' SALIM KHAN, J.---The admitted facts in this case are that Mst. Juma daughter of Kachkol is the real sister of Umar Akhtar respondent No,1, that the suit property was the inheritance of Kachkol, resident of Kalpani, Tehsil Daggar, District Buner, and that Mst. Juma and Umar Akhtar were not the only daughter and son respectively of Kachkol, but the mother and other sisters of the contesting parties were alive and had submitted affidavits in favour of respondent No, 1.
2. The contested points are that whether the suit property was gifted to Umar Akhtar by Kachkol in his life time, or a Will was made in favour of respondent No,1 by his father. An agreement deed No,754 dated 10-12-1954 was referred to by Umar Akhtar defendant and his witnesses. The original of that document was not produced at the time of evidence and the document has not been exhibited by any of the parties. The said document is not in favour of one or the other party. In fact that was a document in favour of Ali Said, the insane son of Kachkol, who later on died, in which it was mentioned that Ali Said would be the owner of the total movable and immovable property of Kachkol, but if an other son was born to Kachkol, that other son would equally share the property with Ali Said, and the other heirs would have no right whatsoever to the suit property. The reason for writing the Wasiyyat Nama or Iqrar Nama (the scribe and Kachkol were not sure about the nature of the said document) was shown to be that Ali Said was an insane person and there was no other male son in the house of Kachkol, therefore, he wanted to save Ali Said from future injustice. It is said that Ali Said died later on, and Umar Akhtar was born, therefore, he had become the owner of the total property. On the basis of the said document, defendant No,1 claimed ouster of the other heirs of Kachkol. The evidence of the defendants is to the effect also that the suit property was transferred to defendant No,1 by his father in his lifetime. The petitioner/plaintiff in her plaint claimed that she was the daughter of Kachkol and was entitled to her share in the suit property while the defendants were not entitled to deprive her of Sharai share, that the Revenue Record was incorrect and was ineffective against the rights of the plaintiff.
3. The suit of the plaintiff was dismissed vide judgment and decree dated 10-1-2002 by the learned Civil Judge/Alaaqa Qazi-II, Daggar in District Buner. Civil Appeal No,25/13 instituted on 18-1-2002 against the judgment and decree in Suit No,7/1 instituted on 6-2-1996, decided as aforesaid, was also dismissed on 24-9-2004. Hence, the present Civil Revision. S.M. Atique Shah, Advocate, for the petitioner and Mr. Fida Gul, Advocate, for the respondents, argued their case, I heard them and perused the record.
4. The learned counsel for the petitioner contended that no document of gift by Kachkol in favour of Umar Akhtar is available, that Kachkol died in the year 1969, that the Revenue Record was prepared in the year 1977-78, Umar Akhtar was wrongly recorded as the sole heir of Kachkol to the exclusion of the petitioner, but the Revenue Record could not extinguish the rights of the entitled parties. He further contended that inheritance mutation of Kachkol was never recorded in favour of all the heirs and such heirs had never gifted the property to Umar Akhtar respondent No,1 /defendant. He was also of the view that neither limitation nor esotppel could be claimed against Mst. Juma, who was one of the legal heirs of Kachkol, and that the entry in favour of Umar Akhtar in the Revenue Record could not deprive Mst. Juma from her legal and Sharai share.
5. The learned counsel for the respondents submitted that the suit property has been in possession of respondent No,1/defendant No,1 from the time of death of his father till now, that Mst Juma or any other legal heir of Kachkol had never claimed any share in the property or share of its produce from defendant No,1, that the husband of the plaintiff was the cousin of defendant No,1, and that it was only due to other cases between the husband of the plaintiff and Umar Akhtar that relations of the plaintiff and defendant No,1 became strained, and the plaintiff claimed her share in the suit property through the present litigation.
6. There is no dispute that the suit property is the inheritance of Kachkol, deceased father of the plaintiff/petitioner, defendant No,1/respondent No,1, and that the mother as well as other sisters of the contesting parties were alive at the time of institution of the suit. In normal circumstances, the plaintiff, her mother and other sisters and defendant No,1/respondent No,1 would have inherited the property from Kachkol. The mother other sisters were necessary parties to the present case, but they have already submitted their affidavits in favour of defendant No,1. There is no affidavit or any other admission by the plaintiff in favour of defendant No,1. No other evidence of any waiver/relinquishment of rights of the plaintiff/petitioner with respect to the suit property in favour of defendant No,1 is available. The name of the plaintiff is not mentioned in the Revenue Record from the very start after the death of Kachkol.
7. It was the responsibility of the Revenue Authorities to correctly record the names of legal heirs of the deceased landowner. For the purposes of correct assessment, liability and recovery of land revenue, they were bound to ascertain such correct names through reliable evidence. Non-entry of the name of any person entitled to inheritance does not disentitle him for such inheritance and does not debar him from claiming rights in the property on the basis of inheritance. Umar Akhtar has been shown as the sole heir of Kachkol in the Revenue Record. It means that the Revenue Authorities did not enquire and ascertain about the existence and identity of the plaintiff, the mother and sisters of the plaintiff, besides Umar Akhtar defendant No,1. A legal heir becomes entitled to ownership in the property of the deceased person, according to his share, immediately on the death of such person. Devolution of right of inheritance is not contingent upon any entry in the Revenue Record or upon any other document, oral statements or any other commission or omission by any person. Mst. Juma had become the owner of the suit property to the extent of her share, on the death of Kachkol in 1969 and non-entry of her name in the Revenue Record could not come into her way for claiming the rights, as aforesaid.
