' On 20th October, 1975, Yusuf Ali Khan, respondent No, 1, filed a declaratory suit to the effect that he was seized of property in Chak No, 107/GB (Mauza Pathankot), Tehsil Jaranwala, District Faisalabad having devolved on him on account of inheritance from his father Khan Muhammad Yasin Khan who died on ;1st May, 1964. Khan Muhammad Yasin Khan owned 669 kanals and 1.7 marlas of agricultural land in the aforesaid village and on his death left behind 1 widow, 4 sons and 8 daughters. The mutation of Inheritance No, 219 was sanctioned on 17th July, 1964 in favour of his heirs. Ibrahim and others filed an appeal against the aforesaid orders of sanctioning of mutation of inheritance on the ground that Muhammad Yasin Khan deceased had sold 109 kanals and 3 marlas ,of land vide a registered sale deed1(Exh. D/2) dated 27th June, 1950 in favour of Sardar Muhammad etc. For raising funds for the higher education of respondent No,
1. It was further claimed that respondent No, I executed an agreement that the aforesaid area of land shall be adjusted from his share of inheritance vide agreement dated 22nd June, 1950 (Exh. D/4). Ibrahim and others in the circumstances asserted that respondent No, 1 could not claim his share of inheritance from the estate of Muhammad Yasin Khan. This appeal was accepted by the Collector on 22nd February, 1966 (Exh. P/2) and the case was remanded with the direction that an area of 109 kanals and 3 marlas be excluded from the name of respondent No,
1. On 20th September, 1968 A. C.
II reviewed mutation No, 219 and excluded the name of respondent No, 1 altogether. The respondent No, 1 filed an appeal against the order of A. C. H, dated 20th September, 1968 but the same was dismissed by the Collector on 8th March, 1969. The respondent No, 1 failed before the Commissioner as well as the. Board of Revenue and ultimately resorted to the filing of the civil suit on 20th October, 1973 as already stated above. The suit was resisted by the other heirs who excepting one of the defendants relied on the agreement dated 26th June, 1950 (Exh. D/4) by which it was pleaded that the respondent No, 1 had received full compensation in lieu of inheritance during the lifetime of Muhammad Yasin Khan for his education and as such his name was rightly excluded from inheritance. On the pleadings of the parties the following issues were framed :- {{TABLE}}
(1) Whether the suit is within time ?
(2) Whether. The suit in the present form is not competent ?
(3) Whether the plaintiff is estopped from filing the present suit ?
(4) Whether the civil Court has no jurisdiction to try this suit ?
(5) Whether the suit is bad for misjoinder of parties
(6) Whether the suit is undervalued for purposes of court-fee ?
(7) Whether the plaintiff is owner of the suit property through inheritance ?
(7-A) Whether the order of A.C./Collector dated 22nd February, 1966 is illegal, void, inoperative and without jurisdiction and mala fide ?
(8) Whether the plaintiff has no cause of action or locus standi to file the present suit ?
(9) Whether the defendants are entitled to special costs.
(10) Relief. {{TABLE}} ' The learned trial Court vide his judgment dated 13th June, 1978 decreed the suit after deciding all the issues in favour of the respondent No,
1. The appellants filed an appeal which was also dismissed by the learned Additional District Judge, Faisalabad vide his judgment dated 31st'
October, 1978. Findings of the learned trial Court on Issues Nos. 4, 5. 6, 8 and 9 were not pressed before the lower appellate Court.
2. The learned counsel for the petitioners in revision has challenged the findings of the learned Additional District'' Tide, Faisalabad, on issues Nos. 1, 3, 7 and 7-A. On Issue No, 1 it is contended that the suit filed by the respondent No, 1 was governed under Article 120 of the Schedule to the Limitation Act and the limitation would start from the date of the acceptance of the appeal by the Collector on 22nd February, 1966 and not from the order passed in appeal or revision. According to the petitioners orders passed subsequently would not have the effect of giving a fresh cause of action. As the appeal was accepted by the Collector on 22nd February, 1966 it is claimed that the suit having been filed on 20th October, 1973 was barred by limitation.
