Daughter's children's Shares , died during life time of father , got share in inheritance
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| Daughter's children Shares died during life of father got in inheritance |
۔1966کا انتقال کینسل کر کے والد کی زندگی میں فوت ھونے والی بیٹی کے بچوں کو ماں کا حصہ مل گیا۔
یہ فیصلہ سول ریویژن نمبر 111-D آف 2007 کے بارے میں ہے، جو وراثت کے حقوق کے تنازعے پر ہے۔ درخواست گزاروں نے ہارون آباد کے ایڈیشنل ڈسٹرکٹ جج کے فیصلے کو چیلنج کیا، جس نے سول جج، ہارون آباد کا فیصلہ معطل کیا تھا۔
**کیس کا جائزہ:**
1. **پس منظر:** جواب دہندگان نے ایک مقدمہ دائر کیا جس میں انہوں نے احمد یار کی بیٹی مستان مریم بی بی کے قانونی ورثاء ہونے کا دعویٰ کیا اور کہا کہ وراثت کی منتقلی جو درخواست گزاروں کے حق میں کی گئی تھی، غلط تھی اور انہیں نظر انداز کیا گیا تھا۔
2. **درخواست گزاروں کی پوزیشن:
** درخواست گزاروں نے رشتہ داری کو انکار کیا اور وراثت کے دعوے کی قانونی حیثیت اور مقدمے کی مدت کو چیلنج کیا۔
3. **مسائل:**
- کیا وراثت کی منتقلی غیر قانونی تھی اور اسے منسوخ کیا جانا چاہئے؟
- کیا مقدمہ وقت کی پابندی کے تحت ہے؟
- کیا مدعی مقدمہ کو کسی بات یا عمل سے روک دیا گیا ہے یا مقدمہ موجودہ شکل میں قابلِ سماعت ہے؟
- کیا صحیح عدالت فیس جمع کروائی گئی اور کیا سیکشن 35-A CPC کے تحت خاص اخراجات قابلِ ادائیگی ہیں؟
4. **محکمانہ عدالت کا فیصلہ:** محکمانہ
عدالت نے مقدمہ مسترد کر دیا، جس کے بعد جواب دہندگان نے اپیل دائر کی۔
5. **اپیلٹ عدالت کا فیصلہ
اپیلٹ عدالت نے جواب دہندگان کے حق میں فیصلہ سنایا اور کہا کہ وہ وراثت کا حصہ وصول کرنے کے مستحق ہیں کیونکہ منتقلی غلط طریقے سے کی گئی تھی۔
6. **سپریم کورٹ کی رہنمائی
فیصلے میں سپریم کورٹ کے سابقہ مقدمات کا حوالہ دیا گیا، جن کے مطابق وراثت کے حقوق پر وقت کی پابندی نہیں ہوتی اور پیش رو بچوں کے ورثاء کو شریعت کے مطابق حصہ ملتا ہے۔
7. **آخری فیصلہ
:** ریویژن درخواست مسترد کر دی گئی، اور اپیلٹ عدالت کا فیصلہ برقرار رکھا گیا جس میں جواب دہندگان کو وراثت کا حصہ دیا گیا۔
اس فیصلے میں اس بات پر زور دیا گیا کہ اپیلٹ عدالت کا فیصلہ درست تھا اور درخواست گزاروں نے اس فیصلے میں کوئی قانونی یا فکری غلطی ثابت نہیں کی۔
Must read Judgement
CJDA 38
JUDGMENT SHEET
LAHORE HIGH COURT, BAHAWALPUR BENCH,
BAHAWALPUR
JUDICIAL DEPARTMENT
Civil Revision No. 111-D of 2007
(Yar Muhammad etc. v. Muhammad Nawaz etc.)
Date of hearing: 20.05.2015
Petitioners by: Mian Ahmad Nadeem Arshad,
Advocate
Respondents by: Sheikh
Usman
Kareem-ud-Din,
Advocate.
Sadaqat Ali Khan, J.:
This Civil
Revision No. 111-D of 2007 has been filed by the
present petitioners against the judgment and
decree dated 6.1.2007 passed by Additional
District Judge, Haroonabad according to which
appeal of the present respondents was accepted
filed by them against the judgment and decree
dated 25.6.2005 passed by Civil Judge,
Haroonabad according to which suit of the
present respondents was dismissed.
2.
The brief facts of the case are that on
13.11.1999 present respondents being plaintiffs
filed suit for declaration qua the suit property
whose details are mentioned at the head note of
the plaint with the assertion that they being legal
heirs of Mst. Maryam Bibi daughter of Ahmad Yar
(deceased) last male owner of the suit property
are owners in possession of the suit property. It is
further asserted that inheritance mutation No.
121 (Ex.P2) dated 13.1.1966 pertaining to Ahmad
Yar deceased was illegally sanctioned in favour
of present petitioners by excluding present
respondents (sons and daughters of Mst. Maryam
Bibi predeceased daughter of Ahmad Yar
deceased) which is liable to be cancelled.
