1. YAHYA AFRIDI, J.---Through this single judgment, this Court shall dispose of two Revision Petitions as they have a common factual background. The particulars of the two Revision Petitions are as under: (1)Civil Revision Petition No, 508-P of 2013. (Ghulam Sher etc. v. Mst. Bibi Shan etc)
2. (2)Civil Revision Petition No,527-P of 2013. (Abdul Basit etc. v. Mst. Bibi Shan etc)
3. 2.The brief facts of the present case are that Mst. Bibi Shan instituted a suit seeking declaration to the effect that she was a co-owner of the disputed property, being the legal heir of one Habibullah son of Latif Khan. It was further prayed by Mst. Bibi Shan that the inheritance mutation of Habibulah bearing No,1460 attested on 26.2.1934 in favour of Mst. Hawas Noor wife of Habibullah, and the subsequent sale mutation'No,1462 attested on 26.2.1934 in favour of one Musharaf, and finally the mutation No,1910 attested on 27.7.1936 in favour of Abdullah Khan is illegal and warrants correction.
4. Mst. Bibi Shan further sought the possession of her share in the legacy of Habibullah through partition of house measuring 8 marlas along with injunctive relief against the defendants named therein.
3. The respondents were summoned, who filed their written statement, based on the contesting pleadings the trial Court was pleased to frame eight issues.
5. ISSUES.
6. 1.Whether the plaintiff has got cause of action to file the instant suit?
7. 2.Whether plaintiff and defendants Nos.]] to 19 are owners in possession of the suit property being legal heirs of Habibullah son of Latif and the inheritance mutation No,1460 attested on 26.2.1934 as well as the subsequent mutation No,1462 dated 26.2.1934 and mutation No,1910 dated 27.7.1936 were wrong, illegal and ineffective upon the rights of plaintiff?
8. 3.Whether this Court has got jurisdiction to entertain the present. suit?
9. 4.Whether defendants Nos.4 to 10 are entitled to the improvements made by them in the event of decree in favour of plaintiff?
10. 5.Whether plaintiff is entitled to the relief claimed in prayers 1 and 2 of the plaint?
11. 6.Whether plaintiff is entitled to the relief claimed in prayer-3 of the plaint?
12. Whether plaintiff is entitled to the relief claimed in prayer-4 of the plaint?
8. Relief.
13. 4.After providing opportunity to the parties to adduce their pro and contra evidence, and hearing the learned counsel for the parties, the trial Court was pleased to hold that; "Consequent upon my findings on issues above, suit of plaintiff succeeds partially and a decree is hereby passed in favour of plaintiff for declaration of her legal shari share in the inheritance of Habibullah deceased in the suit property, described in prayer-1 of the plaint and mutation No,1460 attested on 26.2.1934, mutation No,1462 attested on 26.2.1934 and mutation No,1910 attested on 27.7.1936 are also held liable to correction to this effect. Rest of the suit of plaintiff stands dismissed."
14. 5.Aggrieved of the above decision, both the parties challenged the said judgment in appeals, which were dismissed by the Appellate Court in terms that; "Consequent upon the findings given hereinbefore, both the counsel for the parties failed to make out the case of any interference, with reference to findings of the learned trial Court adjudged vide judgment decree dated 10.4.2011, due to which both the appeals along with cross objection stand dismissed with costs."
15. 6.Feeling aggrieved from the judgment and decree passed by the learned Appellate Court, the petitioners, the legal heirs of Musharaf (original owners) and Abdullah (recorded owners), have filed these two revision petitions before this Court.
