' RAJA MUHAMMAD KHURSHID KHAN, C. J.-This appeal, by leave, is meant to impeach the judgment passed on 8-1-1976 by a learned Single Judge of the High Court whereby the learned Single Judge refused to disturb the finding concurrently arrived at by the Court of first instance are concurred on first appeal by the District Judge, Mirpur. The finding is to the effect that respondent Mangoo (deceased) was entitled to inherit the entire land left by one Baz Khan to the exclusion of Walayat Khan (deceased) appellant.
2. The facts in brief are: that one Baz Khan died issueless and even without a wife somewhere in July, 1968. He survived by his real brother Mangoo (deceased) and his nephew Walayat Khan (deceased). The heirs of Mangoo are now arrayed as respondents; while the heirs of Walayat Khan are listed as appellants in this appeal. Under the Muslim Law of Inheritance, Mangoo was to inherit the whole property left by Baz Khan but the mutation of land was attested by Tehsildar, Mirpur, in equal shares in the names of Mangoo and Walayat Khan on 6th of November, 1968.
3. To aviod this mutation Mangoo (deceased) respondent on 7th of January, 1969, instituted a suit in the Court of Sub-Judge, Mirpur, with the prayer that the mutation may be declared as null and void qua his rights. His case is that the entire land left by Baz Khan would go to him as the sole heir of Baz Khan.
4. To non-suit Mangoo, Walayat Khan, defendant, in his written statement, pleaded that as mutation in his name was sanctioned with the consent of Mangoo he was estopped to question its validity. This plea was negatived by all the Courts below; including the High Court.
5. The learned Sub-Judge, Mirpur, vide order dated, 31-7-1972 passed a decree in favour of Mangoo in terms of his prayer which was also affirmed on first appeal by the District Judge and even in second appeal by a learned Single Judge of the High Court. The High Court's judgment was recorded on 8-1-1976. This appeal, by leave seeks to discredit all the judgments of the subordinate Court; including the High Court.
6. Ch. Muhammad Riaz Akhtar, the learned counsel for the appellants, in support of the appeal contended :-
(i) that the appreciation of the evidence made by all the Courts is faulty as it violates the settled principle of appreciation of evidence in civil matters; and that Mangoo by his conduct during the mutation proceedings has given his consent to the mutation and, therefore, is estopped to turn round and say that, Walayat Khan is not entitled to have any share out of the land left by Baz Khan.
His case precisely is that as the mutation was sanctioned with the consent of Mangoo who has also affixed his thumb-impression on the mutation, he and after his death his heirs, the respondents herein, are estopped to challenge its validity.
7. To counter Mr. Riaz Akhtar, Raja Muhammad Siddique, the learned counsel for the respondents, maintained :-
(1) that the learned Sub-Judge as well as the learned District Judge, for cogent reasons, found that Mangoo was not a consenting party to the mutation and as such the question of estoppel does not arise at all. This finding, the learned counsel argued, being a finding of fact, could not be disturbed by the Nigh Court as it did not suffer from any infirmity such as misreading of non-reading of the evidence ;
(ii) that even if it is assumed that Mangoo consented to the mutation in favour of Walayat Khan, the plea of estoppel is not available to Walayat Khan because estoppel as defined under section 115 of the Evidence Act would apply only to a person if be has by his declaration act or omission intended to cause or permitted another person to believe a thing to be true and to act upon such a belief. No such situation is available in the present case;
(iii) that the evidence led by Walayat Khan does not support his case and is unworthy of credence; and
(iv) that even if it is accepted that Mangoo consented to the mutation in favour of Walayat Khan, it does not go beyond the fact that at the time of the mutation Mangoo, for the reasons stated in the mutation, acquiesced in its sanction. The reason for departing with one-half of the land left by Baz Khan, as stated in the mutation, is that as Walayat Khan has shared the funeral expenses of Baz Khan and possession of the land is also with him, he is entitled to innerit one-half of the land left by Baz Khan. The law does not allow such a treatment. Therefore, the consent in getting one-half of the land left by Baz Khan sanctioned in favour of Walayat Khan was due to faulty approach of law which cannot bind Mangoo.
8. We have given our dispassionate thought to the arguments advanced at the bar and are of considered view that the arguments advanced by the learned counsel for the appellant have no substance and this appeal is liable to be dismissed for the following reasons :-
(a) As stated earlier, under the Muslim Law of Inheritance, Mangoo (deceased) was to inherit the whole property left by Baz Khan. Heavy onus, therefore, lay on Walayat Khan to show that Mangoo had abandoned in a legal way one-half of the property in his favour. To prove this issue Walayat Khan had examined Safdar Ali, Patwari, Mir Ahmad, Tehsildar-the mutation attesting Officer and Raja Gut Nawaz Khan, Girdawar. None of these witnesses depose that thumb-impression on the mutation was affixed by Mangoo. This fact nullifies the plea of Walayat Khan that Mangoo was a consenting party to the mutation.
