' CH. MUHAMMAD MASOOD JAHANGIR, J.---By filing the instant appeal the appellant/defendant has assailed the preliminary judgment and decree dated 23.5.2011, which was passed by the learned Civil Judge, Lahore in a suit for declaration, injunction,. Partition, possession and rendition of accounts filed by the respondents-plaintiffs.
2. The facts germane for the disposal of the instant appeal are that respondents/ plaintiffs are real sisters of present appellant/defendant and the respondents/plaintiffs filed the referred suit seeking a decree for declaration to the effect that:--
1. Messrs Malik Sajjad and Co was a partnership firm between late Malik Muhammad Amin and company and the defendant;
2. That the property bearing No.79/80, New Timber Market, Lahore was the exclusive ownership of late Malik Muhammad Amin and also devolved upon his legal heirs after his death;
3. That the rental value of the above referred property from 8.6.1993 to date be delivered and deposited in the court for its distribution amongst the parties according to their shares under the Islamic Law; and
4. That the plaintiffs being daughters of Malik Muhammad Amin deceased were lawfully entitled to get possession of their shares in the said property and business by metes and bounds as also the allocation of the moveable like clauses/Band Saw Machinery and installations in accordance with the shares of inheritance as per Quranic Injunctions;
5. That as a consequential relief permanent injunction be granted as well for restraining the defendant from selling, mortgaging, encumbering, alienating or transferring the above said moveable and immoveable properties to anybody else in any manner whatsoever till the same were partitioned apportioned; and
6. That a decree be also passed in favour of the plaintiffs and against the defendant towards the rent collected on behalf of the plaintiffs from July 1993 to November, 1995 as well as mesne profits in partnership business from July, 1993 to date.
3. The said suit was resisted by the appellant/defendant by filing written statement with the assertion that the property bearing No.79/80, New Timber Market was owned by Malik Sajjad and Co. And the same was not in the exclusive ownership of late Malik Muhammad Amin, the father i.e. The predecessor-in-interest of the parties, who vide written agreement dated 27.7.1992 had agreed to transfer, and in fact he had transferred the property in the name of defendant, plaintiffs and his wife and prayed for dismissal of the suit.
4. The learned trial court captured the disputed area of facts by framing the following issues:--
1. Whether the plaintiff is entitled to get a decree for declaration, partition, rendition of accounts and possession as prayed for? OPP\
2. Whether the plaintiff has not come to the court with clean hands? OPD
3. Whether the plaintiff has no locus standi against the defendant? OPD
4. Whether the suit is not maintainable in its present form? OPD
5. Whether the suit is barred by time? OPD
6. Whether the suit is bad for misjoinder of cause of action? OPD
7. Whether the suit is false, frivolous and the defendants are entitled to special costs under section 35-A, C.P.C.? OPD
8. Relief.
5. Both the parties produced evidence in support of their respective claims and thereafter the suit of the plaintiffs/ respondents was preliminary decreed vide impugned judgment and decree referred in para-1 ante. Hence the instant appeal.
6. The learned counsel for the appellant has argued that admittedly Malik Muhammad Amin deceased was owner of many properties, but he distributed some of those in his life time amongst his legal heirs, which fact has not been considered by the learned trial court while passing the impugned preliminary judgment and decree; that according to the family settlement, the predecessor-in-interest of the parties had distributed some of his properties in favour of plaintiffs/respondents and exclusively distributed the partnership and property bearing No.79/80 New Timber Market, Ravi Road, Lahore to the appellant/ defendant, which fact stood proved by producing oral as well as documentary evidence at the trial, but the learned trial court passed the impugned preliminary judgment and decree while misinterpreting and twisting the evidence on the record; that there was no occasion for the learned trial court to disbelieve the agreement dated 27.7.1992, which was produced by the appellant/defendant on the record of the suit file and the learned trial court also failed to consider other documentary evidence available on file and that the instant appeal is liable to be accepted and while setting aside the impugned preliminary judgment and decree, the suit filed by the plaintiffs/respondents be dismissed.
7. Conversely, the learned counsel for the respondents/plaintiffs has supported the impugned preliminary judgment and decree and prayed for dismissal of the instant appeal.
8. We have heard the arguments addressed by learned counsel for the parties and perused the record.
9. The issue No.1 is pivotal which requires redetermination by us. It is an admitted fact that Malik Muhammad Amin was the predecessor-in-interest of the parties, who expired on 8.6.1993 and till his last breath he had been running the business of Timber at the disputed plot No.79/80, New Timber Market, Ravi Road, Lahore, which was allotted to Messrs Malik Sajjad and Co. By Lahore Improvement Trust vide title document dated 3.5.1962 Exh.P10.
