SABIT ULLAH KHAN, J.- This single judgment in the instant petition is intended to decide this as well as connected C.R No. 341-M/2021 titled "Muhammad Idrees Khan and others Vs. Ubaid ur Rahman and others" as both these petitions are the outcome of Civil Suit No.44/1 of 2014 filed by the petitioner of the instant petition.
2. Background of both these connected petitions is that the present petitioner, Mst. Bibi Fath ul Bari, filed a suit for declaration to the effect that the property bearing khasra Nos. 698, 699, 767, 946, 947, 2414 & 2415 situated in the revenue estate of Kabal Chindakhwara, Tehsil Kabal District Swat, alongwith three (03) residential houses within the boundaries fully mentioned in the headnote "alif' of her plaint, were the legacy of her late father namely Abdul Mateen, and she was entitled to the extent of her Shari share in these properties and as such her right could not be denied by the defendants / respondents and any entries in the revenue record, mutations or deeds against her right being fictitious, forged, illegal and against the sharia, are ineffective upon her rights and therefore require cancellation to the extent of her share. She has also sought a decree for perpetual injunction regarding suit property to the extent of her due share. It was averred in the plaint that her father Abdul Matten left behind three sons namely, Ubaid ur Rahman, Muhammad Ismail & Abdul Moeen and three daughters namely Mst. Bibi Fatma, Mehmooda Bibi and the present petitioner as his legal heirs. She further elaborated that Muhammad Ismail and Abdul Moeen have been died therefore, being their legal heirs' respondents No. 3 to 12 and 13 to 18 have been made party to the suit respectively and similarly respondent No. 19 to 21 are the legal heirs of her late sister Mehmooda Bibi. She has further averred that respondent No. 1 and predecessors in interest of respondents No. 3 to 12 (Muhammad Ismail) and 13 to 18 (Abdul Moeen) have sold some of the suit properties to respondents No. 22 to 35 through illegal and unlawful transactions therefore, they have been made party to the suit. She further pleaded that at the event of settlement of lands, the suit properties have not been entered in the name of all the legal heirs of Abdul Mateen (late). The suit was resisted by the respondents / defendants 1, 3 to 14 & 17 to 21 on different legal and factual objections through their written statements whereas the legal heirs of respondents No. 20 & 21 (petitioners of the connected petition) filed cognovits and supported the stance of the present petitioner / plaintiff and stated therein that power of attorney submitted before the trial Court on behalf of respondents No. 20 & 21 is forged and fake and on the strength of that power of attorney, the written statement submitted does not contain their consent and hence sought cancellation of power of attorney and written statement to their extent which was allowed by the learned trial Court. The respondents No. 22 to 27, 34 and 35 also filed written statements.
Issues were framed and parties were directed to lead their respective evidence. After completion of evidence of the parties, the suit of the present petitioner / plaintiff was decreed by the learned trial Court through its judgment and decree dated 19.12.2018. The respondents / defendants No. 1, 3 to 14 & 16 to 19 filed Civil Appeal No. 12/XIII of 2019, which was allowed by the learned Additional District Judge, Swat at Kabal through the impugned judgment and decree dated 17.03.2021 and resultantly suit of the present petitioner was dismissed, hence, the instant petition was filed by the present petitioner / plaintiff while the legal heirs of the respondents /defendants No. 20 & 21 filed the connected petition bearing No. 341-M/2021.
3. Arguments heard and record perused.
4. The contention of the respondents No. 1, 3 to 14 & 16 to 19 is that at the time of death of late Abdul Mateen, there was no legacy left because he, during his lifetime, had disposed of his entire properties by gifting the same to his three sons vide tamleek dated 20.05.1969 as per the custom in vogue in district Swat whereby female heirs would not receive any share in lands however, they did not denied that the suit properties were not the ownership of Abdul Mateen. Another plea raised by the ibid respondents / defendants is that during the settlement process the husband of the present petitioner had filed an application against her brothers before the Tehsildar (Settlement) for the entry of her name in the revenue record which application was dismissed by the Tehsildar (Settlement) vide order dated 30/07/1986 and that she had not impugned the same before any higher forum and had thus attained finality therefore, she cannot sue the respondents / defendants through the present suit.
