If daughters not claim their share at time)( supreme court Authority)

If Daughters not claim their share

Facts

Supreme Court authority for daughters (sisters) not claim their share and or betio ki olad apni maan ka hissa claim karte hain

Same case law detail batata hai ke petitioner ne apni man ka hissa talab kia ju ke un ka mamo sale kar gia tha apni zindgi main or

Civil court or district court ne case decree kar dia iss banyad per ke inheritance main limitations nahi hotin

Magar High Court ne decree ko set a side kar dia ke case is time bard

Supreme court ne bhi Following judgement main High court ke faisla ko barqar rakha.

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Judgement

SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:

Mr. Justice Umar Ata Bandial

Mr. Justice Syed Mansoor Ali Shah

Mr. Justice Muhammad Ali Mazhar

Civil Petition No.262-P of 2017

(Against the order of Peshawar High Court, Peshawar

dated 10.4.2017, passed in C.R. No.411-P/2014)

Saadat Khan & others

...…. Petitioners

Versus

Shahid-ur-Rehman & others

……. Respondents

For the petitioners:

Mr. Manzoor Khan Khalil, ASC.

Haji Muhammad Zahir Shah, AOR

For the respondents:

N.R.

Date of hearing:

23.09.2021

JUDGMENT

Syed Mansoor Ali Shah J.- The petitioners seek leave

to appeal against a judgment of the Peshawar High Court, dated

10.04.2017 (“impugned judgment”), whereby the High Court has

upheld, in revision, the judgment of the appellate court non-suiting

the petitioners on the issue of limitation. Although there are

concurrent findings of the two courts below, on the issue of

limitation against the petitioners but as the matter involves the

enforcement of an alleged right of inheritance of some females, the

predecessors of the petitioners, we are inclined to re-examine the

issue of limitation, in the interest of justice, to satisfy ourselves as

to the correctness of the said concurrent findings.

Facts forming the background of the case are that one

Isa Khan son of Hameedullah was the owner of the suit property,

i.e., the then agriculture land measuring 19-Kanal 17-Marla. He

died and his inheritance mutation No. 327 was sanctioned on 23

March 1935 in favour of his son Abdur Rehman. In the year 1960-

61, some portion of the suit property was acquired by the Small

Industries Corporation of West Pakistan, and the said Abdur

Rehman received the compensation therefor. Later on, Abdur

Rehman also died and respondents No. 1 to 5 being his sons and

daughters, and respondent No.6 being his widow, inherited the

remaining suit property. Respondents No. 1 to 6 sold out almost all

CP No.262-P/2017

of the remaining suit property to respondents No. 12 to 74 and

others, who are now recorded as owners-in-possession of the suit

property in very small shares measuring in Marla and Sarsai, in the

revenue record (Exh-P1).

It was in the year 2004 that the petitioners instituted a

suit on 19 November 2004 praying for a declaration that inheritance

mutation No. 327 sanctioned on 23 March 1935 in favour of Abdur

Rehman, the predecessor of respondents No.1 to 6, and the

subsequent inheritance mutation in favour of respondents No. 1 to

6 and the further transfers made on the basis of those inheritance

mutations, in favour of respondents No. 12 to 74 were void and

ineffective against their rights. They asserted that Isa Khan had left

one son, Abdur Rehman, and two daughters, Mst. Mehro and Mst.

Afsro, as his legal heirs but Abdur Rehman fraudulently got

sanctioned inheritance mutation No. 327 in his favour excluding his

sisters from the inheritance of their father; that the said Mst. Mehro

and Mst. Afsro daughters of Isa Khan had died, and they and

respondents No. 7 to 11, who did not join them as plaintiffs in the

suit, were their legal heirs; that being legal heirs of Mst. Mehro and

Mst. Afsro, they and respondents No. 7 to 11 were owners of the suit

property to the extent of their share; and that they had, time and

again, asked the respondents to accept their entitlement and get

corrected the revenue record to the extent of their share in the suit

property, but they first evaded the matter and then flatly refused to

do so, hence the need to institute the suit arose.

