' JAWWAD S. KHAWAJA, J.---The petitioner Yasin Ali is the brother of Mst. Sakina Bibi (respondent/plaintiff). The other respondents are the remaining brothers and sisters of the two and/or their L.Rs,
2. The respondent/plaintiff filed a declaratory suit claiming thereinthat she being the daughter of Din Muhammad inherited the suit property from him, along with her brothers and sisters and is, therefore, owner of her share by way of inheritance. The defence, set up by the petitioner, was that after the death of Din Muhammad, the property had been duly mutated in the names of all legal heirs, but thereafter on 8-8-1972, vide Mutation No,64 and Mutation No,165, the respondents had gifted the property in his favour. This defence was believed and the suit was dismissed by the learned trial Court on 12-9-2002. An appeal filed by Mst. Sakina Bibi (respondent/plaintiff), however, has been allowed on 8-12-2005.
3. The above noted mutations were sanctioned on 8-8-1972 while the respondent/plaintiff filed her declaratory suit on 18-3-1999. Learned counsel contended that Nasrullah Khan, Lumberdar, who had identified the donors, had died and was, therefore, not produced as a witness. However, Pattidar Muhammad Ismail, who was the other person identifying the donors, appeared as D.W.2 and confirmed that the gift had been made by the respondents/donors.
4. Most importantly, however, the remaining sisters of the contesting parties, namely, Yasin Ali (petitioner) and Sakina Bibi (respondent/plaintift) did not challenge the factum of gift. Rasheedan Bibi (respondent No,3.), who is one of the sisters of the two, appeared in the witness box as D.W.3 and confirmed that all the sisters had made the impugned gifts in favour of the petitioner Yasin Ali.
Unfortunately, the learned appellate Court has not even considered the evidence of Rashidan Bibi (D.W.3). The testimony of Muhammad Ismail Pattidar (D.W.2) has also been brushed aside on the ground that he had stated that Sakina Bibi (respondent/plaintift) had thumb marked the mutations but on the mutations there was no such thumb-mark. This discrepancy in testimony, which was given more than 27 years after the mutations, is not sufficient for discrediting D.W.2. This is particularly so in the light of the evidence given' by Rashidan Bibi (D.W.3).
5. The learned appellate Court has also misread the record. In the present case, the issue is not of inheritance from Din Muhammad deceased. As noted above, inheritance mutations were recorded in the names of all legal heirs of Din Muhammad, including the respondent/plaintiff. It is at a subsequent date that the impugned mutations of gift were recorded in the name of the petitioner.
In these circumstances, the rule that limitation does not run against a co-owner through inheritance, has no application.
6. The above arguments advanced on behalf of the petitioner have merit. Learned counsel for the respondent-plaintiff was unable to controvert the same. He merely contended that generally in society famales were deprived of their inheritance. This can hardly be treated as a valid argument in the light of the evidence produced on record, which has been discussed above. Here I may add that even in her own testimony, Sakina Bibi (respondent/plaintiff) did not claim that she had asserted rights of ownership or that she had demanded or received her share of the produce from her brother during, the 27 years between the gift and the filing of her suit. On the contrary, she deposed that when she inquired from the Patwari, she came to know that she was joint owner of the property.
7. Additionally, the testimony of Muhammad Ismail Pattidar, who appeared as D.W.2, and Rasheedan Bibi, sister of the petitioner and the respondent/plaintiff, who appeared as D.W.3, is credible and has not been shaken in cross-examination. There is no reason to disbelieve these witnesses. As noted above, the learned appellate Court has not considered the testimony of D.W.3 while it has disbelieved D.W.2 for reasons which are not tenable. I am not left in any doubt that the respondent/plaintiff failed to prove her case.
8. In the above circumstances, there can be no doubt, firstly, thatthe suit filed by the respondent/plaintiff was time-barred and, secondly, that the gift in favour of the petitioner stood proved. In the circumstances, the impugned appellate decree, which is contrary to the record, is set aside. As a consequence, the decree of the learned trial Court dated 12-9-2002 stands restored.