Dr. Khurshid Inbal, J.
1. Mst. Taj Baro, the plaintiff/predecessor of the petitioner, brought a civil suit against the respondents/ defendants for declaration to the effect that she, alongwith defendants No. 6 to 18, being descendents of Shah Sanam, are owners in possession of their respective shari shares in his legacy/disputed property, fully mentioned in the head-note of the plaint and that the inheritance mutations bearing Nos. 6365 and 6378, both attested on 27.07.2011 in favour of the respondents/defendants No. 1 to 3, to the extent of their shari shares, are illegal, ineffective upon their rights and liable to be cancelled. She also prayed for perpetual injunction as well as possession of her shari share in the disputed property, in the alternative.
2. The respondents/defendants No. 1 to 5, 19 and 20 submitted their separate written statements, whereas the respondents/defendants No. 6 to 17 submitted a cognovit. From divergent pleadings of the parties, the learned trial Court framed as many as 15 issues. Both the parties recorded their respective evidence. After hearing arguments of learned counsel for the parties, the learned trial Judge decreed the suit of the plaintiff; Mst. Taj Baro, vide judgment and decree dated 30.05.2014.
The respondents/defendants No. 1 to 3 challenged the aforesaid judgment through an appeal before the learned appellate Court. Upon their application, the appeal was disposed of vide order dated 09.04.2015, and the case was remanded back to the learned trial Court with the direction to afford an opportunity to both the parties to record additional evidence.
3. After remand of the case, the plaintiff did not produce any evidence. However, the respondents/ defendants No. 1 to 3 produced three witnesses (RDWs-1 to 3) as additional evidence. The learned trial Judge, after hearing arguments of the parties, dismissed the suit of the petitioner, (legal heir of Mst. Taj Baro), vide judgment and decree dated 24.11.2015. Appeal filed against the aforesaid judgment and decree also met the same fate.
4. Through the instant Revision Petition, the petitioner has challenged the aforesaid judgments and decrees of the learned Courts below.
5. I have heard arguments of learned counsel for the parties and perused the record.
6. The case of the petitioner is that he is the legal heir of Mst. Taj Baro, who was the daughter of Mst.
Mastoora and granddaughter of one Shah Sanam. It is an admitted fact between the parties that the aforesaid Shah Sanam had a son by the name Mian Hussain and a daughter Mst. Mastoora.
The legal heirs of Mian Hussain are the respondents/defendants No. 1 to 3 herein. The relationship of Mst. Mastoora is also an admitted fact. The respondents/defendants, however, denied from the rights of the petitioner/ plaintiff on the ground that: firstly, Mst. Mastoora had passed away during the lifetime of her father; secondly, the disputed property was gifted by Shah Sanam to Mian Hussain, his son; and thirdly, Mian Hussain, the predecessor of the respondents/defendants No. 1 to 3, has purchased the suit property.
7. It was the burden of the respondents/ defendants No. 1 to 3 to prove their aforesaid three contentions. They cross-examined the oral witnesses of the petitioner/plaintiff, such as, Amir Zeb (PW-4/ attorney of the plaintiff, Mst. Taj Baro), Fazal Rahman (PW-5) and Muhammad Khan (PW- 6), but nothing substantial was brought from them in support of their contentions. PW-4 has deposed that he has not seen Mst. Mastoora nor does he know as to when she has passed away.
He has further stated that his mother Mst. Taj Baro had told him that Mst. Mastoora had passed away some 44/45 years ago. His statement further shows that Mst. Mastoora was older than Mian Hussain. However, he could not show her exact age. He has denied a suggestion that Mst. Mastoora has passed away long ago and that she is not amongst the legal heirs of Shah Sanam. He has also denied a specific suggestion to the effect that Mst. Mastoora has passed away during the lifetime of her father Shah Sanam and that is why the suit was not filed earlier. The statement of PW-5 shows that Mst. Mastoora was elder than Mian Hussain. He has also denied a suggestion that Mst.
Mastoora has passed away in the lifetime of her father. Muhammad Khan (PW-6) has also denied a similar suggestion. It is thus abundantly clear that the respondents/defendants No. I to 3 failed to elicit anything worthwhile in their favour. One specific question, however, was asked to the effect that Mst. Mastoora never demanded her share in the legacy of her father during her lifetime.
