Supreme court dismissed the appeal , asking share of their mother after the 30 years of mother's death .
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| Supreme court dismissed the appeal , asking share of their mother after the 30 years of mother's death . |
بے شک! یہاں آرڈر کا ایک ا ورژن ہے:
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**سپریم کورٹ آف پاکستان میں (اپیل کا دائرہ اختیار)**
**سول اپیل نمبر 25-Q/2018**
**خلیل اللہ اور دیگر (اپیلنٹس) بمقابلہ محیم خان اور دیگر (جواب دہندگان)**
**بنچ:** مسٹر جسٹس یحییٰ آفریدی، مسٹر جسٹس جمال خان مندوخیل
**سماعت کی تاریخ:** 19.12.2023
**ترتیب**
1. **پس منظر**: اپیل کنندگان نے وراثت کے دعووں کے بارے میں نچلی عدالتوں کے ہم آہنگ نتائج کو چیلنج کیا۔ اس تنازعہ میں قائم خان کی جائیداد شامل ہے، جس میں اپیل کنندگان نے قائم خان کے بیٹے مہر اللہ کے پڑپوتے کے طور پر وراثت کا دعویٰ کیا تھا، جو 2007 میں مقدمہ دائر ہونے سے تقریباً 25 سال قبل انتقال کر گئے تھے۔
2. **حقائق**:
- قائم خان کے تین بیٹے تھے۔ محمد خان اور حبیب اللہ بغیر ورثاء کے انتقال کر گئے۔ ایک اور بیٹے مہر اللہ کی ایک بیٹی تھی، محترمہ۔ خانزادی، جو اپیل کنندگان سے پہلے تھے۔
- متنازعہ جائیداد کو کئی دہائیوں میں تیسرے فریق کو فروخت کیا گیا، اور اپیل کنندگان نے 2007 تک اپنا مقدمہ دائر نہیں کیا۔
3. **قانونی دلائل**:
- **اپیل کنندگان**: دلیل دیں کہ اسلامی وراثت کے حقوق حد کے پابند نہیں ہیں اور Mst. خانزادی کا نام ریکارڈ سے۔
- **جواب دہندگان**: بحث کریں کہ دعویٰ حد سے روک دیا گیا ہے، خاصی وقت گزر جانے اور فریق ثالث کے مفادات کے پیش نظر۔
4. **فیصلہ**:
- عدالت یہ نتیجہ اخذ کرتی ہے کہ وراثت کے حقوق محدود ہوتے ہیں جب فریق ثالث کے مفادات شامل ہوں۔
- چونکہ فریق ثالث کے لین دین کئی دہائیوں پہلے ہوئے تھے اور اپیل کنندگان نے مقررہ مدت کے اندر کارروائی نہیں کی تھی، اس لیے ان کا مقدمہ وقتی طور پر ممنوع ہے۔
5. **نتیجہ**: نچلی عدالتوں کے فیصلے کی توثیق کرتے ہوئے، اپیل خارج کردی جاتی ہے۔
**جج**: یحییٰ آفریدی، جے۔
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Bench
Mr. Justice Yahya Afridi
Mr. Justice Jamal Khan Mandokhail
Civil Appeal No. 25-Q/2018
(Against the judgment dated 17.06.2023 of the High Court of Balochistan, Sibbi Bench passed in CR
No. (s) 11/2012)
Khaleelullah & others
...Appellant(s)
Versus
Muhaim Khan & others
…Respondent(s)
For the Appellant(s):
Mr. Khushnood Ahmed, ASC
Mr. Abdul Rahim Mengal, AOR
For the Respondent(s):
Mr. Abdul Rashid Awan, ASC
Mr. Gohar Yaqoob Yousafzai, AOR
(R 1 to 8)
Nemo (R 9-11, 13-16)
Mr. Abdul Fateh, Naib Tehsildar
Date of hearing:
19.12.2023
ORDER
Yahya Afridi, J. Khaleelullah and others have filed the instant
appeal challenging three concurrent findings recorded by the Courts
below.
2.
The matter at hand concerns the legacy of Qaim Khan son of Adam
Khan, to which a claim has been made by the petitioners, as legal heirs,
being his great-grandchildren, and that too, notably after a lapse of thirty
years following the death of their mother, Mst. Khanzadi.
