Khaleelullah & others Versus Muhaim Khan & others
It is a well-established practice of this Court that where there are concurrent findings of facts and law of the Courts below, this Court ordinarily does not interfere with the decision so made by them, unless there are exceptional circumstances warranting interference
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Bench
Mr. Justice Yahya Afridi
Mr. Justice Jamal Khan Mandokhail
Civil Appeal No. 25-Q/2018
(Against the judgment dated 17.06.2023 of the High Court of Balochistan, Sibbi Bench passed in CR
No. (s) 11/2012)
Date of hearing: 19.12.2023
Justice Yahya Afridi delivered the order.
The appellants challenged the concurrent findings of three courts below concerning the legacy of Qaim Khan, son of Adam Khan. The appellants, claiming as his great-grandchildren and legal heirs, sought their share in his estate more than thirty years after the death of their mother, Mst. Khanzadi. The record shows that Adam Khan had two sons, Karam Khan and Qaim Khan. Karam Khan was survived by a son, Nawab Khan, who in turn had a son, Hafeezullah, whose legal heirs are respondents 1 to 4 in this appeal. Qaim Khan had three sons: Muhaim Khan, Mehrullah, and Habibullah. Both Muhaim Khan and Habibullah died without issue, while Mehrullah was survived by a daughter, Mst. Khanzadi. The appellants, being her legal heirs, claim a share in the legacy of Qaim Khan, their maternal great-grandfather.
Neither Mehrullah nor his daughter, Mst. Khanzadi, made any claim during their lifetimes. The present suit was instituted in 2007, approximately twenty-five years after the death of Mst. Khanzadi. It is on record that Hafeezullah, father of the respondents, sold 2½ Rahkies in mouza Bostan to Jalal Khan and Huzoor Bakhsh, as acknowledged by appellant No. 1, who also acted as attorney for the other appellants, in his statement recorded on 7 June 2011. Additionally, in the same mouza, the respondents sold half of the remaining property under Khatooni No. 15 to Ali Akbar, Meher Gul, and Ali Ahmed, sons of Murad Khan, who later sold their acquired property to Zakria Kasi. These transactions were confirmed by Muhammad Ameen and respondent Muhaim Khan in their statements dated 14 and 18 June 2011, respectively. In mouza Chacher Tappa Talli, the respondents sold their entire property to Muhammad Hashim and Sharbat Khan, as similarly admitted in court. Although these transactions were evidenced, the appellants only impleaded some of the purchasers as defendants and omitted others, including those with established ownership interests.
Counsel for the appellants argued that the right of inheritance is not subject to limitation under law and that the legal heirs’ rights accrue automatically upon the death of their predecessor, without requiring any revenue record entries. He further alleged fraud by the respondents in excluding Mst. Khanzadi’s name from the pedigree table (Shajra Nasab) to transfer the property to themselves. He cited several precedents, including Mohammad Boota v. Mst. Fatima (2023 SCMR 1901), Mst. Parveen v. Muhammad Pervaiz (2022 SCMR 64), Noor Din v. Pervaiz Akhtar (2023 SCMR 1928), and others.
Conversely, counsel for the respondents argued that the case was time-barred due to the significant lapse between the death of Qaim Khan and the filing of the suit, particularly as neither his son nor granddaughter pursued the claim. He maintained that the appellants were estopped by conduct and that third-party interests had long been created.
The Court noted that while different inheritance cases may present varying complexities, the core principle remains that the estate of a Muslim devolves upon his legal heirs immediately upon his death, and each heir is deemed to have constructive possession of his share until partition or transfer. However, the Court observed that when third-party interests are created in inherited property, the situation becomes legally more complex. Heirs must be vigilant in asserting their rights; if they delay, they may face the bar of limitation.
The Court distinguished between cases where an heir is initially deprived of their share in the inheritance mutation and those where third-party rights have already been established. In the former, limitation generally does not apply until denial occurs; in the latter, the burden lies on the claimant to prove that they were unaware of their deprivation or that fraud prevented them from knowing their rights. The Court referred to Section 18 of the Limitation Act, explaining that it postpones the limitation period only when fraud conceals the right to sue. However, once the injured party gains knowledge of the fraud and fails to act within the prescribed limitation period, no new limitation period can begin for that person’s heirs or successors.
Applying these principles, the Court noted that third-party transactions concerning the disputed property occurred decades earlier: the sale of land in mouza Bostan approximately sixty years ago, and subsequent sales in 1994 and 1997. Since the appellants filed their suit in 2007, well beyond the limitation period, and provided no convincing evidence of fraud or concealment, their claim was time-barred.
The Court further held that the denial of inheritance rights occurs when a co-heir explicitly denies another’s share, such as by transferring property to a third party, which constitutes actual denial and triggers the limitation period. Citing Haji Muhammad Yunis v. Mst. Farukh Sultan (2022 SCMR 1282) and Salamat Ali v. Muhammad Din (PLD 2022 SC 353), the Court reiterated that subsequent revenue entries do not create fresh causes of action once an actual denial has occurred. In this case, the denial began when Hafeezullah transferred Mehrullah’s share to his own name around 1958–60 and was actualized through the sales made in the 1990s.
Regarding the objection that the limitation was not properly pleaded, the Court noted that limitation was, in fact, raised in the written statement. Even if it had not been, under Section 3 of the Limitation Act, courts are duty-bound to dismiss time-barred suits regardless of whether limitation is pleaded by any party.
Finding no exceptional circumstances to warrant interference, the Supreme Court upheld the concurrent findings of the lower courts and dismissed the appeal.
Appeal dismissed.
Judge: Yahya Afridi
Judge: Jamal Khan Mandokhail
Dated: 19 December 2023, Quetta
Meta: Suit for Declaration/Permanent Injunction C.A.25-Q/2018 Khaleelullah & others Appellants. Nos.5,7 &8 thr. Legal heirs v. Muhaim Khan & others Respondent No.5 thr. Legal heirs. Mr. Justice Yahya Afridi 25-01-2024 19-12-2023 PLD 2024 SC 600 2024 SCP 31