Execution of family decree after the death of father
PLJ 2024 Lahore (Note) 19
[Multan Bench, Multan]
Present: Ahmad Nadeem Arshad, J.
TAHIR MAHMOOD--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, BUREWALA, etc.--Respondents
W.P. No. 11802 of 2023, decided on 26.10.2023.
Family Courts Act, 1964 (XXXV of 1964)--
----S. 14--Constitution of Pakistan, 1973, Art. 199--Constitutional Petition--Suit for recovery of maintenance allowance--Maintenance allowance i.e. Rs. 2,000/- per month--Cancellation of mutation--Suit for recovery of maintenance allowance against father of petitioner--Suit was decreed--For satisfaction of decree, respondents filed an execution petition--Said father died and his legal heirs were impleaded in amended execution petition--After his demise, respondents No--3 to 5 filed an objection petition that Mutation No. 1644 should be cancelled--Trial Court allowed application and consequently cancelled mutation--Petitioner has filed an objection petition dismissed--Father-in-Law of respondents No. 3 was alienated his property to his sons through Mutation No. 1644, which was cancelled by Executing Court on application of Respondents--The property reverted to original owner decree passed against said father, has ceased to have effect against him after his demise but his property is still liable to satisfy decretal amount--A very meager amount of maintenance allowance to each respondents, petitioner, who is real paternal uncle of respondents No. 4 & 5, rather than paying the maintenance happily to the daughters of his deceased brother, is dragging them in the Court through unncessary litigation--Courts below have rightly dismissed objection petition of petitioner. [Para 2, 5 & 6] A, B, C, D & E
2017 YLR NOTE 361; PLD 2016 Lahore 622; 2006 CLC 1555 ref.
Syed Imran Abbas Kazmi, Advocate for Petitioner.
Date of hearing: 26.10.2023.
Order
Through this Constitution Petition, petitioner has challenged the validity & legality of the orders passed by the Courts below whereby his objection petition was dismissed concurrently.
2. Facts in brevity are that Respondents No. 3 to 5 instituted a suit for recovery of maintenance allowance on 11.06.2013 against Nazir Ahmad (father of the petitioner). Said suit was decreed after contest vide judgment & decree dated 27.02.2014 and the learned Trial Court declared that Plaintiffs No. 2 & 3/Respondents No. 4 & 5 are entitled to receive maintenance allowance at the rate of Rs. 2,000/- per month each from Nazir Ahmad defendant w.e.f. the date of institution of the suit till the marriages of minors, however, dismissed the suit of Respondent. No 3. For the satisfaction of the decree, Respondents No. 3 to 5 filed an execution petition on 29.03.2014 against Nazir Ahmad (father of the petitioner). Said Nazir Ahmad died on 15.12.2019 and his legal heirs namely Muhammad Yaqoob, Tahir Mehmood (present petitioner) and Ishrat Bano were impleaded in the amended execution petition) on 14.01.2021. Said Nazir Ahmad transferred his property to his legal heirs vide Mutation No. 1644 dated 23.07 2013. After his demise, Respondents No. 3 to 5 filed an objection petition that Mutation No. 1644 dated 23.07.2013 should be cancelled. Learned Trial Court after getting reply, allowed the application vide order dated 06.11 2021 and consequently cancelled the Mutation No. 1644 dated 23.07.2013. Said cancellation order remained intact Petitioner has filed an objection petition to the effect that his father Nazir Ahmad paid the decretal amount during his lifetime and after his death the petitioner as well as other legal heirs of Nazir Ahmad are not liable to pay the maintenance allowance. Respondents No. 3 to 5 resisted the objection petition through filing its contesting written reply. Learned Executing Court, after providing an opportunity of hearing. Dismissed the objection petition through order dated 05.09.2022. Feeling aggrieved, petitioner preferred an appeal which was dismissed by the learned Appellate Court vide order dated 08.05.2023. Being dissatisfied, petitioner approached this Court through instant Constitutional Petition.