3.
The admitted facts on record are that Adam Khan was survived by
two sons namely, Karam Khan and Qaim Khan. Karam Khan had one
son, Nawab Khan, who too was survived by one son, Hafeezullah. The
legal heirs of Hafeezullah are respondents No. 1 to 4 in the present
petition. Conversely, Qaim Khan had three sons, namely; Muhaim Khan,
Mehrullah, and Habibullah. Both Muhaim Khan and Habibullah died
CA No. 25-Q of 2018 Inheritance
issueless, while Mehrullah was survived by a daughter, Mst. Khanzadi.
The present appellants are the legal heirs of Mst. Khanzadi, and they
claim their share of inheritance in the legacy of Qaim Khan, their
maternal great-grandfather.
4.
We further observe that neither Mehrullah son of Qaim Khan, nor
Mst. Khanzadi daughter of Mehrullah, claimed their share in the
disputed property during their lifetimes. Notably, the lawsuit filed by the
current appellants was instituted in 2007, while Mst. Khanzadi is
reported to have passed away approximately a quarter century prior
thereto.
5.
It is also on record that Hafeezullah, the father of the respondents
sold to Jalal Khan and Huzoor Bakhsh, 2 ½ Rahkies in mouza Bostan,
as acknowledged by the appellant/Plaintiff No. 1, who is also the
attorney for the other appellants/plaintiffs, in his statement recorded on
07.06.2011. Additionally, in mouza Bostan, the respondents/defendants
disposed of in favour of Ali Akbar, Meher Gul, and Ali Ahmed, sons of
Murad Khan, half of the remaining property in the said mouza, as per
Khatooni No. 15. These vendees, subsequently transferred their acquired
property to Zakria Kasi, as confirmed by Muhammad Ameen and
respondent/defendant Muhaim Khan in their statements recorded on
14.06.2011 and 18.06.2011, respectively. Similarly, in mouza Chacher
Tappa Talli, the respondents/defendants sold their entire property to
Muhammad Hashim and Sharbat Khan, as admitted by Muhammad
Ameen and respondent/ defendant Muhaim Khan in their respective
statements. These sale transactions are acknowledged in the evidence
presented. The appellants/plaintiffs have impleaded only Ali Akbar,
Meher Gul, and Ali Ahmed, sons of Murad Khan, as defendants in their
plaint. As for the other purchasers stated hereinabove, they have not
CA No. 25-Q of 2018 Inheritance
been impleaded as parties in the suit, and also before this Court in the
present petition.
6.
The main thrust of the learned counsel for the appellants was that
the right of inheritance is not bound by any law of limitation, and under
Islamic law, the right of legal heirs would accrue at the time of the death
of the predecessor and would not require any revenue entry to establish
the said right. He further contended that fraud was committed by the
respondents, whereby the name of Mst. Khanzadi was fraudulently
excluded from the Shajra Nasab (pedigree table), and thus managed to
directly transfer the disputed property in the name of the respondents. In
support of his contentions, the learned counsel placed reliance on
Mohammad Boota (decd) v. Mst. Fatima daughter of Gohar Ali (2023 SCMR 1901),
Mst. Parveen (decd) v. Muhammad Pervaiz (2022 SCMR 64), Noor Din (decd) v.
Pervaiz Akhtar (2023 SCMR 1928), Ghulam Qasim v. Mst. Razia Begum (PLD 2021
SC 812), Tahsinullah v. Mst. Parveen (decd) (2022 SCMR 346), Lal Din v.
Muhammad Ibrahim (1993 SCMR 710), Haji Wajdad v. Provincial Government thr.
Secretary Board of Revenue Government of Balochistan, Quetta (2020 SCMR
2046), Bashir Ahmad Anjum v. Muhammad Raffique (2021 SCMR 772), Mst. Gohar
Khanum v. Mst. Jamila Jan (2014 SCMR 801), Nazir Ahmad v. Abdullah (1997
SCMR 281), and Salamat Ali v. Muhammad Din (2022 SC 353).
7.
