This revision petition is directed against the concurrent findings of the two Courts below whereby the suit of the Plaintiffs/Respondents No, 1 & 2 was decreed against the defendants/petitioners with no order as to costs.
2. Brief facts of the case are that Plaintiffs/Respondents No, 1 and 2 brought a suit against the defendants/petitioners for declaration regarding the land detail whereof was attached to the plaint with a prayer of partition between the parties in accordance with their shari shares and also prayed for perpetual injunction. It was averred in the body of the plaint that the subject-matter of the dispute is the ancestral property of the common predecessor of the parties namely Mujtaba.
On the death of Mujtaba the mother of the Plaintiffs/Respondents No, 1 and 2 happened to be daughter of Mujtaba and the father of Defendants/ Petitioners No, 1 and 2 namely Fazal Mahbood is the son of Mujtaba. The pedegreetable appended with the plaint reveals that Mujtaba was survived by five daughters namely Bibi Zarin, Bibi Asal, Kahay Bibi, Zarbakht Bibi and Bibi Amina and one son namely Fazal Mahbood out of whom Mst. Bibi Zarin was the mother of the Plaintiffs/Respondents No, 1 and 2 and Fazal Mahood father of Defendants/Petitioners No, 1 and 2. It was further averred in the amended plaint that the mother of the Plaintiffs/Respondents No, 1 and 2 was married to Qazi Hazratullah resident of a different village namely Baroze and she used to get her shari share in kind from her brother the father of Defendants/Petitioners No, 1 and 2 till his life time. On the death of father of Defendants/Petitioners No, 1 and 2 his successors denied the share of their mother and claimed exclusive ownership of the property left by their common predecessor namely Mujtaba.
The Plaintiffs/Respondents No, 1 and 2 brought a suit in the year 1992 under PATA Special Regulation (Civil) 1994 which was extended and was subsequently amended with due permission of the Court.
The cause of action accrued to the Plaintiffs/Respondents No, 1 and 2 originally on the deo of their grand father Mujtaba and subsequently on the death of Fazal Mahbood and denial of acknowledgment of the shares of their mother by Defendants/Petitioners No, 1 and 2.
3. The suit was contested by the Defendants/Petitioners and ultimately on the repeal of the aforesaid Special Regulation the matter was tried by the Civil Judge/Illaqa Qazi. Issues were framed in view of the pleadings of the parties and after recording pro and contra evidence of the parties and hearing the arguments of their learned counsel, the trial Court decreed the suit in favour of Plaintiffs/Respondents No, 1 and 2 which was also upheld in appeal before the Appellate Court.
4. Learned counsel for the Defendants/Petitioners mainly contended that Mujtaba died in the year 1905 and by then Rewaj was holding the field and Shariat Laws were neither enacted nor applied in that area. The mother of the Plaintiffs/Respondents No, 1 and 2 never claimed any share in the legacy of her father namely Mujtaba during her life time and the entire holding of Mujtaba devolved upon Fazal Mahbood father of defendant/petitioners No, 1 and 2 exclusively and he used to enjoy its usufruct till his life time. During his life time Fazal Mahbood partitioned the ancestral property amongst his sons and daughters through deed dated 8/12/1966. Neither at the time of death of Mujtaba nor at the execution of partition deed the mother of Plaintiffs/Respondents No, 1 and 2 agitated any right and never brought any suit for her share in the legacy of her father. The Shariah Laws were enacted for the first time in the year 1935 which was subsequently repealed and through different enactments the womenfolk were held entitled shares in the legacy of their predecessor and the Act, 1935 was not given retrospective effect. In these circumstances in his opinion the two Courts below have erred in granting decree which are impugned herein. He placed reliance on 1998 SCM R 996, PLD 1974 Supreme Court 207, 1975 SCM R 487 and PLD 1984 Supreme Court 394.
