High Court Imposed Fine Of 2 Lakhs On Brother For not Giving The Inheritance To Sister

Sister ko property main share na Dene per bhai ko du lakh jurmana

Inheritance daughters can not be deprived .

2021 SCMR 179 SUPREME COURT

Zair nazar Judgement main sister ko hissa na dene per 2 lakh rupees jurmana kia gia lahore High Court ki Judgement jiss main dosri bhi bht saari judgements ka hawala dia gia.

Brief facts

Bhain ne intiqal ko challenge kia or bataya ke wo Ghulam Muhammad ki beti ha or us ko warasat main hissa nahi mila. Jabke us ka bhai ju ke civil revision main petitioner tha ko 2 lakh jurmane ka hukam dia.

Stereo. H C J D A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

JUDGMENT

C.R.No.194-D/2009

Naseer

VS.

Sanwai Mai etc.

Ch. Muhammad Iqbal, J:-

Through this single

judgment, I intend to decide titled civil revision (C.R.

No.194-D/2009) alongwith Civil Revision No.195-D/2009, as

both these revision petitions have been filed against the same

consolidated judgments and decrees.

Through these civil revisions, the petitioner has

challenged the consolidated judgment and decree dated

30.06.2008, passed by the learned Senior Civil Judge, Dera Ghazi

Khan whereby the suit for declaration of respondent/Mst. Sanwai

Mai was decreed and the suit for declaration filed by the

petitioner was dismissed and the consolidated judgment and

decree dated 21.02.2009, passed by the learned Additional

District Judge, Dera Ghazi Khan who dismissed the appeals filed

by the petitioner.

Brief facts of the case are that Mst. Sanwai Mai,

predecessor-in-interest of the respondents filed a suit for

declaration against the petitioners contending therein that she is

C.R.No.194-D/2009

owner in possession of land measuring 26 Kanal 12 Marla falling

in Khata No.390 situated in Moza Piagah Chak No.3 Tehsil &

District Dera Ghazi Khan and her name was not included in the

inheritance mutation No.1518 dated 27.02.1985 of her father, as

such, the same was against the law whereas her name was

included in inheritance mutation No.1431 dated 13.01.1985 of

land situated in Moza Dalana Patti Bhoochri. She contended that

her right of inheritance through mutation No.1518 has illegally

been usurped. The petitioners filed contested written statement.

The petitioner also filed a suit for declaration challenging the

inheritance mutation No.1431 dated 13.01.1985 of land situated

in Moza Dalana Patti Bhoochri. The respondent filed contested

written statement in the said suit. The learned trial Court

consolidated both the suits, framed issues, recorded evidence of

the parties and vide consolidated judgment and decree dated

30.06.2008, decreed the suit of the respondent as prayed for and

dismissed the suit filed by the petitioner. The petitioner filed two

separate appeals which were dismissed by the learned appellate

Court vide consolidated judgment and decree dated 21.02.2009.

Hence, these civil revisions.

I have heard the arguments of learned counsels for the

parties and have gone through the record with their able

assistance.

Mst. Sanwai Mai challenged the inheritance mutation

No.1518 dated 27.02.1985 of her father Ghulam Muhammad

deceased to the extent of land measuring 26 Kanal 12 Marla

situated in Moza Dalana Patti Bhoochri by contending that she

being daughter of Ghulam Muhammad, has been deprived of her

inherited share in the estate of her deceased father. To prove her

stance, she produced Sajjad Hussain, Halqa Patwari (P.W.1) who

stated that Ghulam Muhammad deceased was owner of land

C.R.No.C.R.No.194-D/2009

measuring 68 Kanal 14 Marla. In cross examination, he deposed

that:

"۔۔۔در تسےہہکومعضپکاگیئںکچربمن3ےکرجشہبصنراکیرڈےکاطمقبالغمدمحمودلگنہور

اک وادل ریصن دمحم ےہ اور ااقتنل ربمن5151ںیم ومرہخ 28.2.11ومعضکپاگیئں کچربمن3ںیم

امسمۃیکتوکالغمدمحمودلگنہوردحیلعہیلینایسیہملقےسرحتیایکایگےہاوراِسرپیسکرویوینآرسیفےک