16. 7.The worthy counsel for the petitioners have vehemently challenged the concurrent findings of the two Courts below asserting that Article-64 of the Qanun-e-Shahadat Order, 1984 ("Order") has not been considered in deciding the matter; that the two Courts below have wrongly relied upon Article-49 of the Order in considering the case in hand, which ought to have been decided in view of Article-64 ibid; that shifting of the burden of proof upon the petitioners/defendants was also contrary to the general principles of law as the plaintiff could not rely upon the weaknesses of the defendants as was done in the present case; that the documents produced by the Court witnesses Ihsanullah Khan (CW-1) and Sanaul Haq (CW-2), which were made the basis of the findings of the two Courts below were neither relevant nor admissible being fake, bogus and the result of collusion and that the NADRA record Exh.CW-2/1 was prepared during the pendency of the proceedings, hence could not be relied upon; that the petitioners/defendants in particular Abdullah Khan (predecessor-in-interest of recorded owners) had acquired vested rights in the subject property as the same was backed by a pre-emption decree passed by the Court of law, which has till date not been challenged by the respondents/plaintiffs; and that finally the plaintiffs/respondents claim is barred by time and the principle of estoppel for challenging the ti insaction after over 70 years.
17. The worthy counsel sought reliance upon Mst. Jiwai's case (1994 CLC 1570), Mst. Jameela Khatoon's case (1997 CLC 1691), Jaleb Khan's case (1999 SCMR 2502), Ahmed Nawaz's case (PLD 2002 Lahore-10), Rehmat Khan's case (2002 SCMR 1355), Mst. Safia's case (2005 MLD 646), Ali Bahadur's case (PLD 2005 Lahore 218), Ghulam Abbas's case (2006 YLR 498), Talib Hussain Shah's case (2006 CLC 652), Karamat's case (2007 MLD 1910), Habib Khan's case (PLD 2012 Peshawar 80), Nasir Khan's case (2013 MLD 1557), Mst. Grana's case (PLD 2014 SC 167), Mst. Rooh Afza's case (2015 YLR 2199), Nadir Khan's case (2015 MLD 191), Riaz Hussain's case (2015 YLR 1903), Asal Janan's case (2016 YLR 561), and Mehboob Khan's case (2016 MLD 143).
18. ' In rebuttal, the worthy counsel for the respondents/plaintiff, vehemently controverted the assertions made by the worthy counsel for the petitioners/defendants, contending that Mst. Bibi Shan was a Pardha Nasheen, ignorant, illiterate lady and she is seeking her shari share in the legacy of her father Habibullah, which cannot be extinguished by flux of time and any transfer to the contrary which would be a nullity in the eyes of law; that direct documentary evidence regarding the date of birth and the parentage of Mst. Bibi Shan plaintiff was produced in Court by the custodian of the official record, which was beyond the 30 years period and hence had presumption of truth attached thereto, in view of Articles 49 and 100 of the Order; that the legitimacy of Mst. Bibi Shan plaintiff was to be presumed till the same was dispelled by cogent evidence by the petitioners/defendants, which they failed to do; the petitioners in Ghulam Sher case C.R. No,508-P/2013 could not seek protection of being bona fide purchasers as they failed to take appropriate steps as was required under section 41 of the Transfer of Property Act, 1882 ("Act").
19. The worthy counsel seeks reliance upon Abdullah's case (1989 SCMR 735), Messrs Nabi Bakhsh's case (1990 CLC 1443), Habibullah Khan's case (1990 MLD 355), Mst. Rasul Bibi's case (1991 MLD 2008), Mst. Fazal Jan's case (PLD 1992 SC 811), Mst. Namdara's case (1998 SCMR 996), Muhammad Shafi's case (2000 YLR 2477), Khushnood Iqbal's case (2001 MLD 1908), Muhammad Nazir's case (2003 SCMR 1183), Mst. Ghulam Janat's case (2003 SCMR 362), Eada Khan's case (2004 SCMR 1524), *1st. Asma Naz's case (2005 SCMR 401), Mst. Janntan's case (PLD 2006 SC 322), Ihsanullah's case (2011 CLC 989), Mosam Khan's case (2012 CLC 1944), Sahib Jan's case (2013 SCMR 1540), Naimatullah's case (2016 YLR 263), and Shahida Shaheen's case (2016 CLC 1672).
