JUDMENT WIQAR AHMAD, J. This order is directed to dispose of civil revision No. 391-M of 2019 filed by the petitioners under section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC" ) for setting aside judgment and order dated 29.03.2019 of the Court of learned Additional District Judge Khwaza Khela Swat, whereby appeal filed by petitioners against judgment and order dated 14.11.201 8 of the learned Civil Judge-II Khwaza Khela was dismissed.
2. One Mst. Noor Jehan had filed a suit bearing No. 43/1 of 1999 and title "Mst. Noor Jehan v/s Islam-ud-Din and others" on 22.02.1999. Mst. Hajj Begum and Mst. Khaperai Bibi were defendants 4 & 8 in the said suit, wherein they had also filed their joint written statement. Mst. Noor Jehan had claimed the property to be legacy of her father namely Haji Saharney Khan deceased which fact was being denied by the brothers/contesting defendants in the suit, who are petitioners herein. Mst. Hajj Begum and Mst. Khaperai Bibi (respondents) had also been supporting their brothers (petitioners) in their joint written statement by stating therein that the property had not been the ownership of their father . The said suit was partially decreed vide judgment dated 24.02.2001 by the learned civil Court. Feeling aggrieved therefrom both the parties filed their separate appeals before the Court of learned District Judge Swat, which were dismissed vide judgment dated 10.04.2003. This Court while giving its judgment dated 26.06.2012 in civil revisions No. 470 & 604 of 2003 decreed the suit in toto. It was held that the property was ownership of late Haji Saharney in his lifetime, in unequivocal words, and upon his death his legal heirs including the plaintif f of the case was declared to be entitled to her due share. The judgment of this Court was also upheld by the Hon'ble Apex Court vide its judgment dated 02.02.2016 in Civil Appeals No. 94-P of 2012 and 1445 of 2013 and the judgment and decree had attained finality .
3. An application for execution of the decree was filed later, on behalf of Mst. Hajj Begum and Mst. Khaperai Bibi, who were defendants No. 4 & 8 in the original suit. The petitioners filed objectio n to the said execution petition under section 47 of the Code contending therein that no decree had been passed in favour of the said ladies and in-fact they had themselves stated in their joint written statement that the property had not been owned by Haji Saharney deceased and therefore they could not claim any share in his legacy . They further asserted that the petitioners had also sold their share vide mutation No. 433 dated 24.07.2003 and therefore received their due entitlement in the property in dispute. The respondents filed their reply to the said objection petition wherein they rebutted its contents. The said objection petition was concurrently dismissed by the learned two Courts below .
Feeling aggrieved therefrom, the petitioners have invoked the revisional jurisdiction of this Court under section 115 CPC.
4. Learned counsel for petitioners submitted during the course of their arguments that no decree was existing in favour of respondents No. 1 & 2, therefo re their execution petition was not maintainable. They further added that respondents No. 1 & 2 were estopped by their own statement given in shape of a joint written statement earlier in the case.
5. Learned counsel for respondents submitted in rebuttal that respondents could not be deemed estopped from claiming their shares in the legacy of their propositus and relied in this respect on the judgments reported as 2013 PLJ 164, 2014 YLR 1 193 and 2017 MLD 1 180.
6. I have heard arguments of learned counsel for the parties and perused the record.
7. This Court in its earlier judgment dated 26.02.2012 passed in civil revisions No. 470 & 604 of 2003 had held about entitlement of the parties in Para 9 as follows; "In the present case, the petitioner and respondents No. 4 & 8 are the sisters of respondents No. 1 to 3. All of them are Pardanasheen ladies, who were given only 5 kanals 18 marlas, whereas respondents 1 and 2 were given 65 kanals 15 marlas. It is admitted fact that every fresh jamabandi creates fresh cause of action.
In this respect petitioner cannot be non-suited on the basis of limitation. Moreover , petitioner is an illiterate pardanasheen lady. Now it was the duty of the respondents being beneficiary of the mutations and deed should have proved the gift mutation/deed."
