Case Brief: Mst. Suban vs. Allah Ditta and Others (2007 SCMR 635 SC)

As soon as someone who owns property dies, the succession to his property opens and the property gets automatically vested in the heirs, which is not dependent on any act on the part of the revenue authorities or state agencies. Upon death of an owner, all the co-inheritors immediately become co-sharers in the property without further action required. In the event of a dispute in respect of a mutation incorrectly/dishonestly made, the limitation against a co-owner, who’s rights are being denied, would start running not from the time of the death of their predecessor-in-interest nor even from date of mutation, if any, but from the date when the right of any such co-inheritors/owners is denied by someone.

The Supreme Court in Mst. Suban vs. Allah Ditta and others (2007 SCMR 635) inter alia elaborates on the aforementioned principles and the grounds on which mutation entered dishonestly/incorrectly may be set aside. I have prepared a case brief containing the facts, issues and holdings of the Supreme Court.

Mst. Suban vs. Allah Ditta and Others (2007 SCMR 635 SC)

Facts: Gharu owned 131 Kanals and 1 Marla land in Mauza Chawayka Ottarah and 558 Kanals and 19 Marlas in Mauza Chawayka Hittarh. Gharh had no mail child and was survived only by widow, Mst. Ghulam Fatima and his two daughters, Mst. Suban and Mst. Sardaran. Through a mutation dated 14.06.1943 the entire land of 131 Kanals and 1 Marla in Mauza Chawayka Ottarah was mutated in favour of Mst. Ghulam Fatima (“First Mutation”). Through another mutation dated 27.06.1944 the land of 558 Kanals and 19 Marlas situated in Mauza Chawayka Hittarh was mutated in favour of the two daughters, Mst. Suban and Mst. Sardaran (“Second Mutation”). Through Tamleek Nama (Gift Deed), Mst. Ghulam Fatima was alleged to have transferred the said 131 kanals and 1 Marla of land in favour of Allah Ditta who was her son from her earlier husband (not form Gharu). Gharu also had a brother, Inayat.

The heirs of Inayat, along with the two daughters of Gharu filed a suit in 1984 questioning the First Mutation on the ground that they were entitled to their respective shares in the said piece of land, being the brother and daughter of Gharu. This suit was dismissed by the Civil Judge on the ground that a family settlement had been reached between the widow and daughters of Gharu, i.e. each got their respective lands through mutations.

Mst. Suban filed an appeal and the judgement and decree of the Civil Judge were set aside on the ground that both Mst. Suban and Mst. Sardaran were minors at the time of death of their father and thus could not legally enter into any settlement. The Appellate Judge also found the First Mutation as collusive, fraudulent and unjust as it had never mentioned that the land was being mutated in favour of Mst. Ghulam Fatima to the exclusion of other heirs, and that the mutation was attested by concealing the existence of the said two daughters as it had been mentioned therein that Gharu had died issueless. It was also found that plaintiffs being co-inheritors of the land would be deemed to have been in possession of the same and that in such circumstances the limitation would not run against them from the date of mutation but from the time of denial of their rights. The Respondents filed revision before the Lahore High Court which set aside the appellate judgment and restored the judgment and decree of the trial Court. Mst. Suban thereafter filed appeal before Supreme Court.

Issue: Whether the First Mutation was correctly entered in view of the alleged Family Settlement?

Held: The First Mutation was incorrectly entered as the daughters were minors and it (First Mutation) was made on dishonest/incorrect premises, i.e. Gharu died without any heirs. Consequently it is declared that: (A) all heirs of Gharu were entitled to their respective Sharai shares; (B) the estate would devolve upon all heirs in accordance with such shares; (C) the District Officer (Revenue) shall identify/cause to be identified all heirs of Gharu and then ensure entering and attestation of mutations of inheritance in the name of said heirs.

Reasoning:

·??????As soon as someone who owns property dies, the succession to his property opens and the property gets automatically vested in the heirs, which is not dependent on any act on the part of the revenue authorities or state agencies. Upon death of an owner, all the co-inheritors immediately become co-sharers in the property.

·??????The limitation against them would start running not from the time of the death of their predecessor-in-interest nor even from date of mutation, if any, but from the date when the right of any such co-inheritors/owners is denied by someone. The Appellate Judge was therefore right in holding that heirs of Gharu could not be non-suited on account of limitation.

·??????The onus lay on Mst. Ghulam Fatima to establish relinquishment by the other heirs of their rights in the property in question which she had not been able to prove. This is because (i) the daughters were minor at the time of the allege family settlement; and (ii) the First Mutation was based on dishonest/incorrect premises, i.e. Gharu without any heirs.

·??????Mutation does not confer on anyone any right in any property as the Revenue Record is only maintained for realization of land revenue and did not by itself confer any title.

·??????Whilst the findings of the Appellate Judge were not open to exception, ordinarily this would have led to setting aside the impugned judgment of the High Court but the question remains whether this should be done? Gharu left behind a total of 690 Kanals of land (131 Kanals and 1 Marla in village Ottarah and 558 Kanals and 19 Marlas in village Hittarh. We also know that Gharu had no male heir, and that he was of Sunni faith. In these circumstances, the entire estate of Gharu was to devolve upon his widow and two daughters and upon his residuaries, in accordance with Shariee shares. In the present circumstances, however, the residuaries got nothing. Decreing the suit would, therefore, mean that the two daughters would retian 558 Kanals and 19 Marlas and get a further share from 131 Kanals and 1 Marla in question. The residuary (brother of Gharu) was entitled to a share not only in the 141 Kanals and 1 Marla land but in the total 690 Kanals of land.

·??????It is a principle of justice that after a Court had determined all legal and factual issues and then reached final issue of grant of relief then the Court has to keep in mind dictates of morality, ethics, justice and equity.

·??????Consequently, in view of the provisions of rule 4 of Order XLI of the Code of Civil Procedure, which envisages grant of relief even to non-appealing parties, and in discharge of obligations cast on this Court to do justice, we declare and direct that: (A) all heirs of Gharu were entitled to their respective Sharai shares; (B) the estate would devolve upon all heirs in accordance with such shares; (C) the District Officer (Revenue) shall identify/cause to be identified all heirs of Gharu and then ensure entering and attestation of mutations of inheritance in the name of said heirs.

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