8. The respondents/defendants No. I to 3 produced five witnesses in their support. DW-1 is the statement of Mst. Shamrozai, widow of Mian Hussain. Her cross-examination is worth perusal, in which she has deposed that she had seen Shah Sanam, who passed away at the time when she was engaged to his son Mian Hussain. She has stated that she has never seen Mst. Mastoora. When asked about the relationship, she expressed her lack of knowledge whether Mst. Mastoora was the daughter of Shah Sanam or not. The reason she herself advanced was that she had never seen her. She has further expressed her lack of knowledge as to how many sisters Mian Hussain, her husband, had. She has also expressed her lack of knowledge that Mst. Mastoora had married with Ghulam Nabi and Mst. Taj Baro, mother of the petitioner, was her daughter. Rather, she has stated on her own that Mian Hussain had transferred his property in their names. She has further deposed that the disputed property was purchased by Mian Hussain on the basis of sale deeds. When further asked as from whom Mian Hussain has purchased it, she stated that they were the Moulvies of village Totalai. When further cross-examined specifically in respect of the sellers, the sale consideration and the witnesses of the sale, she badly failed to furnish plausible answers. Rather, she stated that she cannot recollect as in whose presence and at what sale consideration, Mian Hussain had purchased the land. She has admitted that she has not annexed copies of the sale deeds in support of her contention. At one place in her cross-examination, she disclosed the names of the vendors as Afsar Said, Ghulam Said, Hazrat Said, Umar Said and Muhammad Yousaf and stated that all these persons have passed away. However, she deposed that none of their legal heirs have been brought as witnesses of the sale. She was also asked about the partition of the purchased land but she failed to furnish an answer. She went as far as to express her lack of knowledge as to who are the children of Mst. Taj Baro and how many children Shah Sanam had got. Regarding gift, she deposed that she cannot produce any witness in whose presence Shah Sanam had gifted the suit property to her husband Mian Hussain. She has denied a suggestion that Mst. Mastoora was the real daughter of Shah Sanam.
9. The statement of DW-2, Shafiullah, shows that he had never seen Shah Sanam; that he has heard from people that Shah Sanam had two daughters; that he was not the witness of purchase of the land by Mian Hussain and stated that the people of Totalai village said that Mian Hussain had purchased the land. He has denied a suggestion that the entire property of Shah Sanam was given to Mian Hussain and Mst. Mastoora. He has also denied a suggestion that mother of the petitioner was a legal and shari sharer in the legacy of Mst. Mastoora. He was not a witness of the gift alleged by Mian Hussain in his favour. He has made a very important suggestion to the effect that during the days of the Wall of Swat, women were not to be given their due shari shares in the legacy of their fathers and that is why during the settlement women were excluded. He has, however, denied a suggestion that Mst. Mastoora was deliberately excluded from the pedigree- table of Shah Sanam that was prepared during the settlement. One Zarin Khan was examined as DW-3. His cross-examination shows that he does not know the plaintiff, Mst. Taj Baro and that he had not seen Shah Sanam. He has stated of his own that according to the elders of the village, Mst.
Mastoora had passed away during the lifetime of her father Shah Sanam. He has further deposed that according to elders of the village, Mst. Mastoora might have been the daughter of Shah Sanam. He is not an eyewitness of the alleged gift. He has admitted that the entire property of Shah Sanam has been given to Mian Hussain. The next witness of the respondents/ defendants No. I to 3 was Said Arab Khan (DW-4). He has expressed his lack of knowledge whether Shah Salam had a daughter or not. He has also expressed his lack of knowledge that whether or not Mst. Mastoora was the daughter of Shah Sanam. When further pressed during the cross-examination, he deposed that he can neither admit nor deny that Mst. Taj Bajo was the daughter of Mst. Mastoora. He has also got no knowledge of the fact that Mian Hussain has purchased some property. He has denied a suggestion that Mst. Mastoora was the daughter of Shah Sanam. He has also denied a suggestion that according to Shariah law, Mst. Mastoora was entitled to her shari share in the legacy of her father. One Zaman Khan was produced as DW-5. He also does not know whether Mian Hussain had a sister or not. He has answered in negative that Mst. Taj Baro, mother of the petitioner, had sold some land to him, rather, he has explained of his own that he does not know Mst. Taj Baro. Another witness Amir Ghulam (DW-6) had deposed that he had purchased land from Mian Hussain and has not purchased land from Mst. Taj Baro. He also does not know Mst. Taj Baro.
Another witness Zar Wali Said was examined as DW-6. His statement shows that he has purchased land from Mian Hussain and that he has not seen Shah Sanam. He could not recollect that Mst.
Mastoora and Shah Sanan have passed away during his memory. He has deposed of his own that he has heard from his father that Mst. Mastoora was the daughter of Shah Sanam and she had died during his lifetime.
