SYED ARSHAD ALI, J.---Muhammad Nawaz and others, who were defendants before the learned trial Court in a suit filed by the respondents have challenged the concurrent findings of both the courts below decreeing the suit of the plaintiffs-respondents..
2. It is evident from record that the suit property initially belonged to the common predecessor of the parties, namely, Muhammad Khan. The said Muhammad Khan was survived by five sons, namely, Akbar Khan, Zaman Khan, Sohbat Khan, Umra Khan and ' Mira Khan. According to the inheritance mutation No. 6041 dated 27.03.1922 (Ex.PW.2/3) the property of Muhammad Khan had devolved upon his legal heirs/sons in a manner that Suhbat Khan was transferred 1/3rd share whereas the remaining four sons were transferred 2/3rd shares. The pedigree table of the parties for the year, 1927-28 is available on the file Ex.PW.2/4 whereas fard jamabandi for the year, 1916-17 is exhibited as PW,2/5 and goshwara ownership as per fard jambandi for the year, 1916-17 is exhibited as PW.2/6. It further transpires from the cross-examination of the ADK Swabi, who appeared before the Court as PW-02 that since Muhammad Khan was married thrice, therefore, his property was distributed among his sons from the respective three widows in equal shares and for that reason the share of the father of the defendants being the only son of one of the widow is more than the other sons. This was obviously done in the year 1922 when the parties were governed through rewaj.
3. The aforesaid factual possession is somehow admitted by the parties as well as official witnesses, however, the learned trial Court has decreed the suit on the ground that under the Islamic Law of Inheritance all the five sons should have been given equal share in view of the expressed provision of North West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935. The said finding was also upheld by the learned Appeal Court
4. In the present case, two crucial issues are involved. The application of the erstwhile N.W.F.P.
Muslim Personal Law (Shariat) Application Act, 1935 ("The Act") to the inheritance of Muhammad Khan the predecessor of the parties and whether the suit of the plaintiffs was within the period of limitation. First, let us take for legal discourse; the application of the Act to the inheritance of the predecessor of the property Muhammad Khan. Admittedly, the inheritance mutation was attested on 27.03.1922 (Ex.PW-2/3) under the riwaj. However, the Act came into force on 06.12.1935 without any retrospective operation. In view of the conflicting judgments of the superior courts regarding the applicability of the Act, an amendment was inserted through Section 3 in 1950 by adding Section 2 to it and by this amendment retrospectivity was allegedly conferred upon the Act, which reads as under: "3. Repeal of provision of previous law.
(1) On and from the day of the enforcement of this Act, Section 27 of the. N. W. F. P. Law and Justice Regulation (No. VII of 1901) shall be replaced in so far as the Muslims are concerned.
(2) Whenever a question relating to the succession upon the death of a Muslim arises in any court, the rule of decision shall, be according to Muslim Personal Law (Shariat) as if that law had been applicable at the time of sue', death."
5. The Act was then repealed through Act .No.V of 1962 i.e. West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 ("Act of 1962"). According to Section 2 of the Act No.V of 1962, the Muslim Personal Law was recognized as the law of inheritance of a deceased Muslim, whereas through Section 5 of the Act No.V of1962, the Act was repealed. The Act No.V of 1962 thus was having no retrospective effect, however, when the matter came up before the Federal Shariat Court in the case of "Muhammad Ishaq v. Federation of Pakistan (PLD 1981 FSC 278), the Federal Shariat Court had held that the customs prevailing before Act as well as the Punjab Shariat Application Act, 1948 was repugnant to the injunctions of Islam and accordingly issued direction to the effect that West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 should be amended accordingly.. Pursuant to the direction of the Federal Shariat Court, the law was amended in the Province of Punjab by inserting Section 2(A) to Act of 1962 through West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act, 1983. However, no such amendment was made in the Province of N.W.F.P. The Apex Court in the cases of "Muzaffar Khan v. Mst. Roshan Jan and others (PLD 1984 SC 394) and Mst. Farida and 2 others v. Rehmatullah and 2 others (PLD 1991 SC 213)" had ruled that even if no amendment was made pursuant to the judgment of Federal Shariat Court in the Act No.V of 1962, the rule laid down in the judgment of Federal Shariat Court referred above would still be applicable.