Respondents No. 1 to 6 contested the suit and claimed

that the inheritance mutation No. 327 was correctly sanctioned in

favour of their predecessor, Abdur Rehman, in the year 1935 as per

the then prevailing law; that since 1935 their predecessor, and after

his death they, had been in possession of the suit property as the

exclusive owner to the knowledge of the petitioners; and that the

fact of acquisition of a portion of the suit property by the Small

Industries Corporation and receiving of the compensation by their

predecessor for that acquisition was in knowledge of the petitioners,

therefore, their suit was time-barred.

The trial court decreed the suit by its judgment dated

28.01.2012, and on the issue of limitation held that the limitation

does not apply where a person seeks to enforce his right of

CP No.262-P/2017

inheritance in the estate of his deceased predecessor. Respondents

No. 1 to 6 appealed in District Court. The appellate court noticed

that Mst Mehro and Mst. Afsro, the predecessor of the petitioners,

had not challenged the inheritance mutation in their lifetime,

despite knowledge of receiving the compensation by Abdur Rehman,

the predecessor of respondents No. 1 to 6, in the year 1960-61, for

the acquisition of some land out of the suit property by the Small

Industries Estate and the sale of a major portion of the suit property

by respondents No. 1 to 6. Keeping in view these facts and while

relying upon two unreported judgments and one reported judgment

(Abdul Haq v. Surraya Begum 2002 SCMR 1330) of this Court, the

appellate court decided the issues as to cause of action, estoppel

and limitation against the petitioners and reversing the judgment

and decree passed by the trial court, dismissed the suit. The

petitioners then agitated their grievance against the judgment of the

appellate court in the High Court by filing a revision petition.

The High Court also took up the issues as to cause of

action, estoppel and limitation, examined the evidence available on

record relating thereto, and upheld the decision of the appellate

court on these issues. The High Court relied upon the judgments of

this Court reported as Kala Khan v. Rab Nawaz 2004 SCMR 517, Lal

Khan v. Muhammad Yousaf PLD 2011 SC 657, Muhammad Rustam

v. Makhan Jan 2013 SCMR 299, Mst Grana v. Sahib Kasmala PLD

2014 SC 167 and Ghulam Abbas v. Muhammad Shafi 2016 SCMR

1403.

The petitioners have impugned the concurrent findings

of the appellate court and the High Court on the question of

limitation. Their learned counsel has submitted that the trial court

correctly applied the principle that the limitation does not apply in

cases of inheritance, while the appellate court and the High Court

erred in non-suiting the petitioners on the ground of limitation. He

has relied upon judgments of this Court reported as Ghulam

Ali v. Ghulam Sarwar PLD 1990 SC 1, Namdara v. Sahibzada 1998

SCMR 996, Shahro v. Fatima PLD 1998 SC 1512, Muhammad

Iqbal v. Allah Bachaya 2005 SCMR 1447 and Peer Baksh v. Mst.

Khanzadi 2016 SCMR 1417.

As the High Court for applying and the counsel for the

petitioners for opposing the application of, the bar of limitation to

CP No.262-P/2017

the present case have relied upon the judgments of this Court, we

have deeply considered the ratio of the said judgments as well as

other relevant judgments1 to understand as if there is any conflict of

opinions recorded therein. We have found no such conflict, which

we shall explain hereunder.

