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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

C.R No: 90-A of 2014

JUDGMENT

Date of hearing……………22.07.2014…..…………………..

Appellant(s)/Petitioner (s)……Aqsa Sabir etc………….

Respondent (s)…Dr. Sajid Hussain ….…………………..

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MRS IRSHAD QAISER,J:- Mst. Aqsa

Sabir and her sister Mst Ayesha Sabir

daughter s of Sabir Hussain filed the present

revision petition against the judgment and

order dated 13.02.2013 passed by learned

Additional District Judge-IV, Mansehra

whereby the appeal filed by respondent Dr.

Sajjad Hussain against the judgment and

order dated 20.04.2013 passed by learned

trial Court/Civil Judge-V, Mansehra was

accepted, the judgment of trial Court was

set aside and the case was remanded to the

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trial Court with the direction to decide the

case per law.

2. The brief facts of the case are that

respondent Sajjad Hussain filed a suit for

declaration to the effect that Mutation

No.2658 attested on 28.11.2007 and

Mutation No.81352 attested on 18.10.2012

are wrong, illegal and against the law which

are liable to be corrected. That defendants

NO.3 to 5 are bound to make the correction

while defendants NO.1 and 2 (Petitioners)

are not entitled to the share in excess of

their legal one. He has challenged the above

mutations on the ground that these

mutations have wrongly been attested in

complete disregard of inheritance law. He

has also sought for perpetual injunction

against the defendants (petitioner). In the

body of the plaint it is stated that Maroof-

un-Nisa widow of Fazal Dad was the mother

of plaintiff/respondent and Sabir Hussain

who died prior to the death of his mother.

Upon the death of his mother Maroof-un-

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Nisa, her inheritance devolved upon the

plaintiff (respondent) and defendants No.1

and 2 (petitioners) who are daughters of

Sabir Hussain. It is contended that in the

impugned mutations the plantiff was wrongly

entered as entitled to half share while the

other half share was illegally assigned to Mst

Aqsa Sabir and Mst Ayesha Sabir in equal

share. This entry and distribution of share in

mutations are against the law and sharia

because the share of the daughters of

predeceased son (Sabir) comes out to be

2/3 rd. That from the inheritance of his

mother plaintiff is entitled for 6 out of 12

share (1/2 share) and the rest of 6 share

(1/2) are required to be divided in the ratio

of 4 and 2 because the share of the

daughters of predeceased son (Sabir) come

out to be 2/3 and the rest 2 shares are

required to be given to plaintiff/respondent

being brother of deceased Sabir. Thus in

total plantiff is entitled for 8 share while

defendants NO.1 and 2 (petitioners) are

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entitled to 4 share out of 12 share. That for

correction of Mutations an application was

submitted to revenue officer which was

returned with the direction that correction be

made through Civil Court. Hence, he filed

the suit.

3. Along with the suit he filed an

application for grant of temporary injunction

against the defendants from changing the

nature of suit property and from alienating it

till the disposal of suit.

4. Defendants were summoned.

Defendants/petitioners on appearance

through counsel contested the suit and

applicator by submitting their written

statement and replication. The learned trial

Court after hearing the arguments on the

application rejected the suit of the plaintiff

under Order-VII Rule 11 CPC on the ground

that plaintiff has neither got any prima facie

case nor his plaint discloses any cause of

action and is also barred by law vide

judgment and decree dated 20.04.2013.

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While rejecting the suit it is hold by trial

Court that;

“in terms of Section IV of

the Muslim Family Laws
Ordinance 1961, the
children of the said
predeceased son were
entitled to receive share
of their father in the
estate of Mst Maroof-un-
Nisa per strips, hence ½
share of Mohammad Sabir
deceased in the legacy of
Mst Mahroof-un-Nisa shall
devolve upon his
daughters/defendants
NO.1 and 2. The
contention of plaint is held
to be without any
substance.”

5. Feeling aggrieved respondent/plaintiff

filed appeal which vide impugned judgment

and decree dated 13.02.2014 accepted the

appeal and set aside the order of the trial

court and remanded the case back to the

trial Court by holding that;

“According to Muslim Law

of inheritance applying of
Section 4 of Muslim Family
Laws Ordinance 1961, in
the legacy of propositus
(Sabir Hussain supposed
as alive) the entitlement
of two daughters and a
brother comes out to be
each entitle to 1/3 rd
share. So the total shares
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of two daughters comes

out to be 2/3 rd and 1/3
rd of the share of Sabir
Hussain reverts to his
brother Sajjad Hussain.”

Hence, the present revision

petition.

6. I have heard learned counsels for

the parties and perused the available record

with their assistance.

7. Now the question for

determination is that whether under Section

4 of the Muslim Family Laws Ordinance,

1961, petitioners are entitled to inherit the

same share which their father Sabir Hussain

was entitled in the inheritance of his mother

Mahroof-un-Nisa or they being grand

daughters are not entitled to more share

than what could be inherited from parents

according to Islamic law.

