2026 PLP 807 (MLD)

Muhammad Najam-ud-Din Mengal, J.

This judgment disposes of Civil Revision Petition No.(T) 45 of 2024, filed by the petitioners, against the judgments dated 13th December 2023 and 12th August 2024 ( impugned judgments ), passed by the learned Judicial Magistrate/Civil Judge, Tump at Turbat ( trial Court ) and District Judge, Mekran at Turbat ( appellate Court ), respectively; whereby the application under Section 278 of Succession Act, 1925 for grant of letter of administration filed by the respondents was issued in their favour, whereas to the extent of petitioners (applicants) the same was declined, while appeal under Section 384 of Succession Act, 1925 was also dismissed by maintaining the order of learned trial Court.

2. The concise relevant facts of the instant petition are that the respondent (applicant) filed an application under Section 278 of Succession Act, 1925 against the General Public, petitioners and five others in the learned trial Court for grant of Letter of Administration with the averments that the parties are siblings and surviving legal heirs of late Mir Ahmed son of Hameedullah Gichki, who died issueless on 23rd April 2021 and left behind him the following properties as legacy:

1. Land under Khewat and Khatooni No.1/10, Khasra Nos.23, 24, 25, 26, 27, 28, 30, 31, 32, 33, 36, 37, 38, 39, 48, 54, 57, 93, 95, 98, 197, 108, 109, 110, 111, 112, 113, 114, 125, 126, 127, 128, 129 and 129/1, comprising upon 116 Acres, situated at Mouza Bandgah Tehsil Turbat District Kech. (Worth Rs.6,40,00,000/- rupees six Crore and forty lacs).

2. Land under Khewat and Khatooni No.52/52, Khasra Nos. 35 to 58 comprising upon 292070Sq.Ft. situated at Mouza Chahsar Nakhlistan Ward Turbat District Kech. (Worth Rs.2,92,07,000/- Two Crore, Ninety two lacs and Seven thousand).

3. Publication in daily Intikhab Hub dated 24th July 2022 was made, but none from the general public filed objections, thus, was proceeded against ex-parte, whereas respondents Nos.2 and 3 (Muhammad Tariq and Noor Ahmed Gichki) filed their rejoinder, while, petitioners (respondents Nos.4 and 5) were also proceeded against ex-parte.

4. In the meanwhile, the present petitioners (interveners) filed an application for impleading as respondents in the Letter of Administration with the averments that they are legal heirs of Nawab Khalid Jan Gichki, who was the elder brother of deceased Mir Ahmed Gichki and are shareholder in the legacy of late Mir Ahmed Gichki. It is suffice to mention here that late Nawab Khalid Jan Gichki died in the lifetime of Late Mir Ahmed Gichki. After hearing learned counsel for the parties, the trial Court dismissed the application filed by the present petitioners (interveners), vide order dated 13th January 2023.

5. Being dissatisfied, the petitioners (interveners) filed Civil Revision No.(T) 05 of 2023 before this Court, which was allowed vide order dated 9th June 2023 in the following manner: In view of the above, Civil Revision Petition No.(T) 05 of 2023 is allowed. Impugned order is set-aside and application filed by the petitioners under Order I, Rule 10, C.P.C. is allowed. They be impleaded as respondents and respondent/applicant is directed to file amended title of the application by impleading the petitioners as respondents. The trial court after providing opportunity to both the parties decide the application in accordance with law.

6. After hearing learned counsel for the parties, the learned trial Court, vide order dated 13th December 2023 allowed the application to the extent of respondent (applicant) and respondents Nos. 2 to 5, whereas to the extent of petitioners (interveners) the same was dismissed and held that the petitioners (interveners) are the sons and daughters of late Khalid Jan Gichki, who died before late Mir Ahmed and as per the Sharai Fatwa annexed with the application the legal heirs of late Khalid Gichki (interveners) are not entitled for any share from the properties of Mir Ahmed in presence of other bothers and sisters.

7. Feeling aggrieved, the petitioners (interveners) assailed the order passed by the learned trial Court before the learned appellate Court by means of filing appeal, which met the same fate, vide judgment and decree dated 12th August 2024. Whereafter, the instant revision petition has been filed.

8. I have heard learned counsel for the parties and perused the available record, which reveals that the present respondent (applicant) along with the respondents Nos. 2 to 5 (in the main application) and the father of present petitioners (interveners) are brothers and sisters of late Mir Ahmed Gichki, who died issueless and left behind the abovementioned properties. The respondent (applicant) filed an application for grant of Letter of Administration and implead the General Public along with respondents Nos.2 to 5 as respondent therein, but did not made party the present petitioners (interveners), who thereafter filed an application under Order I Rule 10, C.P.C. to implead them as respondent in the application.

