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Petitioner: MUHAMMAD AYUB KHAN and anothers VS Respondent: SECRETARY, BOARD OF DIRECTORS JUDGMENT
Court Name: Balochistan High Court Judge(s): Qazi Faez Isa, Syeda Tahira Safdar Title:MUHAMMAD AYUB KHAN and anothers vs SECRETARY, BOARD OF DIRECTORS
JUDGMENT
Reported As: 2014 YLR 553 Result: Case remanded Judgment JUDGMENT ' MRS. SYEDA TAHIRA SAFDAR, J.---The appellants assailed the judgment and decree dated 27th May, 2008 of Senior Civil Judge-I, Quetta, which had dismissed the Suit bearing No. 172 of 2003 for want of merit. 2. The appellants (plaintiffs) filed a suit for declaration of their title, on the basis of inheritance, in respect, of the property bearing Khasra Nos. 189, 190, 191 and 194 (4 Qitas) measuring 85759 square feet (01 acre, 3 rods, 35 poles) situated at Karez Lal Khan Mahal and Mauza Durrani, Ward No. 17 (new Ward No. 46), Tappa Urban-III, Quetta, (hereinafter "the suit property") being the legacy of their predecessor Baz Muhammad Khan, who had died in the year 1911. The appellants also sought cancellation of the mutation entries effected in favour of the legal heirs of Baz Muhammad, and in favour of defendants Nos. 23 to 27 on basis of the sale transactions of several parts of the suit property between them (defendants Nos. 23 to 27) and defendants Nos. 2 to 8. The Deed of Trust executed on 30th July, 1990 was also claimed to be invalidly executed, with a request for its cancellation. The remaining claim pertains to recovery of money deposited in the Bank account operated by Muhammad Hashim Khan of Rs.1,800,000 (Rupees one million and eight hundred thousand only) pertaining to the rent of the premises allegedly in the unauthorized possession of defendant No. 4, and an amount of Rs.2,400,000 (Rupees two million and four hundred thousand only) as mesne profit, the benefit gained by the contesting respondents by use of the suit property during all these years. 3. It was their (appellants') case that Baz Muhammad Khan died in the year 1911, leaving behind as his legal heirs three sons namely Muhammad Qasim, Muhammad Hashim and Muhammad Kazim
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and two daughters namely Bibi Wafa and Bibi Saeeda, therefore, on his death all the five legal heirs were entitled to inherit the property left by him. It was further their case that Bibi Saeeda, who died leaving behind three sons and six daughters, therefore, they (appellants) being her legal heirs entitled to inherit the share devolved on her (Bibi Saeeda) as her legacy. But, on the death of Baz Muhammad Khan, the suit property was mutated in the Revenue Record in the names of the three sons and the two daughters were excluded. The appellants further claimed right of inheritance from Bibi Wafa, Hashim Khan and Qasim Khan, who were described to died issueless. It was their (appellants') case that one of the recorded owners Hashim Khan died in the year 1993, but prior to that he was seriously ill, and taking benefit of his state of health defendant No.5 cleverly created the Trust, only to deprive them (appellants) of their right. Further, respondents Nos. 2 to 8 except the property described as Trust sold out all the suit property for their personal interest with an intent to deprive them (appellants) of their right. It was emphasized that the right of inheritance under Islamic Law neither can be denied, nor on creation of Trust or entering into sale transaction can put it to an end. 4. In their joint reply the defendants Nos. 1, 4, 5, 9 to 22 and 27 (the contesting respondents) not only denied the existence of the right of inheritance with the plaintiffs (present appellants) but the maintainability of the suit was also questioned. On merits they contended that the Trust was created by Hashim Khan Ghilzai, in his lifetime in the name of Hashim Khan Ghilzai Trust, and the Deed of Trust was executed on 31st July, 1990, thereby all his movable and immovable properties and the bank accounts were transferred to the Trust. Further, the intent behind the act was to convert this Trust into a hospital, and to achieve the purpose a proposed site plan was also prepared with approval of the Municipal Corporation on 30th April, 1991. Furthermore, Hashim Khan was the Chairman of the Trust, and several other persons namely Muhammad Naeem Khan, Dr. Inayatullah, Syed Hussain Shah, Abdul Raziq Khan, Professor Muhammad Raees and Professor Abdullah Jan Jamaldini were nominated as its Directors. However, after Hashim Khan's death Muhammad Hafeez (defendant No. 5) was given the authority to look after the affairs of the Trust. While denying the claim of inheritance the only contention raised was that a will was executed by Hashim Khan on 30th October, 1993, which neither described any shares of the plaintiffs, nor the existence of any right of inheritance in their favour in respect to the suit property. 5. Respondent No.4 (defendant No.4) Muhammad Najeeb resiled from his reply, that had been filed jointly, and submitted a separate reply and admitted that Bibi Saeeda and Bibi Wafa had been deprived of their shares by the three brothers. He further alleged that he was also one of the legal heirs of Kazim Khan, and his legal share in the inherited property was also refused by his real brothers and sisters, with the creation of the invalid Trust. 6. Defendant No. 25 (respondent No.25) in his written statement though admitted the claim of the plaintiffs (appellants) to the extent of heir ship of deceased Baz Muhammad, and their status as of share holders, but stated that he had purchased a portion of the suit property from Mst. Nasreen daughter of Muhammad Kazim Khan vide Mutation No. 2567, Khasra No. 242/314, measuring 2052 square feet, and had acquired a valid title having status of a bona fide purchaser, therefore, his right may not be disturbed. 7. The trial Court framed issues on 27th September, 2004 as under:-- (i) Whether the suit is not maintainable in view of preliminary legal objections B to F of the written statement? (ii) Whether the sale transaction between the defendants through Mutation No, 2567 is illegal and void? (iii) Whether the plaintiff is entitled to the relief claimed for? (iv) Relief.