20. 8.Valuable arguments of learned counsel for the parties heard and available record perused with their able assistance.
21. 9.In order to appreciate the contentious claims of the parties, it would be appropriate to first recapitulate the facts leading to the present petition. Mst. Bibi Shan contends in her plaint that on the death of her father, Habibullah, he left behind Mst. Hawas Noor, widow, and three daughters Mst. 'Bibi Shan, Mst. Bakht Jamala, and Mst. Quresha. While the contesting parties disputed and denied Mst. Bibi Shan to be his daughter and claimed that Habibullah was survived only by his wife, the sole legal heir Mst. Hawas Noor. Revenue record reveals that on 26.2.1934, the legacy of Habibullah vide inheritance mutation No,1460 was attested and devolved in favour of Mst. Hawas Noor. Interestingly, on the same date, she is recorded to have transferred the said property to one Musharaf vide sale mutations No,1462 dated 26.2.1934 and No,1910 dated 27.7.1936. Abdullah Khan challenged the said sale, which finally culminated in a compromise decree dated 15.5.1935. The decree so passed was also given effect in the revenue record through mutation No,5036 attested on 3.4.1938, which has not been challenged by Mst. Bibi Shan.
22. 10.From the essential relevant facts narrated hereinabove, we find that there are three contesting groups; the legal heirs of Mst. Bibi Shan, the plaintiff, who claim to be the legal heir of Habibullah ("Bibi Shan/claimant group"), the children of Musharaf, who not only purchased Mst. Hawas Noor inherited property but also married her after the death of Habibullah ("original owner/Musharaf group"), and the legal heirs of Abdullah Khan, who challenged the sale of the property in favour of Musharaf and finally obtained compromise decree on 15.5.1935 in his favour ("recorded owner/Abdullah Khan group").
23. 11.The most crucial issue for determination of the present case hinges upon issue No,2, which, as framed by the trial Court, relates essentially to whether Mst. Bibi Shan is the daughter of Habibullah son of Latif Khan or otherwise. It is an admitted position that the plaintiff, Mst. Bibi Shan, had based her entire claim on being one of the daughters of Habibullah. This factual assertion has been denied by the defendants in their written statements and oral evidence produced before the trial Court. Their contention was that Mst. Bibi Shan was not the daughter of Habibullah.
24. 12.Now, when we canvass through the evidence produced by the plaintiff Mst. Bibi Shan, it is noted that her attorney, who was also her son, Muhammad Nawaz (PW-4) produced the birth certificate of Mst. Bibi Shan and the death certificate of Habibullah, Exh. PW 4/2 and Exh. PW 4/3, respectively.
25. Both the documents clearly reflect Mst. Bibi Shan to be the daughter of Habibullah and of her being born prior to his death.
26. 13.What is also crucial to note is that the trial Court on the application of the plaintiff, summoned Ihsanullah Khan, the record keeper, EDO Health, Swabi (CW-1), who appeared as a Court witness and brought the original register containing the entry of birth of Mst. Bibi Shan at serial No,1262 dated 10.5.1933 reflecting her to be the daughter of Habibullah (Exh. CW 1/1) and the entry of the death of Habibullah at serial No,662 dated 2.7.1933 (Exh. CW 1/2). In addition to Ihsanullah Khan (CW-1), the trial Court also summoned Sanaul Haq, record keeper of NADRA office (CW-2), who produced the record pertaining to Mst. Bibi Shan CNIC bearing No,16202-0875523-0 (Exh.CW 2/1), wherein the birth of Mst. Bibi Shan was recorded in the year 1938. The other crucial evidence in this regard is the pedigree-table of Habibullah (Exh. PW 3/3), which did not record Mst. Bibi Shan, as his daughter. 14.So what we have are four types of documentary evidence produced by the Plaintiff Mst. Bibi Shan; the first being the Birth and Death Certificates. (Exh: PW 4/1 and Exh. PW 4/3), the second being the extracts of the Birth and Death Registers (Exh. CW. 1/1 and Exh.CW 1/2), the third is the application for CNIC of Mst. Bibi Shan (Exh.CW-2/1) and finally the pedigree- table of Habibullah (Exh. PW-3 /3) .
