1. MUHAMMAD AKRAM, J.-This is a petition for special leave to appeal from the judgment and decree dated 14th of June 1976, whereby a learned Judge of the Lahore High Court at Lahore has dismissed a regular second appeal filed by the present petitioner against the respondents herein.
2. Briefly stated the relevant facts are that on the 24th of January 1961, Muhammad Siddique respondent No. 1 brought the suit out of which this petition has arisen against the present petitioner and respondents Nos. 2 to 6 herein for possession of 7/40 share of land measuring 828 kanals 16 marlas, fully described in the plaint, situated in the estate of Mandiala Waraich, Tehsil and District Gujranwala. The plaintiff alleged in the plaint that he alongwith defendants Nos. 1 to 5 were the sons and defendant No. 6 was the wife of Chaudhry Atta Muhammad Khan who owned considerable properties in the estates of Mauza Naiwai and Sulkani, Tehsil Thanesar, District Karnal (East Punjab). He was however, disqualified to be Lambardar in his native estate in India. He therefore, decided to set up his son, Muhammad Siddique petitioner defendant No. 1 as a candidate for the post of the Lambardar there. For that purpose in order to improve upon his status and also for reasons of his business conveniences he fictitiously transferred a portion of his ancestral land situated in India in his name. On the eve of the Partition of the Sub-Continent the parties along with their predecessor Chaudhry Atta Muhammad Khan migrated to Pakistan and settled in village Mandiala Waraich, Tehsil and District Gujranwala. In this village land measuring 570 kanals 6 marlas was duly confirmed in the name of their predecessor on his verified claim and the land in dispute measuring 828 kanals 16 marlas was confirmed in the name of defendant- petitioner against his verified claim in lieu of the abandoned land standing fictitiously in his name in India. It is further alleged that in the lifetime of Chaudhry Atta Muhammad Khan, on the 5th of October 1953, in recognition of the claim of all the heirs defendant No. 1 petitioner executed a registered deed in their favour to the effect that the land in dispute measuring 828 kanals 16 marlas allotted in his name in lieu of the abandoned land in India shall be treated and considered as the ancestral land forming part of the estate of late Chaudhry Atta Muhammad Khan, their predecessor and on his death shall devolve upon his legal heirs in accordance with the Shariat law.
3. Their prepositus died afterwards in Mandiala Waraich on the 1st of February 1960 and the plaintiff therefore, laid his claim for possession of the 7/40th share under the Shariat law in the land in dispute forming a part of the estate, left by him.
4. Defendant No. 1 petitioner in his written statement denied these allegations and resisted the suit of the plaintiff. He raised the preliminary objections to the effect that the civil Courts in Pakistan had no jurisdiction to entertain the suit which was even otherwise not maintainable in its present form.
5. It was also barred by time. He denied that the plaintiff was a son of Chaudhry Atta Muhammad Khan deceased born out of lawful wedlock. He admitted that before migration the deceased had lawfully transferred a part of the land held by him in India and constituted him as the full owner thereof and repelled the suggestion that this transfer made in his name was temporary or fictitious in its nature. According to him, the agreement in suit dated 5th of October 1953 was procured from him under undue influence and misrepresentation and was therefore, not binding on the parties. It was even otherwise revoked by him by a registered will executed afterwards on the 24th of January 1961. Defendants-respondents Nos. 2 to 6 in their separate written statement also joined with the petitioner in resisting the suit of the plaintiff.
(1) Whether this Court has jurisdiction to try this suit ?
(2) Whether plaintiff is son of Atta Muhammad deceased ?
(3) Whether agreement dated 5th October, 1955 was executed by defendant No. 1 under undue influence and coercion ?
(4) In this suit time barred ?
(5) Whether defendant No. 1 is benami owner of the land described in para. 4 of the plaint ?
6. (5-A) Whether the suit is not maintainable in the present form ?
(6) Relief.
7. After recording the evidence, on the 26th of January 1966 the learned Senior Civil Judge, Gujranwala decreed the suit of the plaintiff respondent No. 1 against the defendants. The decree was upheld on appeal of the petitioner defendant No. 1 which was dismissed by the learned District Judge, Gujranwala on the 8th of June, 1967 and affirmed on his second appeal rejected by .a learned Judge of the Lahore High Court on the 14th of June 1976. Hence this petition before us from the judgment and decree of the High Court.
