2024 CLC 895
Every Muslim in the sub-continent is presumed to belong to Sunni sect, unless ‘good evidence’ to the contrary is produced by the party contesting the same. The judicial determination of whether the said presumption of faith of a party, positively stands rebutted, would be adjudged by the Court on the principle of preponderance of evidence produced by the parties. No strict criteria can be set to determine the faith of a person and therefore to pass any finding thereon, the Courts are to consider the surrounding circumstances i.e. way of life, parental faith and faith of other close relatives.
PLJ 2024 Lahore 160
Present: Shahid Bilal Hassan, J.
Mst. NAWAB BIBI (deceased) through L.Rs.--Petitioners
versus
HAKIM ALI and others--Respondents
C.R. No. 2312 of 2014, heard on 4.10.2023.
Specific Relief Act, 1877 (I of 1877)--
----S. 42--Inheritance--Sole legal heir--Determination of faith--Hearsay evidence--Pedigree table--Concurrent findings--Suit for declaration--Entitlement for 1/2 share--Deprivation from lawful right--Challenge to--There is no principle of universal application to determine faith of a person except direct disclosure by words from mouth of deceased, circumstantial evidence of conduct of deceased and opinion of witnesses--When predecessor in interest of present petitioners had failed to prove that Shera was professing Shia faith during his life time, ultimate result would be that he was Sunni by faith and same had rightly been determined and declared as such by Courts below--Predecessor of petitioners in connected revision petition knowingly and deliberately did not disclose name of daughter of deceased Shera only to deprive her from her lawful right--Courts below have rightly adjudged that Mst. Nawab Bibi being daughter and legal heir of Shera was entitled to inherit 1/2 of disputed property, owned by Shera--The findings recorded on this score being based on proper appreciation of evidence were upheld and maintained--Courts below had committed no illegality, irregularity and wrong exercise of jurisdiction--Revision petition dismissed. [Pp.162 & 163] A, B, C, D & F
PLJ 2023 SC 8, 2014 SCMR 1469, 2014 SCMR 161, 2017 SCMR 679, PLD 2022 SC 13 and PLD 2022 SC 21 ref.
Limitation--
----When question of inheritance is involved limitation does not run--Moreover, when foundational transaction is based on fraud and mala fide, subsequent superstructure built thereon cannot be allowed to stand and ultimately collapses. [P. 163] E
Mr. Ijaz Hussain, Advocate for Petitioners.
Syed Kaleem Ahmad Khurshid and Sultan Mehmood, Advocates for Respondents No. 4 to 9.
Respondents No. 1 to 3 Ex parte on 3.10.2016.
Date of hearing: 4.10.2023.
Judgment
This single judgment shall decide the captioned revision petition and connected C.R.No. 1992 of 2014, as both are outcome of one and the same impugned judgments and decrees.
2. Purportedly, Mst. Nawab Bibi was the sole legal heir of her father namely Shera son of Allah Din and being his sole legal heir, she was entitled to inheritance of legacy of the said Shera but the predecessors in interest of the Respondents Namely Fazal Din, Elahi Bukhsh, Allah Dad, Roshan and Jhanda got incorporated a false, bogus and fraudulent Mutation No. 80/437 of inheritance of deceased Shera by showing therein that deceased Shera had one brother and one daughter but both had died prior to death of Shera and in the absence of other legal heirs, above said Fazal Din, etc. were entitled to inherit the property of deceased Shera; therefore, the above said inheritance mutation was sanctioned by the revenue officer on 03.12.1955. In 1993, the predecessor in interest of the petitioner(s) namely Mst. Nawab Bibi daughter of Shera came to know about the alleged fraudulent, forged and frivolous mutation of inheritance ibid and instituted suit for declaration by challenging the validity of the same. The Defendants Namely Azmat Bibi, Hakim Ali, Rajoo Bibi, Bashir Ahmad, Nazir Ahmad, Ghafoor and Manzoor submitted their conceding written statements, whereas the Defendants No. 5 to 9 and Defendants No. 3-A to 3-C contested the suit. The divergence in pleadings of the contesting parties was summed up into issues by the learned trial Court. Evidence of the parties in pro and contra was recorded. On conclusion of trial, the learned trial Court dismissed the suit vide judgment and decree dated 21.11.2000. An appeal was preferred by the aggrieved party, which was allowed on 14.06.2001 and case was remanded to the learned trial Court for decision afresh. After remand, the learned trial Court vide judgment and decree dated 19.01.2002 decreed the suit in favour of Mst. Nawab Bibi. Bashir Ahmad, etc. being aggrieved preferred an appeal which was dismissed on 06.01.2003. Revision petition was filed, which was allowed vide order dated 12.03.2012 and the case was remanded to the learned trial Court for decision afresh. The learned trial Court framed additional Issue 1-A (Whether the deceased father of deceased plaintiff was Shia by faith? OPP). After this, evidence of the parties was recorded on additional issue. The learned trial Court vide impugned judgment and decree dated 21.02.2013 decreed the suit of the petitioner(s)/plaintiff(s) to the extent of 1/2 share as inheritance from the legacy of the deceased Shera. The petitioner(s)/plaintiff(s) being aggrieved preferred an appeal but the same was dismissed vide impugned judgment and decree dated 02.05.2014; hence, the instant revision petition by Mst. Nawab Bibi through her legal heirs with the prayer that she is entitled to inherit half property of deceased Shera as sharer and half as return, whereas the petitioners in connected C.R.No. 1992 of 2014 have prayed for setting aside the impugned judgments and decree and dismissal of the suit of Mst. Nawab Bibi.
