2011 PLP 1398 (CLC)

IRFAN ALI (MEMBER (JUDICIAL-VII)).

Background of this case, in brief, is that Muhammad Ashraf, father of respondent No.1 was owner of landed property in Mauza Rodu Sultan, Tehsil and District Jhang. On his demise on 3-3-2002, inheritance Mutation No.4870 was sanctioned on 29-8-2002. Abdul Sattar, present petitioner challenged the said mutation before the Deputy District Officer (Revenue), Jhang, who vide order, dated 30-6-2006, accepted the appeal of the petitioner and set aside the impugned order of Revenue Officer Halqa on impugned Mutation No.4870. Muhammad Hidayat son of Ghulam Nabi challenged the said order in appeal before the Executive District Officer (Revenue), Jhang, who also accepted the same on 18-7-2007, set aside the order of the Deputy District Officer (Revenue), Jhang and restored Mutation No:4870, dated 29-8-2002, hence this revision, petition by Abdul Sattar son of Gulab.

2. Both the parties have submitted written arguments through their respective counsel. Mr. Sameer Ijaz; Advocate/counsel for the petitioner has pointed out that deceased had left only one daughter (respondent No.1) while his parents had earlier died. It has further been pointed out that the deceased had already divorced his wife during his life time. Under the law, daughter has to be given share in the inheritance of his father to the extent of 1/2 share, while the remaining half had to go to the residuary. In this case, respondent No.1 got 1/2 share, while the remaining property was to be inherited by the petitioner as residuary, being the only living full paternal uncle. Deceased Muhammad Ashraf was son of Barkat Ali. His mother and wife of Barkat Ali, Ramzan Bibi, after the death of Barkat Ali, got re-married to Ghulam Nabi, brother of Barkat Ali and from her wedlock, Muhammad Hayat, respondent No.2 was born, hence he is uterine brother of the deceased Muhammad Ashraf. Under the Sunni Law of inheritance, the full paternal uncle takes the remaining property as residuary and a uterine brother does not inherit any property as residuary. The Revenue Officer Halqa sanctioned impugned mutation by giving 1/2 share to the respondent but remaining half share of the property was given to respondent No.2, being maternal/uterine brother of the deceased against the law/Islam. Petitioner challenged the said order, in appeal, before the Deputy District Officer (Revenue), Jhang, who accepted the same and petitioner was declared entitled to get remaining half share of the property of the deceased in accordance with the provisions of Mohammadan Law but the lower court has reversed the said order.

3. It has further been alleged that the lower court had acted illegally while restoring the impugned mutation. The impugned order is non-speaking and has been passed in slipshod manner. A uterine brother has no blood relation with the deceased while the full paternal uncle has close blood relation with the deceased and respondent No.2 could not be given preference over the petitioner under the law. The impugned order is based on extraneous consideration and the law has not been appreciated in its true perspective, which may be set aside and the Deputy District Officer (Revenue), Jhang, dated 30-6-2006.

4. Mr. Khizar Abbas Khan, Advocate/counsel for respondent No.2 has stated that it is a well-settled principle of law of inheritance that the nearer in degree inherits the property of the deceased by excluding the more remote, hence he is uterine brother of the deceased and was rightly given preference over the petitioner. Hence the appeal of respondent No.2 was rightly accepted by the lower court. It is pertinent to mention that the petitioner had withdrawn his appeal before the Deputy District Officer (Revenue), Jhang on 20-8-2003. It is a settled law that once the appeal had been withdrawn by the petitioner, which could not be revived under the law but the Deputy District Officer (Revenue) had lost sight of this vital aspect of the case while accepting the appeal of the petitioner. It has been prayed that the revision petition may be dismissed and the impugned order may be upheld.

5. Having examined both the orders of the Deputy District Officer (Revenue), Jhang and Executive District Officer (Revenue), Jhang, it is clear that both subordinate courts have not perused the relevant provisions of law in depth and both have given decisions that are contrary to the provisions and spirit of law. The Deputy District Officer (Revenue), in his order, dated 30-6-2006, has held that the "paternal uncle of the deceased is the rightful inheritor of half the share of the deceased's property as a residuary". The Executive District Officer (Revenue), Jhang has given an opposite findings in his order stating that the "uterine brother of the deceased is a close kin than the paternal uncle, who is a distant kin" and hence has accepted the appeal of Hidayat Ullah, who is the uterine brother of the deceased. Section 63 of the Muhammadan Law defines the sharers in the inheritance of a deceased. The uterine brother or sister according to the Sunni Law, are sharers in the property of the deceased whereas section 65 of the Law ibid defines residuaries. According to the table of residuaries in order of succession

Sunni Law, a full paternal uncle is a residuary. In this case, the deceased was survived by only a daughter, who is a sharer of a higher category, entitled to get 1/2 the property of her father. The uterine brother of the deceased, as per the table of the sharers is a sharer but at serial No.9 of the sharers is entitled to get 1/6 share of the remaining property. The paternal uncle is a residuary and the remaining property is to be divided amongst the residuaries, if there are no other sharers and the claim of the sharers has been satisfied. These important issues have been totally ignored in the decisions given by the lower courts.

6. Accordingly, the revision petition is disposed of by setting aside the impugned orders of both courts below and the matter is remanded to the District Officer (Revenue), Jhang to ascertain the sharers in the property of the deceased, as given in Section 63 of the Muhammadan Law by Mulla and the residuaries', as defined in Section 65 ibid. He is directed to personally go through the law and not to leave the ground work of this decision to any subordinate and to decide the matter, as per law and on merit, after hearing both the parties. A copy of this order be sent to the District Officer (Revenue), Jhang, for further necessary action. H.B.T./2/Rev.?????????????????????????????????????????????????????????????????????????????????????? Case remanded.