3.
On the other hand, present petitioners
being defendants submitted their written
Revision No.111-D of 2007
2
statement and denied the assertions made by the
present plaintiffs/respondents.
4. Learned trial court, out of the divergent
pleadings of the parties, framed the following
issues: -
“Issues:
1. Whether the mutation No. 121 dated
13.1.1966 is illegal, against law and facts,
collusive, ineffective qua the rights of the
plaintiffs and defendants No.6 & 7 and
liable to be cancelled?OPP
2. Whether the suit of the plaintiffs is time
barred?OPD
3. Whether the plaintiffs are estopped to file
this suit by their words and conduct?OPD
4. Whether the suit of the plaintiffs is not
maintainable in its present form?OPD
5. Whether the plaintiffs have not fixed the
correct valuation of the court fee? If so, its
effects?OPD
6. Whether the defendants No. 1 to 5 are
entitled to recover special costs u/s 35-A
CPC?OPD
7. Relief.
5.
Muhammad Nawaz
one of the
plaintiffs/present respondents appeared as PW-
1, Muhammad Saleem appeared as PW-2 and
produced in documentary evidence documents
Ex.P1 & Ex.P2.
6.
On the other hand, Muhammad Sharif one
of the defendants/present petitioners appeared
as DW-1, Muhammad Akbar appeared as DW-2
and produced in documentary
evidence
documents Ex.D1 to Ex.D5.
7.
Learned trial court after hearing the
arguments of the learned counsel for the parties
dismissed the suit of the present respondents
vide judgment and decree dated 25.6.2005.
Appeal filed by the present respondents was
accepted by
Additional
District
Judge,
Haroonabad vide judgment and decree dated
06.1.2007 hence this civil revision filed by the
present petitioners.
8.
Learned
counsel for
the petitioners
submitted that impugned judgment and decree of
the lower appellant court are against law and
facts on the file and are liable to be set-aside. It is
further submitted that impugned judgment and
Civil Revision No.111-D of 2007
3
decrees of lower appellate court are the result of
misreading and non-reading of evidence.
9.
On the other hand, learned counsel for the
respondents has vehemently opposed this civil
revision and supported the impugned judgments
and decrees of the lower appellate court.
10. I have heard the learned counsel for the
parties and perused the record.
11. Ahmad Yar predecessor of the parties was
owner of the suit land. Present
respondents/plaintiffs stated in para 2 of the
plaint as under: -
12. The claim of the plaintiffs/present
respondents is that they are sons and daughters
of Mst. Maryam Bibi daughter of Ahmad Yar
deceased. Mst. Maryam Bibi had died in the life
time of Ahmad Yar deceased (her father).
Plaintiffs/respondents being sons and daughters
of Mst. Maryam Bibi predeceased daughter of
Ahmad Yar were entitled to get their ‘Sharie’
share from the property left by Ahmad Yar
deceased being
sons and daughters
of
predeceased daughter of Ahmad Yar and
inheritance Mutation No. 121 dated 13.1.1966
Ex.P2 was illegally sanctioned in favour of
present petitioners by excluding sons and
daughters (present respondents/plaintiffs) of Mst.
Maryam Bibi predeceased daughter of Ahmad
Yar deceased. Present petitioners in para 2 of
their written statement have initially denied the
Civil Revision No.111-D of 2007
4
relationship between Mst. Maryam Bibi and
Ahmad Yar deceased and stated as under: -
13. However, Muhammad Sharif one of the
present petitioners (son of Ahmad Yar deceased)
while appearing as DW-1 admitted in crossexamination that Mst. Maryam Bibi was his
sister. The relevant para is hereby reproduced: -
14. Further present petitioners being
defendants have stated in para 3 of their written
statement that Ahmad Yar had died in the year
1951 but have failed to prove the same.
Defendant No.1 Muhammad Sharif son of Ahmad
Yar deceased stated in cross-examination as
under: -
15. I have perused disputed inheritance
mutation No. 121 (Ex.P2) which was sanctioned
on 13.1.1961.
On the other
hand,
plaintiffs/present respondents stated in para 3 of
the plaint as under-
16. Relevant section 4 of Muslim Family Laws
Ordinance 1961 is hereby reproduced: -
“4. Succession- In the event of the death of
any son or daughter of the propositus before
the opening of succession, the children of
such son or daughter, if any, living at the
time the succession opens, shall per stripes
receive a share equivalent to the share
which such son or daughter, as the case
may be, would have received, if alive”.
17. Considering above, I am of the opinion that
Mst. Maryam Bibi was the real daughter of
Ahmad Yar deceased and had died in the life
time of Ahmad Yar deceased and present
Civil Revision No.111-D of 2007
5
respondents/plaintiffs are sons and daughters of
above mentioned Maryam Bibi predeceased
daughter of Ahmad Yar deceased and are
entitled to get their shares from the inheritance of
Ahmad Yar deceased being sons and daughters
of Mst. Maryam Bibi predeceased daughter of
Ahmad Yar deceased. Inheritance mutation No.
