2013 PLP 395 (CLC)

AMIN-UD-DIN KHAN, J.

Through this civil revision the petitioners have impugned the judgment dated 13-10-2008 passed by the Additional District Judge, Bahawal Nagar, whereby the appeal filed by the petitioners was dismissed, and the order dated 26-5-2008 passed by the Senior Civil Judge, Bahawal Nagar, whereby an application for issuance of succession certificate filed by the petitioners was dismissed.

2. This case was fixed before one of us (Amin-ud-Din Khan, J.) for hearing on 14-12-2011, the same day during the course of arguments of learned counsel for the parties it came to the notice of this Court that decisions of this Court reported in "2005 MLD 280 (Barkat Bibi and others v. Mst. Gaman Bibi and others)" and "2007 MLD 33 (Rasoolan Bibi v. Waris Ali and others)" are incompatible with each other, therefore, this Court referred the matter to the Hon'ble Chief Justice for constitution of Larger Bench and this Bench has been constituted.

3. The facts of case are not in dispute. Mst. Kammu Sain daughter of Jatta died unmarried. At the time of her death she was having an amount of Rs.499000 in the National Bank of Pakistan, Street Branch, Bahawal Nagar. The petitioners filed an application for grant of succession certificate. At the time of death of Mst. Kammu Sain, Mst. Bhirawan alias Akki and Mst. Noor Elahi (respondents Nos.2 and 3) her real sisters were alive and the petitioners and respondents Nos.4 to 31 being paternal uncle's sons' sons, applied for issuance of succession certificate in their favour. The trial Court after receiving replies framed issues and invited the parties to produce their evidence. Both the parties adduced their respective evidence. After the close of trial, the trial Court vide order dated 26-5-2008 dismissed the application for grant of succession certificate to the applicants. An appeal was preferred before the first appellate court, which was also dismissed vide judgment dated 13-10-2008. Hence, this civil revision.

4. Learned counsel for the petitioners states that in accordance with Mohammadan Law by D.F.Mulla which is applicable in Pakistan, the real sisters of deceased will get only 2/3rd share from the inheritance of their deceased sister, whereas 1/3rd will go to the petitioners and respondents Nos.4 to 31 being residuaries, as admittedly they are paternal uncle's sons' sons. Learned counsel for the petitioners has relied upon "2005 MLD 280 (Barkat Bibi and others v. Mst. Gaman Bibi and others)".

5. On the other hand, learned counsel for the respondents Nos.2 and 3 has tried to argue that petitioners as well as respondents Nos.4 to 31 are not the paternal uncle's sons' sons but we do not agree with learned counsel, as Mst. Bhirawan while appearing as RW-1 has admitted the relationship between the parties, therefore, learned counsel cannot be permitted to argue against the admitted facts. It has been further contended that both the courts below have concurrently decided the matter in issue. While relying upon "2007 MLD 33 (Rasoolan Bibi v. Waris Ali and others)" states that real sisters of deceased will inherit her as sharer as well as the residue will also go to the sisters as residuaries, therefore, nothing will go to the petitioners as well as respondents Nos.4 to 31.

6. We have heard the learned counsel for the parties at full length and also gone through the record as well as case-law cited by them.

7. We have carefully perused the case-law referred to by learned counsel for the parties. In the judgment reported as "2005 MLD 280 (Barkat Bibi and others v. Mst. Gaman Bibi and others)" the Hon'ble Single Judge of this Court has opined that in case of one sister and two sons of pre-deceased brother of deceased, the sister will get one half and one half will go to the sons of pre-deceased brother of deceased. Whereas, the Hon'ble Single Judge of this Court in the judgment reported as "2007 MLD 33 (Rasoolan Bibi v. Waris Ali and others)" has opined that in presence of two surviving sisters of a deceased lady, the son of pre-deceased brother of deceased lady was not legal heir, therefore, held that son of pre-deceased brother will not inherit. The opinion of each of the Hon'ble Judges of this Court is incompatible with each other. We have minutely perused the judgments of both the Hon'ble Judges mentioned supra and also have gone through the provisions of Mohammedan Law. First of all we have seen the table of sharers. Admittedly, Full Sister is a sharer if she is single, she gets one half and if two or more then get 2/3rd and the conditions under which the normal share is inherited are when no (i) child (ii) child of a son h.l.s. (iii) father (iv) true grandfather or (v) full brother and further with full brother she becomes residuary. Then we have perused the table of residuaries in order of succession at Sr. No.6 Full Sister is mentioned. The full particulars given at Sr. No.6 in the table of residuaries in accordance with Sunni Law under section 65 of Mohammadan Law by D.F. Mulla, which is as follows:

"FULL SISTER

In default of full brother and the other residuaries above named, the full sister takes the residue if any, if there be (1) a daughter or daughters, or (2) a son's daughter or daughters h.l.s. or even there be (3) one daughter and a son's daughter or daughters h.l.s." The exceptions attached to Sr. No.6 are three in number. No doubt, ordinarily without the brother she is a sharer and with the brother she becomes the residuary. There are also exceptions whether even in the absence of brother she becomes the residuary, which are mentioned at Nos.1, 2 and 3 at Sr. No.6 of table of residuaries. It is basic principle of interpretation of statute that exception governs the rule. In this case, the exceptions attached to this rule which make a full sister as residuary are that in case the residuaries mentioned from Sr. Nos.1 to 5 are not available and also deceased has a daughter or a son's daughter or daughter's h.l.s. or one daughter and a son's daughter or daughters h.l.s. In case in hand none of these eventualities as mentioned with full sister at Sr. No.6 of the table of residuaries is available, therefore, we are of the considered opinion that for full sister becoming a residuary it is necessary that she must qualify the exceptions attached at Sr. No.6 of the table of residuaries in order of succession. In case in hand, the sisters are not having these conditions, therefore, in our opinion the sisters being two in number of the deceased, will get 2/3rd share of inheritance, whereas 1/3rd will go to the full paternal uncle's sons' sons, who are at Sr. No.17 of the table of residuaries. In this view of the matter, we agree with the view taken by the Hon'ble Single Judge of this Court in the judgment reported as "2005 MLD 280 (Barkat Bibi and others v. Mst. Gaman Bibi and others)" and we respectfully disagree with the view taken by the Hon'ble Single Judge of this Court in the judgment reported as 2007 MLD 33 (Rasoolan Bibi v. Waris Ali and others)".

8. For the foregoing reasons, we allow this civil revision and set aside the impugned order and judgment passed by two courts below. The trial court to issue succession certificate in the above terms. MH/M-286/L Revision allowed.