3. Heard.
4. Every Muslim in the sub-continent is presumed to belong to Sunni sect, unless ‘good evidence’ to the contrary is produced by the party contesting the same. The judicial determination of whether the said presumption of faith of a party, positively stands rebutted, would be adjudged by the Court on the principle of preponderance of evidence produced by the parties. No strict criteria can be set to determine the faith of a person and therefore to pass any finding thereon, the Courts are to consider the surrounding circumstances i.e. way of life, parental faith and faith of other close relatives. Reliance in this regard is placed on Mst. Chanani Begum (Deceased) through LRs. v. Mst. Qamar Sultan (2020 SCMR 254) and Abdul Rehman and others v. Mst. Allah Wasai and others (2022 SCMR 399). Further reliance in this regard can also be placed on judgment reported as Ghulam Shabbir and others v. Mst. Bakhat Khatoon and others (2009 SCMR 644). A detailed analysis in this regard, by referring the least precedents rendered by the Privy Council and Courts, has been made by this Court in judgment reported as Tahira Bibi v. Muhammad Khan, etc. (PLJ 2019 Lahore 829), which does not need to re-discussed here again as the crux of the observation is that there is no principle of universal application to determine the faith of a person except direct disclosure by words from the mouth of deceased, circumstantial evidence of the conduct of deceased and opinion of witnesses.
In the present case, the Issue No. 1-A is pivotal which was framed with regards to faith of the deceased Shera. The deposition of P.W.1 is hearsay as he, during cross examination, deposed that daughter of Shera told him that Shera was Shia by faith, so his evidence has rightly been discarded. P.W.2 namely Haji Ejaz deposed that he did not know Shera and never saw him, so his evidence has also no value in the eye of law. Evidence of P.W.3 is not worthy of credence because admittedly Shera died in 1949 and at that time age of this P.W. has rightly been counted as seven(7) years because he mentioned his age as 71 years at time of recording his evidence. Moreover, his deposition is beyond the pleadings when he deposed that Shera died in the year 1956, whereas the same has been pleaded as 1949. P.W.4 deposed that he did not know Shera. It means that the depositions of all the P.Ws. is based on hearsay and is not based on personal knowledge; therefore, the same is rightly been discarded and disbelieved. When the predecessor in interest of the present petitioners namely Mst. Nawab Bibi has failed to prove that Shera was professing Shia faith during his life time, the ultimate result would be that he was Sunni by faith and the same has rightly been determined and declared as such by the learned Courts below while passing the impugned judgments and decrees.
5. So far as the claim of the petitioners in connected revision petition is concerned, it is observed that pedigree table prepared by the revenue authority during mutation proceedings, on the information provided by the predecessor in interest of the petitioners, in connected revision petition, which divulges that Shera had a daughter but she was shown to be dead and her name was not disclosed. Meaning thereby the predecessor of the petitioners in connected revision petition knowingly and deliberately did not disclose name of Mst. Nawab Bibi, daughter of the deceased Shera only to deprive her from her lawful right. Therefore, in presence of admission of D.W.1 that Shera was original owner of the disputed property and Mst. Nawab Bibi was the only daughter and legal heir of the said Shera, the learned Courts below have rightly adjudged that Mst. Nawab Bibi being daughter and legal heir of Shera is entitled to inherit 1/2 of the disputed property, owned by Shera. The findings recorded on this score being based on proper appreciation of evidence are upheld and maintained.
6. Question of limitation has also rightly been adjudicated upon by the learned Courts below because fraud vitiates the most solemn transaction and in such like position, when question of inheritance is involved the limitation does not run. Moreover, when the foundational transaction is based on fraud and mala fide, the subsequent superstructure built thereon cannot be allowed to stand and ultimately collapses. Furthermore, the concurrent/coexisting possession of the deceased petitioner Mst. Nawab Bibi and after her demise, that of the present petitioners, her successors, would be considered.
7. Pursuant to the above, it is held that the learned Courts below have committed no illegality, irregularity and wrong exercise of jurisdiction, rather after evaluating evidence on record have reached to a just conclusion that the petitioners/defendants have miserably failed to prove their case through trustworthy and reliable evidence. The impugned judgments and decrees do not suffer from any infirmity rather law on the subject has rightly been construed and appreciated. As such, the concurrent findings on record cannot be disturbed in exercise of revisional jurisdiction under Section 115 of Code of Civil Procedure, 1908. Reliance is placed on judgments reported as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), Cantonment Board through Executive Officer, Cantt. Board Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Muhammad Farid Khan v. Muhammad Ibrahim, etc. (2017 SCMR 679), Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 Supreme Court 13) and Mst. Zarsheda v. Nobat Khan (PLD 2022 Supreme Court 21) wherein it has been held that:
‘There is a difference between the misreading, non-reading and misappreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law. This Court in the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) held that the concurrent findings of three Courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case are not open to question at the revisional stage.’
Further in judgment reported as Salamat Ali and others v. Muhammad Din and others (PLJ 2023 SC 8), it has invariably been held that:
‘Needless to mention that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below.’
8. For the foregoing reasons, the revision petition in hand and connected C.R. No. 1992 of 2014 come to naught and the same stand dismissed. No order as to the costs.
(Y.A.) Revision petition dismissed
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