' NASIR-UL-MULK, J.---The subject-matter of this appeal by leave of the Court filed by the legal heirs of Mst. Grana is property measuring 67 kanals 10 marlas situated in village Sher Garh District Mardan, owned by Mahmood father of Mst. Grana. Mahmood had died in the year 1911-12 and as he was not survived by any male legal heir, the entire property was transferred in the name of Mst.
Grana as limited owner vide inheritance Mutation No,995 attested on 13-6-1915; the other legal heirs Mst. Habib Khanum widow of Mahmood had remarried one Rasool and was thus deprived of inheritance. While Mst. Grana was minor, part of the property was sold by a maternal uncle and guardian Deedar Gul, who was taking care of her, by registered deed dated 8-6-1916. After the marriage of Mst. Grana the property was transferred to Mst. Bibi daughter of Mst, Habib Khanum from her marriage with Rasool as customary owner and Mutation No,281 in that regard was attested on 5-12-1930. A gift Mutation No,2089 was attested on 1-9-1945 from Mst. Bibi in favour of her mother Mst. Habib Khanum who further transferred the property in favour of Habibur Rahman and Habib Muhammad sons of Dost Muhammad through gift Mutation No,2482.
2. Mst. Grana filed the suit on 27-5-1991 impleading as many as 259 defendants challenging the registered deed dated 8-6-1916, mutation dated 23-12-1917 and all other subsequent gift and sale mutations attested between 1930 and 1987. The defendants contested the suit. Issues were framed including, on time limitation and the effect of the North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935 as well as the West Pakistan Muslim Personal Law (Shariat)
Application Act of 1962. The trial Judge after recording evidence decreed the suit in favour of the petitioners. On appeal, the Additional District Judge reversed the findings of the Trial Court and dismissed the suit of the plaintiff on the ground that the property had changed many hands through different transactions since the year 1912 which has been constructed and reconstructed by hundreds of owners; that the plaintiff, who got married in the year 1930 and was out of possession made no effort to enforce her right until the end of the 20th century. The Court thus concluded that the plaintiff had waived her right in the property. The plaintiff assailed the judgment and decree of the Appellate Court through a revision petition before the Peshawar High Court. Her petition was dismissed, the Court holding that "afflux of time and her failure to challenge the transactions earlier, she has lost the right to ask for a decree relating to the said share in the inheritance of her father as well and hence it was held that the learned appellate court has properly appreciated the detailed evidence. There is neither any misreading nor non-reading of evidence nor has any jurisdictional error been committed." By then the number of respondents had swelled to 326. Mst. Grana had passed away and her legal heirs were granted leave to appeal on 6-4-2010 in the following terms:-- "After hearing learned counsel for the petitioners, we grant leave to appeal to consider, inter alia, whether Mst. Bibi, limited owner under "Riwaj" of the suit property could have competently transferred the same by gift and whether the petitioners' suit could have been dismissed on the question of limitation. Furthermore, to what extent would the retrospective effect of the N.-W.F.P.
Personal Law (Shariat) Application Act, 1935 and the West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962, affect the rights of the petitioners in relation to the suit property."
3. Mr. Abdul Sattar Khan, learned Advocate Supreme Court appearing for the appellants, elaborating the points formulated in the leave granting order focused on the proposition that a plaintiff who enforces his or her right of inheritance cannot be non-suited on the ground of limitation, more so when the plaintiff is pardanashin lady. On the question of limitation the learned counsel referred to the oft cited judgment of this Court in Ghulam Ali v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). On protection of the interest of pardanashin ladies the learned counsel relied upon Arshad Khan v. Mst. Resham Jan (2005 SCM R 1859) and contended that it was duty of all beneficiaries of a deed to prove that pardanashih lady was in the knowledge of the transaction. On facts it was argued that Mst. Bibi was a limited owner and thus had no right to gift away the property to her mother, Mst. Habib Khanum and that latter also was therefore not entitled to make a gift in favour of Habib Muhammad. Similarly the registered deed of 8-6-1916 by Umar Khan when Mst. Grana was a child was also fraudulent and void. That limitation could not operate as a bar against void order or transaction.
4. Since much reliance has been placed on behalf of the appellants on Ghulam Ali's case the principle laid down therein and the facts thereof need to be stated in some details. In that case the sisters had sued their brothers for their share in the legacy of their father Ghulam Ahmed Shah, who had died in the year 1963 and challenging his inheritance mutation that sanctioned the entire estate in the names of defendants/brothers. The defendants relied upon the relinquishment deed in their favour executed by the plaintiffs and pleaded inter alia that the suit was barred by time.
