ISLAMABAD: In a judgement pertaining to property rights, the Supreme Court has held that the six-year time limit for instituting a suit for declaration could not be waived if the declaration was “an open act”.

According to a judgement written by Justice Syed Mansoor Ali Shah, deliberate concealment of facts intended to prevent discovery of the right to sue is a “fraud” under the Limitation Act 1908, but an open act of a party cannot be said to be a fraudulent act of concealment.

The court held that in case of concealment, under Article 120 of Schedule I to the Limitation Act 1908, the six-year period should be computed from the time when the fraud of the brothers first became known to the sisters, whose heirs filed the petition.

The dispute arose after the death of Isa Khan, the owner of agricultural land measuring a little more 19-kanal. He died and his inheritance mutation (‘inteqal’) No. 327 was sanctioned on March 23, 1935, in favour of his son Abdur Rehman, who later received compensation in 1960-61 when some portion of the property was acquired by the Small Industries Corporation of West Pakistan.

When Abdur Rehman died, his sons, daughters and his widow inherited the remaining property and sold out almost all of it. In 2004, petitioner Saqadat Khan instituted a suit on Nov 19, praying for a declaration that inheritance mutation No. 327 sanctioned on March 23, 1935, in favour of Abdur Rehman and the subsequent inheritance mutation in favour of respondents No. 1 to 6 were void and ineffective against their rights.

They asserted that Isa Khan had left one son, Abdur Rehman, and two daughters, Ms Mehro and Ms Afsro, as his legal heirs but Abdur Rehman fraudulently got sanctioned inheritance mutation in his favour, excluding his sisters from the inheritance of their father. The sisters also died but being legal heirs of Ms Mehro and Ms Afsro, they also have the right to the property.

The Supreme Court said the benefit of Section 18 of the Limitation Act was not available against any person who was a transferee in good faith and for a valuable consideration. That is why the Sup­r­e­­me 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.

The judgedment said the acts of acquisition of a part of the suit property by the Small Industries Estate and receiving of the compensation 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 Ms Mehro and Ms Afsro.

This fact has been admitted by Saadat Khan when he appeared in the witness box, the judgement said, adding 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.

It was his express overt act whereby he repudiated the rights of his sisters, Ms Mehro and Ms Afsro, in the suit property and ousted them from the ownership. 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 Ms Mehro and Ms Afsro, of that act of Abdur Rehman expired in the year 1967-68.

Once the limitation time started, 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 Ms Mehro and Ms 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.­

Published in Dawn, March 23rd, 2023