27. 15.Out of the above stated four categories, the latter two, would not support the claim of the plaintiff Mst. Bibi Shan, for the pedigree-table (Exh.PW 3/3) does not record the plaintiff Mst. Bibi Shan, as the daughter of Habibullah, while the application for CNIC of Mst. Bibi Shan (Exh.CW 2/1), which records Habibullah as her father, was applied for during the pendency of the present proceedings.
28. 16.This leaves us with the firt two categories. Let us take the Birth and Death certificates. The evidentiary value of a birth certificate has been adjudged as conclusive in absence of any rebutting evidence in Nanhak Lal's case (AIR 1935 Patna 474). This view has been endorsed by the superior Courts of our jurisdiction in Mst. Zainab Jehan's case (2012 YLR 1480), Roshan Din's case (2002 YLR 2706) and Allah Bakhsh's case (1995 CLC 331). In fact, the apex Court in Mirza Khan's case (PLD 1991 SC 383) has gone to the extent of giving credence to and accepting the sole statement on oath by the person regarding his parentage.
29. 17.Now, let us consider the last category of the documentary evidence produced by the plaintiff is the production of the original Death and Birth Registers by custodian of the said official record.
30. These documents cannot be brushed aside lightly, and would surely support the claim of the plaintiff Mst. Bibi Shan. <u><b>Firstly</b></u>, the said documents are public documents as provided under Article-90 of the Order, secondly, the same fulfill the test of admissibility and relevancy, as prescribed under Article-49 of the Order, and finally, the registers so produced are more than thirty years old and thus would have the presumption of truth attached thereto, as provided under Article-100 of the Order.
31. 18.In rebuttal, the contesting parties only produced oral evidence, and in that too none produced any independent witness of the locality in support of disproving the parentage of Mst. Bibi Shan. In fact, Abdul Basit (DW-1), the sole witness of the original owner Musharaf group, when confronted to name the father of Mst. Bibi Shan, was unable to respond to the said specific question. Similarly, Jamal Khan (DW-2), the sole witness representing the recorded owners/Abdullah group also did not produce any witness to disprove the parentage of Mst. Bibi Shan. These two witnesses produced by the petitioners/defendants merely denied by oral assertions, the parentage of Mst.
32. Bibi Shan. 19.This would take us to the serious challenge raised by the worthy counsel for the petitioners that the two Courts below did not consider the true purport of Article-64 of the Order, and thus, the claim of Mst. Bibi Shan could not be accepted, without her appearing in person before the trial Court. The objection so raised, is worth consideration, as it has been consistently held by the superior Courts of our jurisdiction that parentage could not be proved by mere production of pedigree-table, without appearing in the witness box to depose in support of their claimed relationship, and that this would lead to an adverse inference to be taken by the trial Court under Article 129(g) of the Order. In this regard, the worthy counsel had rightly sought reliance upon Ghulam Muhammad's case ( PLD 1965 Lahore 482), Shah Nawaz's case (PLD 1976 SC 767).
33. 20.There is no cavil to the above principle laid down by the superior Courts in the said cases.
34. However, the facts and circumstances of the present case are clearly distinguishable from the said cases. Firstly Muhammad Nawaz (PW-4), attorney of Mst. Bibi Shan in his testimony, testified that Mst. Bibi Shan was an old infirm Pardha Nasheen lady, and thus, provided a reason for her not to appear in the witness box. Secondly, in none of the cited judgments did the plaintiff produce a birth certificate or the extract of the official birth register. The documentary evidence produced in the said cases was the pedigree-table, prepared and maintained for revenue purposes, and not for the specific purpose of recording the birth or parentage by any public official, as was recorded and produced in the present case.