4. The respondent No, 1 who has argued the case himself has submitted that the limitation in the present case would start from the date of implementation of this order in the revenue record and he being in possession of his share in the land could apply for the correction of the entries in the record-of-rights at any time. The respondent No, 1 has placed reliance on F. A. Khan v. The Government of Pakistan (1) in support of his submissions. In this case a Government servant had filed a declaratory suit in a civil Court within 6 years from the date of decision by the appellate Authority. It was held by their Lordships of the Supreme Court that passing of an order which was subject to appeal will not necessitate filing of a suit for it is only a part of proceeding and not a final order. In any case once an appeal is filed the matter becomes sub judice and when the appellate Authority passes an order the order of the original authority disappears and merges in the order of the appellate Authority so that there remains in existence only of the appellate order which order can be made the basis of a suit. In this case also the limitation was governed under Article 120 of the Schedule to the Limitation Act. In another case reported as Jumman Khan v. Mohammad Khan (2), their Lordships of the Supreme Court have observed for the purposes of Article 120 a fresh cause of action would accrue every time their right of ownership was denied or repudiated. In that case on 4th February, 1949 the petitioner had acknowledged the ownership rights of the respondents. Mutation was not entered by the respondents on the basis of the agreement, but it was rejected on 11th September, 1954. The suit which was filed on 13th November, 1956 was held to be within Article 120 or 142 of the Limitation Act.
5. In the present case the order passed in appeal by the Collector was subject to further appeal or revision and as such its implementation had also taken place on 20th September, 1968 when A. C. II reviewed the mutation and in pursuance to the order of the Collector, dated 22nd February, 1966 and Yusuf Ali Khan filed an appeal which was dismissed by the Collector on 8th March, 1969. The limitation in this case would start from the date of the final order. Even each decision would constitute a fresh cause of action, the possibilities of the matter being rectified by the appellate or revisional Court could not be ruled out and in that case the respondent might not have to resort to litigation as this is and shall be the purpose of filing an appeal or revision. No exception can be taken to the findings of both the Courts below on Issue No, 1.
6. The learned counsel for the petitioners has laid much emphasis on the principle of estoppel and argued that after the execution of the agreement dated 22nd June, 1950 (Exh. P. 4) the respondent No, 1 was estopped from claiming the inheritance and the revenue authorities had rightly excluded his name. The land sold by Mohammad Yasin Khan vide registered sale deed dated 27th June, 1950 being for the benefit of respondent No, 1, the same shall have to be deducted out of the share of respondent No, 1.
(1) PLD 1964 SC 520
(2) 1973 SCMR 289 It is well established that under the Mohammadan Law a relinquishment by an heir who has no interest in the lifetime of his ancestor is invalid and void. Any deed executed by an heir renuciating his share cannot be operative so as to divest of all rights in the inheritance when the succession opens. This legal proposition is not disputed by the petitioners. Their case is that such a person shall be estopped from claiming his share and in such a case there arises no question of enforcing such a contract. Reliance in this behalf has been placed on Latafat Hussain v. Hidayat Hussain (1).
The basic judgment on the question whether a deed relinquishing the right of inheritance is invalid under the Mohammadan Law is the case of Khanam Jan v. Jan Beebi (2) was considered in Latafat Huasain's case and it was held that the above proposition remains unchanged. The only question that arose for consideration was whether Shafiqun Nisa could obtain a decree for possession of the 1/8th share in the estate left by Fasahat Hussain when she had in his lifetime renounced her claim to such inheritance. The point posed for determination in the case was formulated as under :- "It seems to us that the question raised in appeal really consists of two parts which are distinct and separate from each other. The first is whether a relinquishment of the right to succession made by a Mohammadan heir is valid in law so as to be binding upon him in the sense that the estate passes to the person in whose favour the relinquishment is made. The second is whether, even if the relinquishment is not effective, there can be an estoppel in certain circumstances."
' The question of estoppel was treated to be a question arising under the Contract Act and the Evidence Act and was not a question strictly arising under the Mohammadan Law. The relevant observations are quoted below :- "The question of estoppel is really a question arising under the Contract Act, and the Evidence Act, and is not a question strictly arising under the Mohammadan Law. In Mohammad Hashmat Ali v.