Apart from holding that the relinquishment deed was invalid under the law of contract this Court declared, inter alia, that an heir who came into possession of the entire estate of the propositus holds the same as a co-sharer and remains in constructive possession thereof on behalf of the other heirs notwithstanding his exclusive possession. Based on this principle it was held that such an heir cannot plead adverse possession as against the other heirs and thus no time limitation would run against an heir claiming shari share in the estate. Referring to Haji v. Khuda Yar (PLD 1987 SC 453) and Aswa r Muhammad v. Sharif Din (1983 SCM R 626) the Court further held that adverse entry in the revenue record and non-participation in the profits of the estate by an heir does not amount to ouster of his shari share. The Court cited with approval a passage from a judgment from the Indian Jurisdiction Haidar Khan v. Chand Khan (AIR 1919 Allahabad 202) that:-- "In a Mahomedan family the possession of a brother should be 'deemed to be the possession of his sisters also unless the brother repudiates the claim of the sisters and asserts a right in himself.
Apart from Mahomedan law however the possession of one co-sharer would be regarded on behalf of all the other co-sharers, unless there is any act on the part of the co-sharer in possession which amounts to the ouster of the other co-sharers."
' In the above case the Allahabad High Court while laying down the above principle referred the case to the Appellate Court for recording findings on the following additional issues:-- "(1) Were the daughters of Jamiat Khan and after them the plaintiffs in receipt of the profits of the property owned by Jamiat Khan?
(2) Did Chand Khan ever deny the title of his sisters and set up in himself a right adverse to them? If so when and in what manner and were the sisters aware of his act?
(3) Did the mortgagee Mohan Lal make any inquiry as to the title of Chand Khan and did he act in good faith?"
' The High Court had thus considered the conduct of the plaintiffs relevant for the purpose of time limitation and that of the transferee under a mortgage whether the mortgagee had acted in good faith. In Ghulam Ali's case an argument was raised on behalf of the petitioners that they had subsequently alienated a part of the property and thus third party interest was created. This argument was not addressed and it was held that "they (alienees) have not come before this Court nor they have been impleaded as respondents by the petitioners. It appears only the kith and kin; namely the brothers want to fight against the sister-respondent." The Court thus left open the issue of the effect of time limitation when the legal heirs in possession had alienated the property.
5. From the forgoing discussion three material facts distinguishes the present case from that of Ghulam Ali. The dispute in the present case is not between brothers and sisters but the plaintiff had questioned alienation of property by her sister and mother. The defendants are not legal heirs of Mahmood, father of the plaintiff, but were transferees of the property. Finally the plaintiff had not challenged any inheritance but gifts and sale mutations. It is not the case of plaintiffs that the defendants were holding the property as co-sharers.
6. It appears that in a suit which involves some element of inheritance the Courts are generally quick to declare that the law of limitation would not be attracted. It is not in all cases of inheritance that the question of limitation becomes irrelevant. Even in Ghulam Ali's case the ,Court recognized that there could be exceptional circumstances wherein a suit based on inheritance issue of limitation may become relevant. This Court recently in some cases had invoked the principle of time limitation and acquiescence of the plaintiff material in suits of inheritance. In Mst. Phaphan v.
Muhammad Bakhsh (2005 SCM R 1278) a suit for declaration and possession was filed in the year 1983 by the plaintiff/petitioner claiming to be the owner of the inherited property. The suit was held to be barred by time wherein mutations of the year 1959 and 1967 were challenged in the year 1983 when the plea of the defendants was that the plaintiffs had alienated the property of her own free- will. The plaintiff's plea of being pardanashin lady and reliance on the case of Ghulam Ali was not accepted as the plaintiff was found to have remained in deep slumber for 24 years despite the fact that the physical possession of the land was passed on to the defendant. Recently in the case of Lal Khan v Muhammad Yousaf (PLD 2011 SC 657) this Court had set aside the concurrent findings of the three Courts and dismissed the suit filed on 13-5-1970, where the plaintiff had challenged inheritance mutation of 13-2-1947; the Court held it to be barred by time. The rationale of the law of limitation has been reiterated in Atta Muhammad v. Maula Bakhsh (2007 SCM R 1446) where the concurrent findings of the three Courts were set aside and the suit filed by the respondents/plaintiffs in the year 1988 questioning the inheritance mutation of 1942 was declared to be barred by time. The Court held:-- "The law of limitation provides an element of certainty in the conduct of human affairs. Statutes of limitation and prescription are, thus, statutes of peace and repose. In order to avoid the difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period; otherwise his rights if any, will be forfeited as a penalty for his neglect. In other words the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal remedies with due diligence. There have been cases where even to claim inheritance law of limitation was applied."