8. Issue No. 1 was treated as a preliminary issue and the dispute was ultimately taken upto the High Court in revision. On the 9th of April 1963, a learned Judge of the High Court in disposing of the revision after recording the statement of the parties expressed the opinion that the cause of action disclosed in the plaint in this suit was based on the document dated 5 of October, 1953 and related to the relief claimed in respect of the land in dispute in Pakistan in the estate of Mandiala Waraich, Tehsil and District Gujranwala. There was however an oblique reference in the plaint to some sort of an arrangement arrived at concerning the abandoned land in India. But as no relief was claimed on that score this averment did not in reality constitute the whole or a part of the cause of action in this suit which was instituted for the relief to establish as title to the land in dispute situated in Pakistan. As it is the suit was based on the document dated 5th of October 1953 executed in Gujranwala relating to the property situated there. As such the Civil Court at Gujranwala had jurisdiction to entertain the suit. This finding recorded by the High Court in revision appears to be inviolable and no exception could be taken against it.th The trial Court found that plaintiff-respondent No. 1 had adduced overwhelmingly strong oral and documentary evidence on issue No. 2 which was not rebutted by the defendant. He failed to lead any evidence on issue No. 3 which was found against him. No arguments were addressed before the trial Court on issue No. 4 and the Court found that the suit for possession of the land filed within 12 years of the death of Chaudhry Atta Muhammad Khan deceased father of the plaintiff was well within time. In support of issue No. 5 the plaintiffevidence to show that his father gave bulk of his property situated in Mauza Nalwai, Tebsil Thanesar, District Karnal in East Punjab to defendant No. 1, his step brother, with a view to enhancing his status for standing as a candidate for the post of Lambardar in India. In this behalf the learned trial Court was impressed by the overwhelmingly strong oral evidence of witnesses produced by the plaintiff and saw no reason to disbelieve their testimony. The defendant however, did not produce any evidence whatever in rebuttal to suggest that he had got-the land from his father for any purpose other than raising his status for the post of Lambardar. As a matter of fact it was conceded by the learned counsel on behalf of defendantNo. 1 before the learned Senior Civil Judge that he had in fact obtained the land in Mauza Nalwai, in lieu of which the suit land was confirmed to him in Mauza Mandiala Waraicb, Tehsil and District Gujranwala, from his father for raising his qualification for the post of Lambardar in India prior to the Partition of the Sub-Continent. The learned counsel however, strenuously contended that there was no basis for the conclusion that the land thus transferred by Chaudhry Atta Muhammad deceased in favour of defendant No. I in India was a benami transaction. But this contention was repelled by the learned trial Court in view of the clear admission in the document dated 5th of October, 1953 (Exh. P. 9) executed by him in favour of the other heirs during the lifetime of their predecessor concerning the land in dispute agreeing to surrender the same for treatment as a part of the ancestral estate for devolution among his share heirs including the plaintiff. From this the learned Senior Civil Judge was satisfied that the land in India was given to Atta Hussain Khan defendant No. 1 by his father only for enhancing his status as a candidate for the post of Lambardar and thereby he was not constituted as its absolute owner so as to deprive the other co- -heirs of their right to succeed to it on the death of their predecessor. In conclusion therefore, the trial Court held that the alienation thus made in favour of Atta Hussain Khan defendant was "a sham transaction and consequently benami". )ssue No. 5 was accordingly found in favour of the plaintiff. On issue No 5-A the learned Senior Civil Judge repelled the contention that the docuntent in suit (Exh. P. 9) was unilateral, lack of mutuality, did not provide any remedy for the breach of its undertaking and was unenforceable in law or that the suit of the plaintiff in its present form on its basis was not maintainable. According to the learned Senior Civil Judge this document contained an admission made by its executant to the effect that the property belonged to his father and would devolve on the parties as co-heirs in accordance with Muslim Personal Law and as such the suit filed by the plaintiff for a share in the inheritance was main--tainable.
9. These findings were in substance upheld by the learned Judge in Chambers, who dismissed the second appeal of the defendant-petitioner on the 14th of June 1976. He repelled the contention once again advanced before the High Court against the jurisdiction of the civil Courts in Pakistan to entertain the suit for the simple reason that it did not relate to any land situated in India and the relief was confined only to the land in suit confirmed to the petitioner in Pakistan and was based on the deed (Exh. P. 9) executed by him at Gujranwala. At the stage of the second appeal before the High Court it was contended that although it was expressly pleaded in the written statement of the petitioner that the deed (Exh. P. 9) had been cancelled by means of a subsequently executed document on the 24th of January 1961 but that the trial Court has failed to frame and try this issue.
10. The High Court however, overruled this contention on the ground that this objection for framing the additional issue was never raised by the petitioner in the course of the trial nor even before the learned District Judge in the first appeal and could not, therefore, be allowed to be raised for the first time at that late stage in the second appeal before the High Court.