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8. The appellants, the plaintiffs in the suit, produced five witnesses and plaintiff No. 1 (appellant No. 1) Muhammad Ayub recorded his statement for himself and on behalf of the remaining appellants as their attorney. In rebuttal defendants Nos. 1 to 3, 5 to 9, 11 to 15 and 22 produced three witnesses, and defendant No. 5 Muhammad Hafeez got recorded his statement for himself and for the remaining respondents being their attorney. The trial Court vide judgment dated 27th May, 2008, held the creation of the Trust to legal and valid, and that it was performing functions in terms of the will of Hashim Khan Ghilzai, and concluded that the appellants (plaintiffs) were not entitled for the relief claimed, as no case was made out. The appellants feeling aggrieved of the judgment preferred the appeal in hand. 9. The appellants questioned the judgment while contending that the trial Court either misappreciated the evidence or failed to appreciate the same in its true context, which resulted in an erroneous decision. It was contended that though their (appellants') status as legal heirs of Baz Muhammad was not denied, but the right of inheritance was denied by holding the suit property being the personal property of Hashim Khan. In addition sufficient evidence in shape of oral as well as documentary was available on the record, which cannot be ignored. Furthermore, the relevant law was either misunderstood or misinterpreted, therefore, the findings were in contravention thereof. The prayer was for setting aside of the impugned judgment with an order for decree of the suit. 10. The pleadings of the contesting parties are in agreement to the extent that Baz Muhammad Khan was the owner of the suit property, and had died in the year 1911, leaving behind three sons namely Muhammad Qasim, Muhammad. Hashim and Muhammad Kazim and two daughters Bibi Wafa and Bibi Saeeda as his legal heirs. Three of them namely Muhammad Qasim, Muhammad Hashim and Bibi Wafa died issueless in the years 1940, 1993 and 1974 respectively. Muhammad Kazim was survived by respondents Nos. 2 to 8 being his sons and daughters, and the appellants are the descendants of Bibi Saeeda, the second daughter, who died in year 1981. It was also not denied that on the death of Baz Muhammad the suit property (details whereof have been provided in para No. 1 of the judgment) was transferred and mutated in the revenue record in the names of his three sons namely Muhammad Qasim, Muhammad flashim and Muhammad Kazim and by leaving out the daughters. The mutation of inheritance ( .,_:;-'1,,jeDi) {{URDU TEXT}} effected on 7th October, 1911 with report recorded on 3rd January, 1913 was produced as an exhibit (Exh.P/1). 11. Certain additional facts collected from the pleadings are that defendants Nos.2 to 8 (respondents Nos. 2 to 8) sold out nearly all of the properties, that existed in the names of their father or in the names of the two co-owners Hashim Khan and Qasim Khan, except the property described to be of the Trust. The Deed of Trust described to be executed by Hashim Khan on 30th July, 1990 with reference to a will duly registered, executed on 17th February, 1987. The contesting defendants (respondents Nos. 2 to 8) also referred to a will executed by Hashim Khan on 3rd October, 1993. However, none of these documents were tendered in evidence nor were a part of the record. Furthermore, the defendants Nos. 9 to 27 had purchased part of the suit property, and some of such property was further sold out; the sale transactions were recorded in the Revenue Record, and the extracts thereof made part of the evidence as Exh.P/6 to Exh.P/11. The status of respondents Nos. 2 to 8 was quite distinct to respondents Nos. 9 to 27, therefore, is to be dealt with separately. The appellants (plaintiffs) were before the colirt not only for establishment of their right of inheritance against respondents Nos. 2 to 8, but they also questioned the title of respondents Nos. 9 to 27, on basis of the sale transactions effected between the two. Therefore, while determining the right of inheritance between the appellants and respondents Nos. 2 to 8, the legality of the questioned sale transactions was also required to be decided. 12. The learned counsel for the appellants stated that Exh.P/1 was the basic document, which described the legacy of their predecessor Baz Muhammad; however the male legal heirs deprived
