be sanctioned--Illegalities and irregularities in non-suiting on hyper technical reason of limitation--Question of--Courts below committed illegalities and irregularities in non-suiting the petitioner on the hyper technical reason of limitation which in the present state of circumstances and the narration of facts, could not have been attracted in the instant case--Held: No limitation would run against void transaction--Fresh mutation shall be sanctioned u/S. 42(7) of Land Revenue Act, in favour of the petitioner in accordance with her sharai share--Petition was accepted.    [P. 355] L
Ch. Muhammad Shafi Meo, Advocate for Petitioners.
Sardar Muhammad Hussain Khan, Advocate for Respondents.
Date of hearing: 8.4.2009.
Judgment
Abdul Sattar Goraya, J.--By means of this revision application, Judgment & decree dated 27.09.1994 passed by the learned Additional District Judge, Liaqatpur and that of dated 19.01.1994 of the Jearned trial Judge had been brought under challenge.
2.  Facts which steamed out from pleadings of the parties are that the suit land, detail whereof has sufficiently been given in the head-note of plaint, situated in the revenue estate of Mouza Dufli Kabir Khan and Mouza Umar Wadda Cachal, was owned by Muhammad Ramzan who died leaving behind him the petitioner and Defendant No. 1 in the suit. Mutation of inheritance Bearing No. 698 dated 11.08.1918 was sanctioned only in the name of Allah Wasaya known as Wassoo, to the exclusion of the petitioner who is daughter of Muhammad Ramzan deceased. In the plaint, the following, pedigreetable has been drawn:--
Muhammad Ramzan
      Mst. Zainab Allah Wasaya
      (Daughter)  (son)
It has been asserted in the plaint that the petitioner-plaintiff being daughter of Muhammad Ramzan deceased was entitled to her Sharai share but collusively and keeping everything in dark, mutation of inheritance was sanctioned in favour of Allah Wasaya who gifted the suit land through Mutation No. 1329 dated 09.08.1991 to his sons, who in the plaint were arrayed as Defendants No. 2 to 4. It was averred that Muhammad Ramzan deceased, father of the petitioner, was belonging to Sunni sect and the inheritance ought to have been sanctioned in accordance with Sharia and that the petitioner was entitled to 1/3 share out of the suit land but Allah Wasaya by practicing fraud and adopting clever devices got the land transferred in his own name only. It was stated in the plaint that she was a pardah nashin lady but in order to cover-up the fraud, after making family partition, handed over the possession to the petitioner to the extent of her share. In the end, she claimed a decree of declaration-cum-permanent injunction in her favour.
3.  In the written statement, averments of the plaint were denied and Preliminary Objection was raised that she previously filed a suit on the same cause of action but withdrew it on 28.02.1990. It was pleaded by the contesting defendant that the suit was barred by time and the mutation had been sanctioned on the basis of custom of Pagwanda to the exclusion of the petitioner and it was rightly done so. Divergent pleadings of the parties gave rise to the following issues:--
1.    Whether the plaintiff is entitled to get a share in the suit land as inheritance of his father under Muhammadan Law and Mutation No. 698 sanctioned dated 11.8.1918 regarding land situated at Mouza Dufli Kabeer Khan and Mutation No. 1329 dated 9.8.1981 regarding the land situated at Mouza Dufli Kabeer Khan and registered Tamleek Namma dated 31.8.1981 regarding the land situated at Mouza Umar Wadda Cachal, Tehsil Liaqatpur are collusive, bogus and ineffective on the rights of the plaintiff and liable to be cancelled? OPP
2.    Whether the suit is barred by time? OPD
3.    Whether the suit is not maintainable in its present form? OPD
4.    Whether the plaintiff filed a frivolous and false suit against the defendants and the defendants are entitled to get special cost U/S 35-A of CPC and to what amount? OPD
5.    Relief.
4.  The onus with regard, to Issue No. 1 was proposed upon the petitioner-suitor. While returning finding on Issue No. 1, the learned trial Judge came to the conclusion that Mst. Zainab is daughter of Muhammad Ramzan and her inheritance mutation was sanctioned in the name of Allah Wasaya only, but deferred the finding on the remaining part. Learned trial Judge, on Issue No. 2 held that the suit was barred by limitation and the suit ought to have been instituted within six years from the date of cause of action. Findings with regard to Issue No. 3 were recorded against the defendants. On Issue No. 4, it was observed that since the suit is being dismissed for technical reason, the defendants are not entitled to the special costs. In nutshell, the suit brought by the petitioner-suitor was dismissed. Appeal taken against the Judgment & decree dated 19.01.1994 was dismissed by the Learned Additional District Judge vide Judgment & decree dated 27.01.1994.
