7/6/24, 7:37 PM 2014 S C M R 801

2014 S C M R 801

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Ejaz Afzal Khan, JJ

Mst. GOHAR KHANUM and others---Appellants

Versus

Mst. JAMILA JAN and others---Respondents

Civil Appeal No.825 of 2009, decided on 24th February, 2014.

(Against the judgment dated 9-5-2005 of the Peshawar High Court, Abbottabad Bench
passed in C.R. No.62 of 2005)

(a) Limitation Act (IX of 1908)---

----S. 3---West Pakistan Land Revenue Act (XVII of 1967), S. 42---Islamic law---
Inheritance---Inheritance share of sister excluded at the time of recording of mutation--
-Sister filing suit challenging said mutation after a lapse of fifty years--- Limitation---
Through inheritance brother became owner of 2/3rd of the property, while sister
became owner of the remaining 1/3rd property---Sister came to own 1/3rd of the
property by operation of law and not by any mutation---Mutation was meant to record
legal entitlement of brother and sister---If the mutation was erroneously made in favour
of the brother (only), such mutation would not create title in favour of the brother in
accordance with Sharia law of inheritance---Suit filed by sister was not time barred in
circumstances.

(b) Islamic law---

----Inheritance--- Share, relinquishment of--- Burden of proof---Mutation relating to

inherited property entered exclusively in name of brother at the exclusion of sister---
Brother alleged that his sister was fully aware of such mutation and did not challenge it
for fifty years, and that he had also constructed a house on the disputed property---
Validity---In order to relinquish or transfer interest in property, there had to be a
positive and affirmative act---No document or deed of relinquishment, sale, transfer or
gift was brought on record to establish that sister had either relinquished her interest in
the disputed property or had actually conveyed or transferred the same in favour of her
brother---In the absence of any such affirmative act on part of sister, it could not be
said that the property came to vest entirely in the brother---Onus fell squarely on the
brother to establish that interest of sister had been transferred in his favour or that sister
had relinquished her rights in the disputed property---Brother failed to discharge such
onus.

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(c) Islamic law---

----Inheritance---Co-ownership---Scope---Mutation relating to inherited property

entered exclusively in name of brother at the exclusion of sister--- Sister as co-owner
of such property--- Scope---Sister was co-owner of such property and (exclusive)
possession/occupation of property by her brother as the other co-owner could only be
construed as possession on behalf of all co-owners including the sister in question---
Illustration.

(d) Khyber Pakhtunkhwa Tenancy Act (XXV of 1950)---

----S. 4---Trusts Act (II of 1882), Ss. 82, 89, 90 & 94---Co-owners of occupancy
tenancy---Compensation paid by one co-owner only to secure ownership rights---
Effect---Deceased owned suit property as occupancy tenant---Deceased passed away
leaving behind a son and a daughter---Son (co-owner in suit property) made payment
to secure proprietary rights in suit property, and consequently mutation relating to suit
property was entered exclusively in name of son at the exclusion of daughter---
Legality---Payment of amount by the son could at best be treated as an act of one co-
owner to secure proprietary rights in the disputed property---Act of making payment
by son was for the purpose of securing the ownership rights in the suit property---
Payment by son in such circumstances must be seen as a payment made on behalf of
the co-owner/daughter as trustee by virtue of Ss. 82, 89, 90 & 94 of Trusts Act, 1882.

Mushtaq Ali Tahirkheli, Advocate Supreme Court for Appellants.

Gulzarin Kiyani, Advocate Supreme Court for Respondents.

Date of hearing: 24th February, 2014.

JUDGMENT

JAWWAD S. KHAWAJA, J.---The facts of the case are straightforward. The

appellants herein are the legal heirs of Dost Muhammad while respondents are the
legal heirs of Mst. Zarina Jan. Dost Muhammad and Mst. Zarina Jan are respectively
brother and sister being the son and daughter of the deceased Hashim.

2. The dispute relates to inherited property in mouza Jatti Pind measuring a total of 16
kanals and 5 marlas. Out of this property, 9 kanals and 4 marlas were held by Hashim
as an occupancy tenant. The said Hashim died in 1940 and as a result his mutation of
inheritance was recorded on 31-8-1940. In this mutation Mst. Zarina Jan was excluded.
She thereafter filed a suit on 2-9-1990 i.e. almost 50 years after the death of Hashim
and the recording of the above mutation. The three Courts below have concurrently
held that Mst. Zarina Jan was a legal heir and entitled to inherit from Hashim to the
extent of 1/3rd of the disputed land. The occupancy tenancy was also an inheritable
right.