Kaniz Fatima, 13 A L J 110.27 I C 701, a Bench of this Court held that there was nothing illegal in a person, for good consideration contracting not to claim the estate, in the event of his becoming entitled to inherit on the decease of a living person and further held that the provisions of S. 6 of the Transfer of Property Act did not in any way create a bar against the legality of such a contract. The same view was expressed in the case of Barati La! v. Salik Ram, 13 A L J 1141-31 I C 919=38 A 107, where a Hindu reversionary had relinquished his right upon receipt of consideration. Obviously S. 6 of the Transfer of Property Act cannot in terms apply to such a relinquishment. If the relinquishment is in the nature of a gift or transfer of a contingent right then of course it would be void under S. 6 ; but if it is merely an agreement or contract for not claiming a contingent right of inheritance when succession opens in future, then the case would, not be governed by the provisions of S. 6 at all."
' This judgment does not advance the case of the petitioners because this was a suit for possession and the document of lease had been acted upon.
(1) (1936) 1 1 C 851 (All.) (2) 4 S D A 210 ' In the present case the respondent No, 1 had been shown as one of the heirs in the mutation and as such the question of enforcement of such a contract would arise in the present case which shall he definitely subject to law of Limitation. Had the 'respondent No, 1 been not shown as a heir and had to file a suit for possession this could be set up as an estoppel, but where the person is in possession as heir and any of the parties benefited by deed the question of estoppel would not arise and this is the distinctive feature of the present case.
7. The learned counsel for the petitioners also relied on Shah Nawaz v. Ghulam Murtaza (1). The facts of that case were that on the death of one Muhammad Bakhsh a dispute arose between three of his sons and another person Ghulam Murtaza by name who asserted that he was the legitimate son of Mohammad Bakhsh and therefore entitled to an equal share of the property of Mohammad Bakhsh along with the three sons of Mohammad Bakhsh. This person, therefore, brought a suit for possession of his share. In that suit a compromise was arrived at between the parties by which the sons of. Mohammad Bakhsh, while not admitting and in fact denying that Ghulam Murtaza was the legitimate son of Mohammad Bakhsh, agreed that they would give him 1/12th in the khewat property left by Mohammad Bakhsh and 1/8th share in the shamilat appertaining to that khewat property in consideration of Ghulam Murtaza withdrawing his claim to an equal share in the property left by Mohammad Bakhsh and further agreeing that he would not claim as a reversioner to anyone of the three sons of Mohammad Bakhsh and the three sons of Mohammad Bakhsh would similarly not claim as reversioners on the death of Ghulam Murtaza.
Thereafter one of the sons of Mohammad Bakhsh died and Ghulam Murtaza brought the present suit claiming 1/3rd share as a reversioner of the dead person, namely, Ghulam Rasool. The defendants again denied that Ghulam Murtaza plaintiff was the legitimate son of their father Mohammad Bakhsh and they relied on the compromise as estopping the plaintiff from raising the question of his being the legitimate son of Mohammad Bakhsh deceased. Various issues were framed by the trial Court which do not now concern us, but the learned trial Court held that the parties were governed by custom, that the plaintiff was not the legitimate son of Muhammad Bakhsh and that the plaintiff had relinquished all his rights under the agreement entered into by him and therefore could not now maintain the suit. It accordingly dismissed the plaintiff's suit with costs. On appeal the learned District Judge held that the last issue in the case, namely, Issue 5 was a settlement arrived at between the parties whereby the plaintiff gave up this rights and the plaintiff was estopped to raise an important question of law. He held that the relinquishment by Ghulam Murtaza of his reversionary rights in favour of his brothers was void under Mohammadan Law as well as under customary law because Ghulam Murtaza had only a spes successions at the time of the relinquishment and such a transfer was void and therefore the present suit was not barred by his previous renunciation which of course was established. He also held that the plaintiff had proved that he was the legitimate son of Mohammad Bakhsh. He, therefore, accepted the appeal and granted the plaintiff a decree for possession of one-third share in the land in dispute with costs throughout. The sole question involved in this case was whether Ghulam Murtaza could go behind the agreement solemnly entered into by him with the three sons of Mohammad (1) AIR 1942 Lab. 138 Bakhsh who resisted Ghulam Murtaza's claim to be also the legitimate son of Mohammad Bakhsh. In this judgment it was observed as follows :- "From a review of these authorities, the only conclusion that can be deducted is that however illegal and unforceable a bare relinquishment or renunciation of the chance of a heir apparent succeeding to an estate may be, different considerations prevail if that renunciation or relinquishment proceeds on a settlement of conflicting claims or bona fide disputes between the contracting parties.'. In the present case, it is obvious that the three sons of Mohammad Bakhsh were not prepared to acknowledge the claim put forward by Ghulam Murtaza that he was also a legitimate son of Mohammad Bakhsh. In the compromise as well as in the statements made by the contesting brothers, it was emphasized that the property that was being delivered to Ghulam Murtaza was by way of a gift and that they do not in so doing acknowledge that he was a legitimate son of Mohammad Bakhsh. There was a dispute, therefore, and for that matter a bona fide dispute. Ghulam Murtaza could rightly apprehend that his legitimacy might not be established.
