Mutation of property meaning| Mutation of property in Pakistan.72 years purana intiqal challenge, Apni maa ka hisa lene ke liye

Mutation challenge after 72 years

The phrase "mutation of property" generally refers to a change or alteration in the characteristics or status of a property. This could include modifications to the property's ownership, physical structure, legal attributes, or other relevant features. Mutations can occur due to various reasons such as transfer of ownership, subdivision, amalgamation, or changes in land use. The term is often used in the context of real estate and property law.

Following Judgement intiqal ke bare main ha jiss ko 72 salu ke baad challenge kia gia.
Marne wale ki betian bhi mojod thien magar intiqal sirf bete ke nam per hoa tha.
Lakin jin betio ka hissa tha unho ne apni zindagi ma kabhi intiqal ko challenge na kia tha.
Intiqal ko challenge karne wala aik beti ka beta tha
Jiss ne hibba, tamleek ke intiqal ko challenge kia tha. Ju ke 72 saal se or 18 jama bandio se chala aa raha tha.
Trial court ne case dissmiss kar dia
Jiss ke baad dawa appeal main decree hu gia.
Jiss ke baad dawa High Court ne revision main phir Trial Court ka faisla bahal kar dia or appeal ma dia gia faisla setaside kar dia.

JUDGMENT SHEET

IN THE LAHORE HIGH COURT AT LAHORE.

(JUDICIAL DEPARTMENT)

C.R.No.1063 of 2011.

Nasar Ullah Khan, etc

Vs.

Masood Iqbal Khan, etc

JUDGMENT

DATE OF HEARING:

07-06-2013.

PETITIONERS BY:

Sh. Naveed Sheharyar,

Advocate.

RESPONDENT No.1:

Masood Iqbal Khan,

Advocate/respondent No.1 in

person.

RESPONDENT No.2-4 BY:

Ch. Khurshid Ahmad, Advocate.

RESPONDENT No.5-6, 8-13 BY: Mr. Qaisar Nawaz Khan Niazi,

Advocate.

AMIN-UD-DIN KHAN, J. Through this civil revision, the

petitioners-defendants have challenged the judgment & decree

dated 08.03.2011 passed by learned Addl: District Judge, Kallur

Kot, whereby two appeals (one filed by the plaintiff/respondent

No.1 and the other by Muhammad Afzal Khan etc) were

accepted, in result of which, judgment & decree dated

18.12.2009 passed by learned Civil Judge, Kallur Kot,

dismissing the suit filed by respondent No.1/plaintiff were set

aside.

The brief facts as leading to this civil revision are

that the plaintiff/respondent No.1 on 01.09.2003 filed a suit for

declaration that he is joint owner in possession of suit land in

accordance with share mentioned therein and challenged

mutation of inheritance bearing No.655 attested on 13.02.1931,

C.R.No.1063-2011.

mutation No.682 attested on 15.06.1931, mutation of gift

No.1054 attested on 01.12.1933, mutation of inheritance

No.1799 attested on 14.03.1941 and mutations of Tamleek in

favour of Muhammad Hassan Khan s/o Subhan Khan are against

the law, facts, based upon misrepresentation and fraud, therefore

are not binding upon the plaintiff as well as the formal

defendants. He also challenged mutations of sale, gift, exchange,

mortgage bearing No.2678 attested on 02.02.1997, 2580 attested

on 13.06.1996, 2665 attested on 31.12.1997, 2683 attested on

27.02.1997, 2701 attested on 13.03.1997, 2715 attested on

05.06.1991 and 1419 attested on 21.12.1999. The case as pleaded

by the plaintiff in the plaint is that the propositus of the parties

and the last owner Subhan Khan s/o Nasir Khan, Caste Pathan

Kucha Khel, R/o Jandanwala Tehsil Bhakkar District Mianwali,

died in the year 1930. His pedigree-table has been mentioned in

Para 1 of the plaint, wherein it has been mentioned that at the

time of death of Subhan Khan, he left behind one son

Muhammad Hassan Khan, three daughters Mst. Soorat Khatoon,

Mst. Alam Khatoon, Mst. Daulat Khatoon and one widow Mst.