11. Yet another objection was raised before the High Court which was in the first instance never raised in the trial Court. It was argued that the deed (Exh. P. 91 also included the land which had been confirmed to the petitioner in lieu of his own land personally belonging to him which he had abandoned in India in addition to the land situated in the estate of Nalwai given to him by his father in India and that Courts below have failed to bear in mind this distinction to his great prejudice. In elaborating on this part of the case it was submitted that although admittedly the land situated in the estate of Nalwai belonged to his father and had been transferred to him in India yet another land situated in the estate of Sulkani, Tehsil Thanesar, District Karnal belonged to him and was held by him personally in his own right to which his other brothers and sisters had no possible claim to lay. His grievance was that by inadvertence no distinction was made in these two abandoned lands at the time of the execution of the deed (Exh. P. 9). In this connection the learned District Judge has observed that both these lands stood in the name of the petitioner and there was no reliable evidence on the record to show that the land situated in the estate of Sulkani originally belonged to him personally. No specific plea and issue to this effect was at all raised by the petitioner in the trial Court about this disputed question of fact. It could not therefore, be allowed to be raised at a later stage in appeal.
12. On the merits the High Court observed that the real point in controversy was about the true nature of the document (Exh. P. 9) forming the basis of the suit. The learned counsel for the appellant relied on section 16 of the Displaced Persons (Land Settlement) Act to contend that, no matter whatever the position of the land in question abandoned in India, the land in suit has vested absolutely in the petitioner. Thereby he was constituted as its full owner under the law and as such the plaintiff's claim to a share in this land is misconceived. But the High Court repelled this contention with the observation that the petitioner being the full owner of the land in suit had voluntarily agreed to surrender it in favour of his brothers and sisters, etc. Under the deed Exh. P. 9 executed by him on 5-10-1953 in their favour. As to the nature of this document the learned Judge in Chambers observed that neither the trial Court nor the learned District Judge were clear about it.
13. But according to him this deed amounted to a relinquishment of his rights in the suit land in future.
14. In effect the deed was executed for a valid consideration in recognition of the right of his father to the land in India which he gave to the petitioner for the purpose of building up his status for his candidature for the post of Lambardar. In these circumstances, in the opinion of the learned Judge in Chambers this deed of relinquishment was validly made by the petitioner and was fully enforceable in law at the instance of the plaintiff-respondent.
15. It was next argued on behalf of the petitioner that the deed (Exh. P. 9) also included the land which was confirmed in his favour in lieu of the abandoned lands held by him personally in his own right situated in village Sulkani, in addition to the land situated in village Nalwai' which he got from his father. But this plea was never raised by the defendant in his written statement. Nor was any specific issue at all framed, in that connection. High Court was therefore, fully justified in not entertaining the objection necessitating an enquiry into disputed question of fact which was never put in issue and tried.
16. The learned counsel also contended that in the written statement it was expressly pleaded by the petitioner that the deed in suit (Exh. P. 9) was cancelled afterwards on the 24th of January, 1961. But at the trial no issue was at all claimed by the petitioner in that connection. We find that no such objection was also raised in the lower appellate Court. It must therefore, be deemed to have been waived by him. In the circumstances the High Court was justified in repelling this objection as well.
17. As to the merits of this controversy between the parties the two lower Courts were satisfied from the evidence on the record under issue No. 5 that Chaudhry Atta Muhammad Khan predecessor of the parties had fictitiously transferred a part of his land situated in India in the name of the petitioner in order to build up his status to enable him to stand as a candidate fort the post of a Lambardar of the village and that this was a fictitious and sham transaction. Issue No. 5 is concluded by this concurrent finding of fact recorded by the trial Court as well as oh first appeal by the learned district Judge. This finding was based on the oral evidence supported by the inferences drawn from the deed dated 5th October 1953 (Exh. P. 9). This finding of fact was binding between the parties and was never disturbed in second appeal before the High Court. This part of the case is therefore, concluded by this finding of fact.
18. It goes without saying that on the very face of it this document executed by the petitioner had to come into operation and take effect on the death of his father concerning his (father's) estate and not on petitioner's death about his own estate. Therefore, by no stretch of imagination it could in law be described as a will made by the petitioner.
19. There was some difference of opinion among to the three Courts below on the precise nature of this deed (Exh. P. 9). In the opinion of the learned trial Court it embodied an admission made by its executant concerning the corpus of the land allotted in his name and its devolution on all the Sharie heirs of Chaudhry Atta Muhammad Khan deceased, and was enforceable as such.