8. In the present case

plaintiff/respondent has challenged the

inheritance mutation with the contention

that property has not been distributed in

accordance with law. To properly

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understand the matter the pedigree table is

given below.

Mahroof-un-Nisa

Sabir Hussain Sajjad Hussain

Ayesha Sabir Aqsa Sabir

9. According to this pedigree table

Mahroof-un-Nisa had two sons Sabir

Hussain and Sajjad Hussain. Sabir Hussain

died during her life time leaving behind two

daughters Ayesha and Aqsa. These facts

have not been denied by the parties.

10. Learned counsel for the petitioner

contended that language of Section 4 of

Muslims Family Laws Ordinance, 1961 is

quite clear. The petitioners at the time of

opening of succession were entitled to

receive a share equivalent to the share of

their father, predeceased son of Mahroof-

un-Nisa, who would have received from

their father. That the interpretation made

by appellate Court is incorrect. That

whatever the property was to be inherited

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by their father on the death of their

grandmother, will be inherited in toto by the

petitioner. In support of his arguments he

relied on cases Mst. Aarina Jan Vs. Mst.

Akbar Jan (PLD 1975 Peshawar 252), Ata

Ullah Khan and others Vs. Mst. Surraya

Parveen (2006 SCMR 1637), Mst. Saabran

Bibi and 9 others Vs. Muhammad Ibrahim

and 12 others (2005 CLC 1160), Qutab-ud-

Din Vs. Mst. Zubaida Khatoon and others

(2009 CLC 1273), Saifur Rehman and

another Vs. Sher Muhammad through L.Rs.

(2007 SCMR 387), Haji Muhammad Hanif

Vs. Muhammad Ibrahim and others (2005

MLD 1), Jamroz Khan Vs. Aamir Khan and

others (2013 CLC 542 Peshawar), Rehman

Ghani and others Vs. Shahzad Khan and

others (2010 CLC 610 Peshawar) and

Hoshang and others Vs. Dr. Eddie P.

Bharucha and others (PLD 1973 S.C

206).These arguments were rebutted by

learned counsel for the respondents and

supported the judgment of appellate

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Court. He contended that the grand children

are not entitled to more share than what

could be inherited from the parents

according to the principles of Islamic law of

inheritance. That Section 4 of Muslim Family

Laws Ordinance, 1961 could not be

construed against the interest of the other

heirs of the deceased who are entitled to

share the inheritance in accordance with the

principle of Muslim Family Law. In support

of his arguments he relied on Kamal Khan

alias Kamla Vs. Mst.Zainab (PLD 1983

Lahore 546), Mst. Zainab Vs. Kamal Khan

alias Kamala (PLJ 1990 SC 445),

Muhammad Yousaf and others Vs. Mst.

Bilqees Begum and others (2006 YLR 889),

Mst. Fatima Begum and another Vs. Khush

Naseeb Khan and others (PLD 2005 Lahore

641), Mst. Rashida Begum and 5 others Vs.

Mst. Rehana Nasreen and 4 others (2004

MLD 1304 Lahore), Mst. Qabal Jan Vs. Mst.

Habab Jan and 9 others (1992 SCMR 935),

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Mst. Saira Yousaf and another Vs. Sher

Muhammad (2012 CLC 1593).

11. Before discussing the case it would

be proper to reproduce Section 4 of the

Muslim Family Laws Ordinance, 1961, which

reads as follows;

“In the event of the death

of any son or daughter of
the propositus before the
opening of succession, the
children of such son or
daughter, if any, living at
the time the succession
opens, shall per stripes
receive a share equivalent
to the share which such
son or daughter, as the
case may be, would have
received if alive.”

12. The succession provided for in

Section 4 of the ordinance is for the

benefit of the orphaned sons and

daughters of predeceased parent under

Muslim Family Laws Ordinance, 1961. It

was meant to remedy the

discrimination which was believed to

exist against grand children whose

parent had died before the succession

opened. The law provides that the

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parents of such a grand children will be

deemed to be alive for the purpose of

succession. It cannot be assumed that

the law ever intended to give a share to

the grandchild more than what would

have been his/her due if the parents

were actually alive when the succession

opens. In this respect guidance is

sought from the judgments of Superior

Courts. Reference is given to a case

Kamal Khan alias Kamla Vs. Mst

Zainab (PLD 1983 Lahore 546),

wherein it is held; “Per stripes

referred to in section 4 is the

antithesis of per capita. This means

a share according to the stock or

the root or the family as against

per capita which means share per

head. This assumes greater

importance only where the

propositus leaves behind a number

of grand children whose parents

died during the life time of the

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propositus. The principle of

succession in such case will not be

inheritance per capita but per

stripes in accordance with the root

or stock to which the grandchild

belongs, and will only get the share

to which grandchild is entitled

through his parents. In the event

of there being a single surviving

grandchild the principle per stripes

is pushed to the background but

cannot be employed to support

principle which militates against

the Islamic Law of Inheritance.”