دطختس ہن ںیہ۔"

Mst. Sanwai Mai (P.W.2) deposed that defendant (petitioner) is

her brother. Her father Ghulam Muhammad was owner of suit

land situated in the estates of Moza Bhoochri and Paigan; that she

was deprived of her share of inheritance in the land of her father

in Moza Paigan whereas she was given due share in land situated

in Moza Patti Bhoochri. She further produced pedigree table

(Ex.P2) and mutation No.1431 dated 13.01.1985 (Ex.P8) of

inheritance of her father relating to land situated in Mouza

Boochri. Faqeer Bakhsh (P.W.3) and Wali Muhammad (P.W.4)

supported the version of the respondent/plaintiff.

Bare perusal of the oral as well as documentary evidence,

especially copy of the pedigree table (Exh.P.2), shows that Mst.

Sanwai Mai is daughter of Ghulam Muhammad and sister of

present petitioner Naseer. In the inheritance mutation No.1431

dated 13.01.1985, which was made in favour of Mst. Tiggi,

Naseer and Sanwai Mai, respondent/plaintiff has been shown as

daughter of Ghulam Muhammad. The petitioner failed to produce

any document in rebuttal and it is settled principle of law that a

document can be rebutted by the document having better legal

sanctity only. In this regard, reliance is placed on the cases of

Abdul Ghani & Others. Vs. Mst. Yasmeen Khan & Others (2011

SCMR 837) and Saleem Akhtar Vs. Nisar Ahmad (PLD 2000

Lahore 385).

The petitioner himself got incorporated mutation No.1431

dated 13.01.1985 undertaking that he (son) alongwith Mst. Tiggi

(widow) and Mst. Sanwai Mai (daughter) are the legal heirs of-D/2009

measuring 68 Kanal 14 Marla. In cross examination, he deposed

that:

"۔۔۔در تسےہہکومعضپکاگیئںکچربمن3ےکرجشہبصنراکیرڈےکاطمقبالغمدمحمودلگنہور

اک وادل ریصن دمحم ےہ اور ااقتنل ربمن5151ںیم ومرہخ 28.2.11ومعضکپاگیئں کچربمن3ںیم

امسمۃیکتوکالغمدمحمودلگنہوردحیلعہیلینایسیہملقےسرحتیایکایگےہاوراِسرپیسکرویوینآرسیفےک

دطختس ہن ںیہ۔"

Mst. Sanwai Mai (P.W.2) deposed that defendant (petitioner) is

her brother. Her father Ghulam Muhammad was owner of suit

land situated in the estates of Moza Bhoochri and Paigan; that she

was deprived of her share of inheritance in the land of her father

in Moza Paigan whereas she was given due share in land situated

in Moza Patti Bhoochri. She further produced pedigree table

(Ex.P2) and mutation No.1431 dated 13.01.1985 (Ex.P8) of

inheritance of her father relating to land situated in Mouza

Boochri. Faqeer Bakhsh (P.W.3) and Wali Muhammad (P.W.4)

supported the version of the respondent/plaintiff.

Bare perusal of the oral as well as documentary evidence,

especially copy of the pedigree table (Exh.P.2), shows that Mst.

Sanwai Mai is daughter of Ghulam Muhammad and sister of

present petitioner Naseer. In the inheritance mutation No.1431

dated 13.01.1985, which was made in favour of Mst. Tiggi,

Naseer and Sanwai Mai, respondent/plaintiff has been shown as

daughter of Ghulam Muhammad. The petitioner failed to produce

any document in rebuttal and it is settled principle of law that a

document can be rebutted by the document having better legal

sanctity only. In this regard, reliance is placed on the cases of

Abdul Ghani & Others. Vs. Mst. Yasmeen Khan & Others (2011

SCMR 837) and Saleem Akhtar Vs. Nisar Ahmad (PLD 2000

Lahore 385).

