PLJ 2006 Lahore 951

Present: Muhammad Muzammal Khan, J.

Mst. BARKAT BIBI--Petitioner

versus

ARIF HUSSAIN and 4 others--Respondents

C.R. No. 268 of 2006, decided on 18.5.2006.

(i) Civil Procedure Code, 1908 (V of 1908)--

----S. 115--Specific Relief Act (I of 1877), S. 42--Entitlement of inheritance--Suit for declaration--Deprived of right of inheritance--Dismissal of suit by Courts below--Assailed--Validity--Transfer of entire estate in the name of widow in presence of three daughters clearly proved that said mutation was attracted under Customary law and none else--If the petitioner claimed inheritance pleaded some special custom under which petitioner was entitled to inheritance but her plaint is absolutely silent about it--Plaintiff was aware of her difficulties of getting share of inheritance--On the death of widow, property reverted back to the heirs of husband, who was real brother of the propositus--Scan of record and impugned concurrent judgments revealed that controversy was correctly put to rest according to inheritance evidence on the file and law applicable without committing any illegality/irregularity in terms of Section 115 CPC, in absence of which no interference by High Court is permissible, under law--No case of interference by High Court was made out, petition dismissed. [Pp. 954 & 955] A, D, E, F, G & H

(ii) Customary Laws--

----Entitlement of inheritance--Under Customary law a widow used to inherit her husband till her re-marriage/death for maintenance purpose and in case of termination of limited interest of the widow, property held by her used to revert back to the male heirs of last male holder, who had been alive on his demise, on the principle of nearer excludes the remoter. [P. 954] C

(iii) Punjab Muslim Personal Law (Shariat) Application Act, 1948--

----S. 2--Civil Procedure Code, (V of 1908), S. 115--Law of inheritance earlier to promulgation of Shariat Application Act, 1948--All the agriculturist tribes of Punjab were governed in the matters of inheritance/succession by Customary law. [P. 954] B

PLD 1978 Lahore 673, PLD 1963 SC 543, PLD 1967 SC 200, Rattigal's Customary Law Para-9 and Question No. 38 of the Customary Law of Gujranwala and Sialkot districts relied.

Ch. Nisar Ahmad, Advocate for Petitioner.

Date of hearing : 18.5.2006.

Order

Instant civil revision assailed jugments/decrees dated 18.4.2001 and 7.2.2004 passed by the learned Civil Judge and learned Additional District Judge, Wazirabad, District Gujranwala, whereby petitioner's suit and appeal were dismissed, respectively.

2. Precisely, relevant facts are that Mst. Barkat Bibi petitioner filed a suit for declaration to the effect that she being daughter of Muhammad Khan was entitled to inherit his estate on his death on 2.1.1936 but was deprived of her this vested right. She further pleaded that her father Muhammad Khan was succeeded by a widow and three daughters namely, Mst. Barkat Bibi, Mst. Aisha Bibi and Mst. Hussain Bibi. According to her claim, one of the daughters of Muhammad Khan namely Mst. Hussain Bibi died some time after the death of her father, whereas his two other daughters are still alive but they were deprived of their right of inheritance, as the entire estate was mutated in the name of his widow vide Mutation No. 232 dated 11.5.1936. She challenged in her suit inheritance Mutation No. 265 sanctioned on death of Mst. Fatima Bibi widow of Muhammad Khan, whereby property was transferred in the name of Rehmat Khan, predecessor of the respondents. She claimed that it was wrongly mentioned in the mutation that both the daughters of Muhammad Khan were married whereas petitioner claimed to be of 9 years of age at that time. Petitioner prayed for a decree to the extent of 7/24 share in the landed property of her father under Islamic Law by adjugment of Mutation No. 345 dated 19.8.1951, sanctioned in favour of the respondents on death of Rehmat Khan.

3. Respondents being defendants in the suit, contested the same by filing their written statement, wherein it was asserted that at the time of death of Muhammad Khan, parties being Jat by caste, were governed by the then Customary Law of the Punjab where-under on the death of propositus, estate was to be given to the widow till her re-marriage/death for her subsistance. Respondents further pleaded that under the customary law followed by the last male owner and his family, female issues were not given any share in inheritance. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. Learned Civil Judge, seized of the matter, after doing the needful, dismissed the suit of the petitioner vide judgment/decree dated 18.4.2001.

4. Petitioner aggrieved of the decision of the trial Court, filed an appeal before the learned Additional District Judge but remained unsuccessful as the same was dismissed on 7.2.2004. Petitioner thereafter filed instant revision petition with the relief, noted above.

