Tuesday, 21 October 2014

Wrong transfer of Shares in Property

PLJ 2013 Peshawar 272
Present: Abdul Latif Khan, J.
MUSLIM SHAH and others--Petitioners
Mst. RABIA BIBI and others--Respondents
C.R. No. 107 of 2012, decided on 3.5.2013.
Muhammadan Law--
----Shari shares in legacy--Entire legacy was wrongly transferred--Question--Whether plaintiffs can be deprived of due shari shares--Validity--According to Sharia Law theycan not be deprived of their due share in inheritance of their their common predecessor-in-interest--Admittedly their mother was entitled to 1/6 share in legacy and each one of them was entitled to 1/12 share in legacy who was daughter--When blood relationship of plaintiff was established with their common progenitor, denying them their due share, was against injunctions of Islam and law on the subject. [P. 273] A
Mr. Arshad Jamal Qureshi, Advocate for Petitioners.
Mr. Javed Yousafzai, Advocate for Respondents.
Date of hearing: 3.5.2013.
This revision petition is directed, against the judgment/decree dated 18.11.2012, passed by the learned ADJ-VII, Mardan vide which the judgment/decree passed by the learned Civil Judge-IV Mardan on 26.11.2010 in favour of the petitioners (plaintiffs) was set aside. Hence this petition by the petitioners.
Brief facts forming the background of this revision petition are that the petitioners brought a declaratory suit, regarding the suit property, fully described in the heading of the plaint, which after contest between the parties was decreed by the trial Court, vide judgment and decree dated 26.11.2010. Feeling aggrieved, the respondents filed appeal, which was accepted and the judgment and decree of the trial Court was set aside and the suit of the petitioners was dismissed. They have now filed the instant revision petition, challenging the validity of the impugned judgment/decree of the lower appellate Court.
I have heard the learned counsel for the parties at some length and perused the record with their valuable assistance.
The claim of the petitioners is that they are the successors of the late Syed Rasan, who had two sons namely Talib Shah & Qudrat Shah and two daughters namelyMst.Zeenat Bibi and Mst.Zain Noora. The latter died unmarried, while the petitioners are the descendants of MstZeenat Bibi and thus entitled to their shari shares in the legacy of Syed Rasan and Mst.Zain Noora, whereas the entire legacy has wrongly been transferred in the names of Talib shah and Qudrat Shah, meaning thereby that the plaintiffs-petitioners have been deprived of their due shari shares, which is against law and facts. It was also alleged that Mutations No. 505, 331 and 381 are also violative of the law on the subject, and the same being based on fraud and collusion, are void and ineffective upon the rights of the plaintiffs-petitioners and the defendants-respondents were repeatedly asked to recognize their rights over the suit property, but they flatly refused.
The moot question arises in this case is as to whether the plaintiffs can be deprived of their due shari shares, falling in the legacy of their predecessor-in-interest. According toSharia Law they can not be deprived of their due share in the inheritance of their common predecessor-in-interest. Admittedly their mother was entitled to 1/6 share in the legacy of Syed Rasan and each one of them is entitled to 1/12 share in the legacy, left by their mother MstZeenat Bibi, who was the daughter of Syed Rasan. When the blood relationship of the plaintiffs is established with their common progenitor, denying them their due share, is against the injunctions of Islam and the law on the subject. It is also admitted fact that the said MstZain Noora died in the life time of MstZinat Bibi and entitled to inherit out of the legacy of her sister and in terms her inheritance would devolve upon her two daughters, entitled for 2/3 share, while rest of the shares out of the legacy of MstZain Noora, shall distribute upon the defendants as per their respective shares. The learned trial Court though observed that the plaintiffs are the legal heirs of Syed Rasan, as well as of MstZain Noora, but denied their due shares out of legacy referred above. There is no need of bringing   on  record  the  respective  entitlement  of  Syed  Rasan.  What required legally is to declare the plaintiffs entitled to their respective shares in the legacy left by their common predecessor-in-interest. Therefore, the findings of the learned trial Court on Issues No. 3 and 13 being incorrect are liable to be set aside. However, its findings on the remaining issues being correct are accordingly maintained.
For what has been stated above, the impugned Judgment/ decree of the lower appellate Court had neither any jurisdictional error or defect, nor any irregularity or illegality has been committed, warranting interference by this Court in its revisional jurisdiction. Consequently the revision petition being without any merit is dismissed with no order as to costs.
(R.A.)  Petition dismissed

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