The petitioner himself got incorporated mutation No.1431

dated 13.01.1985 undertaking that he (son) alongwith Mst. Tiggi

(widow) and Mst. Sanwai Mai (daughter) are the legal heirs of

C.R.No.194-D/2009

Ghulam Muhammad deceased but while incorporating mutation

No.1518 of deceased Ghulam Muhammad, he deliberately

concealed the name of Mst. Sanwai Mai as legal heir/daughter of

Ghulam Muhammad and subsequently, he filed a suit for

declaration flatly denying the paternity of Mst. Sanwai Mai to be

daughter of Ghulam Muhammad deceased in violation of

undertaking given by him before the revenue officer while got

incorporating the mutation No.1431, which clearly operate as

estopple as well as approbate and reprobate against him and he is

debarred to deviate from his own statement. Reliance is placed on

the case of A.R. Khan Vs. P.N. Boga through Legal Heir (PLD

1987 SC 107), relevant portion whereof is reproduced as under:-

“It is a well-accepted principle that a party cannot both

approbate and reprobate. He cannot to use the words of

Honeyman, J., in Smith v. Baker (S C 350) at the same time

blow hot and cold. He cannot say at one time that the

transaction is valid and thereby obtain some advantage to

which he could only be entitled on the footing that it is valid,

and at another say it is void for the purpose of securing some

further advantage. See also per Lord Kenyon, C.J., in Smith V.

Hodson (2 Sm. L C 140).”

The Hon’ble Apex Court in another case reported as M/s. Home

Comforts Vs. Mirza Rashid Baig & Others (1992 SCMR 1290)

has held that:-

“Thereafter fresh ejectment application should have been filed

against M/s. Home Comforts as tenant. Contention is

untenable for the reason that at the very outset of the ejectment

proceedings when written statement was filed such objection

was not raised that ejectment application should be dismissed

as non-maintainable simply for the reason that Ibrahim son of

Hussain Ali was not tenant but positive assertion was made in

the written statement that M/s. Home Comforts were the tenant

and not only that but stand was taken that default of 8 months

in the payment of rent was not committed as alleged against

Ibrahim son of Hussain Ali in the application for eviction and

proper explanation was given in details as to how rent was

paid by M/s. Home Comforts for the period of default. In the

evidence also attempt was made to prove that there was no

default and rent was paid to the landlady. In such

circumstances it was rightly held by the learned Rent

Controller that the tenancy is admitted by Home Comforts and

C.R.No.194-D/2009

default is proved against them. No person can be allowed to

approbate and reprobate in the same breath.”

Reliance is also placed on the case reported as Federation of

Pakistan Vs. Amir Hamza (2001 SCMR 1959), relevant portion

whereof is reproduced as under:-

“13. ….The very factum of his invoking jurisdiction of the

Tribunal and preferring proceedings before this Court,

negates legal and Constitutional objections raised by him. It

may be observed that „the appellant‟ cannot be permitted to

approbate and reprobate in the same breath i.e. to challenge

the constitutionality and jurisdiction of forum which he has

himself invoked for seeking relief under the law.”

In Noor Muhammad, Lambardar Vs. Member (Revenue), Board

of Revenue, Punjab, Lahore and Others (2003 SCMR 708), the

Hon'ble Supreme Court of Pakistan has observed as under:-

“6. ….In our opinion, this objection is not available to him for

the reason that learned counsel on behalf of legal heirs of

Subedar Asghar Ali had also filed a separate petition being

No. 1651-L of 2002, assailing the same order, therefore, he

cannot be allowed to blow hot and cold in one breath.”

In another case titled as Overseas Pakistanis Foundation &

Others Vs. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah & Another

(2007 SCMR 569), the August Court of the country has observed

as under:-

“4. ….It is also a settled law that nobody is allowed to

approbate and reprobate as law laid down by this Court in

Ghulam Rasool‟s case PLD 1971 SC 376.”

