This petition is formally admitted to regular hearing and with the concurrence of the learned counsel for the parties this petition is being decided as an admitted case.
2. Through this regular second appeal, the appellant assails the judgments and decrees passed by the learned Civil. Judge dated 21.11.2006 and the learned Additional District Judge Vehari dated 06.02.2009.
3. Briefly stated facts as those emerge out of this appeal are that the Respondent No, 1/plaintiff filed a suit for declaration to the effect that she is entitled to inherit property of Wali Muhammad alias Balia her real father as per share in accordance with Islamic law of inheritance being her legal heir and that mutation of alleged gift deed bearing No, 1188 dated 29.1.1985, was a result of fraud having been entered in the revenue records with malafide intention and for ulterior motives, to deprive her from the legal share, which was resisted by the appellant by filing written statement. The learned trial Court framed as many as ten issues, where after, the parties led their respective evidence. The learned civil judge vide judgment and decree dated 21.11.2007 set aside Tamleeq Mutation No, 1158 dated 29.01.1985 by holding it as null and void and against law, with a direction to the plaintiff to affix the Court fee of Rs, 15,000/-. The suit filed by the Respondent No, 1 was decreed where against an appeal was preferred which met with the same fate and the learned Additional District Judge Vehari, Vide the impugned judgment and decree dated 06.02.2009, upheld the judgment and decree passed by the learned civil Court, which are being assailed through this appeal.
4. The learned counsel for the petitioner vehemently contends that it was a case of Tamleeq and not of inheritance thus both the Courts below proceeded to pass the impugned judgments and decrees upon erroneous assumptions; that the learned Courts below have also failed to note vitally important facts of the matter that under Section 91 of the Limitation Act, such suit could only be filed within a period of three years, whereas admittedly the suit was filed by Respondent No, 1 after four years, winch was hopelessly barred by time and that the impugned judgments and decrees are result of misreading and non-reading; that the deceased father of the Petitioner/Respondent No, 1 voluntarily transferred the property in question in favour of his son, in presence of witnesses.
5. Rana Asif Saeed, the learned counsel for Respondent No, 1, while controverting the submissions made at bar by learned counsel for the petitioner submits that petitioner, who is real brother of Respondent No, 1 has fraudulently deprived his real sister from her share of inherited property and that the limitation in such like cases starts to run from the date of knowledge and that the suit was within time; further contends that the father of the Petitioner and Respondent No, 1 was 80 years old and after execution of alleged Tamleeq he died within a period of ten months, was an old and ailing man and not in senses. The alleged Tamleeq mutation, therefore, cannot be considered as voluntary and with free-will. Further submits that unfortunately practice has developed in our society that male members endeavour to deprive the female members of the family of their due share, and that there are concurrent findings of facts by both the learned Courts below, which ordinarily are not to be interfered with in second appeal. Relies upon 2006 SCMR 1304, PLJ 2006 Lahore 177, 2008 SCMR 855, 2007 SCMR 368. Further submits that regular second appeal is preferred under Section 100 of the CPC and there is very limited scope of interference by this Court and that too upon a question of law.
6. In rebuttal the learned counsel for the petitioner insists that it was not a case of inheritance rather it was a case of Tamleeq and it should be seen in that perspective.
7.The learned Additional Advocate General submitted that it is primarily dispute between the private parties, therefore, he has not to say much on the issue.
8. Arguments heard. Record perused.
9. Admittedly the appellant and Respondent No, 3 are son and daughter of deceased Wali Muhammad. Under the Islamic Law of inheritance they are entitled to inherent the property of their deceased father Wali. Muhammad alias Balia. However, the petitioner claims that since the entire property had been alienated to him by his late father during his life time by way of gift, therefore, his real sister Mst. Jeewni Begum was not entitled to get any share for the simple reason that deceased father Wali Muhammad did not leave behind any property as he did not own single inch of property at the time of death. The learned counsel for the petitioner with vehemence submits that it was not a case of inheritance and in fact a case of Tamleeq/gift and should have been viewed from that aspect and that both the learned Court's below have proceeded to pass the impugned judgments and decrees on erroneous assumptions that it is a case of misreading as well as of non-reading of evidence on record besides involved interpretation of question of law.
