SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:
Mr. Justice Umar Ata Bandial
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Muhammad Ali Mazhar

Civil Petition No.262-P of 2017

(Against the order of Peshawar High Court, Peshawar
dated 10.4.2017, passed in C.R. No.411-P/2014)

Saadat Khan & others

...…. Petitioners
Versus
Shahid-ur-Rehman & others
……. Respondents

For the petitioners: Mr. Manzoor Khan Khalil, ASC.

Haji Muhammad Zahir Shah, AOR

For the respondents: N.R.

Date of hearing: 23.09.2021

JUDGMENT

Syed Mansoor Ali Shah J.- The petitioners seek leave

to appeal against a judgment of the Peshawar High Court, dated
10.04.2017 (“impugned judgment”), whereby the High Court has
upheld, in revision, the judgment of the appellate court non-suiting
the petitioners on the issue of limitation. Although there are
concurrent findings of the two courts below, on the issue of
limitation against the petitioners but as the matter involves the
enforcement of an alleged right of inheritance of some females, the
predecessors of the petitioners, we are inclined to re-examine the
issue of limitation, in the interest of justice, to satisfy ourselves as
to the correctness of the said concurrent findings.

2. Facts forming the background of the case are that one

Isa Khan son of Hameedullah was the owner of the suit property,
i.e., the then agriculture land measuring 19-Kanal 17-Marla. He
died and his inheritance mutation No. 327 was sanctioned on 23
March 1935 in favour of his son Abdur Rehman. In the year 1960-
61, some portion of the suit property was acquired by the Small
Industries Corporation of West Pakistan, and the said Abdur
Rehman received the compensation therefor. Later on, Abdur
Rehman also died and respondents No. 1 to 5 being his sons and
daughters, and respondent No.6 being his widow, inherited the
remaining suit property. Respondents No. 1 to 6 sold out almost all
CP No.262-P/2017 2

of the remaining suit property to respondents No. 12 to 74 and

others, who are now recorded as owners-in-possession of the suit
property in very small shares measuring in Marla and Sarsai, in the
revenue record (Exh-P1).

3. It was in the year 2004 that the petitioners instituted a

suit on 19 November 2004 praying for a declaration that inheritance
mutation No. 327 sanctioned on 23 March 1935 in favour of Abdur
Rehman, the predecessor of respondents No.1 to 6, and the
subsequent inheritance mutation in favour of respondents No. 1 to
6 and the further transfers made on the basis of those inheritance
mutations, in favour of respondents No. 12 to 74 were void and
ineffective against their rights. They asserted that Isa Khan had left
one son, Abdur Rehman, and two daughters, Mst. Mehro and Mst.
Afsro, as his legal heirs but Abdur Rehman fraudulently got
sanctioned inheritance mutation No. 327 in his favour excluding his
sisters from the inheritance of their father; that the said Mst. Mehro
and Mst. Afsro daughters of Isa Khan had died, and they and
respondents No. 7 to 11, who did not join them as plaintiffs in the
suit, were their legal heirs; that being legal heirs of Mst. Mehro and
Mst. Afsro, they and respondents No. 7 to 11 were owners of the suit
property to the extent of their share; and that they had, time and
again, asked the respondents to accept their entitlement and get
corrected the revenue record to the extent of their share in the suit
property, but they first evaded the matter and then flatly refused to
do so, hence the need to institute the suit arose.

4. Respondents No. 1 to 6 contested the suit and claimed

that the inheritance mutation No. 327 was correctly sanctioned in
favour of their predecessor, Abdur Rehman, in the year 1935 as per
the then prevailing law; that since 1935 their predecessor, and after
his death they, had been in possession of the suit property as the
exclusive owner to the knowledge of the petitioners; and that the
fact of acquisition of a portion of the suit property by the Small
Industries Corporation and receiving of the compensation by their
predecessor for that acquisition was in knowledge of the petitioners,
therefore, their suit was time-barred.

5. The trial court decreed the suit by its judgment dated

28.01.2012, and on the issue of limitation held that the limitation
does not apply where a person seeks to enforce his right of
CP No.262-P/2017 3

inheritance in the estate of his deceased predecessor. Respondents

No. 1 to 6 appealed in District Court. The appellate court noticed
that Mst Mehro and Mst. Afsro, the predecessor of the petitioners,
had not challenged the inheritance mutation in their lifetime,
despite knowledge of receiving the compensation by Abdur Rehman,
the predecessor of respondents No. 1 to 6, in the year 1960-61, for
the acquisition of some land out of the suit property by the Small
Industries Estate and the sale of a major portion of the suit property
by respondents No. 1 to 6. Keeping in view these facts and while
relying upon two unreported judgments and one reported judgment
(Abdul Haq v. Surraya Begum 2002 SCMR 1330) of this Court, the
appellate court decided the issues as to cause of action, estoppel
and limitation against the petitioners and reversing the judgment
and decree passed by the trial court, dismissed the suit. The
petitioners then agitated their grievance against the judgment of the
appellate court in the High Court by filing a revision petition.