10. Mst. Shagufta Mazhar, one of the plaintiffs/respondents appeared as PW2 before the learned trial court and deposed that the father of the parties started business on the disputed property in the year 1962 and the said plot was duly transferred in favour of above referred company through Malik Muhammad Amin vide sale deed Exh.P11, which was attested on 15.4.1976 and till that time the defendant/appellant was not a sharer in the company to which the said property was transferred rather defendant/appellant came into picture on 24.7.1976, when a partnership deed was registered before the Registrar of Firms. The copy of partnership deed is available on file and its certificate of registration is also tendered as Exh.P14. PW2 further stated in her examination-in-chief that the appellant/defendant had only invested Rs.5,000/- in the running business of father of the parties and remaining Rs.45,000/- were invested by the latter. The said PW-2 while bringing on record various documents pertaining to partnership firm also deposed that Malik Muhammad Amin deceased was sole owner of the disputed property and after his death the rental consideration was started to be collected from the tenants by the appellant, who deprived the plaintiffs/ respondents from the fruit and income of the disputed property, but when the pressure was built up on appellant/ defendant, he started to pay profit to the other legal heirs from the partnership business and rental income of the disputed property through money orders. The receipts of money orders have been brought on record ranging from Exh.P16 to P94. Thereafter the appellant/ defendant did not pay any share of profit from the business as well rental consideration received by him from the disputed property and the plaintiffs/ respondents were constrained to file the said suit.
11. The deposition of PW2 was further corroborated by Mazhar Yazdani PW1 and Mst. Shaista Ijaz PW5. The plaintiffs also produced Anwar ul Haq PW3, an employee of Income Tax Department, who produced income tax returns as well as assessment orders on file. The plaintiffs also produced Nazir Shahzad, Senior Clerk, Office of Director Estate Management, LDA (PW4) and Shakeel Ahmad, Senior Assistant Incharge, Registrar Office (PW6) to prove their stance.
12. To rebut the said evidence appellant himself appeared as DW1 and claimed him to be sole proprietor of the business and that an agreement had been executed by deceased father of the parties on 27.7.1992 and vide said agreement late father of the parties distributed his entire properties amongst his surviving legal heirs. Rana Mubarak, Property Dealer produced by the appellant as DW2 deposed that he was very close to late Malik Muhammad Amin, predecessor-in- interest of the parties, who had purchased stamp paper from him for transfer of disputed property.
He further deposed that Malik Muhammad Amin in his presence had distributed the properties amongst his legal heirs. The appellant/defendant further produced Iftikhar Rasool DW3, who also deposed that in his presence Malik Muhammad Amin had distributed all the properties amongst his legal heirs.
13. From the scanning of above referred evidence brought on the file by the parties, it is established and proved on the record that disputed property bearing No.79/80, New Timber Market, Ravi Road, Lahore had been transferred to Messrs Malik Sajjad and Co through Malik Muhamamd Amin deceased on 3.5.1962 vide agreement for sale by Lahore Improvement Trust and the said property was finally transferred to the said company through Messrs Malik Muhammad Amin sole proprietor vide sale deed Nd.13812 dated 15.4.1976 Exh.P11 and till that time the appellant/defendant was not a partner in the said firm rather Malik Muhammad Amin late remained as sole proprietor of Malik Sajjad and Co. The partnership deed available on the file whereby the appellant/ defendant claimed to be inducted in the above referred business was executed on 1.7.1976 whereas from the perusal of the registration certificate (Exh.P14) it is vivid that the said partnership dated 1.7.1976 was got registered for the first time from the Registrar of Firm on 24.7.1976. A bare perusal of the above referred documents leads to reveal that the disputed property where the business was being run was exclusively owned by the predecessor-ininterest of the parties and appellant/ defendant was inducted in the business only after the transfer of the disputed property in favour of predecessor- in-interest of the parties. So the stance of the appellant/defendant that the disputed property was owned by company in which he was also 'a partner is without any force and proof. Even today during the course of arguments, the learned counsel for the appellant has remained unable. To satisfy 'this court by referring any oral as well as documentary evidence that at the time of execution of sale agreement as well as sale deed the appellant/defendant was a partner of the said company. The above referred sale agreement Exh.P10 as well as sale deed Exh.P11, which are also admitted registered documents have attained the status of more than "thirty years old documents" and a perusal thereof clearly reflects that Malik Sajjad and Co was in the sole proprietorship of Malik Muhammad Amin. The name of the appellant is not being reflected as a partner in the said authentic documents and appellant remained failed to rebut the said documents, which attained strong presumption of truth.