10. From the above evidence, it can be safely concluded that the respondents/defendants No. 1 to 3 have failed to prove all their three contentions. Although a specific question was asked that Mst.
Mastoora never demanded her shari share in the legacy of her father during her lifetime. It appears that the respondents/defendants No. 1 to 3 want to prove acquiescence on their part. It is worth observed here that firstly, acquiescence is not their defence. Moreover, acquiescence is not a ground for depriving a woman from her shari share in the legacy of her father. In inheritance cases, the august Supreme Court has shown an immense displeasure and dismay over the conduct of male heir, who are regularly excluding the female heirs from their respective shares in the estate of their common predecessor. Reference may be made to the case of Mst. Parveen (deceased) through LRs vs. Muhammad Pervaiz and others reported as 2022 SCMR 64, wherein the Hon'ble Court observed: "We may once again state that we are dismayed to observe the all too frequent practice in Pakistan of male heirs resorting to fraud and other tactics to deprive female heirs from their inheritance. While this deprivation causes suffering to those deprived, it also unnecessarily taxes the judicial system of the country, resulting in a needless waste of resources. Each and every day that a male heir deprives a female heir is also an abomination because it contravenes what has been ordained by Almighty Allah."
11. The relationship being admitted and the respondents/defendants No. 1 to 3 having been failed to prove that Mst. Mastoora died during the lifetime of her father and that acquiescence is no justification for depriving Mst. Mastoora from her shari share, the findings of both the learned Courts below on the question of limitation and acquiescence are misconstrued and are the result of misreading and non-reading of the evidence on the record. The learned Courts below relied on the copies of the record of rights produced by the Patwari Halqa in his statement, which show Mian Hussain as owner in possession of the disputed land. Of course, it is true inasmuch as Mst.
Mastoora was not mentioned in the pedigree/table during the settlement. Indeed, the story regarding the entitlement of Mst. Mastoora shall not have ended there. It should have been properly explored during the settlement that Mst. Mastoora being the daughter of Shah Sanam was his daughter and should have been mentioned in his pedigree-table. Similarly, both the Courts below have also to palpably appraise the evidence by holding that Mian Hussain has sold sufficient property. Mian Hussain was not the sole owner of the land devolved on him from his father Shah Sanam. He was not entitled to sell it. Moreover, the learned trial Court has also wrongly applied acquiescence, which does not operate against any shari sharer under the law of inheritance. The learned appellate Court has also fallen to the same error by considering that the petitioner had the burden to prove that Mst. Mastoora had not passed away during the lifetime of her father. It is plea of the respondents/defendants No. 1 to 3 in their written statement. So, it was their burden, and not of the petitioner/plaintiff to prove it. The learned appellate Court has also wrongly concurred with the learned trial Court by applying acquiescence and estoppel against the petitioner/plaintiff.
12. It is now a settled law that in the case of inheritance, limitation, estoppel and acquiescence shall not come in the way of a shari sharer. Even gifts and sale mutations, which is not a point in the case in hand, shall have no effect on the rights of a shari sharer. In a recent case titled as Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her LRs and others (2021 SCMR 73), the august Supreme Court has commented on this deplorable situation in the following words: "Mst. Munir Sultan died before she could enjoy what she had inherited from her father and now it is her legal heirs who are arrayed before us as respondents. Cases like the present one in which female heirs of a family are deprived of their legal inheritance come up before us far too frequently. Recently in the case of Farhan Aslam v Mst. Nuzba Shaheen (Civil Petition No. 4459/2018), this Court held: 5... Violating the law of inheritance, which in the case of Muslims is the shariab, and exploiting the most vulnerable members of society is wholly unacceptable. An heir inherits property to the extent of his/her share the very moment his/her predecessor passes away. But, the petitioners have audaciously managed to deprive the respondents of their inheritance from Mansab Khan.
6. Almighty Allah commands: 'Let those (disposing of an estate) have the same fear in their minds as they would have for their own if they had left a helpless family behind; Let them fear Allah, and speak words of appropriate (comfort).'
'Those who unjustly eat up the property of orphans, eat up a fire into their own bodies: They will soon be enduring a Blazing Fire.'
(Respectively verses 9 and 10 of surah An Nisa (4), translated by Abdullah Yusuf Ali, 'The Holy Qur'an, Translation and Commentary'.)
