Ali Akbar Qureshi J:- This civil revision is directed against the judgment & decree dated 30.10.2003 and 31.03.'1993 whereby the suit for declaration filed by the respondents was decreed by learned Courts below.
2. Shortly the facts for the disposal of the petition, are that or,e i-Tath Muhammad, the predecessor it interest of the parties to the suit, was the original owner of the suit land, died in the year 1924, leaving be him: his two daughters, namely, Mst. Noori and Mst. Zainab; subseqtently, both the daughters were died leavir5; behind the respondents/plaintiffs as their legal heirs/successors in interesL; Said Fateh Muhammad, the original ow. . ?.r of the suit lard, had no son and the predecessor of the petitioners/defendants, . namely, Ghulam Munammad succeeded to enter the inheritance mutation of the total suit land in his name showing Fateh: Muhammad issueless and excluding the daughters of Fateh Muhammad, predecessor of the re spion1/4-.1ents .
The su'cc. was contested 'o y the petitioners/defendants (i)through writt vt statement wh rein they controverted the _ contents of the plaint but admitted, that Mst. Noori and Mst.
Zainab were the daughters of Fateh Muhammad deceased but died earlier than their father. It is also contended in the written statement, that even otherwise, at the relevant time, the predecessor of the parties to the suit was bound by the custom and because of this reason, Mst. Noori and Mst.
Zainab were excluded from the array of legal heirs of Fateh Muhammad. Lastly, stated, that the inheritance mutations were rightly entered in the name of the petitioners.
Learned counsel for the petitioners argued mainly on the following points: i) Fateh Muhammad, the original owner of the suit land and predecessor of the parties was died issueless; Fateh Muhammad was bound by the customary law/customs at the relevant time, therefore, the daughters of Fateh Muhammad, namely, Mst. Noori and IVIst. Zainab, if were alive, under the customary law, were not entitled to inherit anything from the legacy of their father; ill) The suit was filed after a long time of sanctioning the impugned mutation, therefore, law of limitation will be applicable. iv) When the main effectees (daughters of Fateh Muhan7nad deceased) did not challenge the impugned inheritance mutation, their legal heirs cannot claim the same.
3. On the other hand, Mr. Muhammad Ali Siddiqui, learned counsel for the respondents submits his arguments in the following manner: 1 it is admitted on record, that Fateh Muhammad died leaving behind twc daughters, namely, Mst.
Noori and Mst. Zainab; 2 The daughters of Fateh Muhammad were alive at the time of the death of their father, Patch Muhammad, the petitioner/defendant played fraud and misrepresentation at the time of entering the inheritance mutation excluding the daughters of Fateh Muhammad and succeeded to mention "Lao Walad" (issueless) in the impugned mutations. At the time of death of Fateh Muhammad, there was no Riwaj being followed and the people used to give shares to their daughters and this fact is proved from the documentary evidence (mutations) on the record 3 As the deceased Fateh Muhammad succeeded by his two daughters who were very much legal heirs of their father and had become the owner to the extent of their share on his demise, therefore, the law of limitation will not be applicable in this case.
4. During the course of arguments, the record was perused with the assistance of learned counsel for the parties.
5. In order to decide whether deceased Fateh Muhammad, the original owner of the suit land, had two daughters when he died, the statement of DW-1, witness appeared on belnlf of the petitioners/defendants, was examined. From the statement of the aforesaid witness, it reveals as stated by the witness during the course of cross examination, that daughters of Fateh Muhammad, namely, Mst. Noori and Mst. Zainab could not get their share because of Riwaj but Zilyhow when Fateh Muhammad died, both the daughters were alive. DW-3, namely, Ghulam Muhammad who is one of the defendants, had admitted, that Mst. Noori and Mst. Zainab were real daughters of deceased Fateh Muhammad and further stated, that he does not say, that Mst. Noori and Mst. Zainab are not sharers according to Islamic Sharia whereas the other witnesses produced by both the parties did not deny, that the predecessor of the respondents/plaintiffs were the daughters of deceased Fateh Muhammad and were also alive when Fateh Muhammad died.