5. After going through the pleadings of the parties, this Court has observed that none of the contesting respondents have denied from the relationship of the present petitioner with them so it has been admitted that petitioner is the real daughter of late Abdul Mateen and likewise the respondents / defendants have not denied that the suit property was not the ownership of late Abdul Mateen however they contend that the said properties have been gifted by him during his lifetime to his three sons vide tamleek dated 20.05.1969. The factual controversy in this regard to be decided in the present case of inheritance is to determine the authenticity and validity of the alleged tamleek dated 20.05.1969 in favour of the male heirs of the family. The bare reading of the alleged tamleek dated 20.05.1969 shows that it contains three thumb impressions but this document does not identify the individuals to whom these thumb impressions belong. DW-1, who is both a witness and special attorney for the contesting respondents/defendants and the sole witness, links the thumb impressions to Abdul Hamid and Qazi Uloom in his cross-examination, but does not substantiate this claim with any independent witness on record because the base of his claim in this regard is hearsay as it was allegedly written before his birth. Another key point casting doubt on the validity of the tamleek dated 20.05.1969 is the failure to produce the original document before the trial Court during evidence and the respondents/defendants have not mentioned in their pleadings that the original tamleek was missing or provide any other valid excuse for its non-production. Thus, all these factors make the alleged tamleek in favor of the respondents suspicious and unreliable. Both the lower Courts have differing opinions on who bears, between the parties, the burden of proof regarding the tamleek document dated 20.05.1969. The Appellate Court, in this regard, has held that the pleas of fraud & forgery to the tamleek dated 20.05.1969 raised by the present petitioner, despite the respondents/defendants being its beneficiaries, the burden of proof has shifted to the present petitioner due to the said allegations but the careful reading of the plaint shows that the present petitioner has not mentioned even a single time the tamleek dated 20.05.1969 however has raised and connected the factor of fraud and forgery in respect of any document or transaction that would deprive her from her due share in the legacy therefore, in such state of affairs, shifting the burden from the respondents / defendants to the present petitioner is not based on sound and justifiable reasons. The one who possess the document and claims entitlement on the basis of such document and benefits from it will have to prove the said document and the burden would lie on that person. In the present case, the gift deed dated 20.05.1969 has not been proved in view of the requirements of the Qanoon e Shahadat Ordinance, 1984 and the respondents / defendants have not discharged the burden.
Reliance is placed on 2022 SCMR 346 wherein it has been held in citation (a) that the burden to prove a purported gift deed brought forward by the brothers in order to deprive sisters from the share in inheritance would lie on the person who produces it and has further opined that such a document would be considered against the law of Almighty Allah as well as that of the country. In view of the above, the respondents / defendants have failed to discharge the burden to prove the tamleek dated 20.05.1969. On the basis of such document, the validity and authenticity of which is suspicious, petitioners in both these connected petitions cannot be deprived from their shares in inheritance.
6. Moreover, it could not be established by them through any secondary evidence. So, in such eventuality they have failed to establish on record through cogent and reliable evidence the very essential ingredients of gift/tamleek i.e. offer, acceptance or delivery of possession and without proving these essentials, the alleged transaction of gift could not be recognized as a gift by the donor. In the case of "Rahmat Noor vs. Zulaarnain" (2023 SCMR 1645), the apex court has held that the gift was not proved in accordance with the provision of Article 79 of Qanun-e-Shahadat Order 1984 when the alleged donee has produced only one witness. The relevant observations of the apex court in said case are reproduced as under: "When the basic foundation of a fact was lacking, no legal superstructure could be built thereon-Though the effort was made to prove the entry of the gift being recorded in the revenue record, but proving the same could never substitute evidence to prove the essential ingredients of the original transaction of gift made by late donor to his sister (alleged donee). Respondent failed to prove the instrument of gift mutation in line with the requirement of Article 79 of Qanun- e-Shahadat, 1984, as she examined only one witness of subject gift mutation, instead of two.
Furthermore neither the concerned Revenue Officer or the Halqa Patwari were produced nor any effort was made for them to be produced through a court order. Original record of the mutation and Rapt Roznamcha was also not produced in the court to establish the genuineness of the mutation. Said deficiencies were enough to discredit the impugned mutation-In the instant case, there was no evidence produced by the appellant to substantiate her claim of receiving a valid gift of the disputed gift property from her deceased brother"
It is also not denied that the respondents have alleged that the document to be executed in their favor more than thirty years ago and presumption of truth is attached to it under the provisions of the Qanun-e-Shahadat Order, 1984 however, it is a settled law that mere assertion of a party that it being a thirty-year-old document cannot be accepted as gospel truth unless its contents are duly proved by the beneficiary in accordance with law, particularly when the same is denied by the opposite party. Reliance is placed on the case of "Noor Shah Ali Khan vs. Khan Momin" (2023 CLC 2002), wherein this Court held that: "Mere thirty years of a document would not provide any justification for its proof unless the document was proved in accordance with Art. 79 of Qanun-e-Shahadat, 1984, when it was questioned Sole ground that the age of the document was thirty years would not be taken as gospel truth when genuineness of the document was disputed---It was the duty of Court to determine the question of its genuineness and correctness because age of the document alone would not amount to be proof about the correct contents of such document. If genuineness of a document was susceptible to suspicion, the Court would refuse to raise presumption and could ask for the proof of its contents Respondent / plaintiff had proved her case whereas the petitioner / defendant had tried to grab her property and in doing so he succeeded as well, but when it was challenged, he remained unsuccessful to prove it."
