Le palak Bacha jaidad main poora Hissa le sakta hai

The Supreme court of Pakistan decided new case law in which discussed adopted child will be considered a real child(Le palak) and no one his brother and sister can challenge after the death of adopty father and he will be considered the real son only adopty father can challenge the record himself if the father doesn't challenge, no one can challenge.


  • Mojoda case law main fawad bhai ne apni bhain Laila ki waldiat ko challange kia.
  • Case title was Laila Qayyum vs Fawad Qayum & Others PLD 2019 SC 449
  • court ne sab se pehle iss sawal ko discuss kia ke kia fawad ( bhai) yeh haq rakhta hai ke wo apni sister ki waldiat ko challange kare.
  • Or diclaration ka dawa file kare or documents ko cancel karne ki darkhwast kareunder section 42 of the Specific Relief Act, 1877
  • Kia specific relief act ke tehat aisa kia ja sakta hai. Declaration ke case ma koi banda apna haq mangta hai ju ke mojod hota hai 
  • Kia manfi declaration talab ki ja sakti hai 
  • Court ne case law ka hawala dia or qarar dia ke section 42 specific relief act ke tehat har qisam ki declaration talab nahi ki ja sakti.
  • Lihaza Supreme Court of Pakistan ne qarar dia ke waldiat ki  declaration bap ke ilawa koi challenge nahi kar sakta.
  • Issi mozo per same judgement main Sindh High court ne bhi same observation di hai. Or sindh High court ka faisla neeche article ke aakhar main sath attached hai
Case laws on lepalak property and maintenance 

Lepalak beta or beti warasat main hissa ke haqdar hain. (2010 YLR 1327)





Lepalak bachi bhi sagi bachi ki tarah bap se kharcha leene ki haqdar hai.
Plj 2023 lahore note 111 


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………….
12. قانون شہادت آرڈر کے آرٹیکل 128 کے ذریعہ بھی مقدمہ کو روک دیا گیا تھا۔ وقت کے اندر صرف   ایک قابل باپ لےپالک 
آرٹیکل 128 میں تجویز کردہ، a کی ولدیت کو چیلنج کر سکتا ہے۔
بچہ.
128. جے
(a) شوہر نے بچے کی ملکیت سے انکار کر دیا تھا، یا انکار کر دیا تھا۔
یا
(b) بچہ چھ قمری ختم ہونے کے بعد پیدا ہوا۔
اس تاریخ سے مہینے جس دن عورت نے قبول کیا تھا۔
کہ عدت کا دور ختم ہو گیا۔
(2) شق (1) میں موجود کوئی چیز کسی غیر مسلم پر لاگو نہیں ہوگی اگر وہ اس کے عقیدے سے مطابقت نہیں رکھتی۔
عبدالقیوم (والد) نے لیلیٰ کو چیلنج نہیں کیا تھا۔
ولدیت آرٹیکل 128 کسی بھی بھائی کو اجازت نہیں دیتا کہ وہ اپنی بہن کی ولدیت کو چیلنج کرے ۔


