FAIZULLAH KHAN vs GUL DARAZ KHAN Inheritance — 2022 CLC 626 PESHAWAR-HIGH-COURT

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FAIZULLAH KHAN VS GUL DARAZ KHAN Inheritance---Sharer and residuary---Predecessors in interest of parties were four brothers ("A", "B", "C" and "D")---Petitioners were successors of "A-1" and "A-2", who were sons of "A" whereas the respondents were the successors of "B"---Inheritance of "A-3" was devolved upon her mother "A-4", her paternal uncle "B", and her brothers "A-1" and "A-2" through impugned mutation---Petitioners filed suit challenging the said mutation to the extent of "B" on the ground that the legacy of "A-3" could not be devolved upon her paternal uncle "B" in presence of her brothers "A-1" and "A-2"; that alienation of property in favour of "B" was against facts, laws and Sharia and inoperative upon their rights---Trial Court decreed the suit---District Court accepted the appeal of respondents on grounds that petitioners had not been able to prove that "A-1" and "A-2" were brothers of "A-3" and that suit was barred by law---Validity---Name of "A-3" had not specifically been mentioned in pedigree table being daughter of "A", and her mother "A-4" did not figure in inheritance mutation, but it did not mean that "A-3" was not the daughter of "A-4"---Admittedly, controversy was in respect of the inheritance of "A-3", therefore, the arguments of respondents that "A-3" was not daughter of "A-4" from her earlier husband and "A" was not her real father had got no relevance as neither such fact was categorically mentioned in their written statement nor any such evidence was available on record---Factual aspect could not be allowed to be taken/asserted for the first time before High Court---It was undisputed that property of "A-3" was in question and the fact that by whom she inherited the same was irrelevant---Once legal heirs of "B" asserted that "B" was paternal uncle of "A-3" then they were estopped to say that "A" was not real father of "A-3" because "A" and "B" were real brothers and "B" could only be the paternal uncle of "A-3" if she was the daughter of "A"---One could not be allowed to approbate and reprobate as the respondents could not blow hot and cold in the same breath---When "A", "B", "C" and "D" along with "A-1" and "A-2" were named in the inheritance mutation in juxtaposition with the admission of the respondents that "A-4" was the real mother of "A-3" and that "A-4" was wife of "A" and "A-1" and "A-2" were real sons of "A" then they could not deny the fact that "A-3" was the real daughter of "A"---Paternal uncles are not in the table of sharer rather they were in the table of residuary and order of residuary was considered on the principle that nearer in relation had to exclude more remote---Inheritance would be distributed amongst the legal heirs such a way that each of the "A-4" "A-1" and "A-2" would get 2/6---Inheritance mutation was attested in year 1939 and the same was a public document---Mere 30 years old document would not be considered as gospel truth and when a document was challenged, the beneficiary was required to prove the same---Estoppel was a doctrine of law which precludes a person from denying the truth of statement formally made by him, thus, respondents were estopped by their conduct by alleging them to be the legal heirs of paternal uncle of "A-3" and asserting that "A-3" was not the daughter of "A"---Distribution of property was against law of Sharia on two-fold grounds: Firstly, that Sharia did not entitle a paternal uncle of the deceased to get the inheritance in presence of other legal heirs; and Secondly, that the perplexed version of respondents would create a hurdle/bar in between their claim in the capacity of paternal uncle and at the same time disputing the parentage of "A-3" to be the daughter of "A"---Inheritance would be devolved in consonance with Sharia and would not be hit by limitation in any manner whatsoever---Revision petition was allowed accordingly. Head Notes

FAIZULLAH KHAN vs GUL DARAZ KHAN Inheritance — 2022 CLC 626 PESHAWAR-HIGH-COURT

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