Syed KAUSAR ALI SHAH vs Syed FARHAT HUSSAIN SHAH Ss — 2022 SCMR 1558 SUPREME-COURT

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Syed KAUSAR ALI SHAH VS Syed FARHAT HUSSAIN SHAH Ss. 39 & 42---Suit for declaration and cancellation of inheritance mutation---Acquiescence, principle of---Legal heir allowing third party interest to be created in the property and only challenging the same belatedly---In the present case, courts below did not pay heed to the interest in the subject land created in a third party, that is, a property developer; and, also disregarded the fact that third party interest was created before the legal heir objected to the inheritance mutation---Significance of the fact that the property developer had created further interest in the subject land by earmarking plots in a Housing Scheme and allotting as many as 444 plots was also not considered---Despite the fact that it would be the allottees of these 444 plots who would suffer the consequences, and do so for something for which they were not responsible---Once the interest of the said 444 came to light they should have been arrayed as defendants in the suit by the plaintiffs, and if the plaintiffs failed to amend the plaint it was incumbent upon the Judge of the Trial Court to do so---Depriving 444 allottees to be of their valuable property rights without them being heard by the Trial and/or Appellate Courts, by the High Court and then by the Supreme Court would be legally indefensible---Courts below disregarded the principle of acquiescence; and the fact of third party interest having been created in the subject land; and that further third parties had acquired proprietary rights in the said land; and, that such interest was acquired in land which was shown in the record of rights of long standing, which remained unchallenged---Courts below also ignored the fact that the legal heir took no action for forty-five years, and that she submitted her application to the revenue authorities only after the creation of the third party interest in the subject land---Plaintiffs, having stood by idly allowed third party interest to be created in the subject land, and could then not complain and claim the said land---Petitions for leave to appeal were converted into appeals and allowed, and consequently, the suit filed by the legal heir was dismissed. Head NotesCase Description Citation Name: 2022 SCMR 1558 SUPREME-COURTBookmark this Case Syed KAUSAR ALI SHAH VS Syed FARHAT HUSSAIN SHAH Inheritance---Limitation for challenging an inheritance mutation---Acquiescence by heir---Clear distinction was to be drawn between two sets of cases; first, cases in which an heir alleges that his/her rights to inheritance have been disregarded and his/her share not mentioned in the inheritance mutation, and second those cases in which such an heir sits idly by, does not challenge mutation entries of long standing, or acquiesces, and only comes forward when third party rights in the subject land have been created---To succeed in respect of the second category cases an heir must demonstrate that he/she was not aware of having been deprived, give cogent reasons for not challenging the property record of long standing, and show complicity between the buyer and the seller (the ostensible owner) or that the buyer knew of such heir's interest yet proceeded to acquire the land. Head NotesCase Description

Syed KAUSAR ALI SHAH vs Syed FARHAT HUSSAIN SHAH Ss — 2022 SCMR 1558 SUPREME-COURT

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