PLJ 2011 Lahore 775
[Multan Bench Multan]
[Multan Bench Multan]
Present: Muhammad Khalid Mehmood Khan, J.
AZMAT BIBI (deceased) through L.Rs. and
another--Petitioners
versus
Mst. HAMIDAN BIBI and 3 others--Respondents
C.R. No. 313-D of 1995, heard on
22.2.2011.
West Pakistan Family Courts Act, 1963
(XXXV of 1964)--
----S. 4--Entitlement of share--Wife will
not receive any share if died before death of deceased husband--Question
of--Whether wife and daughter were alive at time of death of
deceased--Whereabouts were known to parties--Attestation of mutation of
inheritance and executed a power of attorney--Onus to prove about status of
wife and daughter shifted upon beneficiary was general attorney--Validity--If
it is assumed that daughter of deceased was not traceable and wife was dead
before death of deceased even than daughter of deceased was entitled to her share
out of estate of deceased--However will not receive any share if died before
the death of deceased--Failed to prove that two ladies were alive at the time
of death of deceased that they executed general power of attorney in her
favor--Petition was allowed. [P.
780] A & B
Mr. Muhammad Suleman
Bhatti & Ch. Ashfaq Ahmad, Advocates for Petitioners.
Ch. Abdul Ghani,
Advocate for Respondents.
Date of hearing: 22.2.2011.
Judgment
The petitioners filed a suit for
declaration against the respondents claiming that order dated 19.11.1984 passed
by Additional Commissioner Revenue, order dated 21.05.1983 passed by Assistant
Commissioner Chichawatni and order dated 12.12.1982
passed by Assistant Commissioner-II, Chichawatni and
Mutation No. 354 attested on 12.12.1984 with respect to suit land are against
law, facts, illegal, void, inoperative and ineffective against their rights and
that the petitioners are entitled to inherit the land left by Muhammad Razaq deceased to the extent of 2/3rd share. The
petitioners asserted in their plaint that one Muhammad Razaq
deceased was the owner of land detailed in the head note of the plaint, died on
16.10.1982 and Mutation No. 354 of his inheritance was attested on 12.12.1982
in favour of petitioners and Respondents No. 1 to 3,
declaring that Respondent No. 1 is wife of deceased and Respondent No. 2 is her
daughter, and Respondent No. 3 is his sister. The Respondent No. 3 transferred
her land in favour of Respondent No. 4 through Tamleek and as such Respondent No. 4 was arrayed as
defendant No. 4 in the suit being necessary party. It was pleaded
that where about of Respondents No. 1 and 2 (wife and daughter of deceased) are
not known from the last 16/17 years and as such it will presumed that they are
dead. The petitioners asserted that order passed by the revenue hierarchy
accepting the Respondents No. 1 and 2, the legal heirs of deceased Abdul Razaq are against law and facts.
2.
The respondents vehemently contested the suit and claimed that
Respondents No. 1 and No. 2 have appointed the Respondent No. 3 Hashmat Bibi as their attorney
and as such they were alive after the death deceased of owner and mutation of
inheritance was rightly attested in their favour.
3.
Out of the divergent pleadings of the parties, the learned Civil Court
framed the following issues.
ISSUES
1. Whether
the suit is not maintainable in its present form and is legally barred.
2. Whether
Mutation No. 354 dated 12.12.1984 in light of the order of Addl. Commissioner
Revenue dated 19.11.1984 is against law and facts and ineffective against the
rights of plaintiffs. If so what the proper share of parties
in property left by deceased Muhammad Razaq.
3. Whether
Defendant No. 1 and No. 2 have not been heard for more than 7 years. If so its legal effect.
4. Relief.
4.
Both the parties adduced their respective oral and documentary evidence
and the learned trial Court vide judgment and decree dated 10.12.1989 dismissed
the suit.
5.
The petitioners assailed the judgment and decree through an appeal which
too was dismissed on 02.11.1994. Hence, the present appeal.
6.
Learned counsel for the petitioners submits that judgments of both the
Courts below are based on misreading and non-reading record. He further submits
that it is a proven fact on record that at the time of death of Muhammad Razaq, Respondents No. 1 and 2 were not available and they
have left the house of Muhammad Razaq 16/17 years ago
and their whereabouts are not known to any one. He
further submits that learned Courts below have wrongly held that it was the
duty of petitioners to prove that Respondents No. 1 and 2 were dead at the time
of death of deceased Muhammad Razaq. He submits that
respondents have failed to substantiate their case and the learned Courts below
have wrongly relied upon the witnesses produced by them.
7.
Learned counsel for the respondents supports the judgment and decree of
both the Courts below and submits that findings of both the Courts below that
Respondents No. 1 and 2 were alive at the time of death of deceased Muhammad Razaq are concurrent and this Court in its revisional jurisdiction could not upset the same. It is
further submitted that Exh.D2, the power of attorney was executed by
Respondents No. 1 and 2 in favour of Respondent No. 3
Hashmat Bibi six years
before the institution of the suit and as such it has been proved on record
that both the respondents were alive when the owner of land died and as such
the mutation was rightly attested in favour of
respondents.
8.
Heard. Record perused.
9.
The dispute between the parties is whether Respondents No. 1 and 2 were
alive at the time of death of Muhammad Razaq and
their whereabouts are known to parties. It is not a dispute between the parties
that Respondents No. 1 and 2 were not wife and daughter of deceased Abdul Razaq. It is also not dispute that Hashmat
Bibi Respondent No. 3 is not the sister of deceased
Abdul Razaq. The petitioners while filing a suit has
asserted in Para No. 3 of the plaint as under:--
10.