The respondent proved her stance by producing Halqa

Patwari as well as other witnesses in her support whereas the

petitioner neither produced Halqa Patwari concerned who scribed

the alleged inheritance mutation nor Tehsildar/Revenue Officer

who sanctioned the mutation in evidence to prove the validity of

alleged inheritance mutation No.1518 and non-producing the said

material witnesses amounts to withholding of the best evidence

and it would be legally presumed that had the said witnesses

produced in the evidence, they would have deposed against the

and C.R.No.194-D/2009

petitioner, as such, presumption under Article 129 (g) of Qanune-Shahadat Order, 1984 clearly operates against him. Reliance is

placed on the cases of Sughran Bibi Vs. Mst. Aziz Begum & 4

Others (1996 SCMR 137).

Admittedly the parties to lis are Muslims by faith and

follower of Quran and Sunnah. As per the Constitution of the

Islamic Republic of Pakistan, 1973, the principles of Quran and

Sunnah are declared as supreme law of this country and all

provisions, rules, regulations are to be legislated and framed

within the precincts of Islamic principles. For reference Article

227 of the Constitution of Islamic Republic of Pakistan is

reproduced as under:-

227. Provisions relating to the Holy Quran and Sunnah.-(1)

All existing laws shall be brought in conformity with the

Injunctions of Islam as laid down in the Holy Quran and

Sunnah, in this Part referred to as the Injunctions of Islam, and

no law shall be enacted which is repugnant to such injunctions.

1[Explanation.-In the application of this clause to the personal

law of any Muslim sect, the expression “Quran and Sunnah”

shall mean the Quran and Sunnah as interpreted by that sect.]

(2) Effect shall be given to the provisions of clause (1) only in

the manner provided in this Part.

(3) Nothing in this Part shall affect the personal laws of nonMuslim citizens or their status as citizens.

Admittedly the predecessor-in-interest of the parties of the lis as

well as the parties are Muslims and principles of Quran and

Sunnah are manifestly applicable and shares of each and every

inheritor has conclusive and universally been prescribed therein.

Allah Almighty has ordained the Muslims to decide their dispute

as per Quran (Shariah) as described in following verses:

ور

پزلفامپاہللےنوتُویہولگاکفںیہ۔

ےسج

قب

اطم

ےک

)

اتک

(

رک

ہن

ہلصیف

وج

﴿وسرۃالمدئۃ:آ تیربمن۴۴﴾

ور

یہولگاظملںیہ۔

وت

ےن

ہلل

تپ

ےسج

قب

اطم

ےک

)

اتک

(

رک

ہن

ہلصیف

وج

﴿وسرۃالمدئۃ:آ تیربمن۴۴﴾

اور وج ہلصیف ہن رکںی اس ےک اطم

یہولگقس ںیہ۔

ُو

وت

ےہ

ترا

قبےسجاہللیلا ٰنےنا

﴿ وسرۃالمدئۃ:آ تیربمن۴۴ ﴾

ہمج:انجبومالپحتفدمحماجدنلرھی(

تی

(

The rights or shares of each and every Muslim inheritor in the

estate of his/her deceased propositus is absolutely, conclusively described /determined in the Holy Quran which shares

are definite in nature. It is expedient to take guidance from the

Holy Quran, particularly from Surah tul Nisa Ayat Nos.7 to 11,

English & Urdu translation whereof (by Marmaduke Pickthall)

is reproduced as under:-

7. Unto the men (of a family) belongeth a share of that

which parents and near kindred leave, and unto the

women a share of that which parents and near kindred

leave, whether it be little or much. A legal share.

8. And when kinsfolk and orphans and the needy are

present at the division (of the heritage), bestow on them

therefrom and speak kindly unto them.

9. And let those fear (in their behaviour toward orphans)

who if they left behind them weak offspring would be

afraid for them. So let them mind their duty to Allah, and

speak justly.

10. Lo! Those who devour the wealth of orphans

wrongfully, they do but swallow fire into their bellies. And

they will be exposed to burning flame.