Judgement 

Hon’ble Supreme Court of Pakistan in its latest 
judgment titled as Mst. Laila Qayyum vs Fawad Qayum & Others
(PLD 2019 SC 449) held as under:-
“7. First of all we need to consider whether Fawad had the 
requisite legal character to seek the abovementioned 
declarations and seek the cancellation of the said 
documents. A declaratory suit is filed under section 42 of 
the Specific Relief Act, 1877, reproduced hereunder: 
42. Discretion of Court as to declaration of status or right.
Any person entitled to any legal character or to any right 
as to any property, may institute a suit against any person 
denying, or interested to deny, his title to such character or 
right and the Court may in its discretion make therein a 
declaration that he is so entitled, and the plaintiff need not 
in such suit ask for any further relief: 
Bar to such declaration. Provided that no Court shall 
make any such declaration where the plaintiff, being able 
C.R.No.194-D/2009
10
to seek further relief that mere declaration of title omits to 
do so. 
Explanation. A trustee of property is a “person interested 
to deny” a title adverse to the title of someone who is not in 
existence, and for whom, if in existence, he would be a 
trustee. 
8. A court can make a declaration in a suit in favour of a 
person who is entitled to any legal character or to any 
right, as to any property, which another is denying. Laila 
has not denied either Fawad‟s legal character or his right 
to any property. Instead Fawad alleges that Laila is not 
Abdul Qayum‟s daughter and therefore not his heir and not 
entitled to inherit the properties left behind by him (the 
prayer however only refers to “legacy”). Fawad seeks a 
negative declaration and one which has nothing to do with 
Fawad‟s own legal character. To consider whether such 
declarations can be sought under section 42 of the Specific 
Relief Act it would be appropriate to review the case law. 
9. In the case of Deokali Koer v Kedar Nath Lawrence 
Jenkins, CJ, writing over a hundred years ago said that not 
every kind of declaration can be sought under section 42 of 
the Specific Relief Act and that the Courts needed to be 
vigilant in entertaining all manner of suits: 
The section does not sanction every form of declaration, 
but only a declaration that the plaintiff is “entitled to any 
legal character or to any right as to any property;” it is the 
disregard of this that accounts for the multiform and, at 
times, eccentric declarations which find a place in Indian 
plaints. 
If the Courts were astute - as I think they should be – to see 
that the plaints presented conformed to the terms of section 
42, the difficulties that are to be found in this class of 
cases, would no longer arise. Nor would plaintiffs be 
unduly hampered if the provisions of section 42 were 
enforced, for it would be easy to frame a declaration in 
such terms as would comply with the provisions of the 
section where the claim was one within its policy.
In Khanchand v Jacobabad Municipality a division bench 
of the Sindh Chief Court, consisting of Davis, CJ and 
Thadani, J, reiterated what Lawrence Jenkins, CJ had said 
in Deokali Koer about the scope of section 42 of the 
Specific Relief Act. The suit had sought a declaration that a 
certain person had ceased to be the Chief Officer of a 
Municipality was dismissed, which decision was upheld by 
the Chief Court. 
In the case of Abdur Rahman Bhuiya v Commission of 
Narayanganj Municipality the High Court of East Pakistan 
(Dacca), consisting of Rahman and Murshad, JJ, also 
endorsed the views of Lawrence Jenkins, CJ. A suit, which 
had sought a declaration that from a particular date the 
defendants could not continue as Commissioners of the 
Municipality and all their acts, including demanding taxes 
C.R.No.194C.R.No.194-D/2009
11
from the plaintiffs were illegal, was held not to be 
maintainable under section 42 of the Specific Relief Act. 
In the case of Abdur Rahman Mobashir v Amir Ali Shah 
Aftab Hussain, J identified the type of declarations which 
could be sought with regard to one‟s legal character and 
those which could not: 
31. Section 42 of the Specific Relief Act applies only to a 
case where a person files a suit claiming entitlement to any 
legal character or to any right to property which 
entitlement is denied by the defendants or in denying which 
the defendants are interested. It cannot apply to a case 
where the plaintiffs do not allege their entitlement to any 
legal character or any right to property or its denial by the 
defendants. As a necessary corollary it cannot apply to a 
case where only the entitlement to legal character or the 
property of the defendants is denied by the plaintiffs.
A number of cases from the courts of the subcontinent were 
considered which led the learned Judges of the Lahore 
Court to observe and determine, that: 
36. It is clear from these authorities that section 42 would 
be attracted to a case in which the plaintiff approaches the 
Court for the safeguard of his right to legal character or 
property but where right to his own legal character or 
property is not involved, the suit is not maintainable. The 
suit must be one which must bring benefit to him in regard 
to these two rights. No suit involving any other right, 
hypothetical or abstract would be competent under that 
section. The Court will not therefore entertain suits in 
which no benefit accrues to the plaintiff or where the 
plaintiff sets up merely an abstract right to satisfy his ego 
or satisfy his grudge against another person. Section 42 
cannot be invoked in matters of mere sentiments which 
have no concern with the vindication of the plaintiff‟s title 
to status and property.
Section 42 of the Specific Relief Act deals with legal right 
as well as the threat or invasion to it by a person having 
corresponding duty not to invade it but to respect it. It 
would, therefore, apply only to a case where a plaintiff sues 
for declaration of his own legal right whether to property 
or legal character provided it is invaded or threatened with 
invasion by the defendant. It does not deal with the 
negation of the defendant‟s rights. Consequently, a 
declaration that the defendant has no right to do something 
which does not infringe upon any legal right to property or 
legal character of a plaintiff cannot be given under section 
42. The cause of action under this section should, 
therefore, be a threat of injury to the plaintiff‟s own right 
or removal of cloud cast on his own title. It does not allow 
the plaintiff to come to the Court to show his hostility only 
to what the defendant considers his own right and which 
action does not cast any cloud upon the plaintiff‟s own 
title.D/2009
12
With regard to seeking a negative declaration the Court 
observed that this could only be done if there was, “some 
threatened injury or infringement of the plaintiff‟s right”: 
43. I agree with the argument of the learned counsel for the 
respondents that even negative declaration can be given 
Salim Ullah Beg v. Mst. Makin Begum (1), Sughran v. 
Rehmat Ali (2), Amina Begum v. Ghulam Nabi (3) and U 
Arzeina v. Ma Kyin Shwe and another (4), but such 
declaration must also be one affecting some threatened 
injury or infringement of the plaintiff‟s right. This type of 
negative declaration can be granted on the principle that 
what can be done directly can also be justified if done 
indirectly.
In the case of Rehmatullah Khan v Government of Pakistan 
Sardar Muhammad Raza Khan, J writing for a threemember Bench of this Court, held that, a suit filed on the 
basis of an application submitted to the Government 
seeking a declaration that the plaintiff was entitled to the 
installation of a petrol pump was not maintainable: 
7. The permission by Pakistan State Oil to Gul Nawaz 
Khan to sell their petrol in his filling station, if at all 
granted, would have constituted a license which even if 
granted could have been withdrawn at any time. Seen from 
any angle, no vested right was created by filing an 
application or even by submission of a feasibility report. In 
the event of non-creation of any vested right, no relief can 
be sought under section 42 of the Specific Relief Act. In the 
circumstances, the petitioners were rightly non-suited by 
the two Courts below.
…………….
12. The suit was also barred by Article 128 of the Qanun-eShahadat Order. Only a putative father, within the time 
prescribed in Article 128, may challenge the paternity of a 
child. 
128. J
(a) the husband had refused, or refuses, to own the child; 
or 
(b) the child was born after the expiration of six lunar 
months from the date on which the woman had accepted 
that the period of iddat had come to an end.
(2) Nothing contained in clause (1) shall apply to a nonMuslim if it is inconsistent with his faith. 
Abdul Qayum (the father) had not challenged Laila‟s 
paternity. Article 128 does not permit a putative brother 
(Fawad) to challenge his sister‟s paternity.”

 























































 


























Another judgement on same matter. lepalik ya adopted son , High Court Karachi division bench held that no one can challenge if someone give any child to his name axcept his Father who gave him his name

