' Briefly stated facts of the case out of which this R.SA. has arisen, are that one Fazal Dad who was an agriculturalist and was Gujar by caste owned landed property in the revenue estate of Paswal Tehsil and Distrct Jhelum. He died in the year 1919 leaving behind three widows and two daughters which include Mst. Bevi his widow respondent No,1, and Mst. Fatima his daughter respondent No,2.
The appellant claims herself to be the second daughter who is stated to be minor at that time and is from Mst. Mirzan Bibi the second widow. The land-in-question was mutated in the name of ladies as limited owners to the exclusion of the appellant. On the enforcement of Muslim Personal Laws Shariat Application Act V of 1962 as the limited estate terminated, the appellant filed a suit for joint possession on the basis of her right to inherit the deceased in accordance with the Muslim Personal Law being his daughter. It may be mentioned here that in the suit the purchasers of the land in question during the interregnum have also been impleaded as parties and the mutations of sale made by Mst. Bevi in their favour were also challenged. The suit has been contested on the ground of lack of relationship of the appellant with Fazal Dad deceased and as being barred by time. Learned trial Court vide judgment and decree dated 22-10-1966 dismissed the suit filed by the appellant holding that she has failed to prove that she is daughter of Fazal Dad deceased. Other issues including the one of limitation were not determined. The appellant filed first appeal against the said judgment and decree but the same was dismissed by the District Judge, Jhelum vide judgment and decree, dated 25-10-1967. These two judgments and decrees have been challenged in this regular second appeal.
2. Muhammad Munir Peracha, Advocate has appeared on behalf of the appellant whereas Mr. Ajmal Kamal Mirza, Advocate has appeared for legal representatives of respondents Nos. 3, 5, 7, 9, to 13 and 17. None has appeared on behalf of the other respondents and hence have been proceeded apinst ex parte.
3. Learned counsel for the appellant has stated that both the learned Courts below have failed to take into consideration the material documentary evidence consisting of mutations Exh.2, Exh.P4 and Exh.P13 which clearly proves that the appellant is daughter of Fazal Dad deceased and, therefore, the findings of fact recorded by the two learned Courts below are erroneous in law.
Learned counsel has further contended that prior to the institution of the suit, the respondents as well as their predecessor-in-interest have never challenged the status of the appellant as being daughter of Fazal Dad from Mst. Mirzan, the other widow of the deceased, hence, her relationship with the deceased stands established.
4. Learned counsel for the contesting respondents however, has argued that this is a regular second appeal and the two learned Courts below have concurrently found that the appellant is not the daughter of Fazal Dad deceased, therefore, no interference is possible. Learned counsel has further argued that the appellant in fact is "Pichhlag" daughter of Mst. Mirzan widow of Fazal Dad, from Abdullah, her previous husband and that she having not asserted at any time prior to filing of her suit that she is daughter of Fazal Dad, it stands established that she is not the daughter of Fazal Dad. Learned counsel has drawn my attention to the documents Exh.P2, Exh.P4 and Exh.P13 and has contended that the entries in these mutations are of no value to establish the relationship of the plaintiff with the deceased inasmuch as the entries in mutation are prepared by the Patwari Halqa and Shajra Nasab drawn thereon, therefore, is of no evidentiary value to decide the question of relationship between the deceased and the appellant. Learned counsel has also pointed out that the appellant has made improvements during the course of her statement and has resiled from admissions of questions of fact regarding her parentage, hence no reliance can be placed upon her statement. Learned counsel has further argued that even if it is held that the appellant is daughter of Fazal Dad deceased, her suit is barred by time and further that the contesting respondents being bona fide purchasers for value, cannot suffer due to inaction on the part of the appellant for a number of years. Title of the bona fide purchaser for value, therefore, is protected under section 41 of the Transfer of Property Act.
5. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. In document Exh.P2, the appellant is recorded as a daughter of Fazal Dad. This document was prepared much before the controversy had been started and, therefore, it being a relevant piece of evidence, cannot be ignored merely because the entry is in the mutation.
Similarly document Exh.P4 which is a mutation does contain the recitals to the effect that the appellant is daughter of Fazal Dad. Mutation Exh.P13 which has been relied upon by the learned counsel for the contesting respondents also shows that the appellant did assert that she was the daughter of Fazal Dad during the course of mutation proceedings and this assertion was not denied by the respondents. Negative oral evidence produced by the respondents loses its value when there is documentary evidence to the contrary which clearly establishes beyond doubt that the appellant is the daughter of Fazal Dad. Two learned Courts below have failed to consider the correct effect of documentary evidence on the record which has even been misinterpreted, undue weight has been given to negative oral evidence and a few immaterial discrepancies and factum of correcting herself by the appellant, during the course of making her statements A witness is entitled to correct his statement when still in the witness-box hence the conclusions drawn by the Courts below on this account are not lawful. Hence the finding of the two learned Courts below to the effect that the appellant was not the daughter of Fazal Dad is set aside and it is held that the appellant is the daughter of Fazal Dad deceased.
6. Having held that the appellant is the daughter of Fazal Dad deceased, who was Muslim, the appellant shall automatically inherit him in accordance with the Muslim Personal Laws as held in case of Ghulam All and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 4). It is an established principle of law as held in case referred to supra, the bar of limitation does not stand amongst co- heirs and their successors. Therefore, it cannot be said that the suit filed by the appellant is barred by time, hence, the argument of the contesting respondents to the effect that the suit is barred by time is repelled, and it is held that the suit is within time.
Next argument of the learned counsel for the respondents to the effect that his clients being bona fide purchasers for value, their title is protected under section 41 of the Transfer of Property Act is also misconceived. It is an established principle of law that if a vendor himself has no title the protection of section 41 of the Transfer of Property Act is not available to the purchaser from such a vendor. Having inherited her father, the appellant was owner of the property sold by the widow to the extent of share of the appellant and, therefore, to this extent, the vendor did not possess transferable title, hence, the sale to the extent of share of the appellant in the land in question is void and inoperative against ownership and possessary rights of the appellant. Refer case of Muhammad Yamin and others v. Settlement Commissioner and others (1976 SCM R 489).
7. In view of above I accept this R.S.A. set aside the impugned judgments and decree and decree the suit as prayed for, with costs throughout.