6. As regards the custom or the Riwaj, the petitioners/defendants have placed on record Exh.D6 to show, that according to the custom of Baloch tribe, the daughters were not entitled to inherit from the legacy of their fathers. In this respect, this issue has already been resolved through a land mark judgment cited as Ghulam Ali and 2 others v. Mst.
Ghulam Sarwar Nagvi (PLD 1990 Supreme Court 1) which is squarely applicable on the facts of this case on the following grounds: i. It is admitted on record, that Fateh Muhammad deceased succeeded two daughters at the time of his death and they were alive at that time.
Exh.P15 to Exh.P2I which are mutations and date back prior to the creation of Pakistan, show that at the relevant time when Fateh Muhammad died, the people of the area used to give right of inheritance to the women/daughters meaning thereby, that the legal heirs irrespective of son or daughter, used to get inheritance from the legacy of their father.
7. The inheritance mutations entered in the Revenue record by the petitioners/defendants show, that the daughters of Fateh Muhammad have been excluded (not even mentioned in the mutation) rather it is mentioned in the mutations, that Fateh Muhammad died "Laa Walad". When it was confronted to learned counsel for the petitioners, learned counsel submits, that as the daughters of the deceased Fateh Muhammad, as per Riwaj, were not entitled to inherit anything from the legacy of their father, therefore, there was no need to mention their names in the inheritance mutation; further added, that if the names of the daughters of Fateh Muhammad had been mentioned in the mutation, even then, they were not entitled to inherit anything from the legacy of their father, therefore, this is no illegality.
8. I am afraid, that the argument and the explanation given by learned counsel for the petitioners has any substance. It is floating on the surface of the record, that the petitioners/defendants intentionally, deliberately and ,willfully by playing fraud and misrepresentation, excluded the daughters of deceased Fateh Muhammad from the list of the legal heirs and succeeded to get the inheritance mutation entered into the revenue record in their names. As the petitioners/defendants are the beneficiary of the impugned mutations, ,herefore, they are liable to answer the fraud committed by them and needless to mention, that it is well-established universal principle of law, equity and fair play, that the fraud vitiates the most solemn proceedings/actions, therefore, both the learned Courts below rightly concurrently concluded, that the daughters of deceased Fateh Muhammad were entitled to inherit the legacy of their father according to Sharia.
Reliance is placed on Ghulam All and 2 others v. Mst. Ghulam Samar Naqvi (PLD 1990 Supreme Court 1). Further if for the sake of argument, it is considered, that according to Riwaj, the daughters of Fateh Muhammad, predecessor of the respondents, were not entitled to inherit anything from the inheritance of their father, even then, deceased Ghulam Muhammad who was real paternal uncle and Bakhu, the real paternal cousin tson of Ghulam Muhammad) were legally bound t.,) mention the names of the daughters of deceased Fateh Muhammad in the list of legal heirs of deceased Fateh Muhammad in the revenue record. It proves safely from the record, that the predecessor in interest of the petitioners, with mala fide intention and ulterior motive, excluded the names of the daughters of the deceased Fateh Muhammad, just to usurp the legacy of deceased Fateh Muhammad which, in any case, cannot be permitted and approved in law.
9. The petitioners simply succeeded to place on record the document as Exh.D6, but could not prove the same in accordance with law and even otherwise, there is no trust-worthy, reliable and confidence inspiring evidence to this effect, therefore, the petitioners in fact, had miserably failed to prove this their claim.
10. In the nutshell, it is observed, that the predecessor in interest of the petitioners/plaintiffs, daughters of Fateh Muhammad deceased, namely, Mst. Noori and Mst. Zainab, being legal heirs, were/are entitled to inherit out of the legacy of Fateh Muhammad and both have wrongly and illegally been deprived from their valuable rights guaranteed and secured by Allah, the Almighty, therefore, the judgments of the learned Courts below are affirmed.
11. Resultantly, this civil revision is dismissed with no order as tt., costs.