Judgement 

IN THE HIGH COURT OF SINDH, 
AT KARACHI
Present:
Irfan Saadat Khan and 
Yousuf Ali Sayeed, JJ
High Court Appeal No. 166 of 2019
Appellants
:
Najmul Hassan & others, 
through Mr. Abadul Hasnain, 
Advocate.
Respondents
:
Mst. Romana Qamar & others 
through Mr. Khawaja Shamsul 
Islam, Advocate. 
Date of hearing
:
20.10.2020, 10.11.2010 and 
24.11.2020
JUDGMENT
YOUSUF ALI SAYEED, J -
This Appeal under Section 3 of 
the Law Reforms Ordinance 1972 emanates from Suit 
No.1821 of 2018 instituted by the Appellants before this Court
on the Original Side (the “Suit”), espousing their claim to 
inheritance in respect of the estate of their late brother, Syed 
Qamarul Hassan (the “Deceased”), who apparently passed 
away on 08.02.2018, with the claim being entirely predicated 
on their assertion that the Deceased and Respondent No.1 (i.e. 
his widow) remained issueless and the Respondent No.2 was 
an adoptee, with it being contended on that premise that they
(i.e. the Appellants) along with the widow (i.e. the Respondent 
No.1) were thus the only heirs of the Deceased and were 
accordingly entitled to succeed to his property, to the 
exclusion of the Respondent No.2.
2. Apropos the picture thus painted through the plaint, the
cause of action was articulated in Paragraph 11 thereof 
as follows:
“11. That the cause of action for filing the above 
suit has been accrued firstly in July, 1986, 
when the deceased married to the Defendant 
No 1; Secondly, in the year 2009, when the 
deceased and the Defendant No 1 adopted a 
male child and given him name as Shamsul 
Hassan; Thirdly, on various dates, when the 
deceased made the above mentioned assets 
and properties; Fourthly, on 08.02.2018 
when the brother of the Plaintiffs, namely, 
Syed Qamar-ul-Hassan has been expired and 
left behind the Plaintiffs and Defendant No. 1 
as his only surviving legal heirs, who are 
jointly inherited the above mentioned 
movable and immovable Properties; Fifthly, 
when the Defendant No. 1 took-over the 
physical possession of the said movable and 
immovable Properties and enjoying the same 
and driving, fetching and availing the benefits 
there-from and are not distributing any single 
penny amongst other legal heirs of the 
deceased Syed Qamar-ul-Hassan (i.e. the 
Plaintiffs); Sixthly, when the Defendant No.1 
after keeping the Plaintiffs on false hopes and 
promises refused to distribute the said 
properties amongst all the legal heirs of the 
deceased Syed Qamar-ul-Hassan strictly in 
accordance with law and Sharia; Seventhly, 
on 31.07.2018 when the Plaintiffs through 
their counsel wrote letters to the respective 
companies, wherein the deceased was having 
shares; Eighthly, on 07.08.2018 when the 
counsel for the Plaintiffs received replies of 
the companies through their lawyer and the 
same is still continue day by day till the 
redressal of all and entire grievances of the 
Plaintiffs including distribution of all and 
entire above mentioned movable and 
immovable assets and properties and benefits 
there from derived by the Defendant No.1 etc. 
amongst all the legal heirs of the deceased 
according to their respective share and as per 
law and Sharia.
[emphasis supplied]
3. As per the prayers then enunciated, the Appellants 
principally sought a declaration as to the Respondent No 
2‟s alleged lack of consanguinity and hereditary status 
vis-à-vis the Deceased, coupled with a direction for the 
Respondent No.1 to disclose what were termed “the entire 
true and real facts”, with consequential relief being 
elicited through further prayers seeking the distribution 
of the estate as well as restraining the Respondents Nos. 
1 and 2 from dissipating or creating any interest in 
favour of a third party over the corpus thereof. For 
purpose of reference, prayers (a) and (b) are reproduced:
“(a). Declare that the adopted male child, namely 
Syed Shamsul Hassan is not the legal heir of 
deceased Syed Qamar-ul-Hassan and therefore 
he has neither inherited nor has any share in 
the movable and immovable assets and 
properties left behind by the deceased Syed 
Qamar-ul-Hassan. 
(b). Direct the Defendant No.1 to disclose the 
entire true and real facts about the said 
adopted male child Syed Shamsul Hassan 
before the Honourable Court; so also direct all 
the authorities concerned not to treat the said 
adopted male child Syed Shamsul Hassan as 
the son of deceased Syed Qamar-ul-Hassan 
under any circumstances of whatsoever 
nature.”
4. As it transpires, the plaint was completely bereft of 
reference to any document or material that could evince 
their claim as to the adoptive status of the Respondent 
No.2, hence, presumably to bolster their hand, the 
Appellants had inter-alia proposed in Paragraph 7 that:
“7. … It is further submitted that in case of 
refusal of the Defendant No.1 about the fact 
that Syed Shamsul Hassan is an adopted 
child, the Plaintiffs are ready and willing to 
bear all and entire expenses of DNA test etc., 
in order to confirm and prove the fact of 
actual, real and true relation of the said 
adopted male child Syed Shamsul Hassan 
with the Defendant No.1 and deceased Syed 
Qamar-ul-Hassan and that he is not a legal 
heir of deceased Syed Qamar-ul-Hassan, so all 
and entire dispute and issues would be 
resolved and the assets and properties left 
behind by the deceased Syed Qamar-ulHassan could be distributed amongst the real 
and actual legal heirs of the deceased Syed 
Qamar-ul-Hassan strictly in accordance with 
law and Sharia.”
5. The Respondents Nos. 1 and 2 jointly filed their written 
statement, whereby they categorically denied the 
allegations and along with which they annexed copies of 
various identity documents relating to the Respondent 
No.2 generated from the official computerized record - viz. 
his Birth Certificate, Form-B and the Family Registration 
Certificate, as well as a copy of his Passport issued on 
16.03.2011. The aforesaid Respondents also filed an 
Application under Order 7, Rule 11 CPC, bearing CMA 
No. 17222/18 (the “Underlying Application”), seeking 
the rejection of the plaint on the following grounds:
“(i) That the suit as framed is not maintainable as 
the plaintiffs have no locus standi and legal 
character to file the same. 
(ii) That the suit is barred in terms of Sections 42, 
54 and 56 and all the enabling provisions of 
the Specific Relief Act, hence the same is liable 
to be dismissed with exemplary cost. 
(iii) That a suit for partition should have been filed 
with a unified title and unified possession 
which are lacking in the present suit. 
Admittedly the suit property is not in the name 
of the plaintiffs nor their predecessor, hence 
suit for partition is not maintainable and liable 
to be dismissed with heavy cost. 
(iv) That the suit is also barred in terms of the 
mandatory provisions of Shariah, Quran and 
Sunnah as well as Article 128 of Qanoon 
Shahadat Order and also in terms of the West 
Pakistan Muslim Personal Law Shariat 
Application 1962 hence is liable to be 
dismissed with heavy cost
6. After hearing the submissions advanced on behalf of the 
Parties for and against the Underlying Application, the 
learned single Judge seized of the matter was pleased to 
allow the same vide an Order made on 04.03.2019 (the 
“Impugned Order”), with the plaint consequently being 
rejected, hence this Appeal.
7. Proceeding with his arguments, learned counsel for the 
Appellants submitted that the learned single Judge had 
erred in allowing the Underlying Application, as the case
set up in terms of the plaint had been viewed through the 
prism of Article 128 of the Qanun-e-Shahadat Order, 
1984 (the “QSO”) and held to have been barred on that
basis, whereas, per learned counsel, the claim being one 
of adoption rather than illegitimacy, was removed from 
Article 128; instead fell within the contemplation of 
Articles 46 and 64 of the QSO, with triable issues having 
been raised that necessitated a determination of the Suit
on merits, after the settlement of issues, evidence and so 
on. He sought to advance his case by contending that 
prior to the date of birth of the Respondent No. 2, the 
Respondent No.1 had suffered an ectopic pregnancy, due 
to which she had to undergo a procedure for removal of 
both the pregnancy and the tube. Per learned, counsel, 
this condition, coupled with the fact that the Respondent 
No.1 was around 45 of years of age at the time of the 
Respondent No.2‟s birth, provided arguable grounds. 
Reliance was placed on the judgments in the cases 
reported as Muhammad Akram vs. Mst. Haliman Bibi 
and 6 others 2010 CLC 781, Hote Khan and 2 others vs. 
Mst. Khanzadi and 2 others 1987 MLD 694, and Haji 
Allah Bakhsh vs. Abdul Rehman and others 1995 SCMR 
459.
Conversely, learned counsel for the Respondents Nos. 1 
and 2 submitted that the Impugned Order had been 
correctly made. He submitted that all of the data entries 
in the official computerized record showing the Deceased 
