' Instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed for declaring the orders, dated 30-1-1989, 29-4-1992 and 11-6-1993 respectively illegal, void, having been passed without lawful authority, without jurisdiction having no legal effect on the rights of ownership of the petitioner in the land in dispute.
' Briefly stated the facts are that the petitioner was married with Fateh Muhammad respondent No,9. As a result of this wedlock, only son Shabbir Hussain was born, who was unfortunately murdered on 11-11-1988. F.I.R. No,240 of 1988, dated 11-11-1988 was lodged at Police Station Haroonabad, District Bahawalnagar. As a result of murder of Shabbir Hussain, Mutation No,241 of inheritance of the deceased with regard to a piece of land measuring 22 Kanals and 6 Marlas was entered on 3-1-1989 and was sanctioned on 7-1-1989 whereby the petitioner was given 1/3rd share being his mother and 2/3rd share was given to his father, the deceased being unmarried and student of 3rd year. Respondent No,9, in connivance with his children from his first wife and the revenue staff, managed and got entered a Mutation No,242 regarding an oral gift on 4-1-1989, a day later the mutation of inheritance was entered in favour of petitioner and respondent No,9, and got it sanctioned on 30-1-1989 by committing fraud and misrepresentation. The petitioner preferred an appeal against Mutation No,242, dated 30-1-1989 before the Collector, Sub-Division, Haroonabad, who dismissed the same vide order, dated 29-4-1992. A revision petition filed with the Additional Commissioner (Revenue), Bahawalpur against the order, dated 29-4-1992 was also dismissed on 11-6-1993. The petitioner has challenged the orders inter alia, on the grounds that she never made any oral gift in favour of alleged donees, that she never appeared before the Revenue Officer and made any consent statement, that she was not aware that when her thumb- impression, if any, was obtained, that if her presence has been shown in Mutation No,241 on 3-1- 1989, why her presence has not been shown on the same day in Mutation No,242, that even the ingredients of gift are missing as possession could not be delivered in January, which is not a harvesting month, that Mutation No,242 could not be sanctioned before the expiry of 30 days from the first Mutation No,241 as per law and instructions on that score. She, thus, asserted that orders of the Courts below referred above are illegal, ultra vires, against law and facts, without lawful authority and without jurisdiction, as such the same be set aside.
3. The petition was resisted/contested by respondents Nos.6 to 9 whereas other respondents have been proceeded ex parte.
4. Arguments have been heard and record perused.
5. Learned counsel for the petitioner, while reiterating his contentions raised in the instant writ petition has asserted vehemently that the very entry of mutation of gift No,242, dated 4-1-1989 at the instance of Fateh Muhammad respondent No,9 clearly shows that petitioner was not a party to this sham transaction, that even otherwise, the entry of Mutation No,242 on 4-1-1989 a day later than the entry of mutation of inheritance No,241, dated 3-1-1989 also does not appeal to a reason of a prudent man, particularly when the petitioner had no other source to bank upon except a small piece of land of which she was divesting herself by that way, that she is alleged to be present on 7-1-1989 when Mutation No,241 was sanctioned, but her presence has not been shown on the same day in Mutation No,242, which fact also makes that very entry of Mutation No,242 as fake and fabricated. He next urged that after all what was the necessity to gift the suit land in favour of donees who were the off shoots of the first wife of respondent No,9. He, thus, submitted that Mutation No,242 entered on 4-1-1989 and sanctioned on 30-1-1989 is a planned conspiracy of respondent No,9 with the active connivance of Revenue Staff to deprive the petitioner from a small piece of land which devolved upon her on the demise of her only son out of her wedlock with respondent No,9 who was also compelled by the alleged donees to divorce her on 14-3-1991. He thus, submitted that as the mutation of gift, dated 30-1-1989 has not been passed in accordance with law, so the subsequent order, dated 29-4-1992 and 11-6-1993 passed by respondents Nos.10 to 12 be declared illegal, void and without lawful authority.
6. Conversely, the stand of learned counsel for the contesting respondents is that sanctioning of Mutation No,241, dated 7-1-1989 is also not in accordance with law. His contention is that the petitioner has been given 1/3rd share out of the land measuring 22 Kanals and 6 Marlas left by deceased Shabbir Hussain and remaining 2/3rd has been given to respondent No,9. He argued that as the deceased had his consanguine brothers, so the petitioner being his mother will get 1/6th and the remaining land shall devolve upon respondent No,9. Regarding Mutation No,242, dated 30-1-1989, he contended that as it had been attested in the presence of the petitioner, so it was attested in accordance with law and it does not suffer from any illegality or irregularity on the part of Revenue Officer. He next urged that order, dated 30-1-1989 having been confirmed in appeal and revision also reveals that it was passed in accordance with law. He, however, contended that as the adjudication of matter in dispute requires evidence, so writ petition is not maintainable and the petitioner be directed to approach a Court of Competent jurisdiction for the redressal of her grievance. He thus, prayed that the petition be dismissed.
