2018 PLP 2685 (YLR)
N/A
| Citation | 2018 PLP 2685 (YLR) |
| Forum / Court | Sindh |
| Bench Members | Salahuddin Panhwar, J |
| Parties | N/A |
| Primary Law | Muslim Family Laws Ordinance (VIII of 1961) |
Q1: What are the key laws and sections cited in 2018 PLP 2685 (YLR)?
This judgment primarily cites: Muslim Family Laws Ordinance (VIII of 1961) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2018 PLP 2685 (YLR)?
The case was heard and decided by the Sindh bench comprising: Salahuddin Panhwar, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2018 PLP 2685 (YLR) (N/A). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Ms. Naseema Mangrio for Petitioner.
- Gazain Zafar for Respondent.
Headnotes / Summary
S. 4
Constitution of Pakistan, Art. 203D
Grandchild to be entitled to inheritance if mother / father of such grandchild had predeceased such grandchild's grandfather/grandmother
Benefit of S.4 of the Muslim Family Laws Ordinance, 1961
Scope
Declaration that S.4 of the Muslim Family Laws Ordinance, 1961 was repugnant to the Injunctions of Islam by Federal Shariat Court
Application of S. 203D of the Constitution
Scope
Question before the High Court was whether children of the predeceased daughter/son of a person were entitled to inheritance/succession after death of such person in line with S.4 of the Muslim Family Laws Ordinance, 1961; which section had been declared repugnant to the Injunctions of Islam by the Federal Shariat Court
Held, that whilst it was a fact that S.4 of the Muslim Family Laws Ordinance, 1961 had been declared repugnant to Injunctions of Islam by the Federal Shariat Court, however, Art. 203D of the Constitution would apply to such decision for said order of Federal Shariat Court had been challenged before the Shariat Appellate Bench of the Supreme Court, and thus said judgment would become operative only after disposal of said appeal by the Shariat Appellate Bench of the Supreme Court and therefore, till such time, those entitled for benefit of S. 4 of the Muslim Family Laws Ordinance, 1961 shall continue enjoying fruit thereof, which entitled grandchild for receiving share which their mother/father would have inherited, had she/he been alive. Ghulam Asghar v. State PLD 2000 FSC 1; Fazeelat Jan v. Sikandar PLD 2003 SC 475 and Jamroz Khan v. Aamir Khan and others 2013 CLC 542 rel.
Judgment & Decree
SALAHUDDIN PANHWAR, J.
Through instant petition, petitioner seeks letter of administration under section 278 of Succession Act, 1925 regarding assets left by deceased Shaikh Abdul Ghaffar.
2. As per paragraph-7 of the main petition, legal heirs are as under:a S. No. Name of Legal Heirs Age Relationship
1. Mst. Sultana Begum 64 years Petitioner (widow of deceased)
2. Saad Saeed (sic) years Son of predeceased daughter
3. Fahad Saeed years Son of predeceased daughter
4. Mst. Aisha Zafar 37 years Widow of son
5. Faraha Zafar 19 years Daughter of son
6. Maheen Zafar 17 years Daughter of son
7. Aleena Zafar 13 years Daughter of son 4 to 7 resident of House No.323-325-C, Allama Iqbal Road, Block 2, PECH Society, Karachi
3. It is contended that daughter of deceased, namely, Tasneem Masood passed away during life time of the deceased Shaikh Abdul Ghaffar, therefore, her (predeceased) sons namely Saad Saeed and Fahad Saeed are not legally entitled to receive the shares in the properties in view of judgment of Federal Shariat Court reported as Ghulam Asghar v. State (PLD 2000 FSC 1) whereby section of Muslim Family Laws Ordinance, 1961 was declared against the injunction of Islam. Whereas learned counsel for the petitioner contends that such order passed by Federal Shariat Court has been assailed in apex Court, therefore, in view of Fazeelat Jan v. Sikandar (PLD 2003 SC 475) and Jamroz Khan v. Aamir Khan and others (2013 CLC 542) predeceased sons are also entitled to their share.
4. Heard the respective sides and have gone through record.
5. No doubt, it is matter of record that Mst. Tasneem expired in 1992 whereas deceased Abdul Ghaffar expired on 12.09.2015 hence status of Mst. Tasneem (one of daughters of Abdul Ghaffar) is 'predeceased'. Equally, the declaration of section 4 of Muslim Family Laws Ordinance, 1961 as repugnant to injunction of Islam by Federal Shariat Court is also a matter of fact. Section 4 of Muslim Family Laws Ordinance, 1961 was declared against the injunction of Islam. At this point, it is material to add here that application of such decision of Federal Shariat Court is subject to Article 203-D of Constitution which reads:-- "Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal." Since, the judgment of the Federal Shariat Court, referred by the counsel for the respondents, has been challenged before Apex Court therefore, in view of Article 203-D of the Constitution, the said judgment shall become operative after disposal of the said appeal hence till such time those, entitled for benefit of section 4 of the Muslim Family Laws Ordinance, shall continue enjoying fruit thereof which clearly entitles the grand children for receiving the share which their mother would have inherited, had she been alive, so has been held by august Supreme Court of Pakistan in many cases.
6. In view of the facts and circumstances of the case narrated above, instant SMA is allowed. Nazir shall ensure that all legal heirs as stated above have received their share. KMZ/S-77/Sindh Order accordingly.