ALI BAIG, C.J. Through the instant civil revision petition filed under section 115, C.P.C., the petitioners have called in question the validity and propriety of the impugned judgment/decree dated 23.11.2021 passed by the learned Addl. District Judge, Nagar in C.F.A No.34/2021, whereby the learned 1st Appellate Court has accepted the civil 1st appeal of the present respondent by setting aside the judgment/decree dated 08.06.2021 passed by the learned Civil Judge 1st Class Nagar in Civil Suit No.27/2017.
2. Succinctly the facts of the case leading to filing of the instant revision petition are that the present petitioners had filed a civil suit for declaration and possession of suit land fully described in the heading of plaint against the present respondent/defendant, in the Court of Civil Judge 1st Class Nagar claiming therein that mother of the petitioners and the present respondent are real brother and sister interse and both are legal heirs of late Muhammad Hanif alias Hanifo, who is maternal grandfather of the present petitioners. The present petitioners being real sons of late Mst.
Khadija are entitled to get 1/3rd share of their mother from the legacy of late Muhammad Hanif which has been fully described in the head note of the plaint, and the said suit property is in possession of the present respondent.
3. The present respondent being defendant in the suit contested the suit by way of tiling his written statement, wherein he has raised certain preliminary objections and has also repudiated the averments made in the plaint inter alia that the late Muhammad Hanif (father of the present respondent and Mst. Khadija) had gifted all his movable and immovable property to the present respondent in his life time, the suit of the petitioners/plaintiffs is time barred and the mother of the present petitioners had died during the life time of her father, as such the petitioners/plaintiffs are not entitled to get sharai share of their mother from the defendant/respondent.
4. Out of divergent pleadings of the parties, the learned trial Court framed as many as nine issues including the issue of relief besides framing of one additional issue. Thereafter, the learned trial Court recorded evidence of the parties in support of their respective claims and on conclusion of trial, the learned trial Court after hearing arguments on behalf of both the parties, has decreed the suit, vide judgment/decree dated 08.06.2021 in favour of the present petitioners/plaintiffs as under: "Plaintiffs are entitled for 1/3rd of suit property as shari share of their mother Mst. Khadija from legacy of Hanifoo (Maternal grand-father of plaintiffs). Defendant is directed to hand over shari share of mother of plaintiffs to them. Defendant shall pay compensatory cost of rupees twenty five thousands to plaintiffs for his false defence. Suit disposed off---".
5. Feeling aggrieved with the aforesaid judgment/decree of the learned trial Court, the present respondent/defendant had filed a civil first appeal in the Court of learned Additional District Judge Nagar. The learned 1st Appellate Court after hearing arguments on behalf of both the parties has accepted the civil first appeal of the present respondent/ defendant and set aside the judgment/decree of the learned trial, Court, vide the impugned judgment/decree dated 23.11.2021 passed in C.F.A No.34/2021.
6. Feeling aggrieved and dissatisfied with the impugned judgment/decree of the learned 1st Appellate Court, the petitioners/ plaintiffs have filed the instant civil revision petition before this Court.
7. The learned counsel for the petitioners/plaintiffs contended that the impugned judgment/decree passed by the learned 1st Appellate Court is against the law and facts on the record of the case, hence the same is not maintainable and is liable to be set aside. The learned counsel for the petitioners/plaintiffs further contended that the learned 1st Appellate Court has acted in a hurry and hasty manner while passing the impugned judgment/decree as such the impugned judgment/decree is not maintainable in the eye of law. The learned counsel for the petitioners/ plaintiffs further argued that the learned 1st Appellate Court has failed to appreciate the most important facts and issues involved in the case, hence the impugned judgment/decree is not maintainable and liable to be set aside. The learned counsel for the petitioners/plaintiffs further argued that the impugned judgment/decree is based on suppositions and conjectures, as such the same is not sustainable in the eye of law and is liable to be set aside. The learned counsel for the petitioners/plaintiffs further contended that the impugned judgment/decree is vague, perverse, absurd and based on misconception of law and facts as such the same is liable to be set aside. In support of his arguments, the learned counsel for the petitioners/plaintiffs have relied upon reported judgments of superior Courts reported as 2021 SCMR 179 [Supreme Court of Pakistan], 2020 SCMR 1618 [Supreme Court of Pakistan], 2016 SCMR 986 [Supreme Court of Pakistan], 2020 SCMR 346 [Supreme Court of Pakistan], PLD 2021 Supreme Court 812, 2020 SCMR 601 [Supreme Court of Pakistan], 2005 SCMR 135 [Supreme Court of Pakistan], PLD 2018 Lahore 813 [Multan Bench Multan], 2014 YLR 293 [Balochistan], PLD 2013 Lahore 464 and 1997 SCMR 281 [Supreme Court of Pakistan].
