2011 YLR 697
----S. 42---Suit for declaration---Pronouncement of disinheritance (Aaq) by father against one of his sons---Trial Court decreed the suit---Appellate Court accepted defendant's appeal---Plaintiff was son of the defendant who disinherited him---Pronouncement of disinheritance did not disentitle a person from his share in inheritance---Defendant transferred property to his other sons in order to. deprive the plaintiff of his legal right in property against public policy--- Defendant in the past had handed over possession of the property in question to plaintiff (who was disinherited) making the gift transaction complete---Having transferred share and possession to plaintiff/son, father was not competent to transfer his entire land in favour of others by depriving the plaintiff (one of the sons) of his legal rights---Appellate Court committed illegality and misreading of evidence---Impugned judgment and decree of the Appellate Court was set aside while judgment and decree of Trial Court was confirmed/restored.
Masood Ahmed Bajwa for Petitioner.
Naveed Farhan for Respondent.
Date of hearing: 20th September, 2010.
2011 YLR 697
[Lahore]
Before Muhammad Naseem Akhtar Khan, J M. YAQOOB
---Petitioner Versus GHULAM RASOOL---
Respondent Civil Revision No. 119-D of 1995/(BWP),
decided on 7th October, 2010. Specific Relief Act (I of 1877)---
JUDGMENT
MUHAMMAD NASEEM AKHTAR KHAN, J---The petitioner Muhammad Yaqoob, has filed this civil revision against the judgment and decree dated 26-2-1995 passed by the learned District Judge, Rahim Yar Khan through which the appeal of the respondents was accepted and the judgment and decree dated 11-10-1994 passed by the learned Civil Judge, Sadiqabad was set aside and the suit for declaration with perpetual injunction filed by the petitioner was dismissed.
2. The revision petition is resisted from the side of the respondents.
3. Briefly stated, the facts of the case are that Ghulam Rasool, respondent No.1, in the original suit as well as this civil revision, was owner of the land in two villages i.e. Rasoolpur and Alipur, who had two wives namely Mst. Noor Bibi and Mst. Khurshid Bibi with children from both the wives. As per pleadings of the parties, the said Ghulam Rasool gave 43 kanals, 15 marlas of land (land measuring 29 kanals, 15 marlas from village Rasoolpur and the land measuring 14 kanals from village Alipur) (hereinafter called the property in dispute) to the petitioner while, distributing his property in between all of his sons with the intervention of the grand-father namely. Rehmat Ullah. The property in dispute was in possession of the petitioner since long but feeling a danger to his possession, he filed a suit for declaration against his father respondent No.1-Ghulam Rasool in 1987 where Ghulam Rasool-respondent No.1/ father of the petitioner admitted the possession of the petitioner over the property in dispute and also made a statement that he has distributed the property amongst his sons in equal shares including the petitioner. On the statement of Ghulam Rasool which is Exh. P.1 on record, the petitioner withdrew his suit. After some time, Ghulam Rasool father of the petitioner mutated his property in favour of hissons namely Muhammad Boota, Muhammad Akram, Muhammad Arshad, Akhtar Ali, Muhammad Ashraf and Muhammad Aslam along with their mother Mst. Khurshid Bibi vide Mutations Nos. 154 dated 30-10-1991 and 162 dated 4-1-1992 through gift and excluded the petitioner from his share. The petitioner Muhammad Yaqoob coming to know about the impugned mutations filed a civil suit for declaration etc. on 3-2-1992 with a contention that the mutations above-mentioned were false and fictitious, mala fide and just to deprive the petitioner from his legal shares. The suit was contested by the respondents and the learned trial Court framed the following issues arising out of the pleadings of the parties:--
(1) Whether this Court lacks territorial jurisdiction to try the suit?
(2) Whether plaintiff is estopped to file the suit?
(3) Whether this suit is not maintainable in it's present form?
(4) Whether plaintiff has no locus standi to try the suit?
(5) Whether the suit is pre mature?
(6) Whether plaintiff has no cause of action?
(7) Whether plaintiff has not come in the Court with clean hands?