35. 21.As far as establishing relationship of one person with another as provided under Article-64 read with Article-46(5) of the Order, the same was effectively done by the plaintiff Mst. Bibi Shan, when she produced documentary evidence of more than thirty years old public documents produced by the custodian of the same, which in absence of any cogent disputing evidence produced by the opposite side, would safely be said to prove the claim of the plaintiff Mst. Bibi Shan.
36. 22.It would be pertinent to note that even if, Abdul Basit (DW-1) and Jamal Khan (DW-2) are adjudged to be qualified to render any statement regarding the conduct, as envisaged under Article-64 of the Order, the same could not prevail over the evidentiary value of the documentary evidence produced by Mst. Bibi Shan, in view of the clear mandate of Article-70 of the Order. In this regard, the Apex Court in Razia Khatoon's case (1991 SCMR 840), wherein the probative value of the entries made in the CNIC was discussed and was held to be; "in such background the entries of the National Identity Card shall hold the field unless they are rebutted by an equally good or better evidence".
37. ' This view was endorsed and approved in Abdul Ghani Khan's case (2011 SCMR 837), wherein to further expound the said view held that; "As mentioned hereinabove the documentary evidence, details whereof have been mentioned above in the preceding paragraphs, was never rebutted. It is well settled by now that mere .oral assertion is not sufficient to rebut documentary evidence. In this regard we are fortified by the dictum laid down by this Court in the case of Akhtar Hussain Zaidi v Muhammad Yaqinuddin (1988 SCMR 753)."
38. What is to be appreciated is the quality and not the quantity of evidence produced. When documentary evidence is available and c produced, the same cannot be discarded simply because there is no oral evidence in support thereof.
39. ' What is most pertinent to note is that the framers of the Order, keeping in view the difficulties of finding direct documentary evidence by persons claiming relationship, and in particular parentage provided for allowing indirect hearsay evidence, when the same is not permissible in ordinary circumstances. Articles 64 and 46(5) of the Order are thus exceptions to the general rules of not allowing indirect hearsay evidence. Thus, when the plaintiff Mst. Bibi Shan produced direct, and that too documentary evidence in support of her claim, the same could not be rejected only on the ground that no oral evidence in support thereof was produced or that the beneficiary thereof did not personally appear in the witness box. .
23. Viewed from another perspective, even if the documentary evidence produced by the plaintiff (Exh CW 1/1 and Exh. CW 1/2) are not taken as conclusive proof of Mst. Bibi Shan being the daughter of Habibullah, the same were sufficient for shifting the burden of proof upon Musharaf and Abdullah groups to disprove the same, more so when they had denied her to be the daughter of Habibullah in their respective written statements. In such circumstances, it would have been more appropriate for Musharaf and Abdullah groups to have produced evidence in support of their claim to disprove Mst. Bibi Shan being the daughter of Habibullah, as mandated under Article-64 read with 46(5) of the Order. Their failure to do so, was correctly appreciated by the two Courts below.
40. The importance of burden of proof has been discussed earlier by this Court in Mst. Hameeda Bibi's case (2014 YLR 2520), in terms that: "It is an established principle of civil dispensation of justice that generally, the initial burden to prove a claim, is on the party seeking the aid of the Court, but this 'onus of proof shifts and oscillates. Once the parties have adduced their respective evidence in support of their claims, then it is `preponderance of evidence', which rules the scale of relief. It is only when the Court deciding the Lis is unable to decide the matter on the evidence produced by the parties, that the significance of onus of proof would be revived and govern the decision. In this regard, the august Supreme Court of Pakistan in the case titled Mst. Qaisar Khatoon v. Molvi Abdul Khaliq (PLD 1971 SC 334) has explained the principle in terms that; "In any event, the question of onus of proof has lost its importance now after all the relevant evidence has been adduced and placed on the record (vide Manaka v. Madha Rao).