On the other hand, the learned counsel for the respondents
vehemently contended that the circumstances of the present case do not
warrant any interference, as the case of the appellants is barred by time,
given the period elapsed between their legal challenge and the death of
Qaim Khan, which was not agitated by his son, Mehrullah, and
thereafter, by his grand-daughter, Mst. Khanzadi. He then contends that
now the great-grandchildren are estopped by their conduct to claim the
same. He further stated that third-party interest has been created in this
regard. He has placed reliance on Noor Din (decd) v. Pervaiz Akhtar (2023
SCMR 1928) and Salamat Ali v. Muhammad Din (2022 SC 353).
CA No. 25-Q of 2018 Inheritance
8.
We have carefully reviewed the judgments cited by the learned
counsel for the parties and have noted that the same may present
different shades and complexities in various contexts, sometimes leading
to perceptions of inconsistency. But what remains foundational is that,
the estate of a Muslim, on his death, is transferred to his legal heirs by
operation of law, with each heir having constructive possession of his
share in the estate till the partition of the entire estate or transfer of his
share under the law.
9.
As already reiterated above, this Court while dealing with
inheritance cases has treaded very cautiously to balance the proprietary
rights of the legal heirs of the deceased Muslim owner and third party,
who has acquired proprietary rights therein, and that too, in good faith
and for valuable consideration. It is for this reason that, legal heirs must
be vigilant and not indolent regarding their proprietary rights in their
shari share of inheritance.
10.
In our opinion, there is a stark distinction between cases in which
an heir has been deprived of his shari share and disregarded at the time
of recording of the inheritance mutation, and those cases in which the
heir comes forward to seek his shari share after third-party rights in the
subject land have been created. To succeed in respect of the former
category of cases, as compared to the latter, is legally less cumbersome,
as it is not hurdled by the rigors of limitations - the possession over the
inherited property by one heir is considered as constructive possession
on behalf of all the heirs, and the cause of action would only arise, when
the deprived heir seeks his share and the same is denied by the other in
possession of the inherited property. However, to succeed in respect of
the latter category of cases, where third-party interest is created in the
inherited property, is legally more problematic, as the legal heir would
then have to face the wrath of the period of limitation. The burden of
CA No. 25-Q of 2018 Inheritance
proof would rest on the claimant heir to demonstrate and prove that he
was not aware of having been deprived, give cogent reasons for not
challenging the property record of long-standing, or showing complicity
between the buyer and the seller (the ostensible owner) or that the buyer
knew of his interest in the property and yet proceeded to acquire the
same. It is when faced with such legal handicap that the claimant heir
may seek exception to the bar of limitation provided under Section 18 of
the Limitation Act, by establishing that he was kept oblivious to the
cause of action or accrual of his rights through fraud, and therefore, was
an „injuriously affected person‟. Thus, in cases, where the claimant heir,
being an „injuriously affected person‟ has a right to sue, does not
institute the suit claiming his right within the prescribed limitation
period, no fresh period of limitation can be available to him, his legal
heir(s) or any other person who derives his right to sue from or through
him (the injuriously affected person). This proposition has already been
clarified by this Court in Mst. Rabia Gula v. Muhammad Janan (2022 SCMR
1009) in the following words:-
“8.3 Section 18 of the Limitation Act, 1908 ("Limitation Act") is the most
pivotal provision providing relief in computing the limitation period,
applicable to a person who claims to be deprived of the knowledge of his
right to sue based on the fraud of the other party. That section is
reproduced for ease of reference:
18. Effect of fraud. Where any person having a right to institute a suit or
make an application has, by means of fraud, been kept from the
knowledge of such right or of the title on which it is founded, or where
any document necessary to establish such right has been fraudulently
concealed from him, the time limited for instituting a suit or making an
application—
(a) against the person guilty of the fraud or accessory thereto, or
(b) against any person claiming through him otherwise than in good faith
and for a valuable consideration,
shall be computed from the time when the fraud first became known to
the person injuriously affected thereby, or, in the case of the concealed
document, when he first had the means of producing it or compelling its
production.