Fateh Khatoon. All these children were from Mst. Fateh

Khatoon. The propositus was having two wives, one of whom

namely Mst. Mehrai Khatoon died issueless in his life time. The

plaintiff is one of the sons/legal heirs of Mst. Alam Khatoon,

who died in the year 1994. It is the case of plaintiff that at the

time of attestation of mutation of inheritance by practicing fraud

C.R.No.1063-2011.

by the son Muhammad Hassan Khan, daughters of deceased have

been disinherited. It is stated by the plaintiff that the defendants

used to give share of his produce to the plaintiff and four months

prior to the filing of suit they have refused to give his share, then

he checked the record of revenue department, whereby he came

to know that through the impugned mutations daughters of

deceased have been defrauded. It has been prayed that all the

mutations be declared null and void and suit be decreed.

The defendants No.1 to 4 filed their joint written

statement, wherein it has been mentioned that on the basis of

custom the mutation was sanctioned. Some of the defendants

filed consenting written statement, whereas some have filed

contesting written statement. From the divergent pleadings of the

parties, learned trial court framed issues and invited the parties to

produce their respective evidence. The plaintiff opted to appear

as his own witness only and produced 29 documents as Ex.P-1 to

Ex.P-29. The defendant No.1 (Nasar Ullah Khan) appeared as

DW-1 and produced Ex.D-1 and Ex.D-2. After the closing of

trial, vide judgment & decree dated 18.12.2009 suit was

dismissed by learned trial court. Two appeals were filed before

learned first appellate court, one by the plaintiff/respondent No.1

and the other by Muhammad Afzal Khan etc, the defendants.

Learned Addl: District Judge vide consolidated judgment &

decrees dated 08.03.2011 accepted both the appeals and decreed

C.R.No.1063-2011.

the suit. Hence, this civil revision by the contesting defendantspetitioners.

Learned counsel for the petitioners-defendants

argues that the plaintiff/respondent No.1 opted to appear as a

sole witness and very short statement has been got recorded,

whereas he himself produced documentary evidence in shape of

Ex.P-1 to Ex.P-29; that no defect in the mutations has been

highlighted except the fraud is alleged by the

plaintiff/respondent; that the statement of plaintiff is that

mutations are not binding upon him and that the defendants gave

him share of produce and when they stopped paying share of

produce he has filed the suit; that there is absolutely no mention

of rights of his mother from whom he is claiming the right and

that there is absolutely no mention that whether his mother was

ever paid any share of produce or she claimed the ownership or

she even ever presumed herself owner of the suit property; that

even the statement of plaintiff is wrong to the extent that Mst.

Fateh Khatoon was widow of Subhan Khan; that the other wife

of Subhan Khan namely Mst. Mehrai Khatoon was alive at the

time of death of Subhan Khan and she was the widow, whereas

Mst. Fateh Khatoon died in his life time. Learned counsel further

argued that the suit has been filed after 72 years of the attestation

of mutation; that only Masood Iqbal Khan has challenged the

mutations in the suit and neither the other legal heirs of Mst.

Alam Khatoon nor the other two daughters or their legal heirs

C.R.No.1063-2011.