7. The second intriguing question based on the contention of the respondents / defendants that in the year 1985, husband of the present petitioner had filed an application before the Tehsildar (settlement) challenging therein the entries of the disputed properties which was dismissed vide order dated 30.07.1986 by the Tehsildar (Settlement) and said order had not been challenged before the higher forums therefore, the present petitioner now cannot sue the respondents / defendants being barred by law in light of the principles of res judicata and in this regard has produced the settlement file No. 4074/STK of 1986 (Ex. PW 1/4A). Perusal of the settlement proceedings reveals that the application has not been decided conclusively and on merits. The very foundation of the order dated 30.07.1986 passed by the Tehsildar (Settlement) is more on technical terms than merit that West Pakistan Muslim Personal Law (Shariat) Application Act 1962 was extended to Malakand Division (erstwhile PATA before 25th Constitutional Amendment) on 05/01/1976 while the predecessor in interest of the parties had been died in 02/12/1975 i.e. before the coming into force of the ibid law in Malakand Division and that the other two sisters of the petitioner had not filed applications for their share in inheritance against the respondents / defendants and further based it on the alleged tamleek dated 20.05.1969 which was accepted in toto despite the fact that no witness was produced for its attestation / verification by the respondents / defendants. The proceedings illustrate that the dispute between the parties has been decided without proper adjudication and evidence and is merely based on observations, opinion and the prevailing customs by that time and the essential conditions required to establish the plea of res judicata do not exist hence not applicable in the instant case. Reliance is placed in the case reported as PLD 2005 SC 511 wherein Hon'ble the Apex Court has detailed the essential requirements and principles for the application of the rule of res judicata to a lis.
8. So far as the applicability of the West Pakistan Muslim Personal Law (Shariat) Application Act 1962 to the instant case, which question arises in view of the decision of Tehsildar (Settlement) dated 30.07.1986, is concerned, the decision of the Tehsildar (Settlement) has resulted into the passage of an order which is on the face of it, is against both the law of islamic shariah as well as law of the country. In this regard reliance is placed in the case reported as 2020 SCMR 346 citation (a), wherein the Apex Court has held that: "Section 3(2) clearly indicated that notwithstanding any custom that was in force prior to the 1935 Act coming into force, whenever a question of succession upon the death of a Muslim arose in any Court, the Muslim Personal Law would be applicable with effect from the time of such death. Word 'whenever' contained in S. 3(2) was significant; it meant that whenever a question relating to succession of a Muslim was raised in any Court, the Muslim Personal Law had to be applied with effect from the time when the death had taken place irrespective of the fact that at that time some custom was in force."
Similarly, in the case reported in 2022 SCMR 1394, the Hon' ble Apex Court has held that in inheritance matters, even if the predecessor died before the enforcement of the Act ibid, it would still apply mutatis mutandis in accordance with Sharia principles. Relevant portion is reproduced herein below: "Daughters deprived of their share in inheritance by their brother relying on prevailing custom.
In the present case, even if it was accepted that the father of the parties died before the cut-off date of 15 March 1948 (date of enactment of Punjab Muslim Personal Law (Shariat) Application Act, 1948) the two sons had not acquired the subject land. Purported exclusion of the other legal heirs (i.e. the three daughters) took place when inheritance mutation took place in the sons' favour on 6 April 1956, which was after the cut-off date of 15 March 1948. Sons had relied upon the inheritance mutation to establish their acquisition but such purported acquisition did not accord with the requirements of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the enactment date of Punjab Muslim Personal Law (Shariat) Application Act, 1948, and the interpretation thereof by the Supreme Court in the case reported as Ghulam Haider v.
Murad (PLD 2012 SC 501.All the legal heirs were entitled to the estate left by their father as per their respective shares in accordance with Islamic shariat. Appeal was dismissed with the direction that in case the judgments of the subordinate courts and of the High Court had still not been implemented by the concerned authority, and the ownership of all the legal heirs was not recorded in the property records, the same should be done immediately, as decades had already passed since the death of the father and some of his legal heirs had remained deprived of their inheritance."
In the case of "Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her LRs and others" (2021 SCMR 73), it was observed by the apex Court that extra vigilance must be exercised in cases where purported gifts are made to deprive daughters and widows from what would have constituted their share in the inheritance of an estate. In the case of "Mrs. Khalida Azhar v. Viaar Rustam Bakhshi and others" (2018 SCMR 30), it was observed by the apex court that purported gifts and other instruments used to deprive female family members including daughters and widows are contrary to law and public policy. Similarly, in the case of "Ghulam Ali and 2 others v.