121 (Ex.P2) was wrongly sanctioned on
13.1.1966 in favour of present petitioners by
depriving plaintiffs/present respondents from
their legal shares. Reliance is placed on case Mst.
Bhaggay Bibi and others v. Mst. Razia Bibi and
others (2005 SCMR 1595) in which Hon’ble
Supreme Court of Pakistan has observed at page
1597 as under: -
“This section does not override the law of
Shariah and consequently the parties will
not get more than their share in the property
in accordance with law of Shariah and the
widows and daughters of Maula Dad would
get to which they would have been entitled
on the death of Maula Dad, after opening of
succession of Mughla. The purpose of
enacting section 4 (ibid) was to cater the
need of grandchildren to remove their
sufferings but their provision cannot be
interpreted in a manner effecting the shares
of other descendants in the property in
accordance with law of Shariah. This Court
in Zainab v. Kamal Khan PLD 1990 SC 1051
resolving the controversy arising out of the
provision of section 4 of Muslim Family Laws
Ordinance, 1961, held that according to law
of Shariah, the heirs of predeceased children
would inherit what their father or mother
would have inherited during their life time on
the opening of succession”
18. The argument of the learned counsel for the
petitioners that disputed Mutation No. 121 (Ex.P2)
was sanctioned on 13.1.1966 whereas present
respondents/plaintiffs has filed suit
on
13.11.1999 out of the limitation period has no
substance because limitation would not apply to
enforcement of right of inheritance in a estate of
deceased predecessor. Suit by co-owner seeking
share of inheritance has no limitation. Reliance is
placed on case “Mohsin Khan and 3 others v.
Ahmad Ali and 2 others (PLD 2004 Lahore 1) in
which it is held as under
Civil Revision No.111-D of 2007
6
“As regards the question, whether the suit is
within limitation, it is settled law that there is
no limitation for a co-owner of the property,
particularly in possession and seeks the share
of inheritance. Besides, as per view
enunciated in PLD 1990 SC SC 1, limitation
would not apply where the person seeks to
enforce a right of inheritance in the estate of a
deceased predecessor.
Now attending to the question, whether
the petitioners were barred to file the suit, as
earlier they did challenging the Mutation No.6
dated 06.08.1959 and withdrew their claim,
suffice it to say that onus to prove issue No.7-
A was on the shoulder of the respondents, but
they have not adduced any evidence to strictly
establish if the earlier suit was based upon
the same cause of action and was withdrawn
without the permission of the Court.
The argument of learned counsel for
the respondent that because Mohsin had
admitted in his cross-examination that earlier
the suit was filed and withdrawn, it may be
held that no further question was put to him if
such withdrawal was with or without
permission of the Court, therefore, it cannot in
the absence of the plaint of the earlier suit and
the order of the Court be safely and definitely
held that the suit was hit by Order 23, rule 1.
It may be pertinent to state here that
the counsel for the parties have in writing
(Mark-A), duly signed by them placed on
record the proportion in which the legal heirs
of Shahmand shall be entitled to inherit. Allah
Jowayee 1/8, Nawab Bibi 7/16 + Ahmad Ali
7/64, Dara (the other nephew of Shahmand)
7/64, Muhammad Nawaz and Shahnawaz
7/64 each. It may further be added that
though Dera was not a party and Muhammad
Nawaz and Shah Nawaz did not contest the
suit, yet the counsel for the parties have stated
that they have no objection, if the estate of
Shahmand is distributed on the basis of the
shares specified by them in writing Mark-A.
And further that as Allah Jawayee and Dara
had died, therefore, their respective shares
shall be given to their legal heirs.
In the light of above, I set aside the
findings of the Courts below on Issues No.5
and 7-A and finding of the Court of appeal on
Issue No.1, the judgments and decrees of the
Courts below are set aside and the suit of the
petitioners is decreed in the share proportion
as specified in paragraph No.8 of this
judgment. The petition is according allowed.”
Further reliance is placed on case
“Muhammad Shamim through legal heirs v. Mst.
Nisar Fatima through legal heirs and others”
(2010 SCMR 18).
19. Considering above, I am of the view that
learned lower appellate court rightly by accepting
the appeal of the present respondents/plaintiffs
decreed their suit through the impugned judgment
Civil Revision No.111-D of 2007
7
and decree which are not result of misreading
and non-reading of evidence. Learned counsel or
the petitioners could not point of any illegality in
the impugned judgment and decree of lower
appellate court.
20. For the foregoing reasons, this civil revision
has no merits and is dismissed.
(Sadaqat Ali Khan)
Judge
Irfan
Approved for reporting
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