8. The alleged deed No,754 dated 10-12-1954 has not been properly exhibited and proved on record. But that document, even if proved genuine, would have been of no use to the defendant/respondent No,1 because it was dated 10-12-1954 when defendant No,1 was not in existence. A document written at a time cannot entitle a non-existent and non-living person and cannot disentitle an existing and living person in order to favour a person who may or may not be born in future. The document in question has not only declared an insane person entitled to the whole property of a living person, in order to protect the future of that insane person by excluding the female persons of the family against the principles and intent of Shariah, but has also declared a non-existing and non-living person as co-sharer with him, by excluding the wife and other sisters of that person.
' In the words of the judgment reported as Muhammad Zubiar and others v. Muhammad Sharif (2005 SCM R 1217), "the right of succession would not be defeated by the law of limitation or the principle of res judicata as no law or judgment can override the law of Shariah, which is a superior law." According to the law of Shariah, the succession opened on the death of owner of a property and his legal heirs became entitled to their shares in the property immediately and without any condition. A document, which is neither properly exhibited nor proved by cogent evidence and which was allegedly scribed long before the birth of a person claiming rights under the said document, to the exclusion of others, cannot override the right established by the Shari Law of Inheritance. The relationship between the original plaintiff and the defendant/respondent No,1 is not only proved, but is also not denied. It was the duty and responsibility of the defendant/respondent No,1 to categorically prove that the plaintiff had ever, with intention, either waived or relinquished her rights in the suit property to the extent of her share. It is, by now, a settled principle that the possession of one co-sharer is the possession of all co-sharers over a possession, and one co-sharer by his physical possession over a property, cannot deprive the other co-sharers of their rights of ownership and possession over the said property. The plaintiff had become owner of the suit property at the time of her father, who behind the male member of the family, and the respondent/defendant No,1 was in possession of the suit property not only for himself, but also for the plaintiff and other female members of the family.
9. In the words of the judgment reported as Muhammad Idrees v. Mst. Zeenat Bibi (2005 SCM R 1690), "the Courts cannot remain oblivious regarding the erosion of moral values and the conduct of the petitioner is worth quoting as a classic example in this regard". As per precedents, the female members of the family are deprived of their rights of inheritance by pretext, devices, disguises, stresses, strains, and pressures. On one side, the plaintiff was shown to had lost her rights when, the defendant/respondent No,1 was not yet born, or at the time of death of her father, when there was no record or evidence in favour of the defendant/respondent No,1, who has not proved the transfer of the property to him by his father during his lifetime. On the other side, the respondent No,1 claims right on the basis of an unproved document which was allegedly scribed before his birth, as well as the wrong entries in the Revenue Record. It has been brought on record that Kachkol died in 1969 while the settlement proceedings were conducted and finalized after that, and it was in 1977-78 for the first time that the suit property was entered in the name of the defendant/respondent No,1 without any reference to the existence or otherwise of the plaintiff, her mother and sisters. The other heirs of Kachkol have been ignored without hearing them at the time of preparation of the Revenue Record in favour of the defendant/respondent No,1.
10. It has been held in the judgment cited as Muhammad Iqbal and 5 others v. Allah Basaya and 18 others (2005 SCM R 1447) that "the right of a female, recognized in Shariah, cannot be denied on the basis of oral assertion of surrender of such right by a female in favour of male member of the family and in any case, there is no concept of estoppel to deprive a person from his right in the inheritance in Islam. The respondents have not been successful in showing us that Mst. Allah Wasai had surrendered her right in the property in favour of her brothers in lawful manner or the suit involving right of inheritance could be dismissed on the ground of estoppel or limitation. "The suit of Mst. Juma in this case also could not be dismissed on the ground of estoppel, limitation, unproved document allegedly scribed before the birth of the brother, the wrong entries in the Revenue Record without an attempt by the Revenue Authorities to correctly record them, the alleged Will of the deceased father or possession of male co-sharer against the female co-sharers.
11. The learned Court of first instance and the learned Appellate Court have erred in properly evaluating and appreciating the evidence on record and have failed to correctly apply the law of inheritance to the circumstances of the present case. The petitioner, being the daughter of Kachkol, is entitled to her Sharai share of inheritance in the suit property along with respondent No,1, and mother as well as sisters of the contesting parties.
12. I, therefore, accept the present civil revision, set aside the impugned judgments and decrees granted by the learned Original Court and the learned Appellate Court, and grant the decree as prayed for by the present petitioner in her favour along with the respondent/defendant to the extent of her Sharai share in the disputed properties left by her father as his inheritance. Parties are, however, left to bear their own costs throughout.