3 Learned counsel appearing on behalf of the petitioner maintains that impugned orders are against the facts & law as the judgment & decree was passed against the father of the petitioner namely Nazir Ahmad and upon his death on 15.12.2019, the decree has ceased to have its effect against the legal heirs; that paternal grandfather being judgment debtor was liable to pay the decretal amount to minors till his death; that the petitioner being legal heir of Nazir Ahmad is not bound to pay the decretal amount and decree has become ineffective against him, that during his lifetime, Nazir Ahmad gifted his property through Tamleek followed by Tamleek deed dated 11.06.2006 implemented in the revenue record through Mutation No. 1644 dated 23.07.2013, on the basis of which petitioner as well as other beneficiares of said mutation instituted a suit for declaration against said Nazir Ahmad who got recorded compromise statement before the Court and on the basis of compromise a decree dated 03.10.2016 in favour of the petitioner as well as other beneficiaries of the mutation was passed which is still intact but despite said decree dated 03.10.2016 Mutation No. 1644 dated 23.07.2013 was cannelled. While relying upon case laws cited as Mst. Sultana Ahmed v. III-Additional District Judge Karachi (West) and another (2017 YLR NOTE 361), Muhammad Ramzan v. Ali Hamza (PLD 2016 Lahore 622) Shafqat Ullah and 2 others v. Land Acquisition Collector (DC) Haripur and 2 others (2006 CLC 1555), he prayed for acceptance of this petition.
4. I have heard learned counsel for the petitioner at length and perused the record with his able assistance
5. It is evident from the record that Respondents No. 3 to 5 instituted the suit for recovery of maintenance allowance against Nazir Ahmad (father-in-law of Respondent No. 3/maternal grandfather of Respondents No. 4 & 5) on 11.06.2013. Said Nazir Ahmad appeared before the Court on 25.06.2013. Later on, he alienated his property to his sons on 23.07.2013 through Mutation No. 1644, which was cancelled by the Executing Court on the application of Respondents No 3 to 5. Learned Trial Court decreed the suit of respondents for recovery of maintenance allowance vide judgment & decree dated 27.02.2014 while observing as under:
“However, the record suggests that one of the defendant’s son has gone to abroad on the expenses incurred by the defendant. The defendant has also owned the agricultural land situated in the Chak No. 275/EB in various parcels measuring 47-K-12-M 08-K 0-M, 94K 0-M. However the record suggests that when the suit was filed on 11.6.2013 and defendant put up his appearance on 25.6.2013. He further alienated the suit land to his own sons on 23.7.2013 through the Mutation No. 1644 Meaning thereby, the defendant is a man of means and he is an agriculturalist and owns land and house against his own name and in order to deprive the minors from their right of inheritance and maintenance, he further alienated the land to his own sons. Such alienation is nothing but a sham transaction in order to relieve from the liability of maintenance allowance. Being a grandfather it is his moral and legal obligation to maintain the miners within the means. So keeping in view the aforementioned discussion, it is hereby observed that the defendant is a man of means and he is responsible to maintain his minors grand children out of his land or other property which has not been stated by the defendant. The minors shall entitle to receive the maintenance allowance from their grandfather at the rate of Rs. 2000 per month each w.e.f date of institution of the suit and till the marriage the miners “Plaintiffs No. 2 and 3.”
6. Learned Executing Court, on the application of Respondents No. 3 to 5 cancelled the Mutation No. 1644 dated 23 07 2013 vide order dated 06.11.2021. Said order was not set-aside by any Court of competent jurisdiction. In this way, the property reverted to the original owner namely Nazir Ahmad Although, the decree passed against the said Nazir Ahmad has ceased to have effect against him after his demise but his property is still liable to satisfy the decretal amount as the said decree is in the nature of debt. It is settled law that after the death of the propositus firstly the debts are paid out of his legacy and then the property is transferred to his legal heirs. Property of the deceased judgment debtor is liable to pay the maintenance of the minors. A very meager amount of maintenance allowance i.e.
Rs. 2,000/- per month to each Respondents No. 4 & 5 was awarded by the Court. Petitioner, who is real paternal uncle of Respondents No. 4 & 5, rather than paying the maintenance happily to the daughters of his deceased brother, is dragging them in the Court through unnecessary litigation.
7. In view of the above, learned Courts below have rightly dismissed objection petition of the petitioner. Learned counsel for the petitioner failed to point out any illegality, irregularity or jurisdiction defect in the impugned orders, which do not call for any interference by this Court. So far as the case laws referred by the learned counsel for the petitioner are concerned, it is observed that the same are distinguishable from the facts/circumstances of the case in hand, hence, are not helpful for the petitioner.
8. Epitome of above discussion is that this petition has no force/substance, hence, the same is dismissed-in-limine.
(K.Q.B.) Petition dismissed
Comments
Post a Comment