7. In the present case a widow and an orphan ('yatama' in Arabic) were deprived of their inheritance for over sixteen years which must have been excruciatingly painful for them. The petitioners did not abide by the aforesaid verses and forgot what had been made incumbent: 'And come not nigh [near] to the orphan's property, except to improve it (Verse 152 of surah (6)
Al-Anam of the Holy Qur'an, translation by Abdullah Yusuf Ali, 'The Holy Qur'an Translation and Commentary'.)
If the petitioners had remembered that they too will face Ultimate Justice they may have acted better.
8. The Constitution of the Islamic Republic of Pakistan (the 'Constitution') safeguards property (including inherited property) under Article 24(1) of the Constitution and protection of women and children is guaranteed by Article 25(3) of the Constitution. The Constitution sets out the goals which the people of Pakistan have set out for themselves in the 'Principles of Policy', which include the protection of 'mother and the child' (Article 35) and require the 'promotion of social justice and eradication of social evils' (Article 37). Depriving a mother and her child from their inheritance does not protect them but preys on them. Such conduct is a prevalent social evil and inherently unjust. It is expected that the organ and authority of the State will act in accordance with the Principles of Policy as provided by Article 29(1) of the Constitution. Therefore, claims by orphans and widows alleging that they have been deprived of their inheritance must be expeditiously decided by the concerned organ and authority of the State, including the Courts."
In the above cited case, the Hon'ble Court has taken serious notice of purported gift mutations by male heirs to deprive female heirs and issued strict directions to the Revenue department to remain vigilant to such mutations.
13. There is judicial opinion that a revisional Court will not ordinarily interfere with the concurrent findings of the learned Courts below. However, where a revisional Court comes to the conclusion that material irregularity has been committed or the decisions passed by the learned Courts below suffer with jurisdictional defects, it can interfere. To shari share of a woman, interference of this Court in revisional jurisdiction is, thus, justified. Reliance is placed on the case tilted Government of Khyber Pakhtunkhwa through Secretary Elementary and Secondary Educations Peshawar and others vs. Latif Ullah Khan (2021 SCMR 829). In this case, the Hon'ble Apex Court has held: "It is essential to note that under section 115 of the Code of Civil Procedure (1908), the supervisory jurisdiction of the High Court in a civil revision petition is purely discretionary and rather limited.
However, this Court has held on many occasions that such discretion must be exercised in a lawful and valid manner on the basis of well entrenched principles of the exercise of such discretion. Therefore, the High Court shall not arbitrarily refuse to exercise its discretionary powers, rather, it must satisfy itself as to whether jurisdiction has been exercised properly and whether the proceedings of the subordinate Court suffer from any illegality or irregularity."
In Mandi Hassan alias Mehdi Hussain and another vs. Muhammad Arif (PLD 2015 Supreme Court 137), it was observed: "Before embarking upon to resolve the above proposition, we find it expedient, to briefly assess the nature of the jurisdiction of Courts in relation to civil revisions filed in terms of section 115 of the C.P.C. There can hardly be two opinions on the nature of revisional jurisdiction. It is a supervisory jurisdiction, which is vested in a higher forum (subject to the pecuniary jurisdiction of the case either the learned District Court or the learned High Court) and is exercised and/or is invoked for scrutiny if a 'case decided' by the Court subordinate to the higher Court's jurisdiction, suffers from any defect in terms of exercise of its jurisdiction and/or on the ground(s) that the Court subordinate has acted in exercise of such jurisdiction illegally and/or with material irregularity. On the basis of the law enunciated and settled by this Court, there is wee room for doubt that being a supervisory jurisdiction, the higher forum which is approached (i.e. the revisional court) is conferred with the power to ensure that the Court subordinate thereto (to the revisional Court) conforms to the parameters of its jurisdiction. In other words the revisional jurisdiction is meant to rectify; to obviate, forefend and stave off the exercise of jurisdictional errors/defects and the illegalities and/or material irregularity committed by the subordinate Court in that regard. But the "case decided" (order/ judgment assailed) has to squarely fall within the scope and the purview of section 115 of the C.P.C. It may however be categorically and unequivocally mentioned here, that approaching a higher Court in the revisional jurisdiction for the redressal of one's grievance, if the case is covered by section ibid (115, C.P.C.) is not a privilege, but is a valuable right of an aggrieved party. Obviously, such exercise of revisional jurisdiction shall be subject to the rules of discretion; but the matter of approaching the revisional Court cannot be relegated to a mere privilege of the Court and not a right."
14. In light of the above discussion, the instant revision petition is allowed. The impugned judgments and decrees of both the learned Courts below are set aside and a preliminary decree is passed in favour of the petitioner/plaintiff as prayed with costs.