and Respondent No.1 as being the parents of the 
Respondent No.2 had been undertaken during the 
lifetime of the Deceased, under his aegis, with the 
Deceased having consciously and correctly acted to 
ensure so. He submitted that such a record was 
irrefutable, and argued that the Appellants had no locusstandi to maintain the Suit so as to question the same 
and/or parentage of the Respondent No.2 and that no 
question of the Respondents being required to undergo a 
DNA test could conceivably arise. He contended that the 
Suit was vexatious and misconceived and had been filed 
for the lust of money, with the ulterior motive of depriving 
the Respondent No.2 of his identity and right of the 
inheritance. In support of his contentions, he placed 
reliance upon the judgments of the Honourable Supreme 
Court in the cases reported as Mst. Asma Naz vs. 
Muhammad Younas Qureshi 2005 SCMR 401, Ghazala 
Tehsin Zohra vs. Mehr Ghulam Dastagir Khan and 
another PLD 2015 SC 327, Mst. Laila Qayyum vs. Fawad 
Qayum PLD 2019 SC 449, as well as a Single Bench 
judgment of this Court authored by one of us (namely 
Yousuf Ali Sayeed, J), while sitting on the Original Side, in 
the case reported as Saeeduddin Qureshi vs. Waqar 
Saeed & 3 others 2020 MLD 1441.
9. Having heard and considered the arguments advanced, 
we would turn firstly to the Impugned Order so as to look 
to the reasoning of the learned Single Judge, as reflected 
in Paragraphs 7 and 8 thereof, which read as follows:
“7. It is my candid opinion that the only personwho could question the parentage of the 
defendant No.2 was his late father, and it would 
only be entertained during his lifetime while 
after his death under the law this chapter is 
closed forever. Nevertheless, it should be noted 
that in order to prove the family lineage; there 
are some Islamic conditions that are taken into 
account in Islamic legislation as such Sharia 
does not recognize this kind of testing. The Holy 
Prophet صلى الله عليه وسلمsaid:
“The boy is for the owner of the bed and 
the stone is for the person who commits 
an illegal sexual intercourse (i.e. the 
child will not be traced back to him).” 
(Al-Bukhari and Muslim)
8. From the above narration of the Holy Prophet صلى الله عليه وسلم
it is clear that whosoever has a wife and she 
give birth to a child on his bed, it is his child 
and his parentage is definitely traced back to 
him. I would like to accentuate that under the 
provision of Article 128 of Qanoon-e-Shahadat, 
even the father of a child can question the 
parentage of a child within six lunar month of 
his birth and not thereafter. It is also my 
considered view that even in case of denial, the 
alleged father cannot demand DNA matching, if 
the child is born to a woman during the 
continuity of his marriage with her. In such 
case, the only way available to him is by way of 
Li‟aan i.e. both spouses make an oath that 
he/she is truthful in his/her claim and then 
invoke the curse of Allah on the one who is lying 
and repeat it thrice. This action only takes place 
when a man denies his child and accuses his 
wife with adultery. Nevertheless, an adverse 
claim regarding the parentage of a person by the 
close relatives of his father, like in the present 
case, cannot be entertained in any 
circumstance. On the contrary, in the present 
case, the father of the defendant No.2 has 
admitted and acknowledge the defendant No.2 
as his legitimate child, as such the plaintiffs‟ 
claim to the parentage of defendant No.2 cannot 
be entertained. It is not out of place to highlight 
that as per the dicta of the Hon‟ble Supreme 
Court laid down in the case of Ghazala Tehsin 
Zohra (supra), DNA testing in civil cases is not 
permissible. The upshot of the entire discussion 
is that neither any cause of action accrued in 
favour of the plaintiffs nor the relief claimed by 
them is permissible under the law, as such the 
listed application is allowed and the plaint of the 
instant suit is rejected by invoking the provision 
under Order VII Rule 11 CPC. All pending 
applications are also disposed of
10. Whilst the aforementioned finding may have been made 
with reference inter alia being made to Article 128 of the 
QSO, that is not to say, as was sought to be contended 
by learned counsel of or the Appellants, that the learned 
single Judge based his assessment of the case entirely on 
the assumption that the case was one of illegitimacy. 
Indeed, it is evident from the Impugned Order that the 
learned single Judge essentially found that the 
Appellants had no locus standi in the matter and that 
there was therefore no valid cause of action underpinning 
the Suit. As such, it is this determination that falls to be 
tested as per the cited caselaw on the subject.
11. As for the precedents cited on behalf of the Appellant, the 
cases of Muhammad Akram and Hote Khan (Supra) are 
totally distinguishable on the facts and no principle of 
law was laid down therein that is applicable to the matter 
at hand, whereas the case of Haji Allah Bakhsh touched 
upon the principle that the contents of the plaint are to 
be presumed to be correct for purposes of an assessment 
under Order 7, Rule 11 CPC, but that strict view has 
then come to be refined in terms of the subsequent 
judgment of the Apex Court in the case reported as Haji 
Abdul Karim and others v. Messrs Florida Builders (Pvt) 
Limited PLD 2012 SC 247, where it was held as follows:
“After considering the ratio decidendi in the above 
cases, and bearing in mind the importance of Order 
VII, Rule 11, we think it may be helpful to formulate 
the guidelines for the interpretation thereof so as to 
facilitate the task of courts in construing the same.
Firstly, there can be little doubt that primacy, (but not 
necessarily exclusivity) is to be given to the contents of 
the plaint. However, this does not mean that the court 
is obligated to accept each and every averment 
contained therein as being true. Indeed, the language 
of Order VII, Rule 11 contains no such provision that 
the plaint must be deemed to contain the whole truth 
and nothing but the truth. On the contrary, it leaves 
the power of the court, which is inherent in every court 
of justice and equity to decide whether or not a suit is 
barred by any law for the time being in force 
completely intact. The only requirement is that the 
court must examine the statements in the plaint prior 
to taking a decision.
Secondly, it is also equally clear, by necessary 
inference, that the contents of the written statement 
are not to be examined and put in juxtaposition with 
the plaint in order to determine whether the averments 
of the plaint are correct or incorrect. In other words 
the court is not to decide whether the plaint is right or 
the written statement is right. That is an exercise 
which can only be carried out if a suit is to proceed in 
the normal course and after the recording of evidence. 
In Order VII, Rule 11 cases the question is not the 
credibility of the plaintiff versus the defendant. It is 
something completely different, namely, does the 
plaint appear to be barred by law. 
Thirdly, and it is important to stress this point, in 
carrying out an analysis of the averments contained in 
the plaint the court is not denuded of its normal 
judicial power. It is not obligated to accept as correct 
any manifestly self-contradictory or wholly absurd 
statements. The court has been given wide powers 
under the relevant provisions of the Qanun-eShahadat. It has a judicial discretion and it is also 
entitled to make the presumptions set out, for example 
in Article 129 which enable it to presume the existence 
of certain facts. It follows from the above, therefore, 
that if an averment contained in the plaint is to be 
rejected, perhaps on the basis of the documents 
appended to the plaint, or the admitted documents, or 
the position which is beyond any doubt, this exercise 
has to be carried out not on the basis of the denials 
contained in the written statement which are not 
relevant, but in exercise of the judicial power of 
appraisal of the plaint. 
12. By contrast, the judgments cited on behalf of the 
Respondents are of decided relevance, with the case of 
Asma Naz (Supra) being that of a child who had come 
forward to file suit after attaining majority, seeking to 
restrain her father from denying that she was his real 
daughter. Noting that she had always been treated as a 
real daughter and her official documents reflected that 
she had been publicly known and acknowledged as 
being such, the Honourable Supreme Court observed as 
follows:
“It may be noted that according to Mahomedan 
Law right of inheritance is-extended to a heir 
whose legitimate status is accepted, otherwise, 
such right neither can be extended nor acquired. It 
is also a settled proposition of law that the 
legitimate or illegitimate status of a person is 
established in view of the proof of birth but in a 