The Respondent No. 3 being the general attorney of Respondents No. 1 and
2 filed the written statement on behalf of Respondents No. 1 and 2 and in reply
to Para No. 3 of the plaint took the following stance:--
11.
The stance taken by the respondents is that Respondent No. 2 was
abducted and they left village for ever, both the
Respondents No. 1 and 2 came to Respondent No. 3 after attestation of mutation
of inheritance and executed a power of attorney in her favour
with the powers to look after their land and may sell the same. As the
Respondent No. 3 has taken a specific stand, the onus to prove about the status
of Respondents No. 1 and 2 shifted upon the Respondent No. 3 who being the
beneficiary is claiming that she is general attorney of Respondents No. 1 and
2. The document of general power of attorney is Exh.D2. This document was
executed on 09.01.1983, admittedly after the death of deceased Muhammad Razaq who died on 16.10.1982. Mst.
Hamida Bibi and Irshad Bibi, the Respondents No.
1 and 2 were identified by Muhammad Ali Sarbrah Lumberdar and two marginal witnesses Muhammad Sharif S/o
Muhammad Yaqoob and Muhammad Ali Lumberdar
attested the said power of attorney. The said power of attorney was registered
before the Sub-Registrar, Chichawatni on 09.01.1983.
The document has shown to be written on 08.01.1982 as is evident from
endorsement of scribe 08.01.1982
. The endorsement of stamp vendor on the back of first page of document
shows that stamp paper was purchased on 09.01.1983, meaning thereby the said document was written on 08.01.1982 when the stamp
paper was not in existence, as the stamp paper was purchased on 09.01.1983 this
proves that the document is manufactured document. This fact alone is
sufficient to declare the document Exh.D2 doubtful. Further one marginal
witness who is also the identifier of Respondents No. 1 and 2
i.e Muhammad Ali who appeared as PW-2. He
deposed that he is 82 years old and is Sarbrah Lumberdar of Village No. 102/12-L, Tehsil
Chichawatni. His statement was recorded on
17.01.1989. He deposed that approximately 21/22 years ago Muhammad Razaq died. He was living in his village. At the time of
death of Muhammad Razaq, Mst.Hamida
Bibi and Irshad Bibi were not present. They were abducted 20/21 years ago.
After that they never came to village. Their where about are not known. He is
not aware whether they are alive or not. In cross-examination he admits as
under:--
12.
The said admission of PW-2 who happen to be a marginal witness of Exh.D2
as well as the identifier of Hamidan Bibi and Mst.Irshad Bibi is sufficient to negate the fact that the power of
attorney was ever executed by the Respondents No. 1 and 2 in favour of Respondent No. 3 who appeared as DW-3-. She
deposed that:--
13.
In cross-examination she admits that Muhammad Razaq
died six years ago. Both met her before the death of Muhammad Razaq.
14.
The said admission of Mst. Hashmaty
(Respondent No. 3) shows that she was aware about the residence of Respondents
No. 1 and 2 but she failed to produce them in support of her claim. It was very
easy for the Respondent No. 3 to produce these said two ladies before the Court
through local commission if it was the stance of Respondent No. 3 that the
Respondent No. 2 was abducted and due to that reason they are unable to face
the petitioners and other family members or Braderi.
Surprisingly Mst. Hashmaty
when appeared as her own witness has disclosed the fact as under:--
15.
The said story narrated by Hashmat Bibi is sufficient to negate her claim of registration of
attorney in her favour. If the two ladies met
Respondent No. 3 after the death of Muhammad Razaq,
they got prepared the power of attorney through Muhammad Ali Lumberdar meaning thereby they were known to Muhammad Ali.
Muhammad Ali when appeared as PW-2 he has not mentioned this fact, he deposed
that from the last 20/21 years these ladies are not traceable. As the
Respondent No. 3 is claiming that the two ladies executed general power of
attorney in her favour, it was her duty to produce
these two ladies before the Court in support of her general power of attorney
but the only one witness Muhammad Ali who is identifier of two ladies and also
the marginal witness of the general power of attorney appeared in Court and he
specifically admitted that he identified the two ladies on the asking of Hashimaty and her husband Muhammad Sharif. These two ladies
were wearing and as such
this proved that Mst. Hashmity
arranged the registration of fake general power of attorney only to establish
that the said two ladies were alive at the time of death of Muhammad Razaq.
16.
Both the learned Courts below have not attended this aspect of the case.
Both the Courts fell in error while holding that it was duty of petitioner to
prove that Mst.Hamida Bibi
and Irshad Bibi were dead
as they were claiming this fact. No doubt they claimed this fact but the
respondent came with a different story, that two ladies were alive and they
executed the general power of attorney in favour of Hashimaty (Respondent No. 3). Hence, the onus shifted on
the respondent and as such it become obligatory upon the Respondent No. 3 to
prove that two ladies were alive and the mutation of inheritance was rightly
attested in her favour.
17.
In the above said facts there is another aspect of the case under
Section 4 of the Family Court Act. If it is assumed that daughter of deceased
Muhammad Razaq was not traceable and she was dead
before the death of Muhammad Razaq even than the
daughter of deceased Muhammad Razaq was entitled to
her share out of the estate of deceased Muhammad Razaq.
However the wife will not receive any share if died before the death of
Muhammad Razaq.
18.
The upshot of the above said discussion is that the respondents failed
to prove that the two ladies were alive at the time of death of Muhammad Razaq and they executed general power of attorney in her favour.
19.
In view of above, the petition succeeds and is allowed to the extent of
share of wife of deceased and the share of deceased's daughter will be
regulated under Islamic Law of inheritance. The judgments of both the Courts
below are set aside, and the suit of the plaintiffs is decreed partially. There
is no order as to costs.
(R.A.) Petitions
allowed.
