' Haji Muhammad Hanif, the petitioner herein, had instituted a declaratory suit for possession and consequential relief qua Mutation No.1241 dated 28-6-1966 and Mutation No.21 dated 26-3-1983 which suit was dismissed by the trial Court on 19-7-1994 and appeal thereagainst was dismissed by the learned Additional District Judge, Sheikhupura on 27-3-1995. This is revision petition by him.
2. The learned counsel for the parties have been heard. The crucial point involved is whether the petitioner alone (a son of Muhammad Shafi) was entitled to inherit from his grandfather namely Mehr Din or the widow of Muhammad Shafi namely Mst. Hassan was also entitled to any share.
According to the learned counsel for the petitioner section 4 of the Muslim Family Laws Ordinance,.
1961 the petitioner being the son of Muhammad Shafi deceased was entitled to receive share and not any other including the widow of the deceased Muhammad Shafi. The learned counsel for the respondents has endeavoured to support the judgments of the Courts below, whereby the petitioner/plaintiff was non-suited by them. It is contended that the suit was time-barred and the petitioner was estopped to lay any claim or file a suit due to his conduct.
3. The undisputed position is that Mehr Din deceased the grandfather of the petitioner had three sons namely Jalal Din, Muhammad Shafi and Muhammad Ibahim. He had two daughters namely Mst. Muhammad Bibi and Mst. Fatima. Muhammad Shafi had died in the life time of his father leaving behind the petitioner (son) and Mst. Hassan (widow). Mst. Hassan is stated to have married Muhammad Ibrahim later on and had children from that marriage as well. The successors of Jalal Din and Muhammad Ibrahim are respondents herein. After the death of Mehr Din inheritance Mutation No.1241 came to be sanctioned on 28-6-1966 wherein Mst. Hassan widow of Muhammad Shafi was also given 1/8th share (Exh.P.5). She thus got land measuring 5 Kanals, 10 Marlas. Out of that land she alienated land measuring 2 Kanals in favour of the petitioner, (her son from Muhammad Shafi deceased) and 3 Kanals, 10 Marlas to Muhammad Idrees, Muhammad Naseer and Rashid Ahmad, her sons from Muhammad Ibrahim. This was vide Mutation No.21 dated 26-3- 1983 (Exh.P.6). The controversy about the validity and legality of these mutations was sought to be covered through Issue No.6, which though not adequately worded, reflected the 'sum and substance of the controversy.
4. The above stated position of the inter se relationship of the parties is not in dispute. It is also not in dispute that the petitioner was son of Muhammad Shafi deceased and Mst. Hassan was his widow, who had married later on with Muhammad Ibrahim. Section 4 of the Muslim Family Law Ordinance, 1961, which deals with the succession in suchlike matters reads as under:-- "5.4 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 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." (Underlined by me due to its relevance).
' This section relates to and deals with the right of inheritance of the issues of the predeceased son and daughter. It provides that if a person dies and leaves behind issues of such of his sons or daughters who were dead in his life time, the issues of the deceased sons and daughters will be entitled to inherit the shares that their father or the mother would have inherited had they been alive at the time of death of that person. The object and rationale behind this provision is to ameliorate the distress of those unfortunate children whose father and mother are snatched away by death in the life time of their grandfather. Such orphan grandchildren are sought to compensated in such a way by giving the share in inheritance to which their father or the mother would have been entitled. The express and unambiguous phraseology and language of the provisions of law leaves no obscurity or doubt that the "children of such son" are only entitled to inherit and receive share which expression does not possibly within its ambit include the widow "of such son". Thus only the petitioner as son of Muhammad Shafi was entitled to receive the share.
The learned trial Court though had found the suit within limitation as Issue No.2 was decided against the respondents-defendants, yet he proceeded to uphold the mutations inferring some understanding between the parties and non-challenge of Mutation No.20 dated 26-3-1983 by which Mst. Hasan had transferred 2 Kanals of land to the petitioner. In this way, the conduct of the petitioner prevailed upon the Court to non-suit him. In the appeal the learned Additional District Judge appeared to have accepted the legal position as per section 4 of the Muslim Family Laws Ordinance, 1961, observing that "In this respect I Would like to maintain here that bare perusal of the law leads me to favour the arguments of the learned counsel for the appellant but the facts involved in this case are totally different, so on the basis of the said law the matter cannot be resolved unless the factual position is discussed in this judgment". The learned Appellate Court was also swa yed by the circumstances such as inaction on the part of the petitioner and his conduct in the matter. He even proceeded to reverse the findings of the trial Court on the question of limitation although there were no cross objections nor such findings had been assailed by the respondents. It may be observed that under the Islamic Law of Inheritance as soon as an owner dies succession to his property opens. In Ghulam Ali v. Ghulam Sarwar Naqvi (PLD 1990 SC 1), it was observed that".
There is no State intervention or clergy's intervention needed for the passing of the title immediately to the heirs. Thus it is obvious that a Muslim's estate legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith." The legal position is thus quite clear that the moment Mehr Din (the grandfather of the petitioner) expired, due share of inheritance vested in the petitioner and he became owner of the same. It was not dependent upon any entry in the mutation which was meant only to incorporate a factum. But if the entry therein was contrary to the law and the share to which the petitioner was entitled it could not operate as estoppel qua him to claim his rightful share. Section 4 of the Ordinance entitled the petitioner alone to inherit as son of Muhammad Shafi deceased and not Mst. Hassan as widow of Muhammad Shafi. The mutation to the extent was not consistent with law and was illegal.
5. Suffice it to mention here that in matters of inheritance, neither the limitation nor the conduct of the petitioner could estop him from claiming his legal share. Mere passage of time does not extinguish the right. There was no cogent and convincing evidence as to any compromise or family settlement by which the petitioner could be dubbed to have relinquished or abandoned his claim.
Indeed the petitioner who had appeared as P.W.3 categorically controverted and denied any such suggestion. Ibrahim while appearing as D.W.1 had admitted that Mst. Hassan Bibi had incorrectly been shown as widow of Mehr Din. It was clarified by him that she was widow of Muhammad Shafi.
The approach of the learned Appellate Court thus was wholly misdirected and contrary to law in holding the view that the suit was time-barred. He was not justified to reverse the findings of the learned trial Court qua Issue No.2 i.e. Limitation.
In such view of the matter when the view taken by the Courts below is patently illegal and contrary to established facts, the findings of the Courts below though concurrent lose their sanctity and are liable to be reversed. As a result, by accepting the revision petition and setting aside the judgment of the Courts below, the petitioner is held to be entitled to the decree prayed for by him. No order as to costs.