11. Allah commands you concerning (the provision for)

your children; to the male the equivalent of the portion of

two females, and if there be only women more than two,

then theirs is two-thirds of the inheritance, and if there be

one (only) then for her is the half. And to each of his

parents a sixth of the inheritance, if he have a son; and if

he have no son and his parents are his heirs, then to his

mother appertaineth the third; but if he have brethren,

then to his mother appertaineth the sixth, after any legacy

he may have bequeathed, or debt (hath been paid). Your

parents and your children: Ye know not which of them is

nearer unto you in usefulness. It is an injunction from

Allah. Lo! Allah is knower, Wise.

وجامل

C.R.No.194-D/2009

فصن۔اورتیمےکامںپپاکینعیدوونںںیمےسہایاکتیےکںیماٹھچہصحرشبہکیطتیمےکاوالدوہ۔اور

ارگاوالدہنوہاوررصفامںپپیہاےکسوارثوہںوتایاہتیئامںاکہصحاورارگتیمےکاھبیئیھبوہںوتامں

(ےکدعبوجاسےنیکوہپ

لیمعت

یک

تیص)

یک(

تیم

ہک

میسقتتی

)اور

ہصح

اٹھچ

اک

ےک)اداوہےنےکدعب

ھارےپپدادوںاوروٹیبںوپوتںںیمےسقسدئہےک

تم

ہکت

ںیہن

وکولعم

مت

یگ(

مےئ

ںیما

ےموہلمع

یسےک

وجا

یےہ ےصحاہللےکرقمرےیکوہےئںیہ۔ےب

احلظےسوکنمتےسزپدہف کشاہللس ھچاجےننواال)اور(

تمکح واال ےہ۔

)تیہمج:انجبومالپحتفدمحماجدنلرھی(

Further in Surah tul Nisa, it has been ordered as under:-

اوروجاملامںپپاوررہتشداروھچڑرمںیوت)قحداروںںیممیسقترکدوہک(مہےنہایےکدقحاررقمر

رکدیںیہاورنجولںوںےسمتدہعرکےکچوہانوکیھباناکہصحدوےبکشداہ زیےکما ےنےہ۔

﴿آ تیربمن33﴾

(اےربمغیپ(ولگمتےس)مالہلےکپرےںیم(مکح)دا(درپتفرکےتںیہہہکدوہکدامالہلپرےںیم

مکحداتیےہہکارگوکیئااسیرمدرماجےئسجےکاوالدہنوہ)اورہنامںپپ(اوراسےکنہبوہوتاسوکاھبیئ ےک

تیےکںیمےسآداھہصحےلماگ۔اورارگنہبرماجےئاوراسےکاوالدہنوہوتاسےکامتماملاکوارثاھبیئوہاگ

اورارگ)رمےنواےلاھبیئیک(دوںینہبوہںوتدوونںوکاھبیئےکتیےکںیمےسدواہتیئ۔اورارگاھبیئاورنہب

ینعی رمد اور وعرںیت ےلم ےلج وارث وہںوترمداکہصحدووعروتںےکیایےہ۔) ااکحم(دامتےساسےئل

ایبنفامتپےہہکتھٹکتتےہنرھپو۔اورداہ زیےسوافقےہ ﴿آ تیربمن581﴾

Further in Sahi Bukhari Sharif Vol.III, relevant at Page No.606

Chapter No.922 the shares of the legal heirs have also been

described as under:-

پپاورامںیکرطفےساوالدیکریماثاورزینبپ تیےناہک،ہکارگوکیئرمدپوعرتیٹیبوھچڑےوتاسوک

فصنےلماگاورارگدوںینہبپزپدہوہںوتانوکدواہتیئےلماگ،اورارگانےکماھتوکیئاٹیبیھبوہوتےلہپاوررشاک

وکدےرکپیقےسرمدوکدوہصحاوروعرتوکایہصحدپاجٗےاگ۔

)حیحص اخبری رشفی(

Moreover according to Section 2 of the Muslim Personal Shariat

Application Act, 1937, the Shariat Laws were made applicable

where the parties were Muslims. Section 2 of the Act ibid is

reproduced as under:

2.Application of Personal Law to Muslim.-

Notwithstanding any custom or usage to the contrary, in

all questions (save questions relating to special property

of females, including personal property inherited or

C.R.No.C.R.No.194-D/2009

obtained under contract or gift or any other provision of

Personal Law, marriage, dissolution of marriage,

including talaq, ila, zihar, lian, khula and mubarat

maintenance, dower, guardianship, gifts, trusts and trust

properties, and wakfs other than charities and charitable

institutions and charitable and religious endowments the

rule of decisions in cases where the parties are Muslims

shall be the Muslim Personal Law (Shariat)

10.