This view has been upheld by the apex

Court in case Mst. Zainab Vs. Kamal

Khan (PLD 1990 SC 1051), wherein it

is held; “According to Section 4,

share from the deceased

grandfather’s property has been

bestowed upon the children of his

predeceased son but this does not

mean that the other heirs of the

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deceased would be excluded from

their share of inheritance. Under

Section 2 of the Muslim Personal

Law (Shariat) Application Act,

1962, the rule of decision shall be

the Muslim Personal Law (Shariat)

(in cases where parties, are

Muslim). In spite of the non-

obstante clause section 4 is to be

interpreted in the light of section 2

of the Act 1962. Both thus can

stand together.” It is further held;

“The principle of Muslim Law of

Inheritance was that the near in

degree would exclude the

remotest. Before the introduction

of Section 4, the children of

predeceased son were deprived of

any share. The intention of Section

4 is to safeguard the interest of the

children of predeceased son and

not to deprive the other heirs of the

prepositus of their due. Thus,

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section 4 cannot be interpreted in a

way so as to exclude the other

legal heirs of the deceased Sufaid

Khan. Section 4 could not,

therefore, be construed against the

interest of the other heirs of the

deceased who were entitled to

share the inheritance in accordance

with the principles of Muslim Law

of Inheritance. As such, grand-child

is not entitled to more share than

what could be inherited from the

parents according to Islamic Law.

The estate would be divided in

proportion of the respective shares

of their parents. The heirs claiming

through different line of descent

would get their own shares as per

stripes.” Reference is also made to Mst

Bhaggay Bibi and others Vs. Mst. Razia

Bibi and others (2005 SCMR 1595)

wherein it is held; “Law of Shariah

was not overridden by Section 4 of

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Muslim Family Laws Ordinance

1961 and consequently the parties

would not get more than their

shares in the property in

accordance with law of Shariah---

widows and daughters of

predeceased son would get what

they were entitled on the death of

predeceased son, after opening of

succession of father of the

predeceased son---Purpose of

enacting S.4 in Muslim Family Laws

Ordinance, 1961 was to cater the

need of grandchildren to remove

their sufferings but this provision

could not be interpreted in a

manner affecting the shares of

other descendants in the property

in accordance with law of Shariah--

-Heirs of predeceased children,

according to law of Shariah, would

inherit what their father or mother

would have inherited during their

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life time on the opening of

succession---Supreme Court did not

find any error in the judgment

under review---Petition was

dismissed.” Reference is also made to

Qazi Fazal Ahmed through legal

heirs V. Riaz-ur-Rahim and others

(PLD 2004 SC 77). Wherein it is held;

“According to Muhammadan Law

both the daughters could inherit

2/3 rd share in the land devolved

on them, therefore, the remaining

1/3 rd share would be devolved on

collaterals of Mehr who had

become joint owners along with

two daughters.” Reference is also

made to Mukhtar Ahmed Vs. Mst.

Rasheeda Bibi and another (2003

SCMR 1664), wherein it is held;

“Plaintiff being the only daughter

of the predeceased son would

inherit ½ share from the property

of her father while the remaining

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share of father of plaintiff

(predeceased son) would go to

other collateral---Supreme Court

reduced the share of the plaintiff to

the extent of ½ of the share of the

father of the plaintiff.” Guidance is

also sought from Mst. Tabassam Bibi

Vs. Abdur Rashid Khan and 2 others

(1999 CLC Lahore 1216) wherein it is

held; “Children of predeceased son

or daughter of propositus were

entitled only to their shares, and

the same could not be increased in

any way.”

13. The whole process of

succession depends on the fiction that

Sabir Hussain was alive at the time of

death of Mahroof-un-Nisa. In this event

Mohammad Sabir will naturally inherit

½ share of his mother along with his

brother (respondent) but he can pass

on such of his estate to his daughters

as is permissible under the Islamic Law

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of inheritance. Petitioners being the

surviving children they cannot get more

than 2/3 of the estate of Sabir Hussain

and the remaining 1/3 must revert to

the collateral namely Sajjad Hussain

respondent.

14. Thus while concurring with the

finding of appellate Court I hold that

petitioners can inherit only to the

extent of Islamic share in the estate of

their father Sabir Hussain notionally

assessing that he was alive at the time

of death of his mother the original

propositus and that Sabir Hussain’s

death occurred only subsequent to the

death of his mother. This means that

Muhammad Sabir will inherit ½ share of

his mother and that petitioners will

inherit only 2/3 of the share of

Mohammad Sabir. He had no son but

only daughter. The remaining share will

revert to his collateral/respondent. The

petitioners have failed to prove their

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claim through over whelming and

reliable reason. The authorities

produced by the petitioners are not

applicable to the facts of the case. The

finding of the appellate Court is neither

illegal nor suffer from any irregularity

or jurisdictional defect. The judgment is

in accordance with law and the case

has rightly been remanded to the trial

Court.

15. Accordingly, for the reasons

stated hereinabove, the revision

petition being without any substance is

hereby dismissed with no order as to

cost.

Announced:
22.07.2014
JUDGE