case where such proof is not coming forward, then 
on the rule of acknowledgement by an 
acknowledger, in respect of status of a person, a 
conclusive presumption can be drawn that he/she 
is his/her legitimate child and once such status is 
confirmed, it cannot be destroyed by any 
subsequent act of the acknowledger, or of anyone 
claiming through him, as it has been held in the 
cage of Muhammad Allahdad Khan and another v. 
Muhammad Ismail Khan and others 1888 ILR. Vol. 
X Allahabad 289. In this report another important 
question was also highlighted i.e. "if a man 
acknowledges another to be his son and other be 
nothing, which obviously renders it impossible 
that such relation should exist between them, the 
parentage will be established." Reference may also 
be made to the case of Muhammad Azmat Ali Khan 
v. Lalli Begum and others (I.L.R. Vol. IX page 8) 
where their lordships of Privy Council observed
"according to Mahomedan Law the 
acknowledgement and recognition of children by a 
father as his sons gives them the status of sons, 
capable of inheriting as legitimate sons. Such 
acknowledgement may be in the express or 
implied, in the latter case the inference from the 
acts of father must depend upon the 
circumstances of each particular case." Applying 
the principle highlighted in this judgment on the
case in hand in the light of documentary evidence, 
noted hereinabove, it can safely be held that 
petitioner/plaintiff had always been treated/
acknowledged by the respondent/ defendant as his 
daughter”
13. Even more relevantly, the other cases relied upon by the 
Respondents were all matters where either the putative 
father or a sibling had sought to deny the paternity of a 
party. For instance, the case of Mehr Ghulam Dastagir 
Khan (Supra), emanated from a suit where a father had
sought a declaration to the effect that certain children 
were not his natural/biological offspring and that any 
official record in this regard was bogus and had been 
fraudulently prepared. After examining Article 128 of the 
Qanun-e-Shahadat Order in juxtaposition with Section 2 
of the West Pakistan Muslim Personal Law (Shariat) 
Application Act, 1962 (Act V of 1962) and the rules of 
Muslim Personal Law, the Honourable Supreme Court 
held that legitimacy/paternity must be denied by the 
father immediately after birth of the child and within the 
post-natal period (maximum of 40 days) after the birth of 
the child, and there can be no lawful denial of paternity 
after this stipulated period. The relevant excerpt from 
that judgment is reproduced as follows:
“For this purpose, it is necessary to ascertain the 
rules of Muslim Personal Law when a person denies 
that he is the natural/biological father of children 
born within the period stipulated in Article 128 ibid. 
The Muslim Personal Law (Shariat) is clear and well 
settled on the subject. Firstly, it provides that 
legitimacy/paternity must be denied by the father 
immediately after birth of the child as per Imam Abu 
Hanifa and within the post natal period (maximum 
of 40 days) after birth of the child as per Imam
Muhammad and Imam Yousaf. 
There can be no lawful denial of paternity after this 
stipulated period. The Hedaya, Fatawa-e-Alamgiri 
and other texts are all agreed on this principle of 
Shariat. In the present case the daughter Hania 
Fatima was born on 21-3-2000 while the son 
Hassan Mujtaba was born on 9-2-2001. The very 
first denial of paternity appearing from the record is 
in the talaq nama (Exh.D3) which was made on 26-
6- 2001. Clearly, therefore, while applying the 
principles of Muslim Personal Law (Shariat) as 
mandated by the Act V of 1962, the respondentplaintiff cannot be allowed to deny the 
legitimacy/paternity of the two children. This is also 
consistent with Article 2(9) of the QSO which, when 
read in the context of the present case, does not 
allow the Court to allow any evidence to be adduced 
to disprove legitimacy. The wisdom of this rule of 
Muslim Personal Law cannot be gainsaid, 
considering in particular the patriarchal and at 
times misogynistic societal proclivities where women 
frequently do not receive the benefit of laws and on 
the contrary face humiliation and degrading 
treatment. It is for the honour and dignity of women 
and innocent children as also the value placed on 
the institution of the family, that women and 
blameless children have been granted legal 
protection and a
13. The rationale of the law set out in Article 128 
of the QSO read with section 2 of Act V of 1962 is 
quite clear. Both statutes ensure (in specified 
circumstances) an unquestioned and 
unchallengeable legitimacy on the child born within 
the aforementioned period notwithstanding the 
existence or possibility of a fact through scientific 
evidence. The framers of the law or jurists in the 
Islamic tradition were not unaware simpletons 
lacking in knowledge. The conclusiveness of proof in 
respect of legitimacy of a child was properly thought 
out and quite deliberate. There is a much greater 
societal objective which is served by adhering to the 
said rules of evidence than any purpose confined to 
the interests of litigating individuals. There are 
many legal provisions in the statute book and rules 
of equity or public policy in our jurisprudence where 
the interests of individuals are subordinated to the 
larger public interest. In our opinion the law does 
not give a free license to individuals and particularly 
unscrupulous fathers, to make unlawful assertions 
and thus to cause harm to children as well as their 
mothers.”
14. In the case of Laila Qayyum (Supra), which was 
somewhat more akin to the instant case, a suit had been
filed whereby the plaintiff had alleged that the party
who was the Petitioner before the Apex Court was “an
abandoned infant in a local hospital” and had been
adopted by his parents, late Abdul Qayum and Nasreen
Begum, and brought up as their own daughter, with
declarations having been sought that she was not their
real daughter and had no right to their legacy. A prayer
was also advanced that the documents showing her to
be their daughter be cancelled to such extent. The
matter had come up to the Honourable Supreme Court
from an order made by the trial Court, allowing an
application for DNA testing moved by the plaintiff,
which Order had then been set aside on appeal but
restored by the Peshawar High Court under its writ
jurisdiction. The relevant passages from the Judgment
rendered by the Apex Court in the matter are as
follows
“8. A court can make a declaration in a suit in
favour of a person who is entitled to any legal
character or to any right, as to any property,
which another is denying. Laila has not denied
either Fawad‟s legal character or his right to any
property. Instead Fawad alleges that Laila is not
Abdul Qayum‟s daughter and therefore not his
heir and not entitled to inherit the properties left
behind by him (the prayer however only refers to
“legacy”). Fawad seeks a negative declaration and
one which has nothing to do with Fawad‟s own
legal character…”
“10. To challenge another‟s adoption or legitimacy
of birth does not assert the plaintiff‟s own legal
character. In the case of Daw Pone v. Ma Hnin
May17 the Court18 upheld the dismissal of a suit
which sought “a declaration that the defendant
was not the keittima daughter [a particular kind of
adoptee] of her and her late husband”. The Court
held, that:
“Looking at S. 42, Specific Relief Act, it
applies only in cases in which a person
entitled to some legal character or to any
right as to any property brings a suit
against a person denying or interested to
deny his title to such character or right,
and the relief to be given there-under is
purely discretionary. Nobody has never
denied that Daw Pone is entitled to any
legal character or right as to property
that I can see. But she is bringing a suit
for a declaration to establish a negative
case, for, some time or other, I suppose,
the defendant has claimed to be her
keittima daughter. The learned District
Judge dismissed that suit, apparently
upon the merits and taking the view that
the defendant was the keittima daughter
of the plaintiff.”
11. Fawad also seeks the cancellation of
documents which show Abdul Qayum to be Laila‟s
father. A suit seeking cancellation of documents is
filed under section 39 of the Specific Relief Act,
reproduced hereunder:
39. When
cancellation
may
be
ordered.
Any person against whom a written
instrument is void or voidable, who has
reasonable
apprehension that
such
instrument, if left outstanding, may
cause him serious injury, may sue to
have it adjudged void or voidable; and the
Court may, in its discretion, so adjudge it
and order it to be delivered up and
cancelled.
If the instrument has been registered
under the Registration Act, the Court
shall also send a copy of its decree to the
officer in whose office the instrument has
been so registered; and such officer shall
