PLJ 2009 SC 168
Muhammadan Law--
----Inheritance--Devolution--Principle--Upon death of an owner, devolution of lands, properties or assets automatically takes place, as the succession opens at that time and at that stage. No affirmance authorization or declaration is necessary for such devolution.
[P. 173] A
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Constitution of Pakistan, 1973, Art. 185(3)--Revision--Scope--Jurisdiction of High Court--Held: When judgments and decrees have been passed with material irregularities or illegality, the jurisdiction of High Court cannot be restrained or curtailed in that event, so as to correct those judgments and decrees and to pass any judgment as High Court thinks fit in the facts and circumstances of given case in accordance with the provision of Section 115 of C.P.C. [P. 175] B
Decrees--
----Principle--Decrees are binding upon revenue officers and the decrees of Civil Court cannot be upset or reversed by the Revenue Authorities, as these authorities have got no such power to sit upon the judgments and the decrees of the Civil Court as an appellate authority. [P. 175] C
Kh. Saeed-uz-Zaffar, ASC for Appellants.
Kh. M. Farooq, ASC for Respondents No 1-5 (L.R. of 6 i.e. (i-iii) in C.A. No. 965/2005).
Mr. M. Farooq Qureshi Chishti, ASC for Respondents No 7-14 (in C.A. No. 965/2005) and for Petitioners (in both petitions.)
Nemo for Respondents (in both petitions).
Date of hearing: 21.5.2008.
PLJ 2009 SC 168
[Appellate Jurisdiction]
Present: Zia Perwez, Syed Zawwar Hussain Jaffery &
Sheikh Hakim Ali, JJ.
MUHAMMAD NAWAZ etc.--Appellants
versus
FATEH SHER, etc.--Respondents
Civil Appeal No. 965/2005, Civil Petitions No. 1564-L and 1565-L/2005, decided on 21.5.2008.
(On appeal from the judgment dated 15-04-2005 passed by the Lahore High Court, Lahore in C.R. No. 2547 of 2004 and FAO No. 264 of 2002)
Judgment
Sheikh Hakim Ali, J.--We intend to dispose of instant Civil Appeal No. 965 of 2005 titled as Muhammad Nawaz etc. Vs. Fateh Sher etc. along with connected Civil Petitions No. 1564-L of 2005 (Muhammad Hayat and others Vs. Muhammad Nawaz and others) and 1565-L of 2005 with the same title, as all these three cases have sprung out from one and the same main judgment dated 21.04.2005 passed by learned Lahore High Court, Lahore and have got common questions of law and facts involved therein.
2. Facts of the case are simple but the legal implications involved therein are not so. Dispute arose when one Fateh Sher, owner of agricultural lands, situated in Mauza Zail Singh, Tehsil Khushab had expired in the year 1927. According to the admitted facts, Fateh Sher had two sisters, namely, Mst. Chungi, Mst. Gullan and one widow, namely, Mst. Fateh Khatoon, who were alive at the time of his death. As he was issuless, therefore, Lal and Jamal sons of Shera, the nephew of Fateh Sher had also become successor to the land left by the aforesaid deceased. Mst. Chungi, one of the sisters, was wife of Lal. She along with Lal and Jamal filed a suit against Mst. Fateh Khatoon, the widow of Fateh Sher, praying for the grant of decree for declaration that the lands in dispute was owned by Mst. Chungi, wife of Lal on the basis of a will. It was also pleaded in that suit that in case claim of Mst. Chungi was not proved, even then Lal and Jamal, Plaintiffs No. 2 and 3, would be deemed owners of the land in dispute and Mst. Fateh Khatoon defendant would have no concern with that land. On 7.12.1937, parties produced a written compromise before the learned Civil Judge, Sargodha, who was seized of the suit. According to that compromise, it was settled that 2/3rd shares out of the left land was to be delivered to Lal and Jamal while l/3rd land would remain with Mst. Fateh Khatoon, up-till her life or till her remarriage. Possession of the land to the extent of 2/3rd was also delivered to Lal and Jamal. The suit was decreed on the basis of that compromise on 7.12.1937, while the suit to the extent of Mst. Chungi was dismissed. This settlement continued in operation when in the year 1950, another suit was filed by Lal, Jamal and Mst. Chungi against Muhammad Hayat and Noor Muhammad sons