5.  Learned counsel for the petitioner argued that the Judgments & decrees passed by both the Courts below are running counter to the law declared by the superior Courts. Bitterly argued that findings on Issue No. 2 are not tenable in law. Petitioner was co-owner and had to be treated equally in possession of the inherited property. It was further pleaded that the petitioner is a simple villager and pardab nashin lady and the mutation which has been sanctioned in her absence, there is no legal basis to sustain the same.
6.  Conversely, Sardar Muhammad Hussain Khan, learned counsel for the respondents argued that the limitation to challenge the mutation of inheritance is six years under Article 120 of the Limitation Act. She earlier brought a suit on the same cause of action but it was withdrawn with leave of the Court to file afresh. Further stated that the mutation of inheritance was rightly sanctioned and the land had been transferred through Tamleek deed in favour of sons of Allah Wasaya-respondent.
7.  I have heard the learned counsel for the parties at considerable length and perused the record with their able assistance.
8.  This is stark reality that Mst. Zainab is daughter of Muhammad Ramzan deceased whose inheritance only devolved upon Allah Wasaya-respondent to the exclusion of the petitioner-daughter. In the mutation sanctioned way back on 11.08.1918 (Exh.P-2), presence of the petitioner has not been shown. Sufficient evidence is available on the record to reach at conclusion that the mutation was sanctioned in her absence.
9.  Abdul Hakeem appeared as PW-1 who stated that he is son of Mst. Zainab and is constituted attorney on her behalf. Zainab is daughter of Ramzan alias Ramzoo. He stated that Allah Wasaya has died and he was brother of his mother. Allah Wasaya got entered the mutation in respect of inheritance of Ramzan but the name of her mother was not shown in the mutation. Mutation was got sanctioned quite secretly. He stated that whatever the share of his mother was, possession to that extent was delivered to her. He stated in unambiguous terms that in their village, the mutations were always sanctioned in accordance with the Shariah. Ghulam Hussain PW-2 also made statement in support of claim of the petitioner and more or less he got recorded the same statement, assimilable to PW-1. He stated that there was no custom in the vicinity.
10.  Allah Diwaya appeared as DW-1 in the witness box. He stated that at the time of sanction of mutation, there was a custom of Pagwand and according to that, mutations were being sanctioned to the exclusion of daughters. Umar Wadda (DW-2) appeared in the witness box and stated that he is unaware, whether or not Mst. Zainab petitioner is entitled to the share of inheritance. He denied the factum of possession with the petitioner.
11.  P.Ws. were put to Lengthy cross-examination, but they did not concede any limb of defendants' version. After closing, oral evidence copy of the order dated 28.02.1990 passed by the Civil Judge (Exh.P-1), Mutation No. 998 (Exh.P-2), Naqal Wajib-ul-Arz 1921-22 (Exh.P-3), copy of Jamabandi 1985-86 (Exh.P-4), Copy of Jamabandi 1982-83 Khata No. 90 (Exh.P-5), copy of Mutation No. 1329 (Exh.P-6), sale-deed (Exh.P-7) Pert Nikah (Exh.P-8), Power of Attorney (Exh.P-9) and Khasra Girdawri from Rabi 1978 to 1992 (Exh. P-10) were tendered in the shape of documentary evidence. On the side of the respondents-defendants, Khasra Girdawri 1975 to 1977 (Exh.D-1), Khasra Girdawri Rabi 1987 to Kharif 1987 (Exh.D-2), Khasra Girdawri Kharif 1987 to Rabi 1989 (Exh.D-3) and Khasra Girdawri from Kharif 1987 to Rabi 1987 & 1983 to 1987, were brought on record as Exh.D-4 & Exh.D-5, respectively. Exh.D-6 is a copy of the plaint; Exh.D-7 is written statement by Allah Wasaya; Exh.D-8 copy of the amended plaint and Exh.D-9 is copy of Khasra Girdawri from Kharif 1986 to Rabi 1992.
12.  Copy of Wajib-ul-Arz Exh.P-3 discernibly shows that there was no custom available in that part of the area where the land in dispute is situated. The law has now been too settled to admit any debate that custom varies from Town to Town. Mohallah to Mohallah and street to street but in the case in hand, no evidence has been brought on the record to establish that the custom of Pagwand was existing in the vicinity, where the suit land was situated. Bald assertion in the written statement or the oral evidence, cannot be accepted on the face of document and entries embodied in Exh.P-3 which shows in clear terms that there was no custom existing in the locality.
