'MUHAMMAD ASHRAF BHATTI, J.-The instant civil revision has been preferred against the judgment and decree dated 22-11-2001 passed by the learned Additional District Judge, Narowal Camp at Shakargarh, whereby the suit for declaration filed by Mst. Allah Rakhi and others dismissed by the learned Civil Judge, Shakargarh vide judgment and decree dated 12-6-1997, has been decreed.
2. Brief facts of the case as alleged in the plaint are that Mst. Allah Rakhi, predecessor-in-interest of respondents No,l(i) to (xiii) and 2 to l2 (10 to l2 minors through respondents No,5, their real mother)
(hereinafter referred as "respondents") in their suit for declaration claimed to be owners in possession of 26 Kanals and 7 Marlas of land (fully described in its title), situated in Mauza Deari, Tehsil Shakargarh, District Narowal, as legal heirs of late Elahi Bakhsh who jointly with Allah Bakhsh son of Imam Din, purchased land through registered sale deeds dated 20-6-1939 (wrongly mentioned as 24-6-1993 in the plaint) and mutations Nos.50 and 51 dated 18-7-1939 entered in respect thereof in the revenue record. When Allah Bakhsh died on 20-3-1942 his legal heirs i.e, the petitioners got attested a mutation of his inheritance No,61 attested in their favour on 11-5-1942.
Subsequently Elahi Bakhsh (predecessor-in-interest of the respondents) also died on 28-9-1994.
Regarding his share of the said land the petitioners got attested a mutation No,87 in their favour on 5-1945 alleging that Elahi Bakhsh was adopted son (Mutbanna) of Allah Bakhsh, deceased and under the Customary Law land of Elahi Bakhsh was rightly mutated in their name which was denied by the real heirs of Allah Bakhsh, the respondents who took the stand that firstly Elahi Bakhsh never adopted Allah Bakhsh as his "Mutbanna" nor the latter was legally entitled to inherit his estate even if the former h$td adopted him as son and as such the attestation of mutation No,87 dated 15-5- 1945 in favour of the petitioners was illegal and of no legal consequence prompting the said respondents to file the suit under reference.
3. The petitioners contested the said suit, necessary issues were framed on which both the sides led their respective evidence and then the learned trial Court, after having heard them, dismissed the suit of the respondents. The matter came up in appeal before the learned Additional District Judge where the findings of the trial Court were reversed and the said suit was decreed in favour of the respondents.
4. Heard the learned counsel for the parties and perused the record.
5. With the able assistance of both the learned counsel for the parties I have carefully gone through the evidence available on record. On categorical denial of the status of 'Allah Bakhsh' as alleged adopted son of Elahi Bakhsh through averments made in the plaint as also at the trial by Muhammad Hussain, one of the plaintiffs/respondents (P.W.1) supported by Jamal Din (P.W.2) and Ghulam Nabi (P.W.3) to the effect that they were indeed real legal heirs of Elahi Bakhsh but petitioners/defendants managed the attestation of the disputed mutation in their favour showing Allah Bakhsh an adopted son declining to accept their claim, onus to prove otherwise, therefore, shifted to the petitioners but they failed to place on record any tangible evidence to prove adoption, except oral assertion during trial that Elahi Bakhsh had, during his life time, given his share too to Allah Bakhsh which is not supported by any documentary evidence. The witnesses (D.Ws.) produced in defence gave worthless statements who in reality had no first hand knowledge on the relevant issue. Therefore, such weak oral evidence was rightly not relied upon.
6. On the other hand, a cursory look at the case put forth from both sides would reflect the admitted position that both Elahi Bakhsh and Allah Bakhsh were joint owners of 46 Kanals, 16 Marlas land. Admittedly, despite the fact that Allah Bakhsh died in the life time of Elahi Bakhsh the petitioners could not prove that till his death Elahi Bakhsh had made any Gift or Will or taken any other step to show his intention that his share of the said joint property would be transferred to his said alleged adopted son. Contrary to this, the fact that he jointly purchased the disputed property in his own D name as well as in the name of Allah Bakhsh made his intention very much clear that his share would be left behind for his own legal heirs. Had the intention been otherwise, he could have got purchased the whole property in the name of Allah Bakhsh. The separate purchase made by Elahi Bakhsh in his own name leaves no doubt that Allah Bakhsh had nothing to do with that share of the property which naturally had to be devolved upon the legal heirs of Elahi Bakhsh after his death i.e, the respondents when mutation of Allah Bakhsh's inheritance had already been sanctioned in favour of his legal heirs i.e, the petitioners. There is also not an iota of evidence on record to prove that it was customary amongst the aforesaid Muslim families, (who later migrated to Pakistan from India on the partition of Sub- E Continent), that an adopted son would be entitled to inheritance. In the absence of such customary law, the property had to be devolved according to Muslim Personal Law. Reliance is placed on Asghar Ali v. Mst. Mewa PLD 1999 Lah.
