P L D 1988 Lahore 186 (PLP)

Connected appeals R.S.As. No.536 of 1968, 575 of 1968 arising out of identical facts and requiring decision of a common legal issue are proposed to be disposed of by a single order. Ilam Din son of Nizam Din was owner of some agricultural land situate in revenue estate Chak Darya, Tehsil Jhelum. He died issueless on 6‑7‑1947 and the property owned by him was ordered to be mutated in the name of his widow, Mst. Nemat Bi, to be held by her under usual customary tenure. By section 3, Act V of 1962, her limited estate was terminated with effect from 31‑12‑1962 and the property held by her fell to be distributed amongst legal heirs in terms of section 5 of the aforesaid Act. By mutation No. 293 sanctioned on 2‑6‑1964, Revenue Officer gave 1/4th share to Mst. Nemat Bi widow, 1/2 share to Mst. Sammo, sister, and remaining 1/4th share to Sardar son of Mirza, a predeceased brother of Ilam Din. Ibrahim, Allah Ditta, Adalat and Muhammad Anwar sons of Mst. Fatima Bi also a predeceased daughter of Ilam Din filed a, appeal (Case No.81 of 1964) before Collector; Jhelum. It was allowed or‑ 3‑8‑1964, in the result whereof, property was ordered to be mutated in the names of Mst. Nemat Bi 1/4th share, Ibrahim, Allah Ditta, Adalat, Muhammad Anwar 1/2 share and Mst. Sammo 1/4th. Sardar Khan, a collateral, was excluded from the inheritance. In regard to Mst. Sammo, it was observed that mutation of inheritance in respect of share received by her would be separately entered and decided in favour of her legal heirs. Sardar Khan claimed half share in the property and sued to recover its possession. Mst. Nemat Bi, Ibrahim etc. sons of Mst. ,Fatima Bi, Mst. Said Begurt, aaaghxe, , Gul Muhammad grandson of Mst. Sammo and Muhammad Malik and Abdul Khaliq sons of Mst. Fazal Begum predeceased daughter of Mst. Sammo were impleaded as defendants in the civil suit. Defendants submitted separate written statements. Pleadings of the parties gave rise to as many as eight issues including that of relief. On 30‑11‑1966, suit was dismissed by the trial Court. Court gave 1/8th share to Mst. Nemat Bi, 7/16th share to sons of Mst. Fatima Bi and the remaining 7116th share to Mst. Sammo, real sister of Ram Din. In regard to 7/16th share allotted to Mst. Fatima Bi, it was observed that it shall go to her sons, defendants Nos.3 to 6 in the suit. As for the devolution of share received by Mst. Sammo it was held that it shall be distributed between Muhammad Fazil and Mst. Said Begum, her son and daughter, in the ratio of 2 :

1. From this, it would manifestly appear that Muhammad Malik and Abdul Khaliq ss/o Mst. Fazal Begum were excluded from the inheritance as also Sardar Khan. Four appeals were filed against this decision in the Court of District Judge, Jhelum. All the appeals were disposed of by a common judgment on 13‑3‑1968. Appeal filed by Sardar Khan was accepted and he was found entitled to 1/4th share in the property of Ham Din deceased. Share of Mst. Nemat Bi was increased to 1/4th. Mst. Said Begum and Mst. Fazal Begum were given 1/8th share each alongwith Muhammad Fazil their brother who was allotted 1/4th share in the estate of Mst. Sammo. So far as sons of Mst. Fatima were concerned, they were altogether excluded from the inheritance on the sole ground that section 4 of the Muslim Family Laws Ordinance, 1961, did not apply. It is this decision of the Court below which has been questioned in two second appeals filed before this Court. R.S.A. 536 cf 1968 was filed by Gul Muhammad, who claims that Muhammad Malik and Abdul Khaliq were not entitled to get anything in the property, which was allotted to Mst. Sammo. R . S . A . 575 /68 is on behalf of Ibrahim etc. sons of Mst. Fatima Bi, who had been excluded from inheriting the property of their grandfather. Facts are not in dispute. For proper appreciation of the points requiring decision in the appeals, pedigree‑table indicating the relationship of the parties inter se and to the deceased Ilam Din, last male owner, may be reproduced below:‑ Nizam Din Mst. Sammo Mirza Ilam Din Mst. Nemat (Died on 8-5-1954) (Died in 1944) (Died on Bi 6-7-47) (Defendant No.1) Sardar khan (plaintiff) Mst.Fatima Bi (Died on 23-7-42) Muhammad fazil Mst.fazal Begum Mst.Said Begum (Defendant No.2) Gul Muhammad Respondent no.6 Defendant Defendant Defendant Defendant No.6 No.5 No.4 No.3 Abdul Khaliq Defendant no.8 Muhammad Malik Defendant no.7 Ilam Din died on 6‑7‑1947. He was survived by Mst. Nemat Bi his widow. Mst. Fatima Bi his only daughter had predeceased him on 23‑7‑1942. Defendants No.3 to 6 are her real sons. Mirza real brother of Ram Din died in the year 1944 leaving behind surviving him Sardar Khan, his only son. Mst. Sammo real sister of Ilam Din died on 8‑5‑1954. She had one son and two daughters, namely, Muhammad Fazil, Mst. Fazal Begum, Mst. Said Begum. Mst. Fazal Begum predeceased her mother and died in her lifetime. She was survived by Muhammad Malik and Abdul Khaliq, defendants Nos.7 and 8 in the suit. Gul Muhammad is grandson of Mst. Sammo. As observed above, neither the relationship given in the pedigreetable drawn out above nor the respective dates of deaths are in dispute. Only question falling for decision is about the law regulating the succession and as to who are the true legal heirs and the respective shares to be received by them. 1t was not denied that Mst. Nemat Bi had succeeded her husband as a limited owner under custom to enjoy the property till her rights were terminated. It was also not denied that by section 3 of Act V of 1962, limited estates held by females were terminated and ' the property held by them became available for distribution