13.  The main question in this case required to be settled is of limitation. Under Article 120 of the Limitation Act, the suit for declaration could be filed within period of six years and under Article 141 of the said Act, the limitation is 12 years after the initial disposal of the property. Petitioner was admittedly a co-owner of the property. Findings with regard to the fact that petitioner is real daughter of Muhammad Ramzan-deceased, have been recorded by both the Courts below   in   clear  and   unambiguous   terms.  When  this  fact  has  been established that petitioner is a daughter of the deceased whose succession devolved on Allah Wasaya, his son, to the exclusion of petitioner-daughter, the question of limitation does not arise. Insofar as it stands resolved. The apex Court in Ghulam Ali & 2 others vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 01) held that it was not necessary for the suitor to seek annulment of the mutation concerned. On the face of this situation that the petitioner is co-owner in the suit property, the limitation would not run against her. Mutation in itself is not a document of title and the entries embodied in the mutation by itself do not create any title or ownership in favour of the person, in whose favour, it has been sanctioned. In such a situation, the burden would shift upon a person who claims that it was a valid transaction entered through the mutation of inheritance.
14.  Petitioner in specific terms pleaded in the plaint that the mutation was the result of fraud and collusion and the whole transaction was kept concealed. It is significant to point out that the fraud vitiates the most solemn transaction and the superstructure raised upon it shall automatically fall on the ground. See Yousaf Ali vs. Muhammad Aslam Zia and 2 others (PLD 1958 Supreme Court (Pak.) 104) and The Chief Settlement Commissioner, Lahore vs. Raja Muhammad Fazil Khan and others (PLD 1975 Supreme Court 331).
15.  On a question of fact, both the Courts below are not at variance that Mst. Zainab is a real daughter of the deceased-Muhammad Ramzan. It is well settled by now that the moment someone dies and owns landed property, the succession of his property automatically opens and the property gets mutated immediately and vests in the heirs and the said vesting was not dependant upon any intervention of any act on the part of the revenue authority or any other agency. This question came-up for consideration in Mst. Suban vs. Allah Ditta etc. (PLJ 2007 SC 634) wherein it has been held:--
"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 in heritance 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 date when the right of any such co-sharers/co-inheritors in such land was denied by someone."
I am further fortified in my view by Muhammad Qasim Khan and 6 others vs. Mst. Mehbooba and 6 others (1991 SCMR 515), Mst. Fazal Jan vs. Roshan Din etc. (NLR 1993 Revenue 8) and Rehmatullah and others vs. Saleh Khan and others (PLJ 2007 SC 797). Looked at from whatever angle, the view of the honourable Supreme Court is consistent that in respect of matters of inheritances there is no limitation. On the face of this admitted, fact that the petitioner was a pardah nashin lady and simple villager inasmuch as she filed a suit through her son in his capacity as a constituted attorney.
16.  Learned counsel for the respondents laid much stress on the point that once the suit has been withdrawn with permission to file afresh, the limitation would start from the previous proceedings while relying on Muhammad Yousaf and another vs. Additional District Judge, Attock and others (1992 MLD 856) and Raj Behari Singh and another vs. Chandrika Singh and others (AIR 1958 PATNA 217). No doubt that infringement of a right, happens at a particular time, the cause of action will commence from the date. In none of the cases cited at the bar the issue arose out of the case of inheritance. These matters, in fact, in the case of a pardah nashin lady stand on different pedestal and would make a departure from the ordinary law or the rule laid down in the other cases of ordinary nature. According to the view taken in AIR 1929 Madrass Page 10, the law of limitation is bad law and cannot be appreciated in the cases like the one in hand. Beneficial interpretation should be adopted. Petitioner, in fact, fell victim of the maltreatment and an act of excess on the part of her brother, who got the whole land mutated in his own name for worldly temptations while keeping, the pardah nashin lady in dark. In such cases, PLD 1990 Supreme Court 01, supra, is complete answer to the proposition.
17.  In this case whole evidence has been recorded and sufficient documentary evidence has been brought on the record by both the parties. File of the case is fully packed one. On overall assessment, claim of the petitioner is correct and she is justified in demanding her share from the suit property left by her deceased father Muhammad Ramzan. Allah Wasaya-respondent, by adopting clever devices, has been keeping the petitioner in dark and there is overwhelming evidence available on the record to justify this conclusion arrived at by me. The impugned mutation sanctioned on 11.8.1918 is a classic example of fraud and the transaction on its face value being void from its inception has the vitiative affect.
18.  For what has been stated above, I have come to the inescapable conclusion that both the Courts below committed illegalities and irregularities in non-suiting the petitioner on the hyper-technical reason of limitation which in the present state of circumstances and the narration of facts, could not have been attracted in this case. No limitation would run against void transaction. Consequently, the impugned Judgment & decree dated 27.09.1994 passed by the Learned Additional District Judge and that of the trial Judge dated 19.01.1994, are set-aside and suit of the petitioner-plaintiff is decreed in the terms prayed for. Fresh mutation, shall be sanctioned under sub-section (7) of Section 42 of the Land Revenue Act in favour of the petitioner in accordance with her Sharai share. The revision petition is accepted with costs throughout.
(R.A.)      Petition accepted.
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