of Muhammad Yar, Yaroo son of Nawab, Mst. Fateh Khatoon (widow of Fateh Sher) and Mst. Gullan, the widow of Nawab, claiming declaration that sale affected through Mutation No. 592, dated 24.10.1950, in favour of Defendants No. 1 to 3 (Muhammad Hayat, Noor Muhammad and Yaroo) by Mst. Fateh Khatoon, the limited owner of the estate was illegal, null and void. This suit was also decreed on 29.11.1951, after it was contested by the parties. Learned Sub-Judge 1st Class, Sargodha had held that Mst. Fateh Khatoon was a limited owner of the estate to the extent of 1/3rd share of the land left by Fateh Sher, deceased while Muhammad Hayat, Noor Muhammad and Yaroo (Defendants No. 1 to 3) could purchase and retain the land only to the extent of her legal share of 1/4th from the land possessed by Mst. Fateh Khatoon as limited owner of the estate (out of l/3rd possessed by her). As regard Mst. Chungi and Mst. Gullan, it was held that they had failed (in their attempt), while to the extent of Lal and Jamal, the declaration as prayed for as noted above was granted. This decree dated 29.11.1951 was not challenged by any of the parties before any other higher Civil Court. Thus it had attained finality.
3. On the basis of above mentioned decree dated 29.11.1951, Mutation Nos. 37 to 42 were sanctioned in the revenue record. Meanwhile, on 12.1.1981 Mst. Fateh Khatoon expired. Against these above noted mutations, appeals and revisions were filed before the learned EAC and Additional Commissioner respectively, which could not succeed to get the desired result of reversal of these Mutations No. 37 to 42 mentioned above, but revision before learned Member Board of Revenue filed by the aforesaid successors-in-interest of Muhammad Hayat and others was accepted on 18.12.1985, which became the cause of action for the filing of the present suit on 20.02.1986, by which the validity of order dated 18.12.1985 was challenged by Fateh Sher and others successors-in-interest of Lal and Jamal, against Mst. Beeban and others, the legal representatives of Muhammad Hayat and others. The suit was dismissed by learned Civil Judge Nurpur on 16.05.1992, and so the appeal before the learned District Judge on 17.09.2004, but the Civil Revision No. 2547 of 2004 turned out to be a beneficial effort for the plaintiffs. On 21.04.2005, Civil Revision No. 2547 of 2004 filed by the plaintiffs was allowed, while Civil Revision No. 3044 of 2004, FAO No. 264 of 2004 and FAO No. 330 of 2004 for the enforcement of compromise became infructuous. According to that judgment, it was held by the learned Judge of the Lahore High Court, Lahore in chamber that Mst. Fateh Khatoon was limited interest owner to the extent of l/3rd of the land left by Fateh Sher deceased and upon the termination of limited interest, the aforementioned land was to be distributed in accordance with the following shares i.e., 1/4th to Mst. Fateh Khatoon while 2/3rd to Mst. Gullan and Mst. Chungi and l/12th to petitioners/plaintiffs. This judgment has been challenged in this Court through the above noted civil appeal as well as civil petitions as detailed supra.
4. Learned counsel appearing on behalf of above mentioned appellants/petitioners submits that the impugned judgment passed by learned Lahore High Court, Lahore is liable to be reversed on the following grounds:--
(i) The entire estate of Fateh Sher should have been redistributed in accordance with Muslim Law of Inheritance upon the death of Mst. Fateh Khatoon on 12.01.1981, when Mst. Fateh Khatoon had expired. According to the learned counsel, widow shall get l/4th while sisters 2/3rd and 1/12th would be inherited by Lal and Jamal in whole of the land left by Fateh Sher.
(ii) Decree dated 7.12.1937 was void, ineffective and inoperative against Mst. Gullan because she was not made party to that suit.
(iii) According to rule of Spes Succession, the compromise entered into between the parties on 7.12.1937 was ineffective, as the legal heirs of Fateh Sher had not still inherited the lands left by Fateh Sher, deceased.
(iv) Decree dated 7.12.1937 was a collusive decree, therefore, was inoperative as against the appellants.