amongst legal heirs in accordance with section 5 of the aforesaid Act. Section 2 of Act V of 1962 which has a bearing on the point for facility of reference is given below:‑ ' "Notwithstanding any custom or usage in all questions regarding succession (whether, testate or‑ intestate), special Property of females; betrothal, marriage, divorce dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts religious usages or institutions including waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims." However, before Act V of 1962 came on the Statute book with effect from 31‑12‑1962, section 4 of the Muslim Family Laws Ordinance, which gave right of succession to the children of predeceased son or daughter of the Propositus had already taken the field with effect from 15‑7‑1961. Succession in the case opened out on 31‑12‑1962 when limited estate of Mst. Nemat Bi was terminated. section 2, Act V of 1962, provided that rule of decision subject to provision, of any enactment for the time being in force shall be Muslim Personal Law (Shariat) in case parties were Muslims. Combined reading of sections 2, 3 and 5 of Act V of 1962 and section 4 of the Muslim Family Laws Ordinance, 1961 would plainly show that sons of Mst.Fatima Bi who had predeceased her mother were entitled to receive the same share, which their mother,' if alive, had taken on the death of her father. Section 4 of the Family Laws Ordinance clearly recognizes their right of succession. In Yousuf Abbas and others u. Mst. lsmat Mustafa and others P L D 1968 Kar. 480, Noorul Arifiit, J. vii section 4 of the Muslim Family Laws Ordinance said:‑ "The words 'in the event of refer only to the death of the son or daughter of the propositus occurring before the succession opens. These words would bring within their compass the sons and daughters dying before as well as after the Ordinance came into force. The only condition is that the death should occur before the succession has opened and if the succession opens after the promulgation of the Ordinance, Section 4 would apply with full force and the children of the predeceased son or daughter of the propositus would be entitled to be included in the succession to the estate of the propositus. One consideration, which has to be borne in mind in construing of section 4 of the Ordinance is the purpose for which this law was passed. The Ordinance aims at alleviating the sufferings of the children whose unfortunate lot it is to lose their father or mother during the ‑lifetime of their grandfather or grand‑mother as the case may be. The construction of such statutes should be just, sensible and liberal so as to give effect to the purpose for which they are passed. The meaning, which Dr. I, Mahmood, ‑seeks to give to the word 'in the event of in section 4, is not only against the plain and unambiguous language of the section, but would lead to unjust and harsh consequences and would defeat the very intent and purpose for which this law was brought. My conclusion, therefore, is that it is not the requirement of section 4 of the Muslim Family Laws Ordinance 1961 that the occurrence of the death of the son or daughter of the propositus as well as the opening of succession should both take place subsequent to the promulgation of the Ordinance. The only requirement of the section is that succession should open after the Ordinance is brought into effect even though in some cases a part of the requisites for its operation such as the death of the plaintiff's mother is drawn from a time antecedent to the promulgation of the Ordinance." This decision was relied upon in the case of Sakhi Muhammad v. Ahmad Khan and three others 1980 C L C 1006 by Khurshid Ahmad, J. In the last case Allah Loke, whose property was to be distributed, had died on 1‑8‑1932 and yet it was held that since the succession had opened out after the enforcement of Muslim Family Laws Ordinance 1961, Section 4 applied and the children of the predeceased son and daughter were given their due share. With respect, it is a correct enunciation of law with which I respectfully agree. Decision in Kamal Khan alias Kamla v. Mst. Zainab P L D 1983 Lahore 546 does not assist the issue. Mirza died in the year 1944. His son Sardar Khan, therefore, was not entitled to succeed. It was not disputed that Mst. Sammo was alive when Ilam Din breathed his last. Fazal Begum, her daughter, had pre‑deceased her. On the strength of Section 4 of the Family Laws Ordinance, her share of the property, which she would have received from her mother, would devolve on her two sons, namely, Muhammad Malik and Abdul Khaliq. It is agreed that Mst. Nemat Bi prior to her marriage with Ilam Din was wife of Muhammad Fazil and had given birth to Gul Muhammad appellant. Mst. Nemat Bi died on 10‑8‑1987. Gul Muhammad, as her only surviving son, succeeded to the property left by her. In the view I take of ,the law regulating succession to the property owned by Ilam Din and held by Mst. Nemat Bi as limited owner, shares of the parties in the disputed property are as under:‑ Mst. Nemat Bi widow 4/32 4/32 Ibrahim etc. son of 14/32 14/32 Mst. Fatima Bi Mst. Sammo 14/32 14/32 14/32 shares vested in Mst. Sammo shall devolve upon her heirs as given below:‑ Mst. Said Begum 7/64 7/64 Muhammad Malik and Abdul Khaliq 7/64 7/64 Gul Muhammad 14/64 14/64 In result, R.S.A.No. 575 of 1968 is allowed and the connected appeal (R.S.A. No.536168) is dismissed. Parties to bear their own costs. M.B. A. /I‑55/L Order accordingly. P L D 1988 Lahore 186 Before Gul Zarin Kiani, J IBRAHIM and 3 others‑‑Appellants versus NEHMAT BI and 5 others‑‑Respondents Regular Second Appeals Nos. 536 and 575 of 1968, