1999 PLP 703 (MLD)

| | Hina Yahya Saba Yahya

5. From the plain reading of section 370 of the Succession Act, it maybe determined at the very outset, that the Bank lockers are not included within the meanings of the word "securities" and hence, are not heritable like Benevolent Fund, Group Insurance and Pension. The last three were determined not to be securities by the Lahore High Court in Hafiz Abdul Majeed Shakir v. Mst. Batool Begum (1993 MLD 2171). The safe deposit lockers of a Bank were similarly held not to be a security with reference to section 370 of the Succession Act by Calcutta High Court in State Bank of India v. Netai Ch. Porel reported as (KLR 1984 Civil Cases 76).

6. Keeping the pedigree-table in view the mother, the two wives and the two daughters would inherit as a sharers each wife receiving 1/16th, mother receiving 1/6th and the two daughters receiving 2/3rd in equal shares. The residue would be received by one brother and one sister, brother getting double the share inherited by the sister. Specific distribution would be mentioned later on after setting the share of Mst. Roshan Jan, the mother.

7. The mother's 1/6th share comes to Rs.7,64,781 which requires to be further divided. Keeping the same pedigree table in view the aforesaid share of Mst. Roshan Jan shall be divided among her son Umar Farooq, her daughter Mst. Tayyab-un-Nisa and her two grand-daughters Saba Yahya and Hina Yahya, the daughters of predeceased son Mian Ali Yahya; the grand-daughters inheriting under the provisions of section 4 of the Muslim Family Laws Ordinance. On the occasion of the distribution of two inheritances the shares would be distributed in a manner that there being no son of Mian Ali Yahya, his brother and his sister will also inherit him alongwith his widows and the daughters. Umar Farooq Shah, Mst. Tayyab-un-Nisa and the two daughters of Mian Ali Yahya will once again distribute among themselves the share left by Mst Roshan Jan who died subsequent to Mian Ali Yahya after having had received the share of her inheritance from the son. The specific share received by each on the aforesaid principles would be given at the end.

8. Learned counsel for the petitioners raised an objection to the effect that the share of Mst. Roshan Jan, the mother could not be distributed in proceedings in hand because these related to the succession of Mian Ali,Yahya and that her legal heirs ought to have brought a separate petition. This contention was rightly repelled by the learned District Judge with reference to (PLD 1993 Karachi 619), for, the distribution of both the successions togather though not a kin to the letter but was in complete harmony with the spirit of law of succession. In this case, it was all the more necessary as well as convenient because the same property which was inherited by the mother from her predeceased son had become the subject-matter of succession as well as distribution.

9. The next argument of the learned counsel for the petitioners was that Saba Yahya and Hina Yahya the grand-daughters of Mst. Roshan Jan could not inherit from the grand-mother because they have already received their shares in the property of Mian Ali Yahya which was initially and essentially in dispute. This is fairly interesting because the learned counsel seems to have got confused by the incidence of two devolutions. When the learned counsel says that Saba Yahya and Hina Yahya had already received inheritances, he certainly should mean that they have inherited from Mian Ali Yahya which devolution had occurred in their own independent right of inheritances. After the death of Mst. Roshan Jan, which is an independent occurrence, they become entitled to inherit most certainly under section 4 of the Muslim Family Laws Ordinance because the situation in hand is completely covered by the said section. It is not the occasion of inheriting the same property twice but it is an occasion of a devolution of two independent inheritances which have caused confusion for the learned counsel only because deaths had occurred with short intervals and co-incidently during the pendency of petition in hand.

10. The argument can be refuted on the principle that had Mst. Roshan Jan owned any property other than the amount received from her son, would it not have been inherited by the grand-daughters? Most certainly, it would have been inherited by the grand-daughters, being the children of predeceased son.

11. It is simply due to the pendency of first dispute over the devolution of inheritance among the same family that we feel that the devolution of second inheritance is a part of the same process; whereas, the fact is that the factum of inheritance and the devolution thereof is always automatic and instantaneous. The one takes effect instantly regardless of what is about to follow and who is to expire next.

12. Learned counsel for the petitioners placed reliance on Mst. Zainab v. Kamal Khan (PLD 1990 SC 1051) but the circumstances of that case are altogether different and Mst. Zainab, the daughter of Rajoo, the predeceased son of Sufaid Khan was even otherwise entitled to normal inheritance as a son's daughter (as sharer) together with Kamal Khan the full brother's son who was to inherit as a residuary. It was held that when Mst. Zainab could inherit her normal "shari" share, the principle of succession under section 4 of the Muslim Family Laws Ordinance could not be attracted. The facts are quite distinguishable because in the instant case the grand-daughters could not inherit their normal shares as sharers because a son and a daughter of Mst. Roshan Jan were in existence. Obviously, the daughters could not be deprived in toto, because of being the daughters of pre-deceased's son. They shall, therefore, inherit by all means from their grand-mother Mst. Roshan Jan, quite comfortably attracting the provisions of section 4 of the Muslim Family Laws Ordinance.

13. Consequently, the revision. petition is partially accepted, the amount to be received by the parties is modified and the total amount of Rs.45,88,686 is distributed among the legal heirs of Mian Ali Yahya and thereafter of Mst. Roshan Jan, as follows:- 1 Mst. Hikmatun Nisa (widow) Rs.2,86,793 2 Mst.Shagufta Nasreen (widow) Rs.2,86,793 3 Mst. Saba Yahya (daughter) Rs.16,82,518 4 Mst. Hena Yahya (daughter) Rs.16,82,518 5 Mst. Umar Farooq (brother) Rs.4,33,376 6 MR. Tayyabun Naisa (sister) Rs.2,16,688 Total Rs.45.88,686

14. So far as the lockers are concerned, the very title of the contents thereof is a question of fact and hence the civil Court may be resorted to. Parties to bear their own costs. C.M.A./143/P Revision partly accepted