2015 PLP 162 (CLC)

WAQAR AHMAD SETH, J.

This revision petition under section 115, C.P.C. is directed against the judgment and decree dated 12-7-2005, whereby Additional District Judge-III, Abbottabad dismissed the appeal of petitioner and maintained judgment and decree passed by Civil Judge-VII, Abbottabad dated 28-5-2004.

2. Petitioner filed a suit for declaration cum perpetual injunction regarding property fully described in the heading of the plaint against the respondents. The respondents appeared and contested the suit by filing written statement and learned Civil Judge after recording pro and contra evidence and hearing the parties dismissed the suit on 28-5-2004. Feeling aggrieved, petitioner preferred appeal and learned appellate Court after hearing the parties dismissed the same vide judgment and decree dated 12-7-2005. The petitioner still feeling aggrieved filed this revision petition, which after contest was dismissed by this Court on 6-4-2009. The petitioner filed Civil Appeals Nos.364 and 365 of 2010 wherein leave to appeal was granted on 12-5-2010. The apex Court after hearing the learned counsel for the parties vide judgment dated 7-1-2011 held as under and remanded the case for decision afresh:

"The point which needs determination to set the controversy at naught would be whether in terms of Islamic law of inheritance/ succession a consanguine brother of a deceased being a preferential heir as a nearer residuary to succeed in presence of full brother's sons (nephew) as transpired in the 'Table of Residuaries in Order of Succession' under Sunni Law. The Court of appeal has also ignored the said aspect of the controversy having substantial bearing on merits of the case. Besides that the learned single Judge in chambers has not been given any reasoning on the basis whereof appellant could have been deprived from the legacy of Muhammad Yousaf (deceased). The Islamic Law of Succession/Inheritance not at all has been discussed qua the right of consanguine brother. Besides that nothing has been said about the doctrine of exclusion if applicable or otherwise." It was further held in para-7:

"In the same wake of events, it has been observed that appellant has failed to substantiate his claim on the basis of agreement to sell dated 21-3-1993 by adducing cogent and forthright evidence. Even it could not be proved that sale consideration was paid to Muhammad Yousaf (deceased) "

3. Arguments heard and record perused.

4. A perusal of record would reveal that suit property originally belonged to one Baffu Khan the predecessor-in-interest of the parties, who had two wives, namely, Mst. Sadia and Mst. Ahmadi. Baffu Khan had two sons from Sadia while one son from Mst. Ahmadi. It appears that petitioner is the son of Baffu Khan from Mst. Ahmadi whereas Sher Ahmed and Muhammad Yousaf were from Mst. Sadia. Sher Ahmed died and is survived by Muhammad Sultan (R-3) and Karam Dad (R-2). Muhammad Yousaf died on 12-6-1993 and a daughter, namely, Nasreen, who has also died and is now survived by Asma. Nasreen pre-deceased her father Muhammad Yousaf. The petitioner is admittedly a sanguine brother of deceased Muhammad Yousaf son of Baffu Khan and according to Islamic Law he could not be deprived of his legal shari share. The pedigreetable of parties is reproduced as under:

5. For sake of convenience relevant Table of Residuaries in order of succession are reproduced herein below:

"7. consanguine brothers. Consanguine sister

takes as a residuary with consanguine brother, the brother taking a double portion,

9. Full brother's son.

6. Sher Ahmed had two sons while Mst. Nasreen, who pre-deceased her father Muhammad Yousaf, had one daughter. Muhammad Yousaf died on 12-6-1993 and his inheritance Mutation No.21940 was attested on 16-7-1995. Abdul Qayyum being aggrieved of the said mutation filed an appeal and ultimately Board of Revenue remanded the same for decision according to law. It was again attested in the name of Asma respondent No.1 and two sons of Sher Ahmed i.e. R/2 and R/3 on 27-3-2000 and petitioner instituted the suit. According to table of residuaries annexed with Muhammadan Law, consanguine brother is at serial No.(7) while full brother's son at serial No.(9), thus as per law nearer will exclude the remote. So far as Asma's/respondent No.1 share is concerned, she would stand for her mother Mst. Nasreen, the daughter of Muhammad Yousaf. Admittedly, Muhammad Yousaf did not have any son, therefore, Mst. Nasreen being predeceased would get 1/2 share from her father under Section 4 of Muslim Family Laws Ordinance, 1961, however, her daughter Mst. Asma respondent No.1 would get 1/2 share from the inheritance of her mother and not the whole, inherited by her mother Mst. Nasreen. Section 4 would not defeat the Islamic Law and would not increase her share and her entitlement which would come down to 1/4 in the total legacy of Muhammad Yousaf and 3/4 shall go to Abdul Qayyum, as there is no denial of the fact that petitioner is a consanguine brother of deceased Muhammad Yousaf, who died on 12-6-1993 leaving behind no male issue at the time of his death. Respondent No.1 is the real grand-child of deceased whereas respondents Nos.2 and 3 are his real nephews and, as such, inheritance Mutation No.21949 dated 27-3-2000 is cancelled and so is the result of all subsequent mutations attested on the basis of said inheritance mutation under the law of lis pendens, and section 52 of Transfer of Property Act, 1882.

7. The apex Court in the case of Mst. Zainab v. Kamal Khan alias Kamala reported as PLD 1990 SC 1051, in similarly raised question, held as under:

"S.4

Daughter of a predeceased son of propositus

Share of inheritance of

Whether she is entitled to inherit full property of her grandfather

Question of

Law presupposes that legislature presumes that enactment will operate fairly, justly and equitably and not unreasonably

Construction has to be mad which would be beneficial to widest maximum extent

On opening of inheritance, each group of children of deceased sons/daughters would inherit share of their father/mother

Under Section 4, share from deceased grandfather's property has been bestowed upon children of his predeceased son/daughter but this does not exclude share of other heirs

In this case, if father of appellant were live in 1973 on opening of succession, he would have inherited entire property, but after his death, appellant could only inherit half of property

Held: Grand-child is not entitled to more share than what could be inherited from parents according to Islamic Law-Appeal dismissed."

8. In the case of Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others reported as 2012 SCMR 983, it was held as under:

"S. 52

Lis pendense, principle of

Rights of parties

Scope

Principle of lis pendens unambiguously prescribes that the rights of the party to the suit, who ultimately succeeds in the matter are not affected in any manner whatsoever on account of alienation, and the transferee of the property shall acquire the title to the property subject to the final outcome of the lis

In view of the rule/doctrine of lis pendens, a transferee of the suit property, even if a bona fide purchaser, without notice of the pendency of suit, shall be bound by the result of the suit stricto sensu in all respects, as his transfer would be the clog of his unsuccessful transferor, in whose shoes he steps in for all intents and purposes and has to swim and sink with his predecessor in interest."

9. It was further held in the case of Khawaja Ziaul Islam v. Alauddin Malik and another reported as 2010 CLC 273, which is reproduced as under:

"

O.I, R. 10

Subsequent purchaser

Whether necessary or proper party

Scope

Subsequent purchaser who purchased the property during pendency of dispute between seller and buyer of the same property was neither necessary nor proper party."

10. Consequently, this revision petition is allowed, impugned judgments and decrees of the Courts below are set-aside and suit of plaintiff/petitioner is decreed. No order as to costs. HBT/507/P Petition allowed.