ROOH-UL-AMIN KHAN, J.--- Impugned herein is the judgment dated 16.10.2014, passed by learned Civil Judge-VII, and judgment dated 11.04.2016, passed by learned Additional District Judge-HI, Nowshera, whereby a decree of declaration and permanent injunction has been concurrently passed in favour of the respondents-plaintiffs.
2. The bone of contention in this case is the legacy of Mir Aslam Khan (late), whose inheritance mutations # 3323 and 2881 dated 24.01.1924, as well as mutation No.5757 dated 03.01.1924, have been attested in the names of predecessors of petitioners (defendants Nos.1 to 35). The respondents-plaintiffs claiming themselves to be the LRs of Mst. Hussan Jamala (daughter) and Mst. Atar Dana (widow) of Mir Aslam Khan (late), brought a suit against the defendants-petitioners for declaration, permanent injunction and possession through partition alleging therein that like defendants Nos. 1 to 35, they being the LRs of Mst. Hussan Jamala and Atar Dana, were entitled to their Shari shares in the legacy late Mir Aslam Khan, but his inheritance mutations mentioned above, were attested in favour of the predecessors of defendants Nos.1 to 35 in collusion with the revenue officials depriving them from their legal right/shari shares, hence, sought rectification of the revenue record to the extent of inclusion of their names amongst other LRs of late Mir Aslam Khan and also prayed for decree of permanent injunction and possession through partition of the suit property/legacy of late Mir Aslam Khan, fully described in the preamble of the plaint. They further claimed that subsequent mutations/transactions after the attestation of inheritance mutations of late Mir Aslam Khan by the petitioners-defendants, would also be ineffective upon their rights. The moment, the respondents-plaintiffs came to know about the wrong entries in the revenue record, they filed the instant suit.
3. The suit was contested by the petitioners-defendants by filing written statements, raising therein variety of objections legal as well as factual. However, the relationship of Mst. Hussan Jamala and Mst. Atar Dana as (daughter) and (widow), respectively, of late Mir Aslam Khan, has not been specifically denied therein. From the divergent pleadings of the parties, the required issues were framed by the learned trial Court, in support whereof, the parties adduced their respective evidence. On conclusion of trial, the learned trial Court, partially decreed the suit of the respondents-plaintiffs to the extent of declaration and permanent injunction, however, dismissed their prayer with regard to possession through partition vide judgment dated 16.10.2014. Aggrieved from the same, the petitioners-defendants preferred an appeal before the learned Appeal Court, but the same was dismissed vide judgment dated 11.04.2016, hence, this revision petition.
4. I have heard the exhaustive arguments of learned counsel for the parties and perused the record with their able assistance.
5. The argument of learned counsel for the petitioners-defendants that Mst. Atar Dana and Mst.
Hussan Jamal, were not widow and daughter of Mir Aslam Khan (late), therefore, the respondents- plaintiffs has no concern whatsoever to receive any share in the legacy of Mir Aslam Khan (late), is misconceived because it appears from the record, particularly, the written statements of the petitioners-defendants that they have not denied the relationship of Mst. Hussan Jamala as (daughter) and Mst. Atar Dana as (widow) of late Mir Aslam Khan. Similarly, Ajmeer Khan, Attorney for the petitioners-defendants while appearing as DW.1 did not deny the relationship of the two ladies with late Mir Aslam Khan as his widow and daughter. In this view of the matter, the factum of relationship of the two ladies with Mir Aslam Khan (late), being admitted, need not to be proved.
The respondents-plaintiffs have also not denied the relationship of predecessors of defendants Nos.1 to 35, and admit that they were also the LRs of Mir Aslam Khan (late). The property disclosed by the respondents-plaintiffs in their plaint and devolved upon the petitioners through the disputed inheritance mutations is also not denied/rather admitted as the legacy of Mir Aslam Khan (late).
The only controversy in this case is that the petitioners are denying the shares of the respondents- plaintiffs in the legacy of Mir Aslam Khan (late) on the sole ground that the inheritance mutations of late Mir Aslam Khan had been attested in the year 1924 under the Customary law and under the said law, Mst. Hussan Jamala, being married in life time of her father and Mst. Atar Dana being customary widow, were not entitled to get any share in the succession/legacy of late Mir Aslam Khan.
6. Taking into consideration the stance of the petitioners-defendants, the following legal points require determination:-
(i) Whether the Khyber Pakhtunkhwa Muslim Personal Law (shariat) Application, Act, 1935 and Muslim Personal Law (Shariat) Application Act, 1962, would have retrospective effect, in pursuance whereof, the legacy of late Mir Aslam Khan, would be distributed amongst his legal heirs or it would be governed by the Customary law on the basis of which the questioned inheritance mutations have been attested in the year 1924?.
(ii) Whether the suit of the respondents-plaintiffs is hit by limitation? and
(iii) Whether the subsequent transfers/mutations by the petitioners-defendants, if any, after the attestation of inheritance mutations in their favour, would be protected under section 41 of the Transfer of Property Act. 1882?
7. To meet the first legal point, it would be beneficial to have a glance over the legislative history governing the matter of inheritance in this part of the country. Before promulgation of the NWFP/Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935, (to be referred hereinafter as the Act of 1935), the matters of inheritance of the Muslims were governed by the Customary Laws. Since, the customary laws on the subject of inheritance and succession were not only domineering and autocratic, but also in conflict with the Commands of the Holy Qur'an, which necessitated the promulgation of the Act of 1935. Under section 4 of the Act of 1935, the status of legal heirs at the time of demise of their propositus was restored with full vigor on the termination of limited interest of a female, holding the property as a limited owner, on the strength of customary law. Section 4(2) of the Act of 1935, leaves no room of any doubt in respect of the inheritance of a deceased person, that it would be governed in accordance with Islamic Law, as it obtained its position on the date of his death, in spite of the date of termination of limited interest.