1185. In the said case reliance was also placed upon Mst. Farida and 2 others v. Rehmat Ullah and another PLD 1991. SC 213 to gain support that when a Muslim dies under the domain of Muslim Law it has to be seen whether a person adopted by him as a son, who otherwise may have inherited under the customary law, could inherit under the Islamic Law and the answer was found in the negative, which squarely applies to the case in hand. Therefore, as stated above, in the absence of any proof of existence of custom for inheritance of property to adopted son it would be presumed that the rights were governed by Law of Muslim Inheritance. In this regard reference may also be made to PLD 1991 SC 213 (supra) wherein it was held as under:--- "Whenever a dispute comes before a Court of law with regard succession to the estate of a Muslim deceased, he will be deemed to have died under the domain of Muslim Law, even if the death had taken place before coming into force of the West Pakistan Muslim Personal Law (Shariat)
Application Act of 1935. Accordingly, in this case that fact that the Act of 1962 was not in force in the area concerned on 15-1-1976 would not make any difference because as observed above the Islamic dispensation contained therein read with the same dispensation contained in 1935 Act had taken over retrospectively even prior to 15-1-1976 and even before the 1962 Act was formally applied to the area concerned. To what extent the law would be retrospective, as noticed above, it was held that the same would be definitely beyond 1935. Farthest limit we need not go into because in the present case Nadir Khan the last male-holder admittedly died in 1972 or 1973.
Therefore, the appellants being his daughters would get their share in his inheritance in accordance with Islamic Law. This appeal thus is allowed. The remaining share in addition to what was granted to them by the High Court shall now be allowed to them and the necessary changes would be made in all the relevant records including the record of rights."
7. It may further be mentioned that in his book "A code of Muslim Personal Law" in commentary on section 172, Chapter XXIII that "Adoption of a child as son shall, under the Shariah, be ineffective", Dr. Tanzil-ur-Rehman referred to Surah Al-Ahzab; 40 and it would be beneficial to reproduce the relevant portion thereof as under:--- "The Holy Prophet (PBUH) had adopted Zaid Bin Haritha as his son. When Zaid divorced his wife, Zainab, the Holy Prophet (PBUH), after the completion of her term of probation, married her under God's command. The Jews began to taunt him that he had contracted marriage with the divorced wife of his "son". The Qur'anic verse was then revealed i.e, "Muhammad is not the father of any one of your men" (Surah Al-Ahzab: 40). Thus Zaid Bin Haritha whom the Holy Prophet (PBUH) had adopted, had not become his son in fact so as to prohibit the Holy Prophet (PBUH) from marrying his divorced wife. The rule that emanates from this verse is that the adoption of some one as son does not legally give him the status and rights of a son. If a person, therefore, is an adopted son he shall not have the same rights as the real son has against his parents; for instance, the right of maintenance and inheritance. Likewise, one who adopts cannot as well inherit from the property of his adopted son. Indeed a will to the extent of one-third of his estate may, however, be made in the adopted son's favour as in case of any stranger."
8. In another case Nawabzada Shamsher Ali Khan v. Nawabzada Afal-udDin Mirza and others 1974 Law Notes 95 Lahore, this Court held that according to Shariah an adopted son is never recognized as a son and that if any authority is required for this proposition reference may be made to paragraph 347 of the principles of Mohammedan Law by DF Mulla where it is stated "Mohammaden Law does not recognize adoption as a mode of filiation"
9. As to limitation, in this regard learned counsel for the respondents relied upon the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811 and Rehmat Ullah and others v. Saleh Khan and others 2007 SCM R 729 to assert that in a case of inheritance no limitation shall apply. If the mutation No,87 was got attested without any legal title in favour of the petitioners depriving the rightful owners as legal heirs of Elahi Bakhsh they would be deemed to be the owners of the disputed property right from the day when their said predecessorin-interest joined the majority, obviously to the extent of share of Elahi Bakhsh and shall also deemed to be in possession thereof along with the co-sharers.
Therefore, mere attestation of disputed mutation No,87 particularly in the presence of real legal heirs of Elahi Bakhsh had, in deed, created no right or title to the land left as legacy by the said deceased.
10. The upshot of the above discussion is that the learned trial Court indeed erred in law in arriving at the conclusion that the petitioners could inherit the property left behind by Elahi Bakhsh who had adopted their father Allah Bakhsh as a son which findings were rightly reversed in appeal.
Therefore, the findings of the learned appellate Court are perfectly correct and in accordance with law and evidence on record. Resultantly, the revision in hand, being devoid of any merit, is dismissed with no order as to costs.