5. On the other hand learned counsel for the contestant respondents submitted that undisputedly the mother of Plaintiffs/ Respondents No, 1 and 2 and father of Defendants/Petitioners No, 1 and 2 were the daughter and son of Mujtaba who died in 1905. The mother of Plaintiffs/Respondents No, 1 and 2 used to get her shari share in kind from his brother who was in cultivating possession of the disputed property and this practice continued till his death. The partition deed relied upon by the Defendants/Petitioners was a family arrangement and mother of Plaintiffs/Respondents No, 1 and 2 used to get her shari share in kind continuously. The cause of action arose to them when the successors of Fazal Mahbood denied their shares in the legacy of their forefather namely Mujtaba.
The Shariat Act, 1935 and all subsequent enactments in this regard have been held of retrospective effect if the parties are Muslim. He relied on 2005 SCM R 1217, 1996 SCM R 901, 1998 SCM R 996 and 1983 SCM R 626.
6. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have also gone through the record of the case with their able assistance. I have also gone through the various judgments cited at the bar.
7. A pure legal question is agitated through the instant revision petition and both the parties have relied upon a number of reported judgments of the Apex Court wherein both the parties have also relied upon 1998 SCM R 996 'Abdul Hanan and 10 others Vs. Ahmad and 30 others" Para 19 of the said judgment will resolve the matter which is reproduced as below :-- "So, in the case of a co-sharer and specially females, mere attestation of a mutation excluding a co-sharer or a female co-sharer cannot be made basis for holding that the limitation will run against her from the date of attestation of mutation. It was for this reason that learned Judge in Chambers held that in the case of Mst. Sahibzada the question of limitation does not assume importance as her exclusion had not been established, the land was mostly Banjar Qadim and Sailaba and even the question of estoppel does not arise as entry in the `Roznamcha Waqiati' would not show that valid gift of the land had been made and that the said gift had been accepted by Mst. Sahibzada, the sister in relinquishment of her right to claim due share in the land.
It was in this context that learned Judge of the High Court opined that this was a contrivance or a handiwork of the brother to deprive the sister of her due share but neither any gift of 20 Kanals, 10 Marlas of land legally was created nor it was accepted. Moreover, the plea of adverse possession if not raised in specific form in the written statement cannot be allowed to be raised nor could any weight be given to it."
8. The aforesaid passage reveals that in case of dispute regarding share in the legacy of common predecessor no defence of adverse possession or limitation could be raised nor the female heir can be deprived her due shari share on the basis of gift-deed whereby lesser area than her due share was accepted by the female heir.
9. The issue was discussed in detail by Bench of the Honourable Supreme Court of Pakistan in a case 'Muzaffar Khan Vs. Mst. Roshan Jan and others" reported as (PLD 1984 Supreme Court 394) wherein effect of N.W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 enacted on 6th December, 1935 and its repealing Act West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and the following conclusion was drawn:-- "Thus, as soon as the decision of this Court took effect i,e, as from 30.6.1983, the words underlined in Section 2 of the Act of 1962, namely, 'subject to the provisions of any enactment from the time being in force' ceased to have effect. Consequently, even if it was found that after the promulgation of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and the repeal of the N.W.F.P. Muslim Personal Law (Shariat) Application, 1935, the present case fell to be decided on the basis of the interpretation placed on the provisions of Section 2 of the aforesaid Act of 1962 by this Court in the case of Past.. Khatun v. Mulla, namely, that the Shariat Acts neither enhanced nor diminished the powers of alienating of the holder under custom and a person taking property as ancestral property under custom continued to be governed by agricultural custom and his powers of alienation were limited, the position of Muhammad Aslam Khan would not now he affected even though he had succeeded to the property before the promulgation of the 1935 Act, when the customary law was in force because, after the above-mentioned change in the law, the appellant would not have any right to challenge the alienation made by Muhammad Aslam Khan in favour of his sisters, as there is now no doubt left that the N.W.F.P. Act of 1935 is to be given retrospective effect and that whenever a dispute comes before a Court of law with respect to the succession to the, estate of a deceased Muslim the deceased will be deemed to have died under the domain of Muslim Law, even if the death had taken place before the coming into force of the N.W.F.P. Muslim Personal Law (Shariat) Application Act of 1935".
10. The aforesaid discussion by the Apex Court answered the contentions of the learned counsel for the petitioner. In view of the case law reproduced above I find no merits in this revision petition which is hereby dismissed, with no order as to costs.