note on the copy of the instrument
contained in his books the fact of its
cancellation.
The documents, the cancellation of which
Fawad seeks are not shown to cause him serious
injury. Since the essential condition of causing
him serious injury, mentioned in section 39 of the
Specific Relief Act, is not met therefore Fawad‟s
suit seeking cancellation of the said documents is
also not maintainable.
12. The suit was also barred by Article 128 of the
Qanun-e-Shahadat Order. Only a putative father,
within the time prescribed in Article 128, may
challenge the paternity of a child.
128. Birth during marriage conclusive
proof of legitimacy.
(1) The fact that any person was born
during the continuance of a valid
marriage between his mother and any
man and not earlier than the expiration
of six lunar months from the date of the
marriage, or within two years after its
dissolution,
the
mother
remaining
unmarried, shall be conclusive proof that
he is the legitimate child of that man,
unless-
(a) the husband had refused, or refuses,
to own the child; or
(b) the child was born after the expiration
of six lunar months from the date on
which the woman had accepted that the
period of iddat had come to an end.
(2) Nothing contained in clause (1) shall
apply to a non-Muslim if it is inconsistent
with his faith.
Abdul Qayum (the father) had not challenged
Laila‟s paternity. Article 128 does not permit a
putative brother (Fawad) to challenge his sister‟s
paternity.
13. In the case of Ghazala Tehsin Zohra23 the
putative father was not allowed to challenge the
paternity of the child after the period mentioned in
Article 128 had expired. This Court reiterated that
a child born within the period mentioned in Article
128, “shall constitute conclusive proof of his
legitimacy”. The learned Judge observed, and we
agree, that:
It is for the honour of and dignity of
women and innocent children as also the
value placed on the institution of the
family, that women and blameless
children
have
been
granted
legal
protection
and
a
defence
against
scurrilous stigmatization. 24
Jawwad S. Khawaja, J further explained that
Article 128, “is couched in language which is
protective of societal cohesion and the values of
the community”
“16. Fawad sought to deprive Laila of her identity
and of her inheritance. The Court cannot legally
make the declarations the plaintiff seeks nor can
it order the cancellation of the documents. The
suit filed by Fawad cannot be decreed. To keep
such a suit pending only harasses the petitioner
further and may deprive her of her inheritance.
Already a lot of court time has been taken up to
attend to this frivolous suit. Therefore, we invoke
our ancillary powers, granted to us under Article
187 of the Constitution, as it is necessary for
doing complete justice, and exercising such
powers dismiss the suit pending before the Senior
Civil Judge Gulkada, Swat.”
15. Furthermore, as to the permissibility of DNA testing being 
compulsorily carried out so as to conduct a comparative 
analysis and match of their DNA (i.e. that of the plaintiff 
and defendant) with that of their mother and other 
siblings, the Apex Court went on observe and hold in that 
very case (Ibid) that:
“14. Learned Mr. Awan is also right in referring to 
the case of Salman Akram Raja wherein it was held 
that a free lady cannot be compelled to give a 
sample for DNA testing as it would violate her 
liberty. If a sample is forcibly taken from Laila to 
determine her paternity it would violate her liberty, 
dignity and privacy which Article 14 of the 
Constitution of the Islamic Republic of Pakistan 
(“the Constitution”) guarantees to a free person. 
The cases of Muhammad Shahid Sahil and B. P. 
Jena referred to by learned Mr. Faisal Khan, who 
represents Fawad, are distinguishable and are also 
not applicable to the present case. In the case of 
Muhammad Shahid Sahil the DNA of a rapist was 
sought by the victim to compare it with the DNA of 
the child born as a consequence of the rape. And in 
the case of B. P. Jena the Indian Supreme Court 
considered section 112 of the Evidence Act. Section 
112 of the Evidence Act was the precursor of Article 
128 of the Qanun-e- Shahadat Order, however, the 
wording of the two provisions is materially different. 
In any case, the Supreme Court of India observed 
that, “In a matter where paternity of a child is in 
issue before the court, the use of DNA is an 
extremely delicate and sensitive aspect”26 and that: 
DNA in a matter relating to paternity of a 
child should not be directed by the court 
as a matter of course or in routine manner, 
whenever such a request is made. The 
court has to consider diverse aspects 
including presumption under Section 112 
of the Evidence Act; pros and cons of such 
order and the test of „eminent need‟ 
whether it is not possible for the court to 
reach the truth without use of such test.27
15. There is yet another reason why a DNA test
should not be allowed. If the proposed DNA testing
is done it would neither confirm nor negate Laila‟s
paternity. The same also holds true for Fawad and
those of his siblings whom he acknowledges.
Abdul Qayum died sixteen years ago and his DNA
can now be accessed if his body is disinterred
from the grave and a sample taken from his
remains. Fawad‟s suit however is premised on the
assumption that he is the son of Abdul Qayum,
then, on the basis of this assumption, he denies
Laila‟s paternity. Fawad‟s assertion that Abdul
Qayum is his father is equally assumptive to Laila
asserting this.”
16. In yet another case analogous to that hand, being that of 
Saeedudin Qureshi 
(Supra), 
the plaintiff had 
unreservedly represented himself as being the real father 
of the defendant and put down his name as such and 
reflected the defendant to be his real son in all official 
and academic records, but had then come forward after 
decades of such conduct to allege that the defendant was 
not his biological son and had been adopted. After the 
demise of the plaintiff, the suit was then pursued by his 
second wife and daughter from the second marriage. 
Upon hearing of an Application under Order 7 Rule 11 
CPC, those representatives of the putative father were
held to be estopped from denying paternity and the 
status of the child, and with reference to case of Mehr 
Ghulam Dastagir Khan (Supra), it was held such a denial 
could not be made after the time period stipulated by the 
Apex Court, and the principle could not be circumvented 
by basing a case on the claim that the child had been 
adopted and seeking a declaration to that effect. The suit,
being based on that footing, was thus held to be barred 
and the Plaint rejected accordingly.
17. To our minds and as per our understanding, the 
following principles may be distilled from these 
judgments: 
(a) That the status of a person in terms of his being of 
legitimate or illegitimate birth is established in view 
of the proof of birth but in a case where such proof 
is not forthcoming, then on the rule of 
acknowledgement by an acknowledger, in respect 
of status of a person, a conclusive presumption can 
be drawn that he/she is his/her legitimate child 
and once such status is confirmed, it cannot be 
destroyed by any subsequent act of the 
acknowledger, or of anyone claiming through him;
(b) If a man acknowledges another to be his child and 
there be nothing, which obviously renders it 
impossible that such relation should exist between 
them, parentage will be established;
(c) As per Mahomedan Law, the acknowledgement and 
recognition of children by a father as his sons gives 
them the status of sons, capable of inheriting as 
legitimate sons. Such acknowledgement may be in 
the express or implied, and in the latter case, the 
inference to be drawn from the acts of father would
depend upon the circumstances of each particular 
case;
(d) Continual unequivocal representation by a person
portraying himself or herself as the parent of a
child, identifying and holding out the child to be
his or her own, would then estop that person or
anyone else claiming as his or her representative
from denying paternity;
(e) Only the putative father may challenge the
paternity of a child, and that too, within the time
prescribed in Article 128 of the QSO, failing which
the suit would be barred;
(f) Article 128 of the QSO does not permit any other
person to challenge paternity and cannot be 
circumvented by basing a case on the claim that a 
child had been adopted and seeking a declaration to 
that effect.
(g) To challenge another‟s adoption or legitimacy of
birth does not assert a plaintiff‟s own legal
character, and under Section 42 of the Specific
Relief Act, a declaration cannot be sought in that
regard or as to the persons incapacity to inherit,
and a suit seeking the cancellation of official
documents reflecting another persons parentage is
also not maintainable;
Another Judgement of Karachi High Court Division bench on the matter of lepalak or Adopted son