41. (2). The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion- (Vide PLD 1948 PC 171). In such an event the rule is that the party on whom the onus lay must fail. This, however, is not case here, for, the evidence is, by no means, evenly balanced."
42. ' In the present case, the preponderance of evidence, is surely in favour of the plaintiff Mst. Bibi Shan, as she was able to produce documentary evidence in support of her claim, while the other side was unable to produce any documentary evidence to rebut her claim, and more so the oral evidence they produced was not worthy of credence to diminish the evidentiary value of the documentary evidence produced by the plaintiff Mst. Bibi Shan. Thus, it cannot be said that the evidence produced by the parties was evenly balanced for the principle of onus of proof to be made applicable.
24. It is a recognized and settled principle of law that, the Courts are generally reluctant to stigmatize a child to be declared illegitimate, and therefore, every effort is made in favour of the child's legitimacy. E This principle is more profound under the Islamic jurisprudence. In this regard, the principle of Acknowledgement, whereby legitimacy is given to a child born prior to marriage.
43. This doctrine has been eloquently elaborated by the Privy Council in Sadiq Hussain Khan's case (AIR 1916 PC 27). The doctrine of Acknowledgement of paternity is based on a man and a woman continuously cohabiting for a long period of time, coupled with the acknowledgment of the father, and thereby raising a presumption that the father was married to the mother of the acknowledged child and further presuming a lawful marriage. The only exception to this doctrine is when the marriage is disproved or a lawful marriage is not possible because of incestuous intercourse or an adulterous connection. More recently, the Apex Court of our jurisdiction in Ghazala Tehseen Zuhra's case (PLD 2015 SC 327), while discussing the scope of Article-128 of the Order, has in fact restricted the right of a father to disclaim a child of parentage to a period of four months of his birth.
44. 25.The other important aspect of the legal claim of Musharaf and Abdullah groups is the sale of the disputed inherited property by Mst.Hawas Noor to Musharaf. This sale transaction is in fact the foundation upon which the entire superstructure is built by Musharaf and Abdullah groups. Looked careful, this sale took place during the period when customary law of limited ownership of a widow was in vogue. Under this customary rule, a widow would after the death of her, husband inherit his legacy and become a limited owner till her death or earlier if she remarried. Thus, Mst. Hawas Noor after the death of Habibullah could not enter into a complete sale of her inherited property. And on the other hand, Musharaf, the purchaser thereof, could not be termed a bona fide purchaser, within the contemplation of section 41 of the Transfer of Property Act, 1882 ("T.P Act"). More so, when Musharaf had admittedly married Mst. Hawas Noor, after Habibullah death. It was this very sale, which was challenged in Court by Abdullah and as a result thereof a compromise decree was passed in his favour. Thus, when the foundation of very claim of the parties is without legal force, then the entire superstructure built thereon must also fall.
45. 26.Moving on to the other challenge made by the two contesting groups to the claim of plaintiff Mst. Bibi Shan being barred by time for seeking her rights in the legacy of her father after 70 years of his death. It is by now established principle of law that a legal heir may seek her shari share during her life time, without any limitation of time. There is F no dearth of judicial precedents in this regard. Some of the leading judgments are Ghulam All's case (PLD 1990 SC 01), Muhammad Qasim Khan's case (1991 SCMR 515), Mst. Jannat Saeed's case (PLD 2001 SC 322) and Muhammad Anwar's case (2008 SCMR 905). This view has consistently been followed by the superior Courts of our jurisdiction leading up to Mst. Grana's case (PLD 2014 SC 167), wherein, without disturbing the ratio of Ghulam Ali's case (supra) had dilated upon other aspects of the claim made by legal heirs to the legacy of their common predecessor-in-interest. In this regard, the situation would have been different, in case Mst. Bibi Shan had not sought her Shari share during her life time and instead her legal heirs had moved the Court of law for seeking her share in the legacy of her father, which is not the case in hand. Thus, the two Courts below were correct in appreciating the claim of the plaintiff Mst. Bibi Shan, rejecting the objection of limitation taken by the opposite side. 27.At the very end of the arguments, the worthy counsel for the petitioners raised yet another challenge to the decisions of the two Courts below. The thrust of this challenge was that Abdullah gioup was armed with a decree passed by a competent Court and the said decree had not been challenged by the plaintiff Mst. Bibi Shan. Admittedly, the trial Court has not framed any issue on this serious objection of the petitioners/defendants.