have challenged the inheritance mutation. Further states that the

simple defence of petitioners-defendants is that mutations were

attested on the basis of custom; that even the facts pleaded by the

defendants are proved by the documentary evidence led by the

plaintiff himself; that there was no locus standi with the plaintiff

to file the suit after 72 years of the attestation of inheritance

mutation when his mother died in the year 1994 and in her whole

life time she never claimed any right in the suit property and

even Muhammad Hassan Khan died in the year 1992. While

relying upon “PLD 2011 Supreme Court 657 (Lal Khan

through Legal Heirs vs. Muhammad Yousaf through Legal

Heirs)” learned counsel argues that the mother of plaintiff died

64 years after the attestation of inheritance mutation and never

challenged the same in her life time, therefore by scrutinizing the

oral as well as documentary and substantial evidence it was to

lead that there is a waiver on the part of mother of plaintiff; that

at least in 18 Jamabandies the name of Muhammad Hassan Khan

after incorporation of inheritance mutation in his name and after

his death the names of his legal heirs were available, whereas the

plaintiff who himself is a practicing Lawyer and at the time of

filing of suit he was senior Advocate having 30 years practice

and how he himself believes the story narrated by him; that even

the mutation No.94 was attested after the death of Muhammad

Hassan Khan for his inheritance on 28.05.1992 and even the suit

was filed after 11 years of attestation of mutation of inheritance

C.R.No.1063-2011.

of Muhammad Hassan Khan. While relying upon “2007 SCMR

1446 (Atta Muhammad vs. Maula Bakhsh and others)” learned

counsel states that even in a case of inheritance the delay exists

adversely. Further states that for condonation of delay the

specific date of knowledge and cause of action must be given;

that on the base of vague explanation and without mentioning the

specific date of knowledge of impugned mutation nor any

explanation tenable in law was provided to justify condonation

of delay, delay condoned was in violation of law and was not

sustainable. In this context, reliance is placed upon “PLD 2011

Supreme Court 657 (Lal Khan through Legal Heirs vs.

Muhammad Yousaf through Legal Heirs) as well as 2011 SCMR

222 (Jamila Khatoon and others vs. Aish Muhammad and

others)”. Learned counsel states that even with regard to delay

the plaintiff was bound to plead specifically in accordance with

Order VI of the CPC. While relying upon the pleadings as well

as the statement of plaintiff that the defendants have refused to

give share of produce, states that at least it is admitted by the

plaintiff himself that he is not in possession of suit property; that

the mutation of inheritance of Subhan Khan was attested on the

basis of custom prevalent in the family of deceased, which is

proved by the documentary evidence led by the plaintiffrespondent No.1 himself; that even he has filed CM No.3 of

2011 for permission to produce mutations of Pathan Kucha Khel

and Pathan Masti Khel, as in all these inheritance mutations of

C.R.No.1063-2011.

Pathan Kucha Khel, sons have been given the land and daughters

have been excluded. While relying upon all the judgments of

august Supreme Court upon the point of application of Section 2-

A of the West Pakistan Muslim Personal Law (Shariat)

Application Act (V of 1962) introduced through West Pakistan

Muslim Personal Law (Shariat) Act (Amendment) Ordinance

(XIII of 1983) learned counsel states that its retrospective effect

is since the application of Punjab Muslim Personal Law (Shariat)

Application Act (IX of 1948) and not prior thereto. In this

context, reliance has been placed upon “PLD 2012 Supreme

Court 501 (Ghulam Haider and others vs. Murad through Legal

Representatives and others)”. Lastly learned counsel prays for

acceptance of this civil revision and setting aside the impugned

judgment & decrees passed by learned first appellate court.

On the other hand, respondent No.1/plaintiff, who

himself is an Advocate argues his own case that there is no

defence pleaded by the petitioners-defendants in their written

statement, as in preliminary objections it is mentioned that the

impugned mutation of inheritance was attested on the basis of

custom. At this stage,

when questioned to

the

plaintiff/respondent No.1 that the same defence has been

taken in response to Para 2 of the plaint, as in the written

statement it is clearly mentioned that the impugned mutations

were attested on the basis of custom, then the

plaintiff/respondent No.1 sit over the point that even the sisters

C.R.No.1063-2011.

of petitioners have accepted his case. I have noticed that the

brothers and sisters of plaintiff have contested his suit and in the

appeal brothers and sisters of defendant No.1/petitioner have

supported the plaintiff, therefore this contest as well as admission

by some of the parties is not relevant for determination of point

in issue in this civil revision. The plaintiff/respondent No.1

argues that even the case of defendants was that Mst. Alam

Khatoon was not the daughter of deceased Subhan Khan; that

they cannot change their version now, as during the arguments

learned counsel for the petitioners-defendants admitted that Mst.