6. The High Court also took up the issues as to cause of

action, estoppel and limitation, examined the evidence available on
record relating thereto, and upheld the decision of the appellate
court on these issues. The High Court relied upon the judgments of
this Court reported as Kala Khan v. Rab Nawaz 2004 SCMR 517, Lal
Khan v. Muhammad Yousaf PLD 2011 SC 657, Muhammad Rustam
v. Makhan Jan 2013 SCMR 299, Mst Grana v. Sahib Kasmala PLD
2014 SC 167 and Ghulam Abbas v. Muhammad Shafi 2016 SCMR
1403.

7. The petitioners have impugned the concurrent findings

of the appellate court and the High Court on the question of
limitation. Their learned counsel has submitted that the trial court
correctly applied the principle that the limitation does not apply in
cases of inheritance, while the appellate court and the High Court
erred in non-suiting the petitioners on the ground of limitation. He
has relied upon judgments of this Court reported as Ghulam
Ali v. Ghulam Sarwar PLD 1990 SC 1, Namdara v. Sahibzada 1998
SCMR 996, Shahro v. Fatima PLD 1998 SC 1512, Muhammad
Iqbal v. Allah Bachaya 2005 SCMR 1447 and Peer Baksh v. Mst.
Khanzadi 2016 SCMR 1417.

8. As the High Court for applying and the counsel for the
petitioners for opposing the application of, the bar of limitation to
CP No.262-P/2017 4

the present case have relied upon the judgments of this Court, we
have deeply considered the ratio of the said judgments as well as
other relevant judgments1 to understand as if there is any conflict of
opinions recorded therein. We have found no such conflict, which
we shall explain hereunder.

9. We may say at the very outset that in view of the

provisions of the residuary Article 120 of Schedule-I to the
Limitation Act 1908, there can hardly be any suit to which the bar
of limitation does not apply. As per the said Article a suit for which
no period of limitation is provided elsewhere in the Schedule, the
period of limitation for that suit is six years from the time when the
right to sue accrues. No specific Article of Schedule-I to the
Limitation Act provides a period of limitation for a suit instituted by
a person, under Section 42 of the Specific Relief Act 1877, for
declaration of his ownership rights to any property against a person
denying his said rights; therefore, the residuary Article 120 applies
to such suit. A suit instituted by a female legal heir for declaration
of her ownership rights as to the property left by her deceased father
in his inheritance, against her brother who denies her rights is thus
governed by the provisions of Article 120. To decide whether such a
suit is barred by limitation, the six-year period of limitation provided
by Article 120 is to be counted from the time when the right to sue
for declaration accrues as provided therein. The question, when the
right to sue for declaration has accrued in a case, depends upon the
facts and circumstances of that case, as it accrues when the
defendant denies (actually) or is interested to deny (threatens) the
rights of the plaintiff as per Section 42 of the Specific relief Act
1877. The actual denial of rights gives rise to a compulsory cause of
action and obligates the plaintiff to institute the suit for declaration
of his rights, if he wants to do so, within the prescribed period of
limitation; while in case of a threatened denial of rights, it is the
option of the plaintiff to institute such a suit on a particular threat.
On the actual denial of rights, the cause of action and the
consequent right to sue matures for instituting the suit for
declaration; whereas every threatened denial of rights gives rise to a
fresh cause of action, and thus a fresh right to sue accrues on such
a denial. This Court has, therefore, decided the question of
1
Ghulam Qasim v. Razia Begum PLD 2021 SC 812; Gharana v. Sahib Kamala PLD 2014 SC 167;
Muhammed Rustam v. Makhan Jan 2013 SCMR 299; Ata Muhammed v. Maula Baksh 2007 SCMR
1446; Aslam v. Kamalzai PLD 1974 SC 207.
CP No.262-P/2017 5

limitation in the cases relied upon by the High Court and referred to
by the counsel for the petitioners, in the peculiar facts and
circumstances of each case.

10. Because of the special characteristics of their

relationship, the criterion for determining the actual denial of a co-
sharer’s rights as to joint property by the other co-sharer is different
from the one that is applied between strangers. Co-sharers have a
relationship of trust and support for each other. Possession of joint
property with one co-sharer is considered to be for and on behalf of
all the co-sharers. A co-sharer who is not in actual possession is
considered to be in constructive possession of the joint property.
Each co-sharer protects the joint property against trespassers for
the benefit of all the co-sharers. Even if one co-sharer acquires
possession of some portion of the joint property in consequence of
legal proceedings initiated by him against a trespasser, he is
deemed to be in possession of that portion of the joint property, on
behalf of all the co-sharers. Against this backdrop, the actual denial
of a co-sharer’s rights as to joint property by the other co-sharer is
not to be readily inferred. Actual denial of a co-sharer’s rights by the
other co-sharer may occur when the latter does something explicit
in denial of the former’s rights. A mere oral negation, even made
several times, of each other’s rights by the co-sharers on different
disputes as to the use and sharing of the profits of the joint
property, but without doing any overt act to oust a co-sharer from
the ownership of the joint property, cannot be treated as an actual
denial of the rights and thus does not necessitate to sue for
declaration of ownership rights.