It was the case of the petitioner in his pleading that

Mst.Sanwai Mai is not the daughter of Ghulam Muhammad

which factum has badly been negated by the document of

Mutation No.1431 regarding the inheritance of said Ghulam

Muhammad wherein it is conspicuously mentioned her name as

inheritor of her deceased father, which factum demolished the

stance propounded by the petitioner in his pleadings. Moreover as

the petitioner has questioned the paternity of the respondent and

has also sought a negative declaration through filing a suit for

declaration contending therein that the respondent No.1 (Sanwai

Mai) is not daughter of Ghulam Muhammad, which tantamount

to a negative declaration and same has nothing to do with his own

legal character, as such, the suit under Section 42 of Specific

Relief Act, is not maintainable. Alike controversy has been

resolved by the 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 -D/2009

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.194-D/2009

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

C.R.No.194-D/2009

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. 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;

(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.”

C.R.No.194-D/2009

(emphasis supplied)

In the case of Ghazala Tehsin Zohra Vs. Mehr Ghulam Dastagir

Khan & Another (PLD 2015 SC 327), the Hon’ble Supreme

Court of Pakistan observed that birth during marriage is

conclusive proof of legitimacy. Relevant portion of above said

judgment is reproduced as under:-

“12. It is a matter of concern that on such a vital issue we have

not received much assistance at the bar as to how Article 128

ibid is to be interpreted. Redundancy is not lightly to be

imputed to the legislature. For the purpose of harmonious

construction of the said statutory provision, we may have resort

to section 2 of the West Pakistan Muslim Personal Law

(Shariat) Application Act, 1962 (Act V of 1962) which

stipulates that “notwithstanding any custom or usage, in all

questions regarding .... legitimacy or bastardy ... the rule of

decision, subject to the provisions of any enactment for the time

being in force shall be the Muslim Personal Law (Shariat) in

cases where the parties are Muslims”. Since both parties

before us are Muslims and section 2 aforesaid specifically

refers to legitimacy or bastardy, resort must be made to the

Muslim Personal Law (Shariat) for the purpose of reconciling

what may appear to be conflicting provisions of Article 128 of

the QSO. 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 miogynistic 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

C.R.No.194-D/2009

value placed on the institution of the family, that women and

blameless children have been granted legal protection and a

defence against scurrilous stigmatization.”

(emphasis supplied)

Moreover it is an undeniable societal reality that ordinarily the

male members of family always makes utmost effort to snatch the

share of their female from the estate of their propositus through

hook and crook by inventing multiple devices including the

family honours etc. but this trend has been strictly deprecated by

the August Supreme Court in case reported as Ghulam Ali & 2

Others Vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1).

11.

Learned counsel for the petitioner has not been able to

point out any illegality or material irregularity, mis-reading and

non-reading of evidence in the impugned judgments and decrees

passed by the learned Courts below and has also not identified

any jurisdictional defect. The concurrent findings of fact are

against the petitioners which do not call for any interference by

this Court in exercise of its revisional jurisdiction in absence of

any illegality or any other error of jurisdiction. Reliance is placed

on the case titled as Mst. Zaitoon Begum v. Nazar Hussain and

another (2014 SCMR 1469).

12.

In view of above, these civil revisions being devoid of any

merit are hereby dismissed with cost of suit throughout as well as

special cost of Rs.2,00,000/- (Rupees two lac only).

(Ch. Muhammad Iqbal)

Judge

Approved for reporting.

Judge

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