Alam Khatoon was the daughter of deceased Subhan Khan.

Further respondent No.1 states that all the mutations are just

waste papers and do not create any right and in the family of

parties Shariat was applicable and all the matters of inheritance

were decided in accordance with Shariat; that the retrospective

effect of Section 2-A will be from the date of death of the

Propositus and all his legal heirs will inherit him in accordance

with the Shariat. Lastly prays for dismissal of instant civil

revision.

Learned counsel representing the other respondents

states that the parties were governed through Personal Law and

custom was not applicable; that in case of inheritance the

limitation is not a hurdle; that when Mst. Alam Khatoon was the

daughter of deceased and there were two other daughters, they

C.R.No.1063-2011.

should have mentioned in the impugned mutation, even if it was

being sanctioned on the basis of custom.

I have heard the learned counsel for the parties at

full length and also gone through the voluminous record as well

as case law referred to by them.

Both the parties have produced photocopies of

customary law with regard to their claim. Respondent

No.1/plaintiff has produced the law to show that mutation does

not create or confer a right and further that to prove a mutation

the production of Patwari and other revenue official is necessary,

therefore to this extent judgments relied by the plaintiffrespondent No.1 are not applicable to the facts of this case. In

this case the plaintiff has challenged the mutations of inheritance,

which were passed even 72 years prior to the filing of suit and

certified copies of which have been produced by the plaintiff. By

scrutiny of mutation No.655 the certified copy of which has been

produced by the plaintiff himself shows that this mutation was

got entered by one Ramzan, as on his report the same was

entered by the Patwari and after its scrutiny this mutation was

attested in favour of Muhammad Hassan Khan, the only son of

the Propositus, Subhan Khan. Through mutation No.682 which

has been produced as Ex.P-2 and it is ‘Sehat-Warasat’ some

property through ‘Sehat-Intiqal’ from the name of Muhammad

Hassan Khan in whose favour whole of the property of Subhan

Khan was transferred, has been transferred in favour of Mst.

C.R.No.1063-2011.

Mehrai Khatoon widow of Subhan Khan as limited owner for

‘Guzarah’. In this mutation through ‘Sehat-Intiqal’ ¼ share has been

given to the widow of deceased for ‘Guzarah’, wherein it is clearly

mentioned that the deceased was having three daughters. Further

through mutation No.1054 copy of which has been produced as Ex.P-

3, this mutation is of Tamleek by Muhammad Hassan Khan in favour

of Mst. Mehrai Khatoon. It is clearly mentioned in this mutation that

this has been got entered by Sher Muhammad Khan, sister’s husband

of Muhammad Hassan Khan, who is minor and through this mutation

the property has been transferred as gift ‘Ta-Hayat’ to the step mother

of donor i.e. Mst. Mehran and there is mention of three daughters of

Subhan Khan. Through mutation No.1799 which has been

produced as Ex.P-4, on the death of Mst. Mehran the property

was reverted to Muhammad Hassan Khan, as the property was

given to Mst. Mehran as life interest. By scrutiny of all these

mutations produced by the plaintiff himself, it is clear that in

these mutations it is mentioned that Muhammad Hassan Khan in

whose favour inheritance mutation on the basis of custom have

been sanctioned, was minor at that time. Further that the

mutation of inheritance Ex.P-3 was got entered by Sher

Muhammad Khan, who was husband of sister of Muhammad

Hassan Khan, he not only appeared at the time of attestation of

mutation but also got entered this mutation. There is mention of

three daughters of the Propositus in this mutation and further

when the property was transferred in favour of widow of the

C.R.No.1063-2011.

Propositus as life interest, in these circumstances it is abundantly

clear that the mutation of inheritance of Subhan Khan was

attested on the basis of custom and further that there is no questin

of fraud or misrepresentation by the son of deceased i.e.