Para 1 1 of the said judgment is also relevant which is reproduced hereunder for ready reference; "Learned counsel for the respondents has raised objection that petitioner had not specifically challenged the inheritance mutations and deed, hence, the suit of petitioner is not maintainable. To meet the said objection, when plaint was perused. It transpired that though inheritance mutations are not specifically challenged but it is clearly mentioned that all sort of mutations and deeds shown executed by the late Sahrani Khan in shape of gift, exchange, sale mortgage etc are ineffective against the rights of petitioner .
Hence, the suit mutations are included in the said prayer mentioned in the plaint. Moreover , both the parties have produced the said mutations which were discussed by both the courts below and controversy resolved on the same mutations, hence it is held that the suit competent in its present form."
Petitions for leave to appeals were filed against the said judgement before the Hon'ble Apex Court wherein leave had been granted. The Hon'ble Supreme Court of Pakistan in its judgment dated 02.02.2016 while disposing of the appeals held as follows;
10. The learned Judge of the High Court was correct to disregard the three mutations and the said documents and the learned counsel for the appellants was unable to show any legal infirmity in the impugned judgment which may have persuaded us to take a dif ferent view .
11. We can also not lose sight of the fact that soon after executing the mutations and the said document the deceased departed to meet His Maker . A daughter/sister to claim her rightful inheritance was compelled to go to Court and suffered long years of agony . However , before the sister/respondent could get, what was rightfully hers, she too departed from this world. The heirs of Mst. Noor Jehan then joined these proceedings. A quarter of a century has elapsed since the death of Haji Sahraney . Such a state of affairs, to say the least, is most unfortunate. "
The effect of allowing the instant petition, and compelling respondents No. 1 & 2 to file a second suit for obtaining a decree before the execution, would amount to extending the agonies of the parties for further longer period of time, which would aggravate the state of affairs further , in the words of the Hon'ble Apex Court. The question is simple and have already been settled by this Court as well as the Hon'ble Apex Court leaving no scope for any doubt in the matter . The property had been declared the ownership of late Haji Saharney and after his death all the legal heirs including respondents No. 1 & 2 were entitled to their due shares according to Islamic Law of Inheritance.
This was the decree and for execution of which respondents No. 1 & 2 have filed the instant execution petition.
Applicability of the principles of estoppel or limitation in the cases of inheritance, have earlier been considered by the Hon'ble Supreme Court a number of times. The Hon'ble Apex Court in the case of "Ghulam Ali and 2 others Ws Mst. Ghulam Sarwar Naqvi" reported as "PLD 1990 Supreme Court 1" , held as follows; Two, even if all the conditions for a valid transfer under the existing set, and system of laws, after the due accrual of inheritance are satisfied, the protection afforded by Section 16 of the Contract Act against undue influence, to Parda Nashin ladies and others similarly placed parties and entrenched in the case-law as also available under the Islamic law already discussed, would require so many conditions to be satisfied.
Admittedly in such like cases the burden of proof is upon the alienee. The presumption exists regarding undue influence on prima facie satisfaction regarding inter se position of the parties and the state and status of the alienor . The discussion in this behalf in Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624) is instructive besides being valuable and useful. Had it been a case to be examined on that touchstone, the petitioners even then would have failed on account of undue influence, the presumptions regarding which in respondent's favour , have not been rebutted. This and other issues discussed and answered in this summ arization will, it is clarified, in no way detract from the findings on the touchstone of Islamic principles, including those of public policy and morality , which would remain the main ratio in the case.