3. The predecessor of the petitioner namely Dost Muhammad has been in occupation
of the suit land and paid the amount under section 4 of the N.-W.F.P. Tenancy Act,

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1950 to acquire propriety rights in respect of the tenancy rights which were previously
vested in Hashim. All three Courts have concluded that the respondents being legal
heirs of Mst. Zarina Jan were 1/3rd owners of the disputed property. Leave to appeal
was granted in this case vide order dated 29-6-2009 on the basis of a previous order
dated 17-1-2006. Both the said orders, for ease of reference, are reproduced as under:-

"17-1-2006

Learned counsel for the petitioners alleged that the Civil Court had no jurisdiction to
undo the conversion of occupancy tenancy rights into ownership through mutation
No.257 attested on 2-11-1951 and that such question could be raised at any time. That
the respondents had no right to claim title after the lapse of fifty years from the
devolution of inheritance and further that she had failed to avail the remedy provided
to her under section 83 of N.-W.F.P. Tenancy Act of 1950, within three years from the
promulgation of the Act.

We would like to issue notice to the respondents in order to clarify the aforesaid
assertion. Notice be issued accordingly."

"29-6-2009

Leave to appeal is granted to consider contentions recorded in our order dated 17-1-
2006. Status quo shall be maintained in the meanwhile."

4. We have heard learned counsel for the parties at great length and have also gone
through the impugned judgment and the record with their assistance. The relationship
between the parties is undisputed. It is, therefore, clear that on the death of Hashim, in
accordance with Islamic Sharia which was applicable to the question of inheritance in
this case, the petitioners through their predecessor- in-interest Dost Muhammad
became owners of 2/3rd of the property while the respondents through their
predecessor Mst. Zarina Jan became owners through inheritance of the remaining 1/3rd
of the land.

3(sic.) The main emphasis of the learned counsel for the appellants was that the suit
was time barred having been filed 50 years after the mutation dated 31-8-1940. This
contention is, however, easily dispensed with as Mst. Zarina Jan admittedly came to
own a 1/3rd share of the land by operation of law and not by any mutation. The
mutation was meant to record the legal entitlement of Dost Muhammad and Mst.
Zarina Jan. If the mutation was erroneously made in favour of Dost Muhammad, such
mutation would not create title in favour of Dost Muhammad in accordance with
Sharia Law of inheritance. Learned counsel for the appellants repeatedly emphasized
that Mst. Zarina was fully aware of the decision and assertion of title by her brother
Dost Muhammad and Dost Muhammad had also constructed a house on the disputed
land. This, however, does not attract the provisions of the Limitation Act in the
circumstances of the present case. Mst. Zarina Jan being the sister was co-owner and
the possession/occupation of the land by her brother as the other co-owner could only
be construed as possession on behalf of all co-owners including Mst. Zarina. In order
to relinquish or transfer her interest in the property, there had to be a positive and

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affirmative act. We have not been shown any document or deed of relinquishment,
sale, transfer or gift which would establish that Zarina Jan had either relinquished her
interest in the disputed property or had actually conveyed or transferred the same in
favour of Dost Muhammad. In the absence of any such affirmative act on the part of
Mst. Zarina Jan, it cannot be said that the property came to vest entirely in Dost
Muhammad.

4. It was next contended that Mst. Zarina Jan did not appear in the witness box herself
and instead her daughter in law namely Mst. Karam Jan appeared as P.W.1. The fact is
that Mst. Zarina Jan was close to 100 years old and it was this exigency which required
her to act through her daughter in law. Since it is not disputed that the brother and
sisters were owners of the disputed land by way of inheritance, the onus squarely fell
on the appellants to establish that the 1/3rd interest of Zarina had been transferred in
favour of Dost Muhammad or that Zarina had relinquished her rights in the suit
property. But this onus was not discharged.

5. We next come to the question of the amount which was paid by Dost Muhammad
under section 4 of the N.-W.F.P. Tenancy Act to acquire proprietary rights in the suit
property. The payment of such amount could at best be treated as an act of one co-
owner to secure proprietary rights in the disputed property which admittedly was
undivided between Dost Muhammad and Zarina Jan. Thus, the act of making payment
was for the purpose of securing the ownership rights in the suit property. The payment
in the circumstances of the case, where it was the brother who made payment at the
time when the revenue record showed him as owner/occupancy tenant of the entire
land, must be seen as a payment made on behalf of the co-owner/occupancy tenant as
trustee by virtue of sections 82, 89, 90 and 94 of the Trusts Act, 1882.

6. In view of the foregoing discussion, we find that the conclusions arrived at

concurrently by the three Courts below were consistent with the record and the law.
Therefore, we find no justification for interfering in the impugned judgments. This
appeal being without merit is, therefore, dismissed. No order as to costs.

MWA/G-1/SC Appeal dismissed.

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