11. The obligations of the brothers to their sisters, as co-

sharers of joint property, are further augmented when viewed in the
light of the Islamic law and jurisprudence as expounded by this
Court in Ghulam Ali. Because of the fiduciary and protecting relation
of the brothers to their sisters, they cannot claim their possession of
the joint property adverse to the rights of their sisters; possession of
the brothers is taken to be the possession of their sisters. Mere
omission to pay a share of the profits or produce of the joint
property to their sisters by the brothers in possession of the joint
property does not in itself constitute a repudiation of the sisters’
CP No.262-P/2017 6

rights, nor does a wrong entry as to the inheritance rights in the

revenue record oust the sisters from their ownership of the joint
property as the devolution of the ownership of the property on legal
heirs of a person takes place under the Islamic law of inheritance
immediately on the death of that person without any intervention of
anyone and without the sanction of the inheritance mutation in the
revenue record. The position is, however, different when the
brothers in possession of the joint property make a fraudulent sale
or gift deed or get sanctioned some mutation, whether of sale or gift
etc, in the revenue record claiming that their sisters have
transferred their share in the joint property to them, or when they
on the basis of a wrong inheritance mutation start selling out or
otherwise disposing of the joint property claiming them to be the
exclusive owners thereof. In such circumstances, the brothers by
their overt act expressly repudiate the rights of their sisters in the
joint property, and oust them from the ownership of the joint
property. Their acts are, therefore, a clear and actual denial of the
rights of the sisters, which give rise to a compulsory cause of action
and obligates the sisters to institute the suit for declaration of their
rights, if they want to do so, within the prescribed period of
limitation.

12. Although, by the said acts of the brothers, the right

accrues to the sisters to sue for declaration of their rights, but if
they by means of fraud are kept from the knowledge of those overt
acts, the time limit of six years provided in Article 120 for instituting
the suit for declaration against brothers or any person claiming
through them otherwise than in good faith and for a valuable
consideration, is to be computed from the time when the fraud of
the brothers first became known to the sisters, by virtue of the
provisions of Section 18 of the Limitation Act. The “fraud”
contemplated by Section 18 means suppression of those acts or
transactions that give rise to the cause of action from coming into
the knowledge of the plaintiff. A deliberate concealment of facts
intended to prevent discovery of the right to sue is also a “fraud”
within the meaning of the term used in this Section, but an open act
of a party cannot be said to be a fraudulent act of concealment and
is therefore not covered by this Section. The benefit of Section 18 is,
however, not available against any person who though claims
CP No.262-P/2017 7

through the defrauding party but is a transferee in good faith and

for a valuable consideration. That is why this Court has treated
differently the two types of cases: (i) where the joint property is still
in possession of the defrauding brothers or their legal heirs; and (ii)
where the joint property has been alienated further to third persons
- the transferees in good faith and for a valuable consideration.

13. We have gone through the facts of the present case in

light of the above principles regarding the calculation of the period
of limitation. We find that the acts of acquisition of a part of the suit
property by the Small Industries Estate and receiving of the
compensation therefor by Abdur Rehman, the predecessor of
respondents No. 1 to 6, in the year 1960-61 were open acts and
were also in the knowledge of Mst. Mehro and Mst. Afsro, the
predecessor of the petitioners. This fact has been admitted by
petitioner No.1, Saadat Khan, when he appeared in the witness box
as PW-5. He further said that they had demanded their share in the
compensation amount from Abdur Rehman but he had refused to
pay. The act of receiving compensation for the acquired portion of
the suit property by Abdur Rehman was equal to selling that portion
of the suit property by claiming him to be the exclusive owner
thereof. It was his express overt act whereby he repudiated the
rights of his sisters, Mst. Mehro and Mst. Afsro, in the suit property
and ousted them from the ownership thereof. By the said act of
Abdur Rehman, the right accrued to his sisters to sue for
declaration of their rights, and the six-year limitation period
provided in Article 120 started to run from the date of knowledge of
Mst. Mehro and Mst. Afsro, of that act of Abdur Rehman and
expired in the year 1967-68. For when once limitation time had
begun to run, no subsequent disability or inability to sue could stop
it as per Section 9 of the Limitation Act. Similar was the effect of the
acts of selling out the remaining portion of the suit property by
respondents No. 1 to 6 to respondents No.12 to 74 and others. The
limitation period having thus expired in the lifetime of Mst. Mehro
and Mst. Afsro, it cannot start over again for their successors, the
present petitioners, in view of the definition of the term “plaintiff”
provided in Section 2(8) of the Limitation Act, which provides that
“plaintiff” includes any person from or through whom a plaintiff
derives his right to sue. Because of the said definition of “plaintiff”,
CP No.262-P/2017 8

it was the knowledge of Mst. Mehro and Mst. Afsro that had
triggered the period of limitation to run not only against them but
also against their successors, i.e., the petitioners who derive their
right to sue from them. The appellate court and the High Court
have, thus, correctly decided the issue of limitation against the
petitioners.

14. For all what has been discussed above, the present
petition for leave to appeal is found meritless; it is, therefore,
dismissed and leave declined.

Judge

Judge

Islamabad,
23rd September, 2021.
Approved for reporting Judge
Iqbal