18. Indeed, if the position were otherwise, the floodgates
would be thrown open to an endless stream of litigation
on the part of persons seeking to disentitle others on a
mere allegation as to their adoptive status, whether
they be heirs seeking to thereby enhance their share(s)
or strangers to an estate seeking to succeed by ousting
those otherwise legitimately entitled.
19. In our view, in the matter at hand, the case sought to
advanced by the Appellants vide the Suit was clearly
barred by the aforementioned principles. As of their
own showing, while stating their cause of action, the
Appellants were clearly aware that the Deceased had
given the Respondent No.2 his name, and the plea
taken on their behalf during the course of arguments
as to their being unaware that the identity of the
Respondent No.2 was so reflected in his official
documents beggar‟s belief. The contention that they
ought to then have been allowed to seek cancellation of
those documents is also misconceived, with it being
apparent from the case-law referred that recourse to
such a step was not open to them in law.
20. That being so, we find no error or infirmity in the
Impugned Order and are of view that the learned single
Judge decided correctly in allowing the Underlying
Application. Hence, the Appeal fails, and is dismissed,
along with all pending miscellaneous applications.
JUDGE
JUDGE
اور ایک مقدمہ جس میں لے پالک  کی منسوخی کا مطالبہ کیا گیا ہے۔
کسی دوسرے شخص کی ولدیت کی عکاسی کرنے والی دستاویزات
برقرار رکھنے کے قابل بھی نہیں؛
لیپالک یا گود لینے والے بیٹے کے معاملے پر کراچی ہائی کورٹ کے ڈویژن بینچ کا ایک اور فیصلہ