' The Court found that the real dispute was whether a particular person was or not a legal heir of one, Mst. Khairan, whose inheritance mutation was attested in favour of appellant, Atta Muhammad.
7. It emerges from the afore discussed case-law that the law of limitation is not entirely to be ignored or brushed aside whenever property is claimed on the basis of inheritance. The conduct of such claimant may become relevant and material when the bar of time limitation is pleaded by the adversary. A defendant may show that the plaintiff by her or his acts, overt or implicit, had demonstrated acquiescence in the defendant's title to the suit properly thereby allowing him to deal with it as exclusive owner, for instance regularly and openly disposing of parts of the property or developing it at his own expense over a period of time within the knowledge of the plaintiff. When in such circumstances the defendant/heirs transfers the property for valuable consideration the transferee is entitled to believe that the transferor had a valid title to transfer. It may be reiterated that in Ghulam Ali's case the question of interest protection of transferees from a legal heir in a suit of inheritance was left open as the transferees were not impleaded as defendants. That is not the case here. The very facts of this case would demonstrate that the plaintiff had acquiesced in the various transfers made of the suit property from time to time.
7-A. The plaintiff had assailed the registered sale-deed dated 8-6-1916 and the sale mutation No,1273 dated 23-12-1917. She had also questioned inheritance Mutations No,281 dated 5-12-1930, 2089 dated 1-9-1949 and gift mutations of 11-11-1959 and further mutations made from time to time attested on 18-1-1956, 9-12-1964, 12-12-1981, 31-1-1984 and 30-7-1987 and further all subsequent sale and gift mutations. The challenge was thrown in the year 1991 when she was more than 80 years old; as according to the evidence she was 6/7 years old when her father had died somewhere in the year 191 [/12. Upon her father's death the entire property was inherited by her as limited owner, which, upon her marriage in the year 1930, she had to give up in favour of her step-sister, Mst. Bibi, born out of her mother's wedlock with one, Rasool. Since then she had remained out of possession.
It cannot be said that she was unaware as to how the property was handled there-after and of her rights therein. Rather her awareness is demonstrated by the order of the Collector, Mardan, dated 15-4-1942 where she was marked personally present. In the appeal before the Collector she had questioned the permanent transfer by Mst. Bibi of certain property alleging that the respondent was a limited owner. However, she had neither then or ever questioned the sale deed of the year 1916 till filing of the suit in the year, 1991, being well aware of such transfer. Again, as the above order of the Collector shows that the plaintiff was conscious and aware that a limited owner was not empowered to transfer permanently property inherited by him or her, she did not question the gift mutation by Mst, Bibi in favour of the latter's mother, Mst. Habib Khanum, also the plaintiff's mother, in the year 1945. It may also be noted that by then the North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935 had come into force and the plaintiff could have asserted her right of inheritance. While the property was further sold and resold, constructed and reconstructed, the plaintiff took no action to annul or prevent such transfers. When she filed the suit there were as many as 251 transferees of the property. The conduct of the plaintiff clearly demonstrated acquiescence in all the impugned transfers of the property which amounting to waiver of her right. The transferees were, on account of the plaintiffs inaction, led to believe that the transferors had valid title in the suit property. The plaintiff had died during early stages of the litigation and has now represented by her legal heirs. The impugned concurrent findings of the two Courts on the above questions therefore do not call for any interference.
8. As regards the argument of the plaintiff being pardanashin lady, it may be stated that there is no evidence on the record to show that the plaintiff was pardanashin. On the other hand the order of the Collector dated 15-4-1942 referred to above would show that the plaintiff had personally appeared before the Collector. In any case she was aware of her rights. The case-law cited by the learned counsel for the appellant in this context is inapplicable to the facts of the present case. The principle laid down there is that when the property is transferred by or on behalf of a pardanashin lady the Courts shall insist upon the transferee to show that the lady was properly sounded about the nature of the transaction. Except for the registered sale deed dated 8-6-1916 the issues here does not relate to any transaction on behalf of the plaintiff.
' For the foregoing reasons, the appeal is dismissed with no order as to cost.