In essence, this provision postpones the commencement of the limitation
period in cases where a person is by means of fraud kept from the
knowledge of his right to institute a suit. In such circumstances, the
period of limitation commences from the date when the fraud first
became known to the "person injuriously affected". Such injuriously
affected person can, therefore, institute a suit within the limitation
period specified for such suit in the First Schedule ("Schedule") to the
CA No. 25-Q of 2018 Inheritance
Limitation Act, but computing it from the date when he first had
knowledge of the fraud, whereby he was kept from knowledge of his right
to institute the suit. Thus, section 18 of Limitation Act is an umbrella
provision that makes the limitation period mentioned in the Articles of
the Schedule, begin to run from the time different from that specified
therein.
8.4 It is but fundamental to appreciate that the "fraud" stated in section
18 of the Limitation Act must not be confused with the fraud that
constitutes cause of action, and creates a right to institute the suit for
the relief prayed therein. The "fraud" envisaged in section 18 only relates
to concealing, not creating, the right to sue, and thus affects only the
limitation period, and has nothing to do with the cause of action and the
relief prayed.
8.5 It would, thus, be safe to hold that, when despite obtaining
knowledge of such fraud and his right to sue, as mentioned in section
18, the injuriously affected person does not institute the suit within the
prescribed limitation period, no fresh period of limitation can be available
to his legal heir(s) or any other person who derives his right to sue from
or through him (the injuriously affected person); for once the limitation
period begins to run, it does not stop as per section 9 of the Limitation
Act.
8.6 Further, the definition of the term "plaintiff", as given in section 2(8)
of the Limitation Act also has the effect of barring the fresh start of the
limitation period for the legal heir(s) or any other person, who derives his
right to sue from or through such injuriously affected person, as it
provides that "plaintiff" includes any person from or through whom a
plaintiff derives his right to sue.
8.7 Therefore, it is the date of knowledge of the "person injuriously
affected" of the fraud mentioned in section 18, and of his right to sue
that is relevant for computing the limitation period, not of his legal
heir(s), unless he asserts and prove that his predecessor (the person
injuriously affected) never came to know of the fraud, whereby his right
to institute the suit was concealed, in his lifetime; in the latter
eventuality, it is, of course, the knowledge of the present plaintiff (his
successor) that would be the starting point for the limitation to run.
8.8 Needless to mention that, a plaintiff who wants to avail the benefit of
section 18 of the Limitation Act must assert the commission of such
fraud by the defendant, in the plaint, and should also give the
particulars thereof, and the date of knowledge, as required under Rule 4
of Order VI of the Code of Civil Procedure 1908, and then prove the same
through positive evidence.” (internal references omitted)
11. In the current case, the legal heirs of Qaim Khan are not merely
asserting their rights to inheritance; rather, they are also seeking a Court
declaration against third parties. It is clear from the pleadings that
several decades have passed since third-party interests were created.
This was initiated when the father of the respondents sold 2 ½ Rahkies
in mouza Bostan to Jalal Khan and Huzoor Bakhsh, approximately sixty
years ago, as admitted by appellant/Plaintiff No. 1, who also represents
other appellants/plaintiffs, in his statement recorded on 07.06.2011.
Furthermore, in mouza Bostan, the respondents/defendants sold half
property, as per Khatooni No. 15, in 2002 to Ali Akbar, Meher Gul, and
Ali Ahmed, sons of Murad Khan. These vendees subsequently sold the
CA No. 25-Q of 2018 Inheritance
same property to Zakria Kasi, as acknowledged by Muhammad Ameen
and respondent/defendant Muhaim Khan in their statements on
14.06.2011 and 18.06.2011, respectively. In mouza Chacher Tappa Talli,
the respondents/defendants disposed of their entire property to
Muhammad Hashim in 1994 and Sharbat Khan in 1997, as confirmed by
Muhammad Ameen and respondent/ defendant Muhaim Khan in their
statements on the respective dates. Given these transactions occurred
way back in 1994 and 1997 and the appellants did not institute the suit
claiming their right within the prescribed limitation period, it would be
inappropriate to disturb these already concluded transactions, and no
fresh period of limitation can be made available to the appellants.
12. In view of the above facts, the case law cited by the counsel for the
appellants does not specifically address the pertinent question in the
current case: whether the law of limitation applies to a case when a
third-party interest in the estate of the deceased predecessor has already
been established.