9. Since, the main controversy revolves around the parties is that whether the petitioners (being sons and daughters of pre-deceased Nawab Khalid Jan Gichki) are entitled in the legacy left behind by Mir Ahmed Gichki (late) or otherwise. To resolve the issue, prior to dilating upon the other material aspects of the case it would be appropriate to put a glimpse on the relevant provisions of Section 4 of the Muslim Family Law Ordinance, 1961, which reads as under:

4. Succession .(1)] In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive. (2) If a Muslim male from Ahl-e-Teshih dies, the share of a widow in the immovable property left behind by her deceased husband shall be as follows: (a) one-fourth share of the fixed price or value of the property, if there is no child left behind the deceased husband; and (b) one-eighth share, if there is child left behind. (3) If there are two or more widows, the share, as mentioned in subsection (2), shall be divided equally among them. (4) The price or value of the property shall be the price or value existing at the time of payment and not the price or value which existed at the time of death of the husband: Provided that if the legal heirs of the deceased do not give the widow her share in the above terms, she shall become entitled to her due share in the corpus of immovable property. (5) A widow is entitled to her share in the corpus of movable property of her deceased husband provided that the provisions of subsections (2) and (3) shall mutatis mutandis apply. (6) Fiqah-e-Jafri recognizes right of a husband to get his share from the property left by his deceased wife, either movable or immovable, as follows:-- (a) one-half share, if there is no child left behind; and (b) one-fourth share of the property, if there is child left behind. (7) In case of dispute, the parties or any of the parties may have recourse to a court of competent jurisdiction or by approaching the Mujtahid-e-Alam from the panel maintained by the Council of Islamic Ideology. The decision of Mujtahid-e-Alam shall have a status of an award and the same shall be dealt with in accordance with the provisions of the Arbitration Act, 1940 (X of 1940)

10. As far as the ibid Section is concerned, same being on the statute book at the time of filing of the application for grant of Letter of Administration is not applicable to the case in hand because it only provides for per stripes share on opening of succession to the children of deceased son and daughter of the propositus. It is explicitly the said section is not applicable to the pre-deceased brother s children rather referred provision only attracted to the sons and daughters and the relations, who are specifically mentioned in it. As regards the question of analogy, it may be noted that the matter of inheritance among Muslims is strictly governed by law and its provisions are well-defined leaving no ambiguity about the persons who are entitled to inheritance in the estate of the deceased. In the petition in hand the deceased is survived by brothers and sisters and also two sons of pre-deceased brother. In terms of the table of sharers provided in the Mulla's Mohammadan Law, a full sister is shown to be 1/2 sharer while table of residuaries include full brother son. The son of pre-deceased sister is not mentioned in the table of sharer nor in the table of residuaries. The children of a pre-deceased sister are included in subsection (2) of Section 68 of Mulla's Mohammadan Law, which lays down the list of distant kindred. The distant kindred only inherits when there are no residuaries. Under such circumstances, the properties and other assets of the deceased are required to be distributed amongst the brothers and sisters, who survived deceased Mir Ahmed Gichki and if anything is left for distribution, only then it can be given to the Distant Kindred. In the instant case, since the deceased is survived by siblings, resultantly nothing would be left for its distribution amongst the legal heirs of predeceased brothers and sisters. Reliance in this regard can be placed in the case titled as Khawaja Rashidullah and another v. Khawaja Faridullah, (PLD 2018 Sindh 129), wherein it has been held as below: From perusal of the aforesaid report, it appears that in compliance of the court's order the properties in question have been sold including the shares in the name of deceased Khawaja Rashidullah. Now the amount is lying with the Nazir for disbursement and according to the Nazir the legal heirs at serial Nos. 2, 3 and 5 are not entitled for any share as they had predeceased their brother Khawaja Rashidullah. Though the Counsel for the Objectors has referred tb Section 4 of the Muslim Family Law Ordinance, 1961 however, apparently the said Section does not apply to the case of predeceased brothers and sisters. It only caters for the share of predeceased sons and daughters of a deceased. More so in this case the deceased Khwaja Rashidullah was survived by as many as two brothers and three sisters excluding the predeceased sisters and brothers at serial Nos. 2, 3 and 5 of the petition and therefore, the predeceased brothers and sisters would not fall under the category of sharers and or residuries but under Distant Kindred. In such circumstances the assets of the deceased are required to be distributed amongst the brothers and sisters who survived deceased Khawaja Rashidullah and if anything is left for distribution, only then it can go to the Distant Kindred. In this matter since the deceased is survived by brothers and sisters, resultantly nothing would be left for its distribution amongst the legal heirs of predeceased brothers and sisters.

11. Thus, the learned Courts below have rightly declined the application of the petitioners, which being well reasoned are not open for interference by this Court. For the foregoing reasons, the petition being devoid of merits is dismissed with no order as to cost. MQ/141/Bal. Revision dismissed.