Subsection (2) of section 3 of the Act of 1935, further clarifies that whenever a question of succession of a Muslim would arise in any court, it would be resolved in accordance with the provision of the Act of 1935, deeming it to be applicable at the time of such death. Bare reading of these sections reveal that both are complimentary as well as supplementary inter-se to give effect that the legacy of Muslims would be divided amongst his heirs according to Islamic Law, even though, he might have died prior to the promulgation of the Act of 1935. By virtue of proviso attached to section 4 of the Act A of 1935, the share of female limited owner, on occasion of termination of her limited interest, has been protected, as what she would have inherited in terms of Islamic Law (Shariat). To cope with the similar question of succession etc, the West Punjab Muslim Personal Law (Shariat) Application Act, 1948 (to be referred as the Act of 1948), was introduced and promulgated. In the year 1962, both the aforesaid Acts, i.e. the Act of 1935 and the Act of 1948, along with other law with regard to inheritance, were repealed by the promulgation of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and the same was made applicable to the entire country i.e. the then West Pakistan. In pursuance of declaration in judgment of the august Supreme Court in case titled, "Federation of Pakistan v. Muhammad Ishaq" (PLD 1983 SC 273), section 2-A was added by Punjab amendment. Albeit, the corresponding amendment was not introduced by the Government of Khyber Pakhtunkhwa, but declaration of Shariat Appellate Bench of the worthy Supreme Court of Pakistan, has taken effect on the date fixed and words "subject to the provision of any enactment for the time being in force" contemplated in section 2 of the Act (ibid) had ceased to exist. The Acts of 1935 and 1962, came under consideration before the Hon'ble apex Court time and again in cases titled, "Muzaffar Khan v. Mst. Roshan Jan and others"
(PLD 1984 SC 394), "Imsail and another v. Ghulam Qadir and others" (1990 SCM R 1667), "Habib Ullah Jan and 03 others v. Muhammad Hassan Khan and 06 others" (PLD 1991 Supreme Court 93). "Mst.
Farida and 2 others v. Rehmatullah and another" (PLD 1991 SC 213 and "Muhammad Anwar and 2 others v. Khuda Yar and 25 others" (2008 SCM R 905) wherein both were declared to have retrospective effect by holding that whenever dispute comes before the Court of law with regard to succession of the estate of deceased Muslim, he would be deemed to have died under the domain of Muslims Law, even if his death had taken place before coming into force of the Acts of 1935 and 1962.
8. In view of the above legal position, Mst. Hussan Jamala and Mst. Atar Dana, daughter and widow, respectively, of Mir Aslam Khan deceased, under the Act of 1935 and Act of 1962, are entitled to get their shares in the legacy of Mir Aslam Khan (late).
9. Adverting to the next legal point of limitation, both the ladies being legal heirs of late Mir Aslam Khan were entitled to their shares in the legacy of Mir Aslam Khan (late) and thus were co-sharer in the suit property. Their entitlement is not only recognized by the law of the land, but also by the divine law, therefore, the same cannot be extinguished by any mutation, most particularly, when their LRs are having exclusive possession of a considerable portion of land. It is settled law that any co-sharer sitting in possession of the joint property, shall be deemed as holding possession on behalf of all the co-owners and limitation would not run against the co-sharer. Similarly, every successive wrong entry in the revenue record gives a fresh cause of action. In cases. titled, "Ghulam Ali and 2 others v. Mst. Gulam Sarwar Naqvi"
(PLD 1990 SC 1), "Muhammad Qasim Khan and 06 others v. Mst. Mehbooba and 6 others" (1991 SCM R 515), and "Muhammad Anwar and 02 others v. Khuda Yar and 25 others" (2008 SCM R 905), it has been held by the Hon'ble apex Court that question of limitation would not arise in the matters of inheritance. Once it is held that limitation would not run in matters of inheritance, the duration of time elapsed, would become immaterial. It is also settled law that no wrong entry can be legitimized D with the efflux of time, howsoever, long it may be.
10. So far as the legal point that whether subsequent transfers would be protected under section 41 of the Transfer of Property Act, 1882 is concerned, no doubt, as is manifest from the revenue record available on file number of transactions have been struck through various mutations in the suit property, however, it appears from the judgment of the learned trial Court that learned counsel for the respondents-plaintiffs has categorically stated before the trial court that plaintiffs- respondents do not want to disturb the ownership of the transferees, therefore, only claim their shares in the remaining legacy of the late Mir Aslam Khan on the basis of entitlement of their predecessors, which is in possession of petitioners-defendants Nos. 1 to 35.
11. For what has been discussed above in light of the available evidence, law on the subject coupled with the guidelines given by the Hon'ble Supreme Court in the judgments (supra), the two courts below were justified in granting decree of declaration and permanent injunction in favour of the respondents-plaintiffs, to which no exception can be taken. Learned counsel for the petitioners failed to point out any illegality or irregularity much less any jurisdictional defect warranting interference by this Court in its revisional jurisdiction.
12. Accordingly, this petition being meritless is hereby dismissed.