20. According to the learned District Judge it was in the nature of an acknowledgment and admission leading to a family settlement about the rights of inheritance to the land in suit amongst all the heirs of Chaudhry Atta Muhammad deceased. In the opinion of the learned Judge in Chambers this document constituted a relinquishment in future of his rights in the land by the petitioner in favour of all the heirs of his father.
21. It is evident from the above that the land in suit was allotted to the petitioner in lieu of the land held by him fictitiously for his father under a sham and a paper transfer made in his favour in India before their migration to Pakistan. It was in this background that on 5-10-1953 the petitioner executed the deed (Exh. P. 9) declaring that the land in suit allotted in his name in lieu of the abandoned land in India shall form part of the estate of his father for devolution on all his heirs at the time of his death. The inference seems to be irresistible that the petitioner executed this document in the lifetime of his father in favour of the respondents with a view to set at rest the conflicting claims to the suit land by the parties or at any rat p to avoid any future dispute concerning inheritance to this property on the death of late Ch. Atta Muhammad Khan. In other words this document embodied a bona fide settlement arrived at the time whereby the petitioner agreed to surrender his rights if any in favour of the respondents for the reservation of the peace, amity and harmony between the members of their family. It therefore, amounted to a family settlement arrived between they members for lawful consideration and was fully binding on them.
22. On this view of the matter we find that there is hardly even force in the contention half-heartedly advanced before us that this deed in question contained merely a gratuitous admission which could be allowed to be withdrawn at any time.
23. "A parent can be generous to a son, or legitimate children to an illegitimate one, or a son to a mother upon the occasion of a family arrangement without its being proper or possible in equity, merely on that ground, to suggest that the arrangement is an unfair one and ought to be set aside."
24. PLD 1966 SC 612), the facts were that Malik Ahmad Khan, father of the appellant and the respondent had acquired 12 squares of land under the House Breeding Conditions under the Colonization of Government Lands (Punjab) Act, 1912, in Chak No. 57/SB, Tehsil Sargodha. At the time the law of primogeniture applied in the case of succession to such lands and under that law the respondent alone would have inherited all the properties of his father. Knowing this, the father then acquired another 3 squares of land under the Sufaid Posh Grant Conditions and made a gift of these three squares in favour of his younger son for which the mutation was duly attested, But subsequently the rule of primogeniture was abolished while Malik Ahmad Khan was still alive. After his death, in accordance with law prevailing at the time, the 12 squares of land first acquired by him, devolved on both his sons and were mutated in their names in equal shares. The elder brother felt dissatisfied and filed a suit for a declaration that he was the exclusive owner of the said 12 squares of land or that, in the alternative, he should be declared to be entitled to a half share in also the three squares of land mutated in the name of his younger brother. This suit was however, ultimately compromised and a decree was passed in terms thereof affecting the distribution of the two landed properties. In adjudicating upon the nature of this compromise the Supreme Court observed as under: "The compromise, in out opinion, purported to effect a distribution of the estate of Malik Ahmad Khan on the basis that .It consisted not of only 12 squares of land but of 15 squares. Even "the mutation that was effected in pursuance of this compromise decree was not as in the case of a transfer by sale, exchange or gift but merely by the addition of the name of a co-owner, vide Exh. D.
25. II. We are in agreement therefore, with the High Court that the compromise in this case was for the purpose of bringing about a family settlement and not a transference of a share on .The basis of a consideration."
26. We, are now left to, deal with the last remaining contention advanced before us by the learned counsel for the petitioner. In this connection he-- relied on section 16 of the Displaced Persons (Land Settlement) Act, 1958 and submitted that thereby the suit land which was permanently settled on the petitioner has vested absolutely in him by the operation of law and that consequently the respondents cannot be permitted to lay any claim to it. But there is hardly, any force to this, contention. The suit land, was allotted in the name of the petitioner on a quasi- permanent basis after is migration to Pakistan. Thereafter the petitioner executed the document in suit (Exh. P. 9) in favour, of the respondents on 5-10-1953. This was much before the Displaced Persons (Land Settlement)'Act came into force in 1958. Afterwards Ch. Atta Muhammad Khan, father of the petitioner, had died on 1-2-1960. Thereby the succession to the land in suit fell open to his heirs in accordance with Exh: P.
9. There is nothing to show that before it this land had been permanently settled on the petitioner and vested in him absolutely. As such the deed in suit was in no way hit by the provisions Contained in section 16 of the Act.
27. For the foregoing reasons we find that there is no force in this petition which is hereby dismissed.