18. بے شک، اگر ان کا راستہ نہ روکا تو دوسری صورت میں، نہ ختم ھونے والے کیسز کے دروازے
قانونی چارہ جوئی کے ایک نہ ختم ہونے والے دھارے کے لیے کھول دیا جائے گا۔
ان لوگوں کی طرف سے جو دوسروں کو حق خودارادیت نہ دینے کے خواہاں ہیں۔
ان کی گود لینے کی حیثیت کے بارے میں محض الزام، چاہے
وہ وارث بنیں گے اور اس طرح اپنے حصے کو بڑھانا چاہتے ہیں
یا کسی پراپرٹی میں اجنبی کو بے دخل کرکے کامیاب ہونا چاہتے ہیں۔
جو دوسری صورت میں قانونی طور پر حقدار ہیں۔
19. ہمارے خیال میں، ہاتھ میں موجود معاملے میں، ایسی ہی  کوشش کی گئی۔
اپیل کنندگان کی طرف سے سوٹ کے ذریعے پیش قدمی واضح طور پر تھی۔
مذکورہ بالا اصولوں سے منع کیا گیا ہے۔ ان کے طور پر
ان کی کارروائی کی وجہ بتاتے ہوئے، خود دکھانا،
اپیل کنندگان کو واضح طور پر معلوم تھا کہ متوفی کے پاس تھا۔
جواب دہندہ نمبر 2 کو اس کا نام، اور درخواست دی گئی۔
دلائل کے دوران ان کی طرف سے لیا گیا۔
کے طور پر ان کے لاعلم ہونے کی شناخت
جواب دہندہ نمبر 2 اپنے اہلکار میں اس قدر جھلکتا تھادستاویزات سائل کا موقف۔ یہ تنازعہ کہ وہ
اس کو دستاویزات کینسل کرنے کی اجازت دی جانی چاہیے تھی۔
ان دستاویزات کو بھی غلط فہمی میں ڈالا گیا ہے۔
کیس کے قانون سے ظاہر ہے کہ اس کا حوالہ غلط دیا گیا ہے۔
ایسا قدم  اٹھانا قانون میں ان کے لیے اجازت نہیں ھے۔

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