' KHALIL-UR-REHMAN RAMDAY, J.---This petition prays for grant of leave to the petitioners so as to enable them to impugn a judgment dated 21-12-2001 passed by the Lahore High Court in F.A.O.
No,29 of 2001 as also an order dated 22-1-2001 passed by a learned Civil Judge at Lahore whereby interim injunction sought by the petitioners herein was refused.
2. One Muhammad Yousaf Ali Khan died on 29-12-1987 leaving behind four daughters i,e, the petitioners and respondents Nos.10 and 11 before us and one son namely Ashraf Ali Khan which son has also since died leaving behind respondents Nos.1 to 9 as his legal heirs.
3. After the death of the said Yousaf Ali Khan it was claimed by his son Ashraf Ali Khan that late Yousaf Ali Khan had made a gift of Bungalow No,3-K, Model Town, Lahore as also of the lands and properties situated in the Districts of Sialkot and Chakwal in his favour and had also handed over possession of the said properties to him and that in the circumstances the said bengalow and said properties were not subject to inheritance by his above mentioned sisters. This led to civil litigation commenced by one of the daughters of the said late Yousaf Ali Khan namely Mst. Naseem Firdaus who is respondent No,11 before us. In the civil suit filed by her, she also prayed for interim injunction restraining the said Ashraf Ali Khan from selling, alienating, transferring or encumbering the estate left behind by late Yousaf Ali which prayer was allowed by the learned Civil Judge in the above mentioned terms. Ashraf Ali Khan impugned this order before the Lahore High Court through F.A.O.
No,182 of 1998 which F.A.O. Was disposed of through an order dated 8-9-1998 on the basis of the stance taken by the learned counsel for Ashraf Ali Khan that protection be provided to the plaintiff in the said suit i,e, Mst. Naseem Firdaus to the extent of her 1/6th share in the property in question because even if her suit succeeds, she was entitled only to the said extent in the property in question. Resultantly, the High Court, through the said order dated 8-9-1998 modified the order dated 18-6-1999 passed by a learned Civil Judge to the extent that Ashraf Ali Khan would not sell 1/6th share out of the estate left by Yousaf Ali Khan and that the said Ashraf Ali Khan would, however, be entitled to deal with the remaining 5/6th share in the property in question in any manner that he liked.
4. The present petitioners who, as has been mentioned above are admittedly the real daughters of Yousaf Ali Khan and thus the sisters of Ashraf Ali Khan and Mst. Naseem Firdaus, submitted an application bearing C.M. No,1-C of 1999 in the above mentioned F.A.O. No,182 of 1998 seeking a clarification with respect to the operation of the interim injunction to the extent of their share in the estate. This C.M. No,1-C of 1999 was dismissed by the High Court through an order dated 30-4-1999 on the ground that what was being sought by the applicants in the said application was not a clarification but in fact a modification of the order dated 8-9-1999 passed in F.A.O. No,182 of 1999 which would amount to a review of the said order which could not be secured in the garb of clarification. It was further observed that if the applicants (the petitioners before us) were aggrieved of the order then they could avail of the remedies in accordance with the law.
5. It was thereafter that the present petitioners filed an independent suit in order to secure their share in the properties in question left behind by their father. Namely Yousaf Ali Khan in which suit an application was also filed praying for an order restraining their. Brother Ashraf Ali Khan/ his heirs from alienating the property in question even to the extent of their share in the said properties.
6. This application was dismissed by the learned Civil Judge on 22-1-2001 which order was assailed before the Lahore High Court through F.A.O. No,29 of 2001, which F.A.O. Was dismissed through a judgment dated 21-12-2001 Which judgment is now the subject-matter of this petition before us.
7. As has been noticed above, pursuant to the civil suits filed by Mst. Naseem Firdaus, the learned Trial Judge had restrained Ashraf Ali Khan from dealing with the properties left behind by their father. This order was, however, modified by the High Court in pursuance of F.A.O. No,182 of 1998 to the extent that the said Ashraf Ali Khan was permitted to deal with the property to the extent of his Islamic share in the same and was prohibited from dealing with the said properties to the extent of the Islamic share of the plaintiff i,e, Mst. Naseem Firdaus. The other two sisters i,e, the petitioners before us are also clamouring for the same treatment and the same protection which was meted out and granted to Mst. Naseem Firdaus but the petitioners before us were denied a similar treatment despite being similarly placed. This is obviously unjust. If the learned Trial Judge and the learned High Court had, in the first round of litigation commenced by Mst. Naseem Firdaus, come to the conclusion that the safeguard was required to be provided to one daughter of late Yousaf Ali Khan then denial of the same protection to the other daughters of the same father was not understandable. The technicalities of law, if any involved in the matter, could not be permitted to lead to unfair and unjust conclusions. It may be mentioned here that it was Ashraf Ali Khan himself i,e, the predecessor-in-interest of present respondents Nos.1 to 9 who had offered not to deal with or sell that part of the property which could fall to the share of Mst. Naseem Firdaus in case the alleged gift deed etc. Executed by the late Yousaf Ali Khan in favour of Ashraf Ali Khan were found invalid. It is strange that Ashraf Ali Khan/his heirs are now taking a different stance vis-a-vis the other daughters of the same late Yousaf Ali Khan.
8. Having heard the learned counsel for the parties and having considered all aspects of the matter, we convert this petition into an appeal and allow the same directing that the protection provided to Mst. Naseem Firdaus to the extent of her Islamic share in the properties left behind by late Yousaf Ali Khan shall also be available to Mst. Saeeda Sultana and Mst. Khurshid Sultana to the extent of their Islamic share in the said properties.
9. There shall be no orders as to costs.