46. 28.It is an admitted position that the property sold by Mst. Hawas Noor to Musharaf, was challenged by Abdullah in a pre-emption suit for possession. It is further admitted that a compromise decree was passed in favour of Abdullah, the effect of which was recorded in the revenue record vide mutation No, 1462 dated 26.2.1934 (Ex PW 3/3), which has till date not been challenged by the plaintiff Mst. Bibi Shan and her legal heirs. When the worthy counsel for the respondent-plaintiff Mst. Bibi Shan was confronted with the said challenge, he responded that the decree so passed did not apply to the plaintiff Mst. Bibi Shan, in view of section 2-A of the West Pakistan Muslim Personal Law (Shariat) Act, 1962 ("Act of 1962").
47. 29.This being the position, it has to be seen whether the plaintiff Mst. Bibi Shan was absolved from challenging the said decree under the protection provided under section 2-A of the Act of 1962. It is noted that section 2-A was inserted in the Act of 1962 through an Ordinance No,XIII of 1983, which provides that; "2-A. Succession prior to Act IX of 1948. Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, '1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim.
48. (a)He shall be deemed to have become, upon such acquisition, as absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat); (b)Any decree, judgment or order of any Court affirming the right of any reversionary under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, in executable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act; (c)All suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith: ' Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees." (emphasis provided)
49. 30.The bare reading of the above stated provision introduced in the Act of 1962, reveals that the same does not apply to the facts and circumstances of the present case. Firstly, the said provision relates to Punjab Muslim personal Law (Shariat) Application Act, 1948. Secondly, even otherwise, the protection provided in the said provision is only restricted to those acquisitions, which are made to a male heir, which is not the case in hand, as the challenge of the plaintiff Mst. Bibi Shan was to the transfer of the entire property to her mother Mst. Hawas Noor. Thus, the decisions of the superior Courts in Mst. Ghulam Janat's case (2003 SCMR 362), Abdul Ghafoor's case (PLD 1985 SC 407), Muhammad Anwar's case (2008 SCMR 905) and Anwar's case (1991 MLD 1987) cited by the worthy counsel for the respondents-plaintiffs would be of no avail to support their claim, as the same relate to cases arising out of disputes in Punjab.
50. 31.Keeping in view the admitted positions of parties regarding the decree passed in favour of present petitioners, the mere fact that no specific issue was framed by the trial Court regarding this objection, would be of no serious legal consequence warranting the case to be remanded for framing of a specific issue, so that the parties may lead evidence thereon. It is also to be kept in mind that, it is a legal issue, which can be decided even by this Court exercising its revisional jurisdiction, when sufficient evidence is available on the record.
51. 32.Accordingly, for the reasons stated herein above, while maintaining the judgment and decree passed by the Appellate Court dated 15.4.2013, this Court holds that; (i)That the two Courts below were legally correct in holding that, Mst. Bibi Shan is the lawful daughter of Habibullah son of Latif Khan.
52. (ii)That the two Courts below were also legally correct in holding that Mst. Bibi Shan was entitled to her shari share in the legacy of her father Habibullah.
53. (iii)That Mst. Bibi Shan cannot seek any right in the property, which was a subject matter of the decree dated 15.5.1935 passed in favor of Abdullah till the said decree is in the field. However, Mst.
54. Bibi Shan would have her shari share in all other property, left by Habibullah son of Latif Khan, which was not the subject matter of the decree dated 15.5.1935.
55. ' Both the revision petitions are disposed of, in the above terms.