(v) The scope of revision under Section 115 of the C.P.C. being limited, the concurrent judgments of the learned Courts below could not be upset by the learned Judge of the Lahore High Court, Lahore, through the impugned judgment.
(vi) Limited interest of Mst. Fateh Khatoon having been terminated after the enforcement of the Shariat Application Laws, the decrees dated 7.12.1937 and 29.11.1951 had got no effect as those had lost its efficaciousness, and so were null, void and inoperative. The order dated 18.12.1985, passed by learned Member Board of Revenue and the decrees of dismissal by learned Courts of Civil Judge and District Judge were to be maintained.
5. Contesting the arguments of learned counsel, the respondents' learned counsel has replied:--
(a) That the land left by Fateh Sher could not be inherited by Mst. Chungi and Mst. Gullan in accordance with the custom prevalent at the time of death of Fateh Sher and Lal and Jamal were the persons, who had inherited the land left by Fateh Sher but due to compromise, decree dated 7.12.1937, which had come into existence on that date, Mst. Fateh Khatoon was granted 1/3rd out of the total land left by Fateh Sher, as limited interest owner till her death or remarriage. As per learned counsel this compromise and the decree based upon it, was never challenged by any of the stakeholders.
(b) The settlement of 1937 was never challenged by any one and it had continued till the year 1981, when the death of Mst. Fateh Khatoon, the limited interest owner had occurred.
(c) When Mst. Fateh Khatoon had sold the land, held by her as limited interest owner, then the suit was filed by Lal, Jamal and Mst. Chungi, and the decree was passed on 29.11.1951 after contest. This decree was also not challenged by Mst. Gullan or by any other interested person before any forum of Civil Court hierarchy, which had declared Mst. Fateh Khatoon only a limited owner to the extent of 1/3rd and entitled to inherit it up-to 1/4th share out of it.
(d) The learned Member Board of Revenue had no power or jurisdiction to upset the decrees of the Civil Court, therefore, the impugned order dated 18.12.1985 and the judgment dated 16.05.1992 and 17.09.2004 delivered by learned Civil Judge and the learned District Judge respectively were illegal, and were rightly set aside and reversed by learned Judge Lahore High Court, Lahore through the impugned judgment.
(e) The decrees of 1937 and 1951 having been acted upon had become a past and closed transaction and could not be reopened in the year 1981, during or after the death of Mst. Fateh Khatoon. So, he has supported the impugned judgment by his arguments.
6. After hearing the lengthy arguments of the learned counsel of the parties and examining the record, it has become transparent on the surface of the record that decrees dated 7.12.1937 and 29.11.1951 were never challenged by any of the interested parties before any higher strata of Civil Court. In other words, parties had accepted the ground realities of prevalence of custom at the time of death of Fateh Sher when the succession to his lands left had opened; compromise entered on 7.12.1937 and dismissal of suit of Mst. Chungi and Mst. Gullan on 29.11.1951 through decree of that date from the learned Civil Court; and the findings recorded therein that Mst. Fateh Khatoon had rightly delivered the land to the extent of 2/3rd to Lal and Jamal, the legal heirs of Fateh Sher (deceased) in the year 1927; and that Mst. Chungi and Mst. Gullan were deprived to inherit the lands due to custom in vogue in those days; the decree dated 29.11.1951 having held that Mst. Fateh Khatoon was entitled to inherit 1/4th out of 1/3rd in her possession upon the termination of her limited interest after the enforcement of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1948; no appeal having been filed against that decree, the inaction, the silence, which had remained in operation after passing of that decree of 29.11.1951; through which the legal battle was won by Lal and Jamal finally through that decree; it had finally sealed the fate of present appellants and petitioners to claim inheritance from the land of Fateh Sher deceased. Cumulative result and effect of both these decrees dated 7.12.1937 and 29.11.1951 was that the land in possession of Mst. Fateh Khatoon, to the extent of 1/3rd only out of total land left by Fateh Sher, was to be distributed amongst the legal heirs of Fateh Sher upon the termination of her limited interest due to enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act of 1948, while 2/3rd from total land left by Fateh Sher had already become the owned land of Lal and Jamal as absolute owners in the year 1937 as the decree of 1937 had become a past and closed transaction due to proviso of Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1948. Accordingly, the impugned judgment cannot be held illegal and liable to be reversed.