13. In the case of denial of the inheritance to an heir, the cause of
action to sue accrues to him, when the co-sharer[s]/legal heir[s] in actual
possession of the inherited property denies (actually) or is interested to
deny (threatens) the share of the claimant legal heir in the inherited
property. The actual denial of right of a co-sharer by the other co-sharer
may occur, when the latter does something explicit in denial of the rights
of former, such as by making a fraudulent sale or gift deed. This Court
has recently clarified that the transfer of property to a third party, be it
through sale or gift, constitutes an actual denial of rights. In contrast, a
simple annotation in the revenue records is regarded as a threatened or
apprehended denial of rights. This proposition has been illustrated in the
case of Haji Muhammad Yunis vs. Mst. Farukh Sultan (2022 SCMR 1282), where
the Court noted:
CA No. 25-Q of 2018 Inheritance
“On careful reading of the above, it is evident that this Court has
explained the distinction between an "actual denial of right' and an
"apprehended or threatened denial of right" in relation to applicability of
the law of limitation in cases seeking declaration of proprietary rights in
immovable property. It has held that every new adverse entry in the
revenue record, being a mere "apprehended or threaten denial" relating
to proprietary rights of a person in possession (actual or constructive) of
the land regarding which the wrong entry is made, gives to such person a
fresh cause of action to institute the suit for declaration. It has, however,
further clarified that the situation is different in a case, where the
beneficiary of an entry in the revenue record actually takes over physical
possession of the land on the basis of sale or gift mutation. In such a
case, the alleged wrong entry in the revenue record coupled with the very
act of taking over possession of the land by the alleged buyer or donee, in
pursuance of the purported sale or gift, is an "actual denial of the
proprietary rights" of the alleged seller or donor and thus, the time period
to challenge the said disputed transaction of sale or gift by the aggrieved
seller or donor would commence from the date of such actual denial.
Therefore, in such a case, if the purported seller or donor does not
challenge that action of "actual denial of his right" within the prescribed
limitation period, despite having knowledge thereof, his right to do so
becomes barred by the law of limitation, and the repetition of the alleged
wrong entry in the subsequent revenue record (Jamabandi) does not give
rise to a fresh cause of action.”
This Court has also highlighted a similar distinction in Salamat Ali v.
Muhammad Din (PLD 2022 Supreme Court 353). In the matter at hand, the
threatened or apprehended denial occurred when Hafeezullah (the
predecessor of the respondents) transferred the share of Mehrullah into
his own name in the revenue records during 1958-60. The actual denial
of the rights of the appellant took place over sixty years ago, when
Hafeezullah, father of the respondents, sold to others, portions of the
disputed property in years 1994 and 1997. Therefore, considering that
the third-party transactions were executed sixty years ago, the period of
limitation under Article 120 of the Schedule to the Limitation Act has
elapsed and therefore, makes the suit filed by the appellants in 2007,
time-barred. Additionally, in paragraphs 14 and 17 of the plaint, the
appellants claimed that their cause of action arose in March 2006, a
claim which was not supported by any evidence.
14. As to the objection of the learned counsel for the appellants that
the creation of third-party interest was not mentioned in the written
statement, and therefore, the same should not be pleaded or evidenced in
the current case. Upon reviewing the written statement, we noted that
the objection regarding limitation has been appropriately recorded.
CA No. 25-Q of 2018 Inheritance
According to the principles of pleadings, once an assertion is duly
recorded, its specifics need not be detailed therein. Even otherwise, if the
objection as to the law of limitation is not raised by any of the parties to
the suit, the trial Court and the appellate Court are obligated under
section 3 of the Limitation Act to consider and decide the same.1
15. Given these circumstances, it is reasonable to conclude that the
dismissal of the claim of appellants by the three lower Courts on the
grounds of limitation was correct. It is a well-established practice of this
Court that where there are concurrent findings of facts and law of the
Courts below, this Court ordinarily does not interfere with the decision
so made by them, unless there are exceptional circumstances warranting
interference, which is lacking in the present case.
16. Consequently, the appeal is dismissed.
Judge
Judg
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