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the female heirs from their legal shares in the property, left by their deceased father. He contended that though the mutation of inheritance was effected in the year 1913, and was not challenged either by Bibi Saeeda or by Bibi Wafa in their life time, but a claim based on a right of inheritance cannot come to an end, even if one of the legal heirs failed to raise any claim in respect of his/her share in the legacy left by his/her predecessor. The learned counsel urged that the admitted status of the appellants being descendants of Bibi Saeeda, a legal heir of Baz Muhammad, entitled them to inherit the share of Bibi Saeeda from the properties left behind by her father Baz Muhammad. He referred to the following cases:-- ' Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ' Muhammad Bashir v Muhammad Hussain 2009 SCMR 1256 ' While addressing the objection pertaining to limitation with a reference to Article 120 of the Limitation Act, 1908 the learned counsel stated that no time runs against a right of inheritance that will make it time barred and placed reliance on: ' Shahro v. Mst. Fatima PLD 1998 SC 1512 ' Allah Ditta v. Aimna Bibi 2011 SCMR 1483 ' Haji Rana Muhammad Shabbir Ahmed Khan v. Federation of Pakistan through Attorney-General for Pakistan PLD 2001 SC 18 ' He further stated that the suit property being a joint holding, no question of limitation arises, and referred to: ' Arshad Khan v. Mst. Resham Jan 2005 SCMR 1859 ' Muhammad Qasim Khan v.Mehbooba 1991 SCMR 515 ' Falak Sher v. Mst. Bano Mai 2006 SCMR 884 ' Mst. Janntan v. Mst. Taggi through Legal heirs PLD 2006 SC 322 ' Nazeer Hussain v. Muhammad Iqbal 2008 MLD 278 ' In addition it was contended that the limitation starts running from the denial of the right of a co- sharer by the remaining shareholders and referred to: ' Abdul Ghafoor v Muhammad Shafi PLD 1985 SC 407 ' While referring to Fatwa Dar-ulAloom Doband by Aziz-ur-Rehman, principles of Muhammadan Law by D. F. Mullah and Sunan Abu Dawood by Imam Abu Dawood, it was asserted that a right of inheritance never comes to an end, nor any of the legal heirs can be deprived of his right. ' Mr. Yaqoob Khan, Advocate adverted to the Deed of Trust and the wills dated 17th February, 1987 and 3rd October, 1993 and stated that all the three documents were neither produced before the trial Court nor exhibited, therefore, should not be considered. The legality and the existence of the Trust was also questioned and it was contended that the Trust was created only to deprive the shareholders; therefore, it was of no legal effect. He referred to:-- ' Kathiawar Cooperative Housing Society Ltd. v. Macca Masjid Trust 2009 SCMR 574 ' Miskin v. Additional District Judge Mansehra 2003 SCMR 121 ' Jaffar Hussain v. Muhammad Hanif CLC 2001 628 ' Pakistan Employees Cooperative Housing Society v. Messrs Awami Construction Co. Ltd. 2003 CLC 607 13. The learned Additional Advocate General, in attendance on court's notice, only submitted that the Sub-Registrar was not made party to the proceedings; therefore, no effective decree can be passed. He further stated that in view of non-compliance with the requirements of section 92, C.P.C. The suit was not maintainable as part of the property was held by the Trust. 14. The submissions of learned counsel for the respondents Nos. 2 to 8 related to the Deed of Trust, and that the suit was time barred as the daughters during all these years never agitated their right in respect of the suit property. Further, no evidence was produced to establish existence of right of inheritance in their (appellants') favour. He contended that the onus was on the appellants