(8) Whether plaintiff is owner in possession of the suit property and is entitled to the decree of declaration as prayed for?
(9) Relief?
4. Muhammad Yaqoob, petitioner, appeared as P.W.2 and produced Ahmed Ali, as P.W.I. On the other hand, Ghulam Rasool, appeared as DW-4 and produced Muhammad Boota as DW-3, Faqeer Hussain as DW-2 and Sardar Ali as DW-1. The documents produced by the petitioner in support of his contentions were Exh.Pl to Exh.P6 whereas the documents produced by the respondents were Exh.D1 to Exh.D11.
5. The learned trial Court after hearing the parties proceeded to decree the suit through judgment and decree dated 11-10-1994. The respondents filed an appeal which was accepted vide judgment and decree dated 26-2-1995 and the judgment and decree dated 11-10-1994 passed by the Civil Judge, were set aside. Hence, this revision petition.
5A. Arguments heard. Record perused
6. After considering the respective contentions of the parties and perusing the documentary/oral evidence available on record, it comes out that there is no denial of relationship between the parties. The petitioner is also son of Ghulam Rasool respondent No.1, who was given the possession of the property in dispute as his share and this fact was admitted by Ghulam Rasool on 21-5-1987 (Exh.P.1) in the earlier suit filed by the petitioner but afterwards Ghulam Rasool/father became annoyed with the petitioner due. to his disobedient behaviour and he was disinherited (Aaq) on 23-10-1991 which p pronouncement was published in the local newspapers in the shape of Exh.D.9 and Exh.D.10 and the impugned mutations depriving the petitioner from his right of property were sanctioned on 30-10-1991 on 4-1-1991.
7. According to the settled law pronouncement of disinherit (Aaq) does not disentitle any body from his share of inheritance. This is an admitted fact that the disputed mutations were sanctioned in favour of respondents Nos.2 to 8 just to deprive the petitioner from his legal right of property which is against the public policy.
8. There is another case (Civil Revision No. 154-D/1999(BWP) titled "Ghulam Rasool and others v. Mst. Zainab Bibi and others" pending adjudication in this Court which is also with regard to the property of this family including the property in dispute. The said civil revision will be decided independently. It also comes out that the possession of the property in dispute which was given to the petitioner by Ghulam Rasool is with the petitioner and the same was never delivered to respondents Nos.2 to 8 as a result of alleged gift. The disobedience and annoyance of Ghulam Rasool father giving the property in dispute to the respondents makes no difference, because the gift in favour of the petitioner regarding the property in dispute was completed as is proved through the statement (Exh.P.1) of Ghulam Rasool made on 21-5-1987 in the previous suit: The objection from the side of the respondents that the present suit is barred under Order II Rule 2 of C.P.C. is untenable because the statement given by Ghulam Rasool on 21-5-1987 in favour of the petitioner with regard to possession and share is sufficient to complete the gift in favour of the petitioner Muhammad Yaqoob. There is no cavil to the proposition that the father, giving the share and possession to the petitioner, was not competent to transfer his total land in favour of his other sons and wife by depriving the petitioner from his legal rights. The learned lower appellate Court has committed the illegality and irregularity while passing the impugned judgment and decree dated 26-2-1995 and reversing the judgment and decree dated 11-10-1994 passed by the Civil Court. The judgment and decree dated 26-2-1995 passed by the District Judge, Rahim Yar Khan is also result of mis-reading and non- reading of evidence because the learned District Judge has totally ignored the effect of order dated 21-5-1987 (Exh.P.1) in its true perspective. Keeping in view the relationship of father and son between the donor and donee, the judgment and decree dated 26-2-1995 is not sustainable in law.
9. Hence, the Civil Revision in hand is accepted and the judgment and decree dated 26-2-1995 is, hereby, set aside. The impugned mutations will have no effect on the rights of the petitioner with regard to property in dispute. The judgment and decree of the trial- Court with regard to entitlement of the petitioner is, hereby, confirmed. Keeping in view the close relationship of the parties, there is no order as to costs.
A.R.K./M-653/L
Revision accepted.
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