We may say at the very outset that in view of the

provisions of the residuary Article 120 of Schedule-I to the

Limitation Act 1908, there can hardly be any suit to which the bar

of limitation does not apply. As per the said Article a suit for which

no period of limitation is provided elsewhere in the Schedule, the

period of limitation for that suit is six years from the time when the

right to sue accrues. No specific Article of Schedule-I to the

Limitation Act provides a period of limitation for a suit instituted by

a person, under Section 42 of the Specific Relief Act 1877, for

declaration of his ownership rights to any property against a person

denying his said rights; therefore, the residuary Article 120 applies

to such suit. A suit instituted by a female legal heir for declaration

of her ownership rights as to the property left by her deceased father

in his inheritance, against her brother who denies her rights is thus

governed by the provisions of Article 120. To decide whether such a

suit is barred by limitation, the six-year period of limitation provided

by Article 120 is to be counted from the time when the right to sue

for declaration accrues as provided therein. The question, when the

right to sue for declaration has accrued in a case, depends upon the

facts and circumstances of that case, as it accrues when the

defendant denies (actually) or is interested to deny (threatens) the

rights of the plaintiff as per Section 42 of the Specific relief Act

1877. The actual denial of rights gives rise to a compulsory cause of

action and obligates the plaintiff to institute the suit for declaration

of his rights, if he wants to do so, within the prescribed period of

limitation; while in case of a threatened denial of rights, it is the

option of the plaintiff to institute such a suit on a particular threat.

On the actual denial of rights, the cause of action and the

consequent right to sue matures for instituting the suit for

declaration; whereas every threatened denial of rights gives rise to a

fresh cause of action, and thus a fresh right to sue accrues on such

a denial. This Court has, therefore, decided the question of

1 Ghulam Qasim v. Razia Begum PLD 2021 SC 812; Gharana v. Sahib Kamala PLD 2014 SC 167;

Muhammed Rustam v. Makhan Jan 2013 SCMR 299; Ata Muhammed v. Maula Baksh 2007 SCMR

CP No.262-P/2017

limitation in the cases relied upon by the High Court and referred to

by the counsel for the petitioners, in the peculiar facts and

circumstances of each case.

10.

Because of the special characteristics of their

relationship, the criterion for determining the actual denial of a cosharer’s rights as to joint property by the other co-sharer is different

from the one that is applied between strangers. Co-sharers have a

relationship of trust and support for each other. Possession of joint

property with one co-sharer is considered to be for and on behalf of

all the co-sharers. A co-sharer who is not in actual possession is

considered to be in constructive possession of the joint property.

Each co-sharer protects the joint property against trespassers for

the benefit of all the co-sharers. Even if one co-sharer acquires

possession of some portion of the joint property in consequence of

legal proceedings initiated by him against a trespasser, he is

deemed to be in possession of that portion of the joint property, on

behalf of all the co-sharers. Against this backdrop, the actual denial

of a co-sharer’s rights as to joint property by the other co-sharer is

not to be readily inferred. Actual denial of a co-sharer’s rights by the

other co-sharer may occur when the latter does something explicit

in denial of the former’s rights. A mere oral negation, even made

several times, of each other’s rights by the co-sharers on different

disputes as to the use and sharing of the profits of the joint

property, but without doing any overt act to oust a co-sharer from

the ownership of the joint property, cannot be treated as an actual

denial of the rights and thus does not necessitate to sue for

declaration of ownership rights.

11.

The obligations of the brothers to their sisters, as cosharers of joint property, are further augmented when viewed in the

light of the Islamic law and jurisprudence as expounded by this

Court in Ghulam Ali. Because of the fiduciary and protecting relation

of the brothers to their sisters, they cannot claim their possession of

the joint property adverse to the rights of their sisters; possession of

the brothers is taken to be the possession of their sisters. Mere

omission to pay a share of the profits or produce of the joint

property to their sisters by the brothers in possession of the joint

property does not in itself constitute a repudiation of the sisters’

CP No.262-P/2017

rights, nor does a wrong entry as to the inheritance rights in the

revenue record oust the sisters from their ownership of the joint

property as the devolution of the ownership of the property on legal

heirs of a person takes place under the Islamic law of inheritance

immediately on the death of that person without any intervention of

anyone and without the sanction of the inheritance mutation in the

revenue record. The position is, however, different when the

brothers in possession of the joint property make a fraudulent sale

or gift deed or get sanctioned some mutation, whether of sale or gift

etc, in the revenue record claiming that their sisters have

transferred their share in the joint property to them, or when they

on the basis of a wrong inheritance mutation start selling out or

otherwise disposing of the joint property claiming them to be the

exclusive owners thereof. In such circumstances, the brothers by

their overt act expressly repudiate the rights of their sisters in the

joint property, and oust them from the ownership of the joint

property. Their acts are, therefore, a clear and actual denial of the

rights of the sisters, which give rise to a compulsory cause of action

and obligates the sisters to institute the suit for declaration of their

rights, if they want to do so, within the prescribed period of

limitation.