6. The question whether the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 has retrospective. effect was ultimately laid at rest by the Apex Court in the case of "Ghulam Haider v.
Murad through Legal Representatives (PLD 2012 SC 501)", the relevant paragraph reads as under: -- "7. It is abundantly clear to us that section 2-4 introduced through Ordinance XIII of 1983 was meant to cover all successions prior to introduction of Act IX of 1948, i.e. all successions before March 15, 1948; it dealt with only male heirs; and it was restricted to only those male heirs who had acquired any agricultural land under custom from a person who at the time of such acquisition was a Muslim. In plain terms section 2-A introduced through Ordinance XIII of 1983 was meant to be applicable to only those male heirs who had acquired some agricultural land from a Muslim before March 15, 1948 and such acquisition had come about under the customary law of inheritance. According to section 2-A introduced through Ordinance XIII of 1983 such a male heir acquiring any agricultural land under the customary law of inheritance from a Muslim was to be deemed to have become, upon such "acquisition", an absolute owner of "such land", as if "such land" had devolved on him under the Muslim. Personal Law (Shariat). It is of paramount importance to notice that the words used in section 2-A introduced through Ordinance XIII of 1983 were had acquired" and "such acquisition" and the person so acquiring was to become an absolute owner of "such land" as if "such land" had devolved on him under the Muslim Personal Law (Shariat).. It is quite clear to us that what the legislature had intended was that the entire agricultural land acquired by such person under the customary law of inheritance was to be recognized as under his absolute ownership as if such acquisition had come about under the Islamic law of inheritance and nothing in section 2- 4 introduced through Ordinance' XIII of 1983 has been found by us to be conveying any meaning that such person was to be deemed to have become an absolute owner of only that part of the acquired land which would have otherwise devolved on him as his share of inheritance under the Islamic law of inheritance. The. deeming provision contained in clause (a) of section 2-A introduced through Ordinance XIII of 1983 in fact covered the entire acquisition and the entire land acquired and was never meant to be restricted to some portion or share of the acquired land. It appears to us that the intention of the legislature was that the entire devolution on the basis of the customary law of inheritance was meant to be saved by section 2-A and such devolution, in its entirety, was meant to be deemed to have been under the Islamic law of inheritance."
7. Thus, the law regarding the retrospective application of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 is by now settled by the Apex Court and any mutation if attested during the period of riwaj prior to the application of N.W.F.P. Muslim Personal Law (Shariat)
Application Act, 1935/Punjab Muslim Personal Law (Shariat) Application Act, 1948 being a past and closed transaction would not be subject to the application of the Act No.V of 1962.
8. Moving on to the issue of limitation. Admittedly, the impugned inheritance mutation of Muhammad Khan the predecessor of the parties was attested on 27.03.1922, whereas the suit was filed on 02.02.2006. In the case of "Ghulam Ali v. Ghulam Sarwar Naqvi [PLD 1990 SC 1]", the Apex Court while dealing with the case, wherein the daughter of common predecessor were excluded from the legacy of her predecessor by the brother in the year 1963, when subsequently she had challenged the said mutation depriving her from the legacy of her forefather, the Apex Court has maintained that in such a situation the possession of brother, thus would be taken to be the possession of their sister unless there is an express repudiation of the claim of the sister by the brothers, therefore, the suit was held to be in time. This view was also reaffirmed in the case of "Muhammad Boota v. Allah Dicta [1998 SCMR 2764]" by the Apex Court. The Apex Court remained consistent holding the aforesaid view as evident from the case law reported in the judgments titled "Zulfiqar Ali v. Ghulam Rasool j2004 SMR 513], Muhammad Raffique v. Muhammad Ali [2004 SCMR 704], Mst. Fatima Bibi v. Altaf Ahmad [2009 SCMR 693] and Mst. Gohar Khanum v. Mst.
Jameela Jan [2014 SCMR 801]".
9. In the case of "Lal Khan v. Muhammad Yousaf [PLD 2011 SCMR 657]" the Apex Court had set aside the concurrent findings of three Courts and dismissed the suit filed on 13.05.1970 being barred by time where the plaintiffs had challenged the inheritance mutation dated 13.02.1947.