10. I deal with the first objection of the learned counsel for the petitioner that the suit filed by Mst.
Jeewni Begum was hopelessly barred by time. By now it is we established law that the limitation in such like cases run from the date of knowledge and viewed from that angle; both the learned Courts below have arrived at a just conclusion that the suit filed by Mst. Jeewni Begum respondent was within time. I also find that main ground on which the impugned mutations were challenged is the fraud committed by the petitioner with her. I am of the considered view that fraud remains fraud from its inception till its discovery and is actionable in law whenever detected, therefore, no limitation starts to run against an order based on fraud, being ab-initio void. The suit, therefore, filed by the petitioner has rightly been held by the learned Court's below as within time.
Since admittedly she is real daughter of deceased Wali Muhammad alias, Balia, therefore, to claim share from inherited property is justifiable, thus the suit filed by her is maintainable. Coming to the third point agitated by the learned counsel for the petitioner that it was not a case of inheritance rather Tamleeq/gift and should have been considered from that angle alone. I am unable to agree with the learned counsel for the petitioner for simple reason that transactions made during preceding few months of the death of deceased are ordinarily to be seen with suspicion particularly when genuineness thereof is disputed by legal heir. Submissions made by the learned counsel for the respondent with vehemence that just after few months of alleged mutation deceased Wali Muhammad died and he had lost his sight, was bed ridden and almost senseless, have been found true by both the learned Courts below, which are borne from the record therefore, even if some documents contained his thumb impressions still those have rightly been found by both the Courts below as a result of fraud. I may observe here that in our society which is primarily of male dominance we come across, almost daily, with serious complaints that male members, including blood relations endeavour to deprive the female segment from their valuable share/right in the inherited property by resorting to the play and by practicing fraud, which growing, tendency has to be curbed with iron hand.
10-A. Adverting to the case law cited at bar 2006 SCMR 1304. The petitioner in this case, aggrieved of dismissal of their civil revision petition against concurrent findings of fact of the Courts below, filed a petition seeking leave to appeal before the Honourable Supreme Court of Pakistan on the ground of excess of jurisdiction failure to exercise of jurisdiction and illegal exercise of jurisdiction. It was observed by their lordship that: "the High Court cannot disturb concurrent findings of fact arrived at by the Courts below and the Power vested in High Court in exercise of revisional jurisdiction is very limited. High Court cannot upset findings of fact, however, erroneous such findings is, on reappraisal of evidence and take a different view of evidence, and that such finding of fact can only be interfered with by High Court, If the Court below had either misread evidence on record or while assessing or evaluating the evidence had omitted from consideration some important piece of evidence and even in second appeal the High Court has very limited power and it was observed that. "even in regular second appeal jurisdiction of the High Court is limited to the extent of interference on a question of law and not on facts." PLJ 2006 Lah. 177 Liaqat Ali vs. Province of Punjab through D.C.O Gujrat and 6 others. This Court while examining the authenticity of oral gift observed. "that what is really required by Muslim law is that there should be satisfactory evidence that donor did in fact part with possession of the subject-matter of his gift either physically or constructively and that the person who is beneficiary of gift the donee has to establish by cogent and sufficient evidence." 2008 SCMR 855 Muhammad Iqbal and another vs. Mukhtar Ahmed through L.Rs, "in this case this Court in some what similar circumstances proceeded to upset the concurrent finding of fact arrived at by both the Courts below which was assailed before the Honourable Supreme Court of Pakistan. The judgment of this Court which was set aside by observing that perfectly sound conclusion arrived at by both the Courts below should have not been interfered with by the High Court in exercise of its second appellate jurisdiction and that in case where a mutation, is challenged the beneficiary has to fall and prove the original transaction." 2007 SCMR 368 Shafi Muhammad and others vs. Khanzada Gul and others.
"The same principle has been emphasized therein that normally concurrent findings arrived at are not to he interfered with."
11. From the above discussion I am of the considered view that no illegality, misreading or non- reading has been found nor any question of law is involved, therefore, concurrent finding of facts arrived at by both the Courts below cannot be interfered with besides."
The onus of proof of gift transaction heavily lies upon the beneficiary, which admittedly, in this case is the petitioner who has hopelessly failed to discharge the burden of proof. The conclusions arrived at by both the Learned Courts below that the mutations in question, in favour of the petitioner were, a result of fraud, are unexceptional and are upheld. I am, therefore, not inclined to interfere in the impugned judgments and decrees, which are concurrent in nature well-reasoned and perfectly in accordance with Law. This petition, therefore, being devoid of any merits is hereby dismissed through out costs.