12.

Although, by the said acts of the brothers, the right

accrues to the sisters to sue for declaration of their rights, but if

they by means of fraud are kept from the knowledge of those overt

acts, the time limit of six years provided in Article 120 for instituting

the suit for declaration against brothers or any person claiming

through them otherwise than in good faith and for a valuable

consideration, is to be computed from the time when the fraud of

the brothers first became known to the sisters, by virtue of the

provisions of Section 18 of the Limitation Act. The “fraud”

contemplated by Section 18 means suppression of those acts or

transactions that give rise to the cause of action from coming into

the knowledge of the plaintiff. A deliberate concealment of facts

intended to prevent discovery of the right to sue is also a “fraud”

within the meaning of the term used in this Section, but an open act

of a party cannot be said to be a fraudulent act of concealment and

is therefore not covered by this Section. The benefit of Section 18 is,

however, not available against any person who though claims

CP No.262-P/2017

through the defrauding party but is a transferee in good faith and

for a valuable consideration. That is why this Court has treated

differently the two types of cases: (i) where the joint property is still

in possession of the defrauding brothers or their legal heirs; and (ii)

where the joint property has been alienated further to third persons

- the transferees in good faith and for a valuable consideration.

13.

We have gone through the facts of the present case in

light of the above principles regarding the calculation of the period

of limitation. We find that the acts of acquisition of a part of the suit

property by the Small Industries Estate and receiving of the

compensation therefor by Abdur Rehman, the predecessor of

respondents No. 1 to 6, in the year 1960-61 were open acts and

were also in the knowledge of Mst. Mehro and Mst. Afsro, the

predecessor of the petitioners. This fact has been admitted by

petitioner No.1, Saadat Khan, when he appeared in the witness box

as PW-5. He further said that they had demanded their share in the

compensation amount from Abdur Rehman but he had refused to

pay. The act of receiving compensation for the acquired portion of

the suit property by Abdur Rehman was equal to selling that portion

of the suit property by claiming him to be the exclusive owner

thereof. It was his express overt act whereby he repudiated the

rights of his sisters, Mst. Mehro and Mst. Afsro, in the suit property

and ousted them from the ownership thereof. By the said act of

Abdur Rehman, the right accrued to his sisters to sue for

declaration of their rights, and the six-year limitation period

provided in Article 120 started to run from the date of knowledge of

Mst. Mehro and Mst. Afsro, of that act of Abdur Rehman and

expired in the year 1967-68. For when once limitation time had

begun to run, no subsequent disability or inability to sue could stop

it as per Section 9 of the Limitation Act. Similar was the effect of the

acts of selling out the remaining portion of the suit property by

respondents No. 1 to 6 to respondents No.12 to 74 and others. The

limitation period having thus expired in the lifetime of Mst. Mehro

and Mst. Afsro, it cannot start over again for their successors, the

present petitioners, in view of the definition of the term “plaintiff”

provided in Section 2(8) of the Limitation Act, which provides that

“plaintiff” includes any person from or through whom a plaintiff

derives his right to sue. Because of the said definition of “plaintiff”,

CP No.262-P/2017

it was the knowledge of Mst. Mehro and Mst. Afsro that had

triggered the period of limitation to run not only against them but

also against their successors, i.e., the petitioners who derive their

right to sue from them. The appellate court and the High Court

have, thus, correctly decided the issue of limitation against the

petitioners.

14.

For all what has been discussed above, the present

petition for leave to appeal is found meritless; it is, therefore,

dismissed and leave declined.

Islamabad,

23rd September, 2021.

Approved for reporting

Iqbal

Judge

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