Mst. Ghulam Sarwar Naqvi" (PLD 1990 SC 1)" it has observed by the apex Court to the effect that often male members of the family deprive entitled female members of their inheritance and, in doing so, law is being violated and that when vulnerable women are at such times compelled to relinquish their inheritance in favour of their male members such relinquishment offends public policy and is contrary to shariah.
9. Generally, in the matters involving inheritance dispute, limitation is not taken into consideration to make such issue crucial for the dismissal of a suit especially of women folks and other fragile persons in the society when an element of fraud is involved and those in which a parda nasheen lady applies for her share in her lifetime. Reliance is placed in case reported as PLD 2022 SC 85 in citation (b) which is reproduced herein below for reference: "Fraudulent gift mutation---Limitation for challenging a fraudulent gift mutation---Where fraud and collusion were alleged and established, the question of limitation did not and could not help the beneficiary of such fraud and collusion---Fraud vitiates even the most solemn transactions and any transaction that was base upon fraud was void and notwithstanding the bar of limitation---Courts would not act as helpless by allowing a fraud to perpetuate."
Likewise in the recent case reported as 2023 SCMR 1901 the Hon'ble Apex Court has held regarding limitation in the following terms: "No limitation runs against matters involving inheritance rights of a female where she has been defrauded of her right by her family---Where a person has been denied the right of inheritance that would give them cause of action---No limitation would run against a co-sharer."
Moreover, the question of limitation was raised by the respondents; therefore, the burden was upon them to prove that the suit was time-barred. However, there is no evidence on record from the side of the respondents/ defendants to establish that the petitioner ever acquiesced to or waived her right in favour of her brothers nor that she admitted the alleged gift in their favour to be valid. In this regard, they have failed to point out any specific occasion or event from which the limitation period for the accrual of her cause of action would commence while the petitioner / plaintiff has clearly asserted that her right has recently been denied by the respondents. Furthermore, since the petitioner was unaware of being deprived of her right during the lifetime of her predecessor-in- interest, she was not required to file the suit earlier. In such circumstances, the cause of action would arise only when her rightful share in the property of her predecessor-in-interest was denied.
Hence, the suit was rightly filed within the prescribed limitation period. Reliance is placed on the cases of "Noor Din Vs. Pertaining Akhtar" (2023 SCMR 1928), where the apex Court has ruled that: "In the present case, impugned inheritance mutation was attested on 5.4.1958 in favour of sons only to the exclusion of the daughter. Legal heirs of daughter challenged said mutation through a suit filed on 20.6.2005-Held, that law of limitation would be relevant when the conduct of the claimant (heir) demonstrates acquiescence and particularly when third party interest is created in the inherited property. In the instant case, there is nothing on the record to show that the daughter had either relinquished her interest in the disputed property or transferred it in favour of her brothers, therefore, the cause of action accrued when the appellants/defendants denied her right. As per averments of plaint, the plaintiffs (i.e. legal heirs of the daughter) came to know about the wrong entry for the first time on 22.12.2004 when they obtained copy of inheritance mutation of their maternal grandfather, therefore, the suit cannot be held as time barred."
10. Needless to reiterate here that the learned trial Court has decreed the suit but the same was reversed by the learned appellate Court through impugned judgment, however the impugned judgment is not only the result of misreading of record but also the result of incorrect application of law leading this Court to the conclusion that the impugned judgment suffers from illegality and misreading and non-reading of the evidence on record and it is a settled law that in case findings of the courts below are divergent the revisional Court can reappraise evidence on record and for just decision of the matter may apply its own judicial mind. Reference may be made to the case of "Mst Azra Gulzar Vs. Muhammad Farooq" (2022 SCMR 1625) where the apex Court had held as under: "Divergent findings of Trial Court and Appellate Court---In such like situation the High Court in its revisional jurisdiction was supposed to give its findings after appraisal of the entire evidence.
Revisional Court/High Court in such a situation had to re-appraise the entire evidence to determine as to findings of which Court were based on proper appraisal of evidence and appreciation of law.".
The learned counsel for the respondents has failed to advance any legal or factual ground in support of the impugned judgment and decree of the learned appellate Court; therefore, the same is not sustainable in the eyes of law
11. Thus, for the reasons discussed above, on allowing both these connected petitions, the impugned judgment and decree dated 17.03.2021 passed by the learned Appellate Court is set aside and consequently that of the learned trial Court dated 19.12.2018 is restored. No order as to costs.