14. The contention of the learned counsel for the appellant that disputed property was distributed by late father in favour of appellant/defendant through the family settlement vide agreement dated 27.7.1992 is also without any substance. No doubt a photocopy of the said agreement is available on the file, but a perusal thereof reveals that the same was neither attested by any marginal witness nor the original document was brought on file through the statement of any witness and mere presentation of a photocopy of a document on file does not mean that it was duly proved as per law. The contention of the learned counsel for the appellant/ defendant that the court can take judicial notice of any document available on file is also without any force as a private document has to be proved by producing its marginal witnesses as well as scribe, but none of the said witnesses were brought on record by the appellant/defendant. The stance of the appellant/defendant that the property owned by the predecessor-in-interest of the parties had been distributed by him amongst the legal heirs through a family settlement was based on agreement dated 27.7.1992, which was neither proved ' as per law nor did the appellant/defendant depose anything regarding the said agreement in his examination-in-chief. The above referred agreement was allegedly executed on 27.7.1992 by the predecessor of the parties, who died on 8.6.1993, but during the span of about one year in the life time of the owner of the disputed property after the execution of the alleged agreement, the appellant/defendant did not try to get transferred the 'same in his favour and even after the death of late Malik Muhammad Amin the appellant/defendant did not file any suit on the basis of said agreement claiming such declaration or title in the disputed property.
15. The crux of the above discussion is that disputed property bearing No.79/80, New Timber Market Lahore was solely owned by late Malik Muhammad Amin whereas the appellant/defendant had no nexus with the title thereof and the partnership business of Messrs Malik Sajjad and Co. After its registration was started running by father of the parties as well as appellant/defendant, but the said partnership terminated at the death of predecessor-in-interest of the parties. The learned trial court has rightly answered issue No.1 in favour of respondents/ plaintiffs and against the appellant/ defendant.
16. The contention of the learned counsel for the appellant/defendant that suit was barred by time and the learned trial court wrongly answered issue No.5 through imputed judgment is also misconceived. The plaintiffs/respondents fully proved the stance that they being legal heirs were sharers in the business as well as the disputed property and entitled for the declaration sought in their suit that they were owners thereof as per their legal share of inheritance. There is a series of judgments rendered by the superior courts that the question of limitation does not arise in such like cases of inheritance as on the death of the principal all his legal heirs are deemed to step into his shoes as owners of the legacy left by him according to their respective shares drawn by the Shariah and they cannot be deprived of their legal rights/share on any score unless it is proved that they themselves relinquished the same and there is no iota of evidence led by the appellant/defendant regarding this fact or to prove the alleged family settlement about distribution of the properties left by the predecessor of the parties through the aforesaid agreement. The learned trial court also answered the said issue against the appellant-defendant and we are in full agreement with the findings rendered by the learned trial court in this regard. The findings on rest of the issues have not been pressed by the learned counsel for the appellant- defendant during the course of arguments and the findings of the learned trial court on these issues are also not liable to any exception by this court, which are maintained.
17. Consequently, the instant appeal having no force is dismissed with costs.
18. Before parting with this judgment we are constrained to observe with heavy heart that still the tendency, which was derived from the Hinduism, who used to give the share of females in the shape of dowry at the time of their marriage, while living in the subcontinent jointly for hundreds of years, is still going in our society in this modern era even 68 years after the creation of this country purely on the name of Islam that the male heirs are not ready to give the share of inheritance to the other female heirs by playing fraud and all other tactics in spite of that these shares have been fixed by our Creator in the Holy Quran and Sunnah of the Prophet, which are to be distributed amongst the legal heirs as successors only without there being any effort of them that they were born in the family whose head had left the legacy to be inherited by them. It is also pertinent to note that keeping in view the dominant position of a males, the share of a son has been doubled as compared to the daughter and the Quranic injunctions have to be followed by the followers and also to be applied by the courts as well as the legislators. It is also painful for us to note that the female legal heirs are often constrained to take help of the law by filing the suits in the courts and then they have to wait for years and years even upto the revel of the apex court to get the fruit of their legal shares in the inheritance due to our legal system as the courts are already over burdened and such like cases of real controversy and hardship are also intermingled with the other cases of general nature. Alike, in the present case the respondents/plaintiffs being real sisters of the defendant-appellant had filed a suit on 31.7.1999 before the learned Civil Court for receiving their share in the business as well as properties left by their deceased father, but the relief could not be granted to them despite elapse of fifteen years as firstly the learned trial court took almost twelve years to pass the impugned judgment and decree and thereafter the instant appeal is pending before this Court. The delay in dispensation of justice has really damaged the repute of our legal system and such like tendency has to be condemned. We are also mindful of the famous principle that justice hurried is justice buried but at the same time we also cannot ignore the other principle that justice delayed is justice denied and in such like case of real hardship as observed supra the courts are required to take special care and spare extra time for speedy disposal of such like cases so that the female legal heirs and in some cases main legal heirs as well may be able to obtain justice and derive fruit of their share in their life. As such we can firstly expect from the learned trial Courts that such like cases involving inheritance matters will finally be decided expeditiously as early as possible while proceeding with the trial. The Registrar of this court is directed to ensure that a copy of this judgment be circulated to the subordinate judiciary through all the District Judges in the Punjab for compliance and a progress report about the number of pending and decided cases of such nature will also be procured on quarterly basis. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.