It is significant that even in the present case the trial Court had found against him. If, therefore, to avoid an adverse decision on the factum of his legitimacy he entered into a compromise with the contesting sons of Mohammad Bakhsh and gained an immediate advantage for himself, it could not be said that he was relinquishing a mere chance of succession. Consequently, the agreement relied upon by the appellants was valid and Ghulam Murtaza could not in the present suit contend that that agreement did not bind him. I agree, therefore, that the appeal should be allowed and that Ghulam Murtaza's suit be dismissed with costs throughout."
' From the facts of the case and the principle enunciated it would be clear that this judgment also does not advance the case of the petitioners.
8. The question of relinquishment by a Muslim heir of expected inheritance was also considered at length in a Full Bench case reported as Qamar Din v. Aisha Bibi (1). In this case the following three questions were referred to the Full Bench-
(1) is an agreement for consideration by a Muslim heir not to claim the inheritance when it opens, valid or enforceable in any manner and to any extent ?
(2) can such an agreement operate as an estoppel subsequently when the inheritance opens ?
' In case both the questions are answered in the negative :
(3) Can the heir, who agreed to relinquish his rights for consideration, retain the benefit that he received, or would the other heirs be entitled at least to restoration of the property or advantage received by him ?
' These questions were answered after the examination of the entire case law and it was observed as under :- "Here, as I have pointed out above, the question really is one of the effect of a contract of transfer, which does not find any (1) PLD 1956 Lah, 795 mention in S. 5 of the Punjab Laws Act. Questions as to estoppel or of transfer fall to he decided under the general civil law and not under the Muhammadan Law even where the parties are Muslims. I do not think, therefore, that there is any difficulty in adopting the equitable doctrine that such a deed of relinquishment, (as exists in the present cases) although it will not operate as a transfer of spes successions. As soon as the property falls into possession. The relevant- party may be forced to transfer it as agreed, if he had already received good consideration of the contract.
' The question may be raised whether such a contract could be enforced in a partition snit. At the instance of a party for whose benefit the relinquishment deed was executed either partly or wholly.
In Pir Bux v. Muhammad Taher AIR 1934 P C 235 it was pointed out that section 54 of the Transfer of Property Act,' expressly enacts that a contract for the sale of immovable property 'does not of itself create any interest in or charge on such property. The Judicial Committee, consequently, laid down that there' Avas no room for the application of the English equitable doctrine that a contract for sale of real property makes the purchaser the owner in equity of the estate. It was decided by the Judicial Committee that in a suit for ejectment by the own4, an averment of the existence of sale whether with or without an averment of possession following upon the contract was not a relevant defence. It was added that if the contract was still enforceable, the defendant may found upon it to have the action stayed, and by suing for specific performance, obtain a title which will protect him from ejectment. But if it is no longer enforceable, its part performance will not be of any avail in a case arising before the insertion of section 55-A in the Transfer of Property Act. The Privy Council case should raise no difficulty in the instant case where One member of a Muslim family has brought a suit for possession by way of partition of his share. In this very suit an agreement to relinquish his right to succeed, executed by another member of the family, for consideration, may be enforced specifically as a contract to sell, as the property has already devolved on him."
' The above principle enunciated also goes against the petitioners in so far as such a deed is treated as a contract and is liable to be enforced like an ordinary contract subject to all the incidents of filing a suit and law of limitation.