Muhammad Hassan Khan, as he was minor. The argument of

respondent No.1/plaintiff who himself is an Advocate with

regard to mutation of inheritance that every mutation is based on

a waste paper, is not sustainable under the law. It is correct that

the mutation by itself does not create or confer a right or title in

the property but it is based upon another event. When these

mutations are on the basis of event of death of Subhan Khan,

therefore the matter was reported to the revenue department and

by the scrutiny of event and the record, mutations were attested.

Even the transferee i.e. Muhammad Hassan Khan was minor,

therefore the allegations of fraud and misrepresentation upon

Muhammad Hassan Khan are factually incorrect as is transpired

by the documentary evidence led by the plaintiff himself. When

the event of death of Subhan Khan is not denied, in this view of

the matter, general principle is that mutation by itself does not

create or confer the title or interest. The simple statement of the

plaintiff that mutation is based upon misrepresentation and fraud,

was not sufficient to brush aside the subsequent mutations, as the

same have been attested in accordance with the procedure

provided under the recording of mutations applicable at that time

and at least 18 Jamabandies have been prepared after the

attestation of impugned mutation. The argument of respondent

No.1 that the petitioners/defendants were obliged to produce

attesting witnesses of mutation the revenue officials, is legally

not sustainable under the law, as after 74 years of attestation of

mutation the same has been challenged, therefore it is impossible

to produce such witnesses to prove the mutation. Even otherwise

the onus to prove the transaction shifts upon the beneficiary

when the plaintiff succeeds in discharging his initial onus to

rebut the transaction. In case in hand the plaintiff failed to do so.

With regard to the limitation and filing of suit by

one son of the daughter of Propositus is concerned, when his

mother who died after 64 years of the attestation of impugned

mutation and even after 11 years after the death of his mother the

suit has been filed, therefore in the light of law laid down in the

judgment reported as “PLD 2011 Supreme Court 657, 2007

SCMR 1446 and 2011 SCMR 222”, this delay of filing of suit

is fatal against the rights of plaintiff-respondent No.1 as well as it

creates a waiver on behalf of his mother as she never challenged

the impugned mutation in her life time. This suit was certainly

time barred, as such liable to dismissal on this score.

10.

So far as the application of Section 2-A of the West

Pakistan Muslim Personal Law (Shariat) Application Act (V of

1962) is concerned, its effect has been discussed in detail in the

latest judgment of august Supreme Court of Pakistan reported as

“PLD 2012 Supreme Court 501” and I have the honour to bow

C.R.No.1063-2011.

before the clear judgment of august Supreme Court wherein all

the previous judgments on the point have been discussed and an

authoritative view has been given. Section 2-A applies since the

application of Punjab Muslim Personal Law (Shariat)

Application Act (IX of 1948) i.e. since March 15, 1948. In this

view of the matter, the last male owner was Subhan Khan whose

inheritance opened in the year 1930 at the time of his death,

therefore through mutation No.655 attested on 13.02.1931 in

accordance with the custom his minor son Muhammad Hassan

Khan inherited him. Through this mutation Muhammad Hassan

Khan will be presumed to have inherited the suit property

(Agricultural Land) under the Muslim Personal Law (Shariat), as

admittedly Subhan Khan was Muslim. The suit was absolutely

not maintainable.

11.

In the light of what has been discussed above, this

civil revision is accepted and the impugned judgment & decrees

dated 08.03.2011 passed by learned appellate court are set aside

and that of learned trial court are restored. Resultantly, the suit

filed by respondent No.1/plaintiff shall stand dismissed.

(AMIN-UD-DIN KHAN)

JUDGE

Qurban*

Approved for Reporting

JUDGE

For more information call us 0092-324-4010279 Whatsapp Dear readers if u like this post plz comments and follow us. Thanks for reading .as you know our goal is to aware people of their rights and how can get their rights. we will answer every question, so we need your help to achieve our goal. plz tell people about this blog and subscribe to our youtube channel and follow us at the end of this post.