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(plaintiffs) to establish that the Deed was a result of fraud and liable to be set aside. The maintainability of the suit was also objected to by contending that as the Trust was questioned by the appellants, therefore, compliance of section 92, C.P.C., which was mandatory in nature, should have been made, but, there was failure on part of the appellants making their suit not maintainable. Further, the Deed of Trust was admittedly a registered document executed on creating of Trust in 1990, in the lifetime of Hashim Khan, who died in the year 1993, with no objection from any corner, making the claim of the appellants not only barred by time, but also without any legal basis. Furthermore, the will dated 17th February, 1987, though it was not made part of the record but this fact was not of much significance as it had no bearing on the merit of the case. In addition except the land consisting of the Trust, there remained no land to satisfy the demand of the appellants. The learned counsel with reference to section 92, C.P.C. Placed reliance on:-- ' Fakir Shah v. Mehtab Shah Pir Bukhari Masjid Committee PLD 1989 SC 283 ' Muhammad Hussain v. District Council, Muzaffargarh 1987 CLC Lahore 1098 ' It was further contended that the Deed of Trust was not questioned in the suit, and the claim of the appellants (plaintiffs) was only to the extent of their inheritance, which had become time barred due to the fact that the suit was filed in the year 2003. Reliance was placed on the following cases:- - ' Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446 ' Luqman v. Gul Muhammad 1984 SCMR 63 ' Allah Ditta v. Aimna Bibi 2011 SCMR 1483 ' Article 100 of the Qanun-eShahadat Order, 1984 was also referred to contend that a 30 years old document shall be presumed to be duly executed, therefore, the mutation of inheritance effected in year 1911, need no further proof to establish its due execution, until the appellants succeeded to establish the contrary. The learned counsel further urged that the house in possession of Bibi Zahra, which was a part of the suit property, established satisfaction of the share of her predecessor (Bibi Saeeda), and also negated their (appellants') claim. In addition the Deed of Trust was registered on 31st July, 1990 in the life time of Hashim Khan, which remained unchallenged during all these years, nor the mutation entries in names of the three brothers were questioned from any corner, therefore, after lapse of considerable time no right remains with the appellants. With reference to section 18 of the Limitation Act, 1908 the learned counsel contended that the appellants and their predecessor were in the knowledge of the acts, but failed to approach the court in time, therefore, they have to suffer the consequences. Reliance was placed upon:-- ' Atta Muhammad v. Maula Bakhsh 2007 SCMR 1446 15. In reply the learned counsel for the appellants stated that as the property devolved on the parties on the death of their predecessors, therefore, they (appellants) being the co-owners cannot be deprived of their respective shares, nor the right of inheritance is affected by the law of limitation. Further, the Trust was created with an intention to deprive them of their legal shares describing the mala fides on part of the respondent, which cannot be ignored. Further, the trial Court committed error while placing reliance on the documents that were not part of the record. The Deed of Trust was not established, the marginal witnesses of the Deed neither produced, nor its execution was confirmed, therefore, it cannot be relied upon. As regards section 92, C.P.C. It was replied that the said section has no application to the instant case. Furthermore, the issues were not properly framed and they failed to cover the actual controversy between the parties, therefore, the decision arrived by the trial Court also suffered with the same defects. The learned counsel completed his submissions while asserting that the daughters were deprived of their right of inheritance, an act not appreciated either by law or by Shariah. 16. The miscellaneous applications still pending were considered, and need to be decided before giving findings on the main appeal.
