' The landed property described in the heading of Plaint No,307/1 instituted on 25-9-1989 situated in Mauza Pind Gakhra of Haripur originally belonged to one Wali Ahmed whose inheritance Mutation No,1748 was attested on 9-2-1981.
2. He had a son Mir Ahmed and three daughters Mst. Sufaida Jan, Mir Jan and Mst. Muhammad Jan out of whom the latter had admittedly predeceased her father Wali Ahmed. No share of inheritance having devolved upon Mst. Muhammad Jan, her husband Fazal Ellahi and her son Mian Dad brought a suit claiming their Shari share in the property of Wali Ahmed as it would have been inherited by Mst. Muhammad Jan, under section 4 of the Muslim Family Laws Ordinance, 1961.
3. The theory of Ilijab-ul-Irs' making only the children entitled and thus Fazal Ellahi the husband of Mst. Muhammad Jan being non-suited and a decree granted to the son Mian Dad by both, the learned Civil Judge-II, Haripur on 6-1-1994 and the learned Additional District Judge, Haripur on 20- 3-1995, are challenged by Mir Ahmed and another heir of Wali Ahmed, through this revision petition.
4. From the evidence on record and submissions of the learned counsel at the Bar a few things seem to be admitted. The ownership of Wali Ahmed is not denied. Mst. Muhammad Jan being the daughter of Wali Ahmed is not denied. The fact that Mst. Muhammad Jan predeceased Wali Ahmed, her father, is not denied. In view of all these admissions it is quite clear that Mian Dad the son of Mst. Muhammad Jan is entitled to inherit 1/5th share in the property of Wali Ahmed through his mother and 1/10th share (as per claim) in the disputed property. To this effect the conclusion drawn by the two Courts below is perfectly correct.
5. Mr. Hafeezur Rehman Abbasi, learned counsel for the petitioner's alleged that Mst. Muhammad Jan had died even prior to the partition in 1947 and hence the instant suit brought on 25-9-1989 i.e, after more than 42 years is time-barred. The argument is erroneous in view of plain reading of section 4 of the Ordinance that gives a cause of action only when the succession opens. Obviously, a succession opens only in the event of the death of porosities, who, in the instant case is Wali Ahmed.
6. The question of being or not being in possession is altogether immaterial because with the opening of succession, a legal heir automatically becomes owner and thus a co-sharer in the suit property against whom there is not a bit of ouster in the instant case.
7. The next argument of the learned counsel for the petitioners was that Wali Ahmed had died before the coming into force of the Ordinance and thus section 4 of the Ordinance being not applicable, the respondent Mian Dad had no right in the property of his maternal grandfather. This argument is negated by the whole evidence on record. Nowhere in the evidence the petitioners have proved as to when Wali Ahmed died. On the other hand his inheritance Mutation No,1748 was attested on 9-2-1981 and hence under no stretch of imagination could an inference be drawn that Wali Ahmed had in fact died twenty years prior thereto and that his inheritance mutation was attested with a delay of twenty yeaRs, Prima facie the death would be presumed immediately, before the attestation of mutation and the burden to prove otherwise lay highly on the petitioners which is least discharged.
8. Next argument was that no doubt Mian Dad respondent was the son of Fazal Ellahi but he was not the son of Mst. Muhammad Jan and that he has not produced any birth certificate to that effect. Probably the learned counsel failed to note that it is through evidence on record that Mian Dad has proved his maternity through Mst. Muhammad Jan. His such claim in the plaint as well as in the Court statement is supported by all his witnesses with no rebuttal at all from the opposite side. The learned counsel has probably failed to realise that even if Mian Dad had brought any entry from the register of birth, it would have contained paternity as parentage and not the name of mother. It is only Jewish religion where people are known through mothers and thus any document ever or if at all in existence would indicate Mian Dad to be the son of his father Fazal Ellahi and not mother Mst. Muhammad Jan.
9. The learned counsel further laid stress on the point that an application was filed to the effect that Fazal Ellahi no doubt had a son but his name was Kala and that the petitioners be allowed to lead additional evidence in support. This seems rather scandalous and together with my discussion in the preceding paragraph, I reject this argument down-right. Had Mian Dad not been the son of Mst.
Muhammad Jan, it would have been fact known to everybody and the petitioners would not have wasted even a single minute in raising an alarm to that effect and denying the same at the top of their voice in the written statement. Quite meaningful it is to note that not only no such plea is at all taken in the written statement but the written statement, as such, is a document of complete evasive denial. No plea can be taken and no evidence can be allowed to be led at this stage over a scandalous matter which was not at all even alluded to in the written statement.
10. Both the Courts below were perfectly correct in appreciating the law as well as the facts. The concurrent findings do not require to be interfered with in the exercise of revisional jurisdiction by this Court. The revision petition is hereby dismissed in limine together with C.M. No,60 of 1995. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.