7. Before discussing the merits of the case, it is apt to dispose of the legal objection raised by learned counsel for the respondents regarding the entitlement of the petitioner in the suit land.
Contention of learned counsel for the respondents is that the petitioner is entitled to get 1/6th share in the suit land, as the deceased had his consanguine brothers, which stand is rebutted by the other side. According to the table of shares annexed with section 63 of Mohammadan Law, a mother is to get 1/3rd share when there is no child or child of a son H.L.S. In the instant case, there is no other child except Shabbir Husain since deceased, as such she is to get 1/3rd share and not 1/6th share as asserted by learned counsel for the respondents. The objection of learned counsel for the respondents on this score is hereby repelled.
8. There is no denial and cavil that Shabbir Husain deceased was born out of the wedlock of the petitioner with respondent No,9, that on the death of Shabbir Husain Mutation No,241 was entered on 3-1-1989 and was sanctioned in their favour on 7-1-1989. The dispute starts with the entry of Mutation No,242 regarding the gift of land acquired by the petitioner vide Mutation No,241. It is evident from record that Mutation No,241 was entered on 3-1-1989 at the instance of Fateh Muhammad respondent No,9 and the same was finally attested on 7-1-1989. It is very strange that mutation of inheritance entered on 3-1-1989 was sanctioned on 7-1-1989, but prior to that, mutation of gift No,242 was entered whereby the petitioner as well as respondent No,9 are said to have alienated their entire share in favour of other sons of Fateh Muhammad. This Mutation No,242 entered on 4-1-1989 clearly shows that it was entered at the instance of Fateh Muhammad and presence of Rashid Bibi petitioner as well as her acceptance to such alienation is not borne out from the record. The mere fact that mutation of inheritance entered on 3-1-1989 was sanctioned on 7-1-1989 but prior to its sanction, mutation of gift regarding that very property was entered on 4-1- 1989 clearly shows mala fides on the part of Fateh Muhammad respondent No,9 and it lends support to the contention of the petitioner that Mutation No,242 was a device to deprive her from the legal share which she had acquired as a result of Mutation No,241. It further reveals mala fide on the part of Fateh Muhammad, who was bent upon to deprive the petitioner of the rights of inheritance which she had acquired on the death of her only son Shabbir Husain. It also does not stand to reason that a mother whose only child out of Fateh Muhammad had been murdered and who had acquired a piece of land as a result thereof, would be so generous to depart her share of land and that too in favour of step-sons. By entering Mutation No,242 prior to the sanctioning of Mutation No,241, a crude effort has been made on the part of Fateh Muhammad to deprive his wife who also unfortunately was divorced on 14-3-1991. This fact further throws light on the inner working of the minds of respondent No,9 as well as his other sons in whose favour Mutation No,242 is said to have been entered on 4-1-1989 and sanctioned on 30-1-1989. Thus, it is clear that Mutation No,242 entered on 4-1-1989 was nothing but a ruse to deprive the petitioner of the property which she had acquired vide Mutation No .241 .
9. It is pertinent to point out that vide order, dated 11-6-1993, the revision was dismissed by the Additional Commissioner (Revenue), Bahawalpur. But at the same time, the said order contains that a settlement was arrived at between the parties, whereby respondents Nos.6 to 9 had agreed to deposit a sum of Rs,500 per month in her account for a period of five years. The order further contains a penal clause to the effect that if the said payment is not made, Mutation No,242 shall be deemed to have been cancelled. This observation of the learned Additional Commissioner (Revenue) clearly shows that order of dismissal of revision is not free from doubt. Had the revision been dismissed, there was no question of any settlement regarding payment of Rs,500 per month for five years entailing a penal clause.
10. As a sequel to the facts narrated above, it is proved that very entry of Mutation No,242, dated 4- 1-1989 whereby the petitioner has been deprived of a piece of land is illegal, void as it could not be entered without sanctioning of mutation of inheritance No,241, so the order, dated 30-1-1989 sanctioning the said mutation and all subsequent orders, dated 29-4-1992 and 11-6-1993 are illegal, without jurisdiction and void and consequently of no legal effect on the rights of the petitioner. Consequently, the petition is accepted and orders, dated 30-1-1989 sanctioning Mutation No,242 and of Appellate Court, dated 29-4-1992 and of revisional Court, dated 11-6-1993 are declared illegal and void and the petitioner is declared to be owner of 1/3rd share in land vide Mutation No,241 sanctioned on 7-1-1989.