P L D 1988 Karachi 446 (PLP)

This. Petition under section 290 of the Companies Ordinance, 1984 is filed by the petitioners Muhammad Fikree, Mrs. Fatima Fikree, 'Iawfiq Fikree and Mrs. Soad Fikree, with the prayer‑ that respondents 1. to 8 may be directed to give effect to the consent order dated 22‑11‑1987 passed in J.M. No.21 of 1985 by distributing 100 shares, belonging to deceased Ibrahim Muhammad Aqil Fikree amongst his heirs in accordance with Shariat as contemplated in para. 3 of the consent order. It is also claimed that the total number of shares held by deceased Ibrahim Muhammad Aqil Fikree are not only those which are mentioned in the consent order, as the deceased also held several bonus shares issued in his favour from time to time which were not accounted for in the above consent order. Learned counsel for the respondents on the other hand contends that the total number of shares held by deceased Ibrahim Muhammad Aqil Fikree at the time of his death were only 100 as mentioned in the consent order dated 22‑11‑1987 which also included the bonus shares issued to the deceased from time to time. It is urged by the respondents that the deceased during his lifetime transferred several shares to other members of family which the petitioners failed to mention and as such the number of share held by the deceased at the time of his death was only

100. It is not necessary to go into this controversy in this petition as the consent order dated 22‑11‑1987 clearly states that 100 shares held by the deceased Ibrahim Muhammad Aqil Flkree will be distributed among his heirs. There is however, difference of opinion between the heirs of the deceased with regard to the snare which each one of them is entitled to inherit. Tile petitioner contends that according to Shariat Law the six daughters of the deceased will inherit 2/3 share out of the estate of the deceased jointly which will be equally distributed amongst them while the residue 1/3 will go to the son and daughters of the predeceased son of the deceased as residuaries to be distributed amongst them in proportion of 1 share to granddaughter and 2 shares to grandson. The learned counsel for the respondents on the other hand contended that the share of grandson and granddaughter of the deceased will be 1/4 jointly in accordance with section 4 of the Family Laws Ordinance, and as such the share of each daughter of the deceased would come to 1/8 while that of granddaughter 1/12 and of grandson 1/6. After hearing the learned 'counsel for the parties I am of the view that the provisions of section 4 of the Family Laws ordinance, 1961 are not attracted in the present case. The deceased is survived by six daughters and one grandson and a granddaughter of his predeceased son. It is 'therefore, quite clear that according to Shariat the son and daughter of the predeceased son cannot be excluded from inheritance in the present case as tile deceased lbrahim Muhammad Aqil Fikree at the tithe of his death left behind no male issue. The grandson and the granddaughter of deceased ibrahim Muhammad Aqi1 Fikree, are, therefore entitled to inherit the residue left after assigning the shares of the sharers, which in the present case are the six daughters of the deceased Ibrahim Muhammad Aqil Fikree. The shares of the six daughters of the deceased jointly comes to 2/3 and therefore, the residue 1/3 will be inherited by the son and daughter of the predeceased son of the deceased (See illustration (g) to section 65: Muhammadan Law by D.F. Mulla):‑ "(g) 2 daughters 2/3 (as sharer) Son's son 2/3 of (1/3)=219) Son's daughter (as residuaries)" 1/3 of (1/3)=1/9) In my humble opinion section 4 of Muslim Family Laws Ordinance, 1961, did not intend to bring about any change in the taw of inheritance as laid in Sharia. It was promulgated only to give feet to certain recommendations of the Commission on Marriage a‑.d family Law appointed by the Government in August, 1955 as is evident from the preamble of the Ordinance. The report of the above Commission on Marriage and Family Laws published in the Gazette of Pakistan, Extraordinary, dated June 20, 1956. A rending of the above report, of the Commission will show that under the heading "Inheritance and will", the Commission considered the following question:‑ "Question No.3: 1 3.

3. Is there any sanction in the Holy Quran or any authoritative Hadith whereby the children of a predeceased son or daughter are excluded from inheriting property?" The discussion under the above question in the report of Commission g as well as the dissenting note of one of the learned members of the Commission will bear out clearly that the Commission while considering the above‑noted Question No.3 was concerned only with these cases in which the lineal descendants of a predeceased son or daughter of a propositus were prevented from taking a share in the properties or their grandfather by way of inheritance on account of existence of other heirs of the same class to which the predeceased son or daughter of the propositus belonged; and recommended that such children of I the predeceased son or daughter should be given the share of their father or mother as the case may be. Section 4 of the Ordinance was, therefore, promulgated to give effect to above recommendation of Commission and did not bring about any change in the law of inheritance applicable in other cases. The above conclusion is fully borne out from the following passage of the Report of Commission on, the above subject:‑ "If a person has five sons and four of his sons predeceased him, leaving several grand children alive, is there any reason in logic or equity whereby the entire property of the grandfather should be inherited by one son only and large number of orphans left by the other sons should be deprived of inheritance altogether. The Islamic Law of inheritance cannot be irrational and inequitable. Moreover, as the right of representation entitles a grandfather to inherit the property of his grandsons even though the father of the testator has predeceased him, why can the same principle be not applied to the lineal descendants, permitting the children of a predeceased son or daughter to inherit property from their grandfather, There are numerous injunctions in the Holy Quran expressing great solicitude for the protection and welfare of the orphans and their property. Any law depriving children of a predeceased son from inheriting the property of their grandfather would go entirely against the spirit of the Holy Quran. " I am, therefore, of the view that section 4 of the Muslim Family Laws[ Ordinance will be applicable only in those cases where the son and daughter of a predeceased son or daughter are sought to be exclude it on account of existence of other heirs of same category to which the predeceased son. or‑ daughter belonged, As in the present case the grandson and the granddaughter of the predeceased son of late Ibrahim ‑Muhammad AqiI Fikree are otherwise entitled to inheritance under the normal law of Shariat, they will take their shares accordingly. I accordingly direct that each daughter of deceased Ibrahim Muhammad Aqil Fikree will be entitled to get 119 of the total number of shares held by Ibrahim Muhammad Aqil Fikree while the grandson will get 2/9 and granddaughter 1/9 of these share. I may mention here that during the course of argument the cases of Mst. Zarin a Jan v. Mst. Akbar Jan (P L D 1975 Pesh. 252), Abdul Ghafoor v. Mst. Anwar (1985 C L C 818), Kamal Khan alias Kamala v. Mst. Zainab (P L D 1983 Lah.546), Mst. Fazal Jan and another v. 2nd Member, Board of Revenue, N.W.F.P., Peshawar (PLD 1985 Pesh.27) and Mst. Iqbal Mai and others v. Falak Sher and others (P L D 1986 S C 228) were cited at the bar but in none of these cases the point argued before me was considered and as such these cases are not of much relevance in the present case. With regard to other contentions of the learned counsel fore the petitioners in this petition, I have already observed that in view of consent order dated 22‑11‑1987 these controversies cannot bell) agitated in the present proceedings. However, if any such right is available to the petitioners they are free to agitate the same in j appropriate proceedings in accordance with the law. The petition is disposed of accordingly with no order as to costs. A.A. / M‑512/ K Order accordingly.