' This judgment will dispose of Civil Revisions Nos.2225 of 2003 to 2235 of 2003 as common question of law and facts are involved in all these petitions.Effect that one Sher Khan and son of Qadir Buksh Khan predecessor-ininterest of the parties was owner of land in different Mauzas of District Bhakkar, who died leaving behind Rab Nawaz Khan and Muhammad Iqbal Khan petitioner (sons), Mst. Waziran Mai plaintiff and Mst. Amiran Mai mother predecessor-in-interest of Shamshad Begum defendant. Sher Khan belonged to Shia Sect and after death, his landed property was inherited by his legal heirs according to the law of inheritance. An alleged relinquishment deed dated 3-12-1955 was prepared and registered in the Office of Sub-Registrar. According to the averments of the deed, the mutation of inheritance of the agricultural land of the deceased Sher Khan sanctioned in favour of his legal heirs were cancelled and the daughters were deprived of the property except 208 Kanals described in the deed.
3. Mst. Waziran Mai plaintiff challenged this relinquishment deed dated 3-12-1955 and the cancellation of the mutation of inheritance through different civil suits alleging therein that the deed had been prepared and registered against law and facts, result of fraud and collusiveness, void and ineffective qua her rights. It was further alleged in the suits that the order passed by the Revenue Officers about the cancellation of mutations of inheritance sanctioned in favour of legal heirs of Sher Khan deceased and then the review mutations after depriving the plaintiff and her sister Mst. Amiran Mai; the mother of Shamshad Begum defendant were also against law and facts, result of fraud and collusiveness. In all these suits, Rab Nawaz Khan and Muhammad Iqbal Khan real brothers of Mst. Waziran Mai sons of Sher Khan and Shamshad Begum, the daughter of Amiran Mai had been impleaded as defendants.
4. All the suits were contested by Rab Nawaz Khan and Muhammad Iqbal Khan who filed their separate written statements raising some preliminary objections like cause of action, estoppel, limitation and valuation of suit for the purposes of Court-fee. The defendants/petitioners have taken the stand that relinquishment-deed dated 3-12-1955 had been executed in accordance with law and registered about 5 years back and the presumption of truth is attached to the said document. Alongwith the suit, the plaintiff had filed an application for temporary injunction restraining the defendants/ petitioners from dispossessing the plaintiff from the land in dispute and further alienation of the same to any other persons.
5. Learned trial Court after hearing the parties, vide its order dated 16-6-2003 partly accepted the application for temporary injunction to the extent of further alienation of the suit-land. Feeling aggrieved, the defendants/petitioners preferred eleven separate appeals which came up for hearing before the District Judge Bhakkar, who vide his consolidatedjudgment dated 21-8-2003 dismissed the appeals maintaining the order of the learned trial Court.
6. Learned counsel for the petitioners contends that the relinquishment-deed is a registered document and presumption of truth is attached to the same. The plaintiff consented to retain 208 Kanals of agricultural land mentioned in the relinquishment-deed. The said document was verified by Abdul Hayee husband of the plaintiff and he understood the transaction and had independent advice of her husband and the entries of the deed had been incorporated in the Revenue Record.
Further contends that the suit had been filed alleging fraud and collusiveness by the petitioner but ingredients of fraud have not been mentioned in the plaint. Further contends that the Courts below have not passed the impugned orders keeping in view the ingredients for grant of injunction.
Further argued that the suit had been filed after 45 years and the appeal filed by the petitioner against the order of the trial Court has been decided during long summer vacations on 21-8-2003.