(b) The perusal of the copy of the mutation also shows that thumb-impression of Mangoo is not on the mutation. It appears on another page on which the . Patwari has entered the death of his brother. The Patwari's report is to the effect that the entire land left by Baz Khan is to go to Mangoo.
Thumb-impression on this page obviously cannot lead to the inference that he consented to depart with one-half of the land.
(c) The ............................. The presence of Lamberdar Raja Fazal Ellahi, Member Union Council. Nadir Bukhsh and Raja Muhammad Aslam. Their thumb-impressions or signatures are not traceable on the mutation. Besides, none of them has been examined to support C the claim of Walayat Khan that Mangoo consented to abandon one-half of the land left by Baz Khan in favour of Walayat Khan. Withholding these witnesses raises adverse inference against the claim of Walayat Khan.
(d) An application (Exh. P. A.) was moved before Tehsildar by Mangoo which enters that Baz Khan had died issueless and he being his brother was entitled to the whole land left by Baz Khan deceased. The application also enters that Walayat Khan is a Lamberdar of the village and is a clever person and would manipulate the mutation of land sanctioned in his name. This application was forwarded by the Tehsildar to the Patwari but it finds no mention in the mutation. The application has been moved prior to the controversial issue and, therefore, it negative; the plea taken by Walayat Khan that Mangoo consented to the mutation. It does not stand to reasons that on the one band Mangoo seeks the mutation in his name of the entire land left by Baz Khan and at the same time consents to depart with half of the land in favour of Walayat Khan.
' The above grounds also weighed heavily with the trial Judge as well as with the District Judge to hold that there was no agreement or consent on behalf of Mangoo that one-half of the land left by Baz Khan should go to Walayat Khan. We also see no reason to hold otherwise.
(e) The learned Judge in the High Court though owned the findin of the learned District Judge but opined that Mangoo was present at the time of the mutation and he had also affixed thumb-impre sion on the mutation register.
With all respects which we have for the learned Judge, for the reasons stated above, we cannot subscribe to this view. It is also significant that the learned Judge also observed that the application referred to above, moved by Mangoo, was not placed before the Tehsildar at the time of mutation order and no reference of it has even been made in the mutation' order. These circumstances, according to the learned Judge, creat suspicion about the consent statement and the thumb-impression of Mangoo. This observation also in a way negatives the observation earlier made by the learned Judge in the High Court that Mangoo was present at the time of mutation and he had also affixed his thumb-impression on mutation register.
' We, are, however, of the considered opinion that in the circumstances of the case Mangoo was neither present at the time of mutation nor he had put his thumb-impression on it.
8. So far the second objection made by Mr. Riaz Akhtar is concerned, we may make here a mention of the statement of Mangoo as entered in the mutation. The statement is to the effect :- "Raja Mangoo Khan has stated in the open Kutchery that his brother Baz Khan died 2 to 3 months back, issueless and without surviving wife. The deceased had only two brothers, myself and Sardar Khan, he also had a sister Fateb Begum wbo died unmarried and issueless before his death. Sardar Khan has left only one son Walayat Khan. Baz Khan deceased was looked after by myself and Walayat Khan and his property was also in our possession. When he died the expenses for funeral etc. Were also borne by us equally. He had no debts. It is, therefore, proper (the word used is Wajib) that his property should go to both of. Us because only two of us are his valid the word used is heirs."
10. It would thus appear that the statement, even if it is assumed to be correct, has been given under wrong impression that Walayat Khan, for his being in possession of the land and for his sharing the funeral expenses, was also entitled to one-half of the suit land. As the representation as been made under a wrong legal notion, it cannot create estoppel for Mangoo who was the sole heir of the deceased. Somewhat identical law was laid down in Radhasyam trope v. Aktarunnessa Begum and others (1) and Mst. Rehmatan v. Muhammad (2).
11. There is another aspect of the case which needs attention. No doubt section 115 of the Evidence Act does not say expressly that estoppel would come into play only when a person has changed his position to his detriment. But the course of law is now well-settled and admits of no exception that in order to succeed on a plea of estoppel the representee must also be able to show that he has altered his position to his detriment.' This aspect has always been treated as an essential element or doctrine for estoppel. AIR 1921 Pat. 166, AIR 19,6 P C 193, AIR 1945 All. 377, AIR 1946 Born.
469, PLD 1947 P C 344, PLD 1971 SC 376 and PLD 1972 Quetta 97 own our view.
12. This doctrine is to be respected always because a representation even acted upon if it does not entail a change of position by a represented to his detriment is at best gratuitous representation and cannot create an estoppel. In the instant case the principle enunciated above is applicable with full force as Walayat Khan has not changed his position in this case.
' In view of the above we see no force in this appeal which stands disallowed with costs.
(1) P.L D 1957 Dacca 184 (2)PLD 1963 Lab. 368