8. Conversely, the learned counsel for the respondent opposed the contentions of the learned counsel for the petitioners and supported the impugned judgment/decree passed by the learned 1st Appellate Court, by arguing that the late Muhammad Hand had gifted his entire property to the respondent in his life time, hence the learned trial Court has rightly accepted the civil first appeal of the respondent. The learned counsel for the respondent/defendant further contended that the present petitioners are grandsons of late Muhammad Hanif, thus they are not co-sharer, hence the impugned judgment/decree is result of correct appreciation of record, facts and law which need not any interference by this Court under its revisional jurisdiction. The learned counsel for the respondent/ defendant further argued that the gift deed is a valid document and presumption of truth is attached even to a private document of above 30 years old. The learned counsel for the respondent/defendant further contended that the civil suit of the petitioners/plaintiffs was hopelessly time barred, hence the learned 1st Appellate Court has rightly accepted the civil first appeal of the respondent by setting aside the judgment/decree of the trial Court.
9. I have considered the arguments advanced by the learned counsel for the parties and with their able assistance perused the record of the case.
10. It is the case of present petitioners/plaintiffs that they are being legal heirs of their late mother Mst. Khadija daughter of Muhammad Hanif alias Hanifo are entitled to get their sharai share out of legacy of their maternal grandfather namely Muhammad Hanif alias Hanifo.
11. The present respondent/defendant in his written statement has admitted the above said relationship of the present petitioners with their maternal grandfather namely Muhammad Hanif alias Hanifo. But the respondent/defendant in his written statement has asserted that his father namely Muhammad Hanif alias Hanifo has gifted his entire moveable and immovable properties to him during his life time and in this connection he has filed a gift deed written in Persian language Exh.D-1 along with written statement and has further asserted that mother of the present petitioners/plaintiffs has expired during life time of her father namely Muhammad Hanif, therefore, the petitioners /plaintiffs are not entitled to get their sharai share from the legacy of their maternal grandfather.
12. Admittedly, the present petitioners are sons of Mst. Khadija daughter of Hanifo, therefore, the present petitioners/plaintiffs had filed a suit for enforcing their right of inheritance being legal heirs of Mst. Khadija in the trial Court. The present respondent/defendant has not denied this fact in his written statement but has taken the aforesaid stance/plea in his written statement. In order to prove his version the respondent/defendant has mainly relied upon the gift deed Exh.D-1 which is written in Persian language. The said document is neither registered document nor marginal witnesses or scribe were produced in the trial Court to prove its authenticity and admissibility.
Moreover, the respondent/defendant has also failed to produce any oral or documentary evidence regarding necessary ingredients/conditions of a gift i.e. offer, acceptance and delivery of possession of property by donor to donee. Thus I am of the opinion that the respondent/defendant has failed to prove existence of a valid gift in his favour as the respondents has failed to establish the aforesaid mandatory ingredients/conditions of gift. Another ground taken by the defendant/respondent in his written statement is that since mother of the petitioners/plaintiffs has expired during life time of her father namely Muhammad Hanif, therefore, suit of the plaintiffs/petitioners is time barred, as such the plaintiffs are not entitled to get Sharai share of their mother from the legacy of their maternal grandfather Muhammad Hanif.
13. As the plaintiffs/petitioners in fact enforcing their right of inheritance being legal heirs of Mst.
Khadija (late) and is settled principle of law that there is no bar of limitation and estoppel in cases of inheritance. Moreover, it is observed that there is a common practice in Gilgit Baltistan (GB) to deprive female legal heir from their due share of property of their parents on one pretext or the other, which is against the laid down principle of inheritance and also against the injunctions of Islam. It is also held by the Superior Courts in many reported judgments that the cases which involves inheritance inter se among the legal heirs, the court should make efforts to ensure that no legal heir is derived from his/her sharai share in the legacy of the deceased concerned on technical ground.
14. The learned counsel for the respondent/defendant further contended that since the mother of the petitioners/plaintiffs Mst. Khadija has expired during life time of her father namely Hanifo, therefore, the petitioners/plaintiffs are not entitled to get sharai share of their mother from the defendant/respondent. But I do not agree with this contention of the learned counsel for the respondent/defendant as it is settled principle of law that children of predeceased daughter of the late full owner will inherit the same which the mother would have got as if she was alive at the time opening of succession. In this connection reference is made to the reported judgment of Hon'ble Supreme Court of Pakistan reported in "1997 SCMR 281".
15. In view of above the findings recorded by the learned first appellate Court found to be against the settled principle of law and are result of misreading and non-reading of evidence, hence, liable to be set aside in exercise of revisional jurisdiction.
16. For what has been discussed above, this civil revision petition is allowed. Consequently, the impugned judgment/decree dated 23-11-2021 passed by the learned Additional District Judge, Nagar is set aside and Judgment/decree passed by the learned trial Court dated 08-6-2021 is upheld/restored. There is no order as to costs. However, the judgment of trial Court to the extent of compensatory cost of Rs.25,000/- imposed on the defendant/present respondent is set aside.
17. The instant civil revision petition along with Civil Misc. bearing No. 843/2021 stand disposed of File.