2013 PLP 1842 (MLD)

ABDUL LATIF KHAN, J.

I propose to dispose of the petition under section 115 of C.P.C. filed against the judgment and decree passed by the learned ADJ/IZQ Chitral dated 17-9-2011, whereby on acceptances of appeal preferred by respondents reversed the findings of Civil Judge Chitral dated 28-9-2010. The thrust of the arguments of the learned counsel appealing on behalf of the petitioners is that the respondent- plaintiff has failed to prove her shari share, for the reason that no cogent evidence has been produced, except statements of P.Ws. 1 to 3, whereas the defendant has produced 11 witnesses and documentary evidence in support of his contention. He further added that being Kalash, she cannot claim shari share out of the legacy of her father, who too belonged to Kalash sect and attacked the judgment and decree of the appellate court being perverse and contrary to law. As against that the learned counsel appearing for the respondent contended that the daughter of the deceased has the right to get share out of the legacy of father, irrespective of the fact that she relates to any of the religion/sect. He supported the judgment of the appellate Court by advancing the arguments that there is no codified law, in support of the claim of the petitioner. I have heard the learned counsel for the parties at great length and perused the file with their able assistance. Admittedly, the parties belong to Kalash sect of Kalash valley. The legacy of Azdaha deceased devolved upon the father of the plaintiff/respondent namely Manchi Kalash. The parties are the descendants of the said Manchi and respondent No.l plaintiff has claimed her sharai share out of the legacy of Manchi Kalash through the instant suit. The petitioner/defendant contested the suit on the ground that the plaintiff has converted and being Muslim she is not entitled to the inheritance of Kalash, and according to the custom of the Kalash, the female are not entitled to get share out of the property left by ancestral in inheritance. Moreover, the defendant No.1/petitioner claimed that the property was gifted to him by Manchi Kalash, his father. The evidence produced by the plaintiff/respondent No.1 as P.Ws. 2 and 3, while her attorney appeared as P.W.1, which is deficient. The defendant produced 11 witnesses, out of whom the two witnesses are Qazis of Kalash Sect, who have deposed categorically that Kalash religion has no personal law and custom prevails, wherein the females are not given any share out of the inheritance of ancestors. At the time of death of Manchi Kalash, the plaintiff/respondent No.1 was aged about four years, she was not entitled to get her share and when she became major, she converted to Islam and married with the Muslim and being Muslim, she could not claim the inheritance of a Non-Muslim, i.e. Manchi Kalash. According to the dictates of Islam a Kafir or a Muslim cannot inherit from each other and as such she is not entitled to get the shari share. The difference of 'Mazhab' with regard to inheritance has been dealt with by Sayings of Hazrat Muhammad (P.B.U.H.) in an unequivocal way in the following Hadith:-- (Muslim cannot inherit the property of Kafir and vice versa) The Appellate Court has ignored this aspect of the case and wrongly held her entitled for inheritance, on the ground that she was Kalash at the time of death of her father, but escaped notice of report by Scholars and Custom prevailed in Kalash Society, that as per their personal law, unwritten in shape of Custom no female can inherit property from her ancestor and are deprived of this right. There was an Award with the consent of the parties comprising of two Muslim Scholars and one Kalash Scholar, which is available on file, according to which they have observed that there is no codified law. It is accustomed in Kalash Society that they used to deprive their female children from the inheritance, however, compensate them with dowry, love and affection. The Scholars observed that there are certain examples of Kalashs, who have given property to their daughters in their lifetime, but in no case the instances of getting inheritance after the death of their ancestors exist in Kalash Society. They observed that Mst.Zuhra Bibi (previously Aulad Bibi Kalash) was not entitled to get share out of the inheritance of Manchi Kalash. So there is no cavil with the proposition that no Muslim can inherit from Kafir and same is the case with Muslim regarding inheritance of Kafir. For what has been discussed above, the instant petition is allowed, the judgment/decree passed by the Appellate Court suffers from illegality and being perverse is not sustainable in law and is hereby set aside. Consequently the judgment/decree passed by the trial Court is maintained. Parties shall bear their own costs. SAK/255/P Revision accepted.