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 SarbrahLumberdar 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 MuhammadRazaq, 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. SurprisinglyMst. 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 thatMst.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.
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