10. Later, the Apex Court in the case of "Mst. Grana [PLD 2014 SC 167]" while relying upon the ratio of Lal Khan case and distinguishing the law laid down by the Apex Court in Ghulam case has laid the following principle of law relating to the acquiescence of a legal heirs when he or she does not challenge the inheritance mutation of the predecessor in time. Para 7-A of the judgment is reproduced wherein this issue has been elaborately answered.
"7-A The plaintiff had assailed the registered sale-deed dated 08.06.1916 and the sale mutation No. 1273 dated 23.12.1917. She had also questioned inheritance mutations No.281 dated 05.12.1930, 2089 dated L09.1949 and gift mutations of 11.11.1959 and further mutations made from time to time attested on 18.01.1956, 09.12.1964, 12.12.1981, 31.01.1984 and 30.07.1987 and further all subsequent sale and gift mutations. The challenge was thrown in the year 1991 when she was more than 80 years old; as according to the evidence she was 6/7 years old when her father had died somewhere in the year 1911/12. Upon her father's death the entire property was inherited by her as limited owner, which, upon her marriage in the year 1930, she had to give 'up in favour of her step-sister, Mst. Bari, born out of her mother's wedlock with one, Rasool. Since then. she had remained out of possession. It cannot be said that she was unaware as to how the property was handled there- after and of her rights therein. Rather her awareness is demonstrated by the order of the Collector, Mardan, dated 15.04.1942 where she was marked personally present. In the appeal before the Collector she had questioned the permanent transfer by Mst. Bibi of certain property alleging that the respondent was a limited owner. However, she had neither then or ever questioned the sale deed of the year 1916 till filing of the suit in the year, 1991, being well aware of such, transfer. Again, as the above order of the Collector shows that the plaintiff was conscious and aware that a limited owner was not empowered to transfer permanently property inherited by him or her, she did not question the gift mutation by Mst. Bibi in favour of the latter's mother, Mst. Habib Khanum, also the plaintiff's mother, in the year 1945. It may also be noted that by then the North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935 had come into force. and the plaintiff could, have asserted her right of inheritance. While the property was further sold and resold, constructed and reconstructed, the plaintiff took no action to annul or prevent such transfers. When she filed the suit there were as many as 251 transferees of the property. The conduct of the plaintiff clearly demonstrated acquiescence in all the impugned transfers of the property which amounting to waiver of her right. The transferees were, on account of the plaintiffs inaction, led to believe that the transferors had valid title in the suit property. The plaintiff had died during early stages of the litigation and has now Cr.P.C represented by her legal heirs. The impugned concurrent findings of the two Courts on the above questions therefore do not call for any interference"
11. In the case of "Mehmood Shah reported as [2015 SCMR 869]" the Apex Court while dealing with the issue of limitation has also considered the law laid down by the Apex Court in the earlier judgments. It is held in this judgment that succession to the property by the legal heirs to the property of their propositus becomes a fait accomply immediately after his demise and thus does not need the intervention of any of the functionally of the Revenue Department and remain as such irrespective of what Patwari/Girdawar and Revenue Official enter in mutation sanctioned in this behalf. I have also considered the law laid down by the Apex Court in the subsequent judgments reported as "Khan Muhammad v. Mst. Khatoon Bibi [2017 SCMR 1476], Asal Janan and others v.
Zareef Khan and others [2020 SCMR 668] and Shabla and others v. Ms. Jahan Afroz Khilat and others [2020 SCMR 352]".
12. After perusing the aforesaid judgments of the Apex Court I have reached at the conclusion that when a legal heir is deprived of his/her right of inheritance and he/she remains alive for a considerable period and do not challenge his/her deprivation from the legacy of the predecessor, then at later stage when the legacy changes many hand, the further legal heirs have no locus- standi to challenge the said inheritance mutation Which remained unchallenged during the life time of their predecessor. In the present case, the immediate legal heirs of Muhammad Khan during their lifetime never challenged the said mutation, therefore, the suit which was filed in 2006 was barred by time as by then as evident from record a good number of transaction had taken place.
13. In view of the above, this petition is allowed and the impugned judgments dated 27.06.2012 and 28.02.2011 passed by the learned courts below are set aside and accordingly the suit of the plaintiffs/respondents stands dismissed. Revision allowed.