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17. C.M.A. No. 993 of 2008 was filed by the appellants seeking appointment of a receiver during the pendency of the appeal, and to direct the tenants to deposit the rent of the premises in their occupation with the Civil Nazir of the court. Since, the matter is now for a final decision, therefore, issuance of any interim order would neither be appropriate nor just. 18. Through application C.M.A. No. 2829 of 2011 the appellants relinquish their right in the properties already sold to respondents Nos. 9 to 27. The appellants state that they would not claim their shares from those who have already purchased any part of the suit property. This application was allowed on 1st December, 2011 in the following terms:-- "C.M.A. No.2829 of 2011: Through this application, learned counsel for the appellants states that the appellants are forgoing the claim in respect of all such property that has been sold out to third parties and restricts his claim only to 35,000 sq.Ft. Mr. Arthur Victor, Advocate states that 35,000 sq:ft belongs to Hashim Khan Trust', which the appellants cannot claim. The question whether the appellants can claim or not the said property is yet to be decided. However, the appellants are within the rights to forego any part of the claim if they so desire and as they have foregone the claim as noted above, therefore, the application is allowed to such extent." ' However, order dated 1st December, 2011 was rectified/clarified vide order dated 15th December 2011 on the application C.M.A. No. 4166 of 2011 in terms:-- "C.M.A. No.4166 of 2011: Learned counsel states that the order passed on C.M.A. No.2829 of 2011 on December 1, 2011 may be misconstrued as restricting the claim of the appellants to only a portion of the area of 35000 Sq.Ft. And not to the entire 35000 Sq, Ft. Learned counsel states that in C.M.A. No.2829 of 2011 he had prayed that, "if remaining property measuring 35000 Sq.Ft. Are decreed and ordered to be mutated in favour of the appellants/ plaintiffs." ' Learned counsel for the respondents fairly concedes to the preposition and as it was so prayed in C.M.A. No.2829 of 2011. Accordingly, order dated December 1, 2011 is clarified to the extent that the appellants restrict their claim to 35000 Sq.Ft. Out of 88000 Sq. Ft. And pray that the entire 35000 Sq. Ft. Be decreed and mutated in their favour. It is further clarified that this order does not mean that the appeal of the appellants has been allowed or accepted to such extent." 19. The details of the legal heirs of late Baz Muhammad son of Atta Muhammad Khan was filed through C.M.A. No. 2225 of 2012 by the appellants describing names and relations of such persons with Baz Muhammad, and their status of being alive or dead, it was filed in compliance of order dated 12th September, 2012. Since the particulars of the legal heirs are not denied there is no need to pass any further order in this regard on the application. 20. The matter in hand pertains to a right of inheritance claimed in respect of the property left by Baz Muhammad (the deceased). The appellants (plaintiffs) describe themselves to be the descendants of Bibi Saeeda, one of the legal heirs of the deceased. Baz Muhammad was survived by his two daughters and three sons namely Bibi Saeeda, Bibi Wafa, Hashim Khan, Kazim Khan and Qasim Khan. The appellants claimed their right from Bibi Saeeda, and the status of respondent Nos. 2 to 8 was described to be the legal heirs of Kazim Khan, one of the sons of Baz Muhammad. The remaining legal heirs namely Bibi Wafa, Hashim Khan and Qasim Khan had died issueless; therefore, the appellants and respondents Nos. 2 to 8 also claimed the property in the capacity of being the legal heirs of the remaining three. 21. The contesting defendants (respondents Nos. 2 to 8) admitted the interse relations between the parties and of their predecessors with Baz Muhammad Khan, but denied the existence of right of inheritance in favour of the appellants (plaintiffs). Denial was firstly, on the ground that due to lapse of time there remains no claim, secondly, at present no property was left from the inheritance except the property of the Trust and, thirdly, compliance with the law while questioning a Trust was not made by the appellants.
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22. The maintainability of the suit was questioned with reference to the law of limitation contending that the suit property was mutated in favour. Of Hashim Khan, Qasim Khan and Kazim Khan in the year 1911 (attested in 1913), but was challenged in the year 2003, after a lapse of 92 years, making the claim time barred. Article 120 of the Limitation Act, 1908 would be relevant, as no other Article describes the period for a suit filed for declaration of a right. The stipulated limitation period is six (6) years, while the time is to be counted when the right to sue arises. The appellants before the court sought declaration in respect of their right of inheritance. There was denial of their right from the other side with a claim of title on basis of the mutation effected in favour of their (respondents Nos. 2 to 8's) predecessor in year 1911 finalized in 1913, the only document describing title of the original owner, but, the claim was of inheritance in respect of the suit property left by Baz Muhammad Khan and on his (Baz B Muhammad) death the suit property was entered in the names of his three sons, namely Hashim Khan, Qasim Khan and Kazim Khan, leaving out the daughters namely Bibi Saeeda and Bibi Wafa. The relevant mutation entry Exh.P/1 affirmed the fact. The perusal of Exh.P/1 reveals that the orders {{URDU TEXT}} ((6b) ) written by the concerned Tehsildar only mentions the three sons as the sole legal heirs but does not mention the said ladies. Further, the area of the property described as {{URDU TEXT}} recorded in the names of Pir Muhammad & Baz Muhammad in equal shares, which was entered in the names of three sons of the deceased in equal shares, therefore, the area thereby transferred was described as {{URDU TEXT}} the total area of the suit property. 23. The objection pertaining to the filing of the suit beyond the stipulated period needed to be properly considered, as it would be the determinative factor of the maintainability of the suit, for grant of the relief claimed. The right of succession arises in favour of successors from the date of death of a person, without any interruption. Property automatically, without any delay, vests in the persons having status of heirs as per the personal law of the deceased. In view thereof the factor of…
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