Further contends that an injunction against a co-sharer cannot be granted and that in view of registered relinquishment-deed, the prima facie case is not established. He placed reliance on the case of Marghub Siddiqi v. Hamid Khan and 2 others (1974 SCMR 519); Muhammad Sharif v. Chief Administrator, Auqaf and others (1975 SCMR 104); Nasarud Din v. Haji Ghulam Nabi (1989 MLD 1368); Muhammad Bahsir v. Mst. Sattar Bibi (PLD 1995 Lah. 321) and Abdul Hameed v. Muhammad Hanif and others (2003 MLD 201). Further contends that a co-sharer could sell his possessory right in land and no injunction can be granted against him. Reliance in this context has been placed on the case of Feroze v. Sher and others (PLD 1985 SC 254). Further contends that prima facie case not the only exclusive factor---Balance of convenience and irreparable loss being equally important could not be ignored and it was the duty of the Court to examine balance of convenience, irreparable loss as well as behaviour and conduct of the parties. Reliance in this context can be placed to the case of Irshad Hussain v. Province Punjab (PLD 2003 SC 344). Further contends that the rule of lispendens was applicable to the present case and the temporary injunction could not be granted in such like matters. In this context reference has been placed to the cases of Azam Khan and another v. Mst. Naushaba Begum and 3 others (1999 CLC 1003) and Syed Ahmad Shah v. Lal Khan and others (1999 CLC 1044).
7. On the other hand, learned counsel for the contesting respondents contended that the petitioners have sold out their shares in favour of respondents Nos.2 to 6. Now they are bent upon to sell the share of the plaintiff/respondents. Further contended that the relinquishment-deed has been declared against the public policy by the Hon'ble Supreme Court in case of Ghulam Ali and 2 others v. Mst.Ghulam Sarwar Naqvi (PLD 1990 SC 1). Further contended that the petitioner was legally obliged to make out a case for exercise of its jurisdiction by the High Court for which the petitioners have failed. Reliance in this context can be placed to the case of Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others (2000 SCMR 346). Further contended that there is a concurrent findings of facts by the. Lowers Courts and the High Court would not interfere in such- like matters in exercise of its jurisdiction under section 115, C.P.C. In this context he has placed his reliance on the case of Anwar Zaman and 5 others v. Bahadur Sher and others (2000 SCMR 431).
8. I have heard the arguments of the learned counsel for the parties and perused the record.
9. It is an admitted position that relinquishment-deed was got executed by the defendants from other predecessor, Mst. Waziran Mai plaintiff and Mst. Amiran Mai real sister and according to that deed, they were given 208 Kanals of land in one Mauza while they were obliged to relinquish their share out of the property of their father situated in different Mauzas of District Bhakkar. According to the law of inheritance, the plaintiff/respondent Mst. Waziran Mai is entitled to her legal share out of the property left by her father. The question of relinquishment of rights of woman has been dealt with by the Hon'ble Supreme Court on case of Ghulam Ali and others (supra). The devolution of property takes place through inheritance immediately without any other intervention at the time of death of the original owner of the property. In the case in hand, the plaintiff, her sister Mst. Amiran Mai and mother of respondent No.7 became owner of the property immediately on the death of Sher Khan their father and in this regard mutation of inheritance had also been sanctioned in different Mauzas. Under the relinquishment-deed all these mutations of inheritance were reviewed and re-sanctioned which showed that the sisters were persuaded by the brothers to relinquish their share in other property left by their father. The relinquishment of the right of inheritance is against the public policy, morality and undue influence, which concepts are to be decided on the basis of Islamic teachings and principles. The respondent could not opt contract out of this protection and the act of relinquishment was void and in effective and act of relinquishment by a sister was void, ineffective and her inheritance having accrued in her favour on her father's death remained intact at all the relevant time.
10. The Hon'ble Supreme Court had annulled the relinquishment and in this case it was prayed as an ordinary alienation on the ground that the so-called relinquishment-deed of accrued inheritance, is neither recognized in Islamic Law of transfers nor is it treated as a "transfer" under the Transfer of Property Act. Transfer by a relinquishment is not avalid transfer. It could be made through a valid gift provided the legal requirements of gift are performed.
11. The Hon'ble Supreme Court has further observed that "it is relevant at the stage to comment upon the decadence which fell upon the prestigious held in Islam by women and their rights as to status and property, as also, to think of some remedial measures. Although it is for the historians and the sociologists to examine the causes of the serious setback suffered by the rights of woman their recognition, protection and enforcement during certain periods and places in the past; yet for the present discussion it is necessary to point out in this behalf a jurisprudential aspect relating to the South and South-East Asia Islamic Law/culture had come in clash with a powerful entrenched and old culture which had the habit of absorbing what came in contact with it by many methods.