Regarding the question of applicability of the bar of limitation, the Hon'ble Apex Court in the case of "Mahmood Shah v/s Syed Khalid Hussain Shah and others" reported as "2015 SCMR 869 " has observed as follows; The first argument questioning the judgments of the fora below as well as High Court is that the suit being hopelessly time barred is liable to be dismissed. This argument would have been viable otherwise but not in a case where co-heirs become co-owners in the property left by their propositus on his demise. Their succession to the property of their propositus becomes a fait accompli immediately after his demise. It, thus, does not need the intervention of any of the functionaries of the Revenue Department and remains as such irrespective of what Patwari, Girdawar and Revenue Officer enter in the mutation sanctioned in this behalf Since possession of one co-hei r or any number of them would be deemed to be on behalf of even those who are out of it, preparation of every new record of rights, in their case, would confer on them a fresh cause of action. No length of time, therefore, would culminate in the extinguishment of their proprietary or possessory rights.
The Hon'ble Supreme Court in the case of "Muhammad Zubair and others v/s Muhammad Sharif" reported as "2005 SCMR 1217 " had also held that right of succession could not be defeated by the law of limitation or the principle of Res-judicata, as no law or judgment could override the law of Sharia which was held to be a superior law. The Hon'ble Apex Court in its judgme nt in the case of "Mst. Grana through legal heirs and others v/s Sahib Kamala Bibi and others" reported as "PLD 2014 S.C. 167' had however , taken a different view and distinguished the judgment of "Ghulam Ali Supra in its application to the said case. It is important however that the facts of the said case were different from the present one and the judgment of Ghulam Ali had not been revisited. The Hon'ble Apex Court while distinguishing the case of Ghulam Ali had observed in Para 5 of its judgment as follows; 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 plaintif f had questioned alienation of property by her sister and mother . The defendants are not legal heirs of Mahmood, father of the plaintif f; but were transferees of the property . Finally the plaintif f had not challenged any inheritance but gifts and sale mutations. It is not the case of plaintif fs that the defendants were holding the property as co-sharers. plaintif fs that the defendants were holding the property as co-sharers.
The present case requires application of the ratio of Ghulam Ali's case for the reason that dispute in the case in hand had been between brothers and sisters, all of whom had been inheriting the property from a common predecessor/their father namely Haji Saharney deceased. The said facts as well as the respective entitlement of the parties have already been declared by this Court as well as the Hon'ble Apex Court in its judgments given in the earlier round of litigation, and there remains no doubt regarding the existence of relationship with the propositus or the question of entitlement. It had also been inter alia laid down in the case of Ghulam Ali Supra that the recognition and enforcement of the law of inheritance by the State agencies including the Courts, viz-a-viz, the female heirs, was a matter of public policy in Islam.
8. The contention of the learned counsel for petitioners that respondents No. 1 & 2 had not been decree holders of the case and could not bring an execution petition, is not well-placed.
Order 21 Rule 10 CPC provides for filing of an application for execution which read as follows;
10. Application for execution . Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof"
"Decree holder" has been defined in sub-section 3 of section 2 of CPC as follows; "Decree-holder" means any person is whose favour decree has been passed or an order of execution has been made.
"Decree" has also been defined in sub-section 2 of section 2 of CPC as follows; "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint [the determination of any question within section 144, and an order , or rule 60, 98,99,101 or 103 of Order XXI] but shall not include.
(a) ................
(b) ...............
Explanation ................
Decree has been defined as the formal expression of adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit, so far as regards the Court expressing it.
This is actual definition of decree which has been given in the first part of section reproduced above. In the second part certain orders which do not fulfill the definition of decree, have however been included in the definition by introducing a deeming clause therein. Decree actually connotes the conclusive determination of rights of the parties with regard to all or any of the matters in controversy in the suit. The word "parties" have been used rather than plaintif f or plaintif fs. It clearly means that a decree may determine the rights of the plaintif fs or the defendants.