7. It is worth mentioning at this stage that according to Muhammadan Law, upon death of an owner, devolution of lands, properties or assets automatically takes place, as the succession opens at that time and at that stage. No affirmance, authorization or declaration is necessary for such devolution. Keeping in view this settled and approved rule of succession, upon the death of Fateh Sher, all his legal heirs in concordance to Muhammadan Law might have become owners but as the custom was the order of the day, therefore, sisters and widow of deceased were deprived from inheritance. The argument of appellant's learned counsel cannot be approved that succession had not opened upon the death of Fateh Sher. To utter it in other words, the succession had opened in the year 1927 at the time of death of Fateh Sher but his sisters and widow could not claim the inheritance due to prohibition of customary law in force. It was, therefore, that Mst. Gullan had not claimed the inheritance from the land left by her brother and Mst. Chungi, the other sister, even after having become a party to the suit of 1937 was deprived of from the lands of the deceased, and Mst. Fateh Khatoon, instead of inheriting as absolute owner was deprived from that interest of complete ownership and had accepted the transfer of land in her favour as limited interest owner till remarriage or of her death. The acceptance of this settlement by Mst. Fateh Khatoon through the compromise of 1937 and the inaction of both the abovementioned sisters was itself a strongest proof of custom prevalent in the family and so the decree passed in pursuance of this custom could not be challenged after many decades which followed thereafter to this settlement, arrangement and compromise, with consequence of passing of decree of 1937.
8. It is pertinent to point out here that in the year 1950, when the suit for declaration was filed by Lal and Jamal along with Mst. Chungi against Muhammad Hayat and others, Mst. Gullan was also impleaded therein and the West Pakistan Muslim Personal Law (Shariat) Application Act, 1948 had also found its place in the Statute Books, which was also found mentioned in the judgment of learned Civil Judge. Mst. Gullan and Mst. Chungi had failed in that suit to obtain the land left by Fateh Sher except the land opened to succession upon the termination of limited interest of Mst. Fateh Khatoon. They had not filed any appeal against that judgment, therefore, they had also accepted not only the previous decree dated 7.12.1937 but the decree of 29.11.1951 as well that Mst. Fateh Khatoon was limited turner up to the extent of 1/3rd share from the lands left by Fateh Sher and that she was to inherit only 1/4th after the enforcement of Shariat Application Act of 1948 from this 1/3rd.
9. The arguments of the learned counsel for the appellants that decree dated 7.12.1937 had no binding effect upon the interest of inheritance of Mst. Gullan, or it was collusive was defeated by the passing of decree dated 29.11.1951. Therefore, it has got no force. As regards the rule of Spes Succession, it cannot be applied to the facts and circumstances of the case because the succession had opened upon the death of Fateh Sher and the parties had entered into a settlement/compromise dated 7.12.1937 after the death of Fateh Sher. It was not a case of expectancy of inheritance but it was entered when Fateh Sher's death had opened the succession as noted above. With regard to scope of revision, suffice it to say that; when judgments and decrees have been passed with material irregularities or illegality, the jurisdiction of learned High Court cannot be restrained or curtailed in that event, so as to correct those judgments and decrees and to pass any judgment as the learned High Court thinks fit in the facts and circumstances of a given case in accordance with the provision of Section 115 of the C.P.C. of 1908.
10. There is another most important aspect of the case. The decrees are binding upon revenue officers and the decrees of the Civil Court cannot be upset or reversed by the Revenue Authorities, as these authorities have got no such power to sit upon the judgments and the decrees of the Civil Court as an appellate authority. These authorities are bound to implement these decrees in their revenue record, therefore, the learned Member Board of Revenue had exceeded in its power and authority, while rejecting the implementation of those decrees and making those decrees ineffective by his disputed order dated 18.12.1985.
11. In nutshell, the result of the above discussion is that the civil appeal has got no merit and the same is dismissed with all the civil petitions noted above, and leave is refused to the Civil Petitions.
(W.I.B.) Appeal dismissed.
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