9. The learned counsel for the petitioners also referred to Muhammad Sher v. Ghutam Fatima (1).
The facts of the case were that the property in question was originally held by one Umar who died leaving behind two widows, Mst. Jano and Mst. Llama and a son Muhammad Khan. On his death, Muhammad Khan succeeded to the entire property, Muhammad Khan died' soon after and the estate was mutated in equal shares in the names of Mst. Jano and Mst. Ilamo. Mst. Ilamo died shortly after and the entire property was entered in the name of Mst. Jano. On her death the Revenue Officer mutated one-half of the estate, in favour of Mst. Obulam Fatima, sister of Muhammad Khan, and the other half favour (1) PLD 1951 Lab, 117 of Muhammad Sher etc. Defendants, the reversioners of Muhammad Khan. Mst. Ghulam Fatima brought a suit for a declaration that the mutation of one-half of the estate in favour of the defendants, the alleged reversioners, was incorrect and that she alone was entitled to the whole of the property. The, defendants pleaded that the plaintiff could not claim the succession, as daughter of Umar Khan, but could rank only as the - sister of Muhammad Khan, the last male owner. It was asserted that on 22nd of March, 1921 a registered agreement was executed between the parties, according to which the plaintiff was to get one-half and the defendants were to get the other half. This agreement was binding and could not be unilaterally repudiated by the plaintiff. It was further asserted that the defendants were related to Muhammad Khan in the fifth degree and, according to the custom governing the parties, the collaterals of that degree were better heirs than a sister. The question involved in the case was one of the construction of the agreement, dated 22nd March, 1921 and, after examining the entire' case-law on the point it was observed as under :- - "The rulings cited by the learned counsel for the respondent do not touch the question we are directly concerned with in this case. It has been shown above that on a dispute arising between the remote reversioners of Umar Khan on one side and his widows and daughter on the other, a deed was executed according to which the parties agreed between themselves to the shares in which they would take the property on the death of the widows. It could not be said to be a case of transfer by one or the other. In reality it was a case of a family settlement to resolve the disputes that had arisen and an agreement not to claim more than what had been accepted at the time of the compromise, could not contravene any provision of Customary Law or of general law."
10. The next question that requires determination is whether the Revenue Authorities were competent to exclude the name of the respondent. Section 45 of the West Pakistan Land. Revenue Act, 1967 provide that the entries in a record-of-rights or in a periodical record, except entries made in periodical records by patwaris under clause (a) of section 43 with ) respect to undisputed acquisitions of interest referred to in that section, shall not be varied in subsequent records otherwise than by making entries in accordance with facts proved or admitted to have occurred ; or by making such entries as are agreed to by all the parties interested therein or are supported by a decree or order binding on those parties. Under section,14 the Revenue Courts are competent to hold a summary inquiry for the determination of The disputes which are germane to the question and not by dealing with incidental questions or the enforcement ' of the contract subsisting between the parties. The mutation of inheritance had been entered in the jamabandi and as such it could not be changed or varied unless certain facts had been admitted by'-all the parties or there was a decree, of the Court. As already stated above the deed of renunciation is said to have been executed by respondent No, 1 and was a contract and a suit) on the basis of the same ought to have been, filed and in case of decree the entry in the jamabandi could be changed and the respondent No, 1 deprived of the inheritance. The decisions of the Revenue Authorities themselves are to the effect that when a mutation entry has been incorporated in a jamabandi it would not be altered except on the basis of 915trious clerical error. When an Assistant Collector directs an entry in the directs entry Revenue records to be corrected and one of the parties strongly objects to the new entry, the question of correction does not arise. Reference may be made to the decisions of the Board of Revenue reported as Mst. Mahandan v. Ghulam Muhammad (1) ; Tasadaq Hussain v.
Mst. Wazir Begun: (2) and PLD 1950 Pb. (Rev.) 36 (?) in order to show the constant practice of the Revenue Department itself.
11. In view of the above discussion it is concluded that the alleged agreement dated 22nd June, 1950 would not constitute an estoppel in a suit filed by the respondent No, 1 himself as the name of the respondent No, t had been mutated as one of the heirs and also incorporated in the jamabandi. The revenue Authorities did not have the jurisdiction to alter the entry without the consent of the respondent No, 1 or there being a decree in favour of the petitioners. In the last it may be pointed out that the respondents Nos. 7, 10 and 11 have also conceded in favour of respondent No, I as per the statement recorded on 11th February, 1980.
12. In view of the above discussion this revision has no force and is hereby dismissed. However, in view of the peculiar circumstances of the case there will be no order as to costs.
(1) PLD 1952 (Rev.) Pb. 7
(2) PLD 1965 W P (Rev.) 23