5. I have heard the learned counsel for the petitioner and have examined the record, appended herewith. Petitioner in her suit had challenged Mutations Nos. 232 dated 11.5.1936, 265 dated 9.12.1940, 332 and 345. Submission of the learned counsel that the petitioner being daughter of Muhammad Khan deceased was entitled to her Sharai share under Islamic Law, which was being followed by her father, was deprived of this right, has not impressed me for the simple reason that Mutation No. 232 dated 11.5.1936 was sanctioned in the exclusive name of Mst. Fatima Bibi widow of Muhammad Khan, in presence of his three real daughters. This mutation carried an entry in column No. 15 that Muhammad Khan deceased died leaving behind a widow and three daughters. Transfer of entire estate of Muhammad Khan in the name of widow in presence of three daughters clearly proved that this mutation was attested under Customary Law and none-else. Learned counsel for the petitioner could not respond to query of the Court that if the parties being Jat of Punjab were not governed by Customary Law, applicable at that time, then under what law of inheritance Mst. Fatima Bibi got the entire estate of Muhammad Khan. Mutation No. 232 also proved that property left by Muhammad Khan was given to Mst. Fatima Bibi as his widow. Law regarding inheritance earlier to promulgation of Punjab Muslim Personal Law (Shariat) Application Act, 1948 is firmly settled by this time to the effect that all the agriculturist tribes of Punjab were governed in the matters of inheritance/succession by Customary Law. Applicability of this law of inheritance to the tribe of Jats was earlier determined by this Court in the case of Ghulam Haider and 5 others vs. Karamat (minor) and another (PLD 1978 Lahore 673) by relying on a judgment by the Honourable Supreme Court in the case of Ghulam Akbar and others vs. Mst. Irshad Begum and others (PLD 1963 SC 543). While forming this view I have facility to refer to Rattigal's Customary Law Para-9 and Question No. 38 of the Customary Law of Gujranwala and Sialkot districts. In another case of Ihsan Ellahi and others vs. Hukam Jan reported as (PLD 1967 S.C. 200), it was mandated by the Honourable Supreme Court that in the agriculturist families of Punjab rules of Customary Law were being applied to resolve questions of succession despite promulgation of Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951.

6. There is no cavil about the proposition that under Customary Law a widow used to inherit her husband till her re-marriage/death for maintenance purpose and in case of termination of limited interest of the widow, property held by her used to revert back to the male heirs of last male holder, who had been alive on his demise, on the principle of nearer excludes the remoter. It was also general custom of the Punjab that daughters were not being given any share in inheritance and the agricultural family in which some special custom of giving share of inheritance to the daughters was acknowledged, those families were required to plead and prove such special custom. In the instant case, Muhammad Khan was undeniably Jat by caste and was governed by general custom of the Punjab, as is evident from his mutation of Inheritance No. 232 dated 11.5.1936. Now if the petitioner claimed inheritance in the year 1936, she must have pleaded some special custom under which she was entitled to inheritance but her plaint is absolutely silent about it. She while in the witness box as PW.1 admitted that her mother to the exclusion of all the three daughters, got the estate of her father. According to her deposition, she was of the age of 9 years at the time of death of her father and by calculation she must have gained majority by or before the year 1945 but she opted to file suit in hand on 12.11.1997 i.e. after 60 years, which shows that she was aware of her difficulties of getting any share of inheritance in the estate of her father. Petitioner in support of her case could have produced some mutation from her family showing that daughters used to inherit inspite of prevailing of general principle of following Customary Law by the Jats but no such mutation or record was brought on the file. On death of Mst. Fatima Bibi, property held by her, reverted back to the heirs of her husband namely Rehmat Khan, who was real brother of the propositus. Rehmat Khan also died in the year 1950 and his mutation of Inheritance No. 345 dated 19.8.1951 was sanctioned in favour of his heirs, which also included property coming to his share from his brother Muhammad Khan but petitioner did not agitate, though on account of Shariat Application Act daughter of Rehmat Khan namely Mst. Rasool Bibi was given 1/3 share in the estate of Rehmat Khan. Scan of record and impugned concurrent judgments revealed that controversy was correctly put to rest according to the evidence on the file and the law applicable without committing any illegality/irregularity in terms of Section 115 CPC, in absence of which no interference by this Court is permissible, under law.

7. For the reasons noted above, no case for interference by this Court was made out and consequently, instant petition, being devoid of any merit, is dismissed in limine.

(Muhammad Ajmal Rana) Petition dismissed