When the decree determines certain rights to which the defendant or defendants are held entitled, then in such a case the defendants would also be included in the definition of "decree holder" or "holder of a decree" . The words "holder of a decree" or "decree holder" cannot therefore be restrained to the persons who have stood on the panel of plaintif fs during proceedings of the case. Such a narrow interpretation would compel repetition of adjudication in Courts of law and parties would be litigatin g for declaration of such rights which are already settled and declared by the Courts. Neither the Courts nor the parties in this busy age of today can afford the luxury of successive rounds of litigation for settling and re-settling the already declared rights. When the Courts once declares some right after a due process and finds it enforceable and such a decision gets finality then all the people entitled under such a decree would be entitled to fall in the definition of "holder of a decree" for the purpose of filing an application under Order 21 Rule 10 CPC, regardless of the fact whether they stood on the panel of plaintif fs or on the panel of defendants. The "holder of a decree" would mean a person who is entitled to enforcement of a right under a decree. In the case of "Chunilal Jamnadasv/s Mulchand Harijivandas" reported as "AIR 1923 Bombay 23 (2)", the Hon'ble Bombay High Court had dealt with the case of a defendant seeking to continue the execution proceedings, as follows; "The result would be that those defendants who wished to continue the execution proceedings could not do so without having to issue a fresh darkhast. We see no reason why the defendants should not have been allowed to continue the darkhast in order that the suit property might be partitioned. Therefore we allow the appeal and direct the darkhast to continue at the instance of the defendant. The plaintif f to pay the appellant's cost in both Courts."
Similarly , in the case of "Swaminatha Mudaliar v/s Kumaraswami Chettiar and others" reported as "AIR 1923 Madras 472 (2)" , the Hon'ble Madras High Court had held as follows; "O. 1, R. 8 expressly permit any person on whose behalf a representative suit is instituted to apply to the Court to be brought on the record, and the words of this rule are not limited, as they are by 0.1, R. 10 by the purpose being expressed as that of adjudication on the questions arising in the suit. In Prayag Dossji Varu Mahant v. Tirumala Sri Rangacharlavaru (7), which was a scheme suit, it was held that persons interested might enforce in execution the directions in the scheme."
9. Even otherwise it is a well settled proposition of law, as held by the Hon'ble Apex Court in its judgment reported as "2010 SCMR 973" , that the principal object of legal formality and procedural provisions was to safeguard the interest of justice and the procedural provisions, unless insurmountable, should not be allowed to defeat the ends of justice. The long list of judgments on the said proposition includes the judgments reported as PLD 1973 S.C.
418, 1995 SCMR 435 , PLD 1986 S.C. 150 , 2005 SCMR 1 144, 2010 SCMR 973 and AIR 1941 Calcutta 670.
10. The objection to the execution petition is therefore not found to be well placed except to the extent where they have alleged that the petitioners (respon dents No. 1 & 2 herein) had sold a part of the property which they had received as legacy of Haji Saharney deceased through mutation No. 433 dated 24.07.2003. This would however , require determination whether respondents No. 1 & 2 have already received any part of the legacy of their propositus Haji Saharney and if yes to what extent. This fact may competently be determined by the executing Court during the process of execution. The executing Court is even otherwise supposed to give the decree-holders their outstanding part only. In the process of execution, the learned executing Court shall determine as to how much was the respective share of each of the successor according to Islamic Law of Inheritance and shall then also see as to whether any of the legal heirs have received or sold any part of his property and if the answer was found yes, then same shall proportionatel y be deducted from his due share. If any property is found outstanding in the respective share of respondents, then the executing Court shall carry execution to the said effect. For the said determination, the executing Court shall record evidence and shall thereafter determine as to whether respondents No. 1 & 2 have received their due share in the legacy of their propositus namely Haji Saharney and then proceed further in the matter according to law. The other objections of the objectors/petitioners were however found to be totally devoid of merits. The revision petition in hand is disposed of accordingly .
C.M. No. 1464-M/2019 Through the instant C.M, the petitioners are seeking impleadment of legal heirs of Mst. Noor Jehan, who had been plaintif f in the original suit. They are proforma parties in the instant proceedings but for completion of the record the instant CM is accepted and they are allowed to be impleaded on the panel of respondents in the petition as proforma parties.