Islam withstood the cultural attack and it has not only survived but also reversed the process of absorption".
12. Since the relinquishment-deed has been declared void and against the public policy and the same having no presumption of truth in the circumstances, therefore, the plaintiff has been able to establish a prima facie case in her favour. Balance of convenience also leans in her favour and in case, the property is transferred by the defendant/ petitioners to some other persons, the plaintiff/respondent No.1 will certainly suffer irreparable loss and according to principle of lis pendens, she has to indulge herself in complicated litigation.
13. The facts of the case of Marghub Siddiqui (supra) are not attracted to the present case. It was a case filed by the petitioner, Head of the Department of Journalism in the University of Punjab, who challenged validity of result passed by the Syndicate of the University. In case of Muhammad Sharif (supra), the petitioner has been aggrieved of by his forcible eviction from a piece of land measuring 5 Kanals and 14 Marlas situated in village Mahmud Booti Tehsil and District, Lahore. The facts of this case are also not attracted to the present case.
14. As to the arguments of the learned counsel for the petitioner relying on the case of Nasarud Din (supra) that plea of fraud and misrepresentation alleged in the plaint requiring evidence to be led.
It is suffice to observe that in the instant case relinquishment-deed is admitted but it is declared by the Hon'ble Supreme Court of Pakistan as void and against public policy. The plaintiff had been deprived of the property which devolved on her just after the death of her father as his legal heir and she being a co-sharer in the property is entitled for grant of temporary injunction to save her property which.Is being sold by the petitioners.
15. Facts of the case of Feroz (supra) are also not attracted in the present case. In that case Feroz was a co-sharer in the land and his share was 32/50 and other co-sharer sold the entire land to respondents through a mutation and the question involved in the matter was whether the co- sharer could sell his possessory right in land and vendee from him would be clothed with same rights as vendor had in property. In this case it was held that vendee would be entitled to retain poss ,bsion till such time as an actual partition took place between the co-sharers but in the instant case, the plaintiff has challenged the deed of relinquishment and the cancellation of mutation of inheritance and the principle of lis pendens though is applicable in the instant case but it would not stop the further litigation and further alienation of the property to some other person. It would be inconvenience for the plaintiff/respondent the lady litigant to fight for her rights against the subsequent vendees/purchasers if her share is sold out by the petitioners/her brothers.
16. Learned counsel for the contested respondents vehemently argued that the petitioners have sold out more than their share to the respondents Nos.2 to 6 and if the injunction is re-called, they will transfer whole share of the plaintiff/respondent No. 1.
17. The other important legal aspect of the case is that there is a concurrent findings of facts against the petitioners and both the Courts below have opined that the plaintiff/respondent No.1 has been able to establish her case for grant of temporary injunction and it has been held in case of Abdul Rahim and another (supra) that the revision petitioner would be legally obliged to make out a case in exercise of its jurisdiction by the High Court and was burdened to prove that either the appellate forum was not possessed of the jurisdiction to decide the matter as same had been done or that the said forum had declined to exercise jurisdiction vested in it or that it had acted in its jurisdiction 'illegally or with material irregularity. Learned counsel for the petitioners has not been able to bring their case within the above three requirement of section 115, C.P.C.
18. In case of Anwar Zaman and five others (supra), it was held that where the two Courts below have given strong reasons for raising inference against genuineness of the documents on the basis of all attending circumstances and those Courts were justified in raising those inferences, even if the High Court had formed its opinion different from the Courts below, such findings of fact could not have interfered with unless strong reasons had been given to reject such inferences.
19. Learned counsel for the petitioner when confronted with the above legal prepositions of the case has not been able to persuade this C Court to interfere with the judgments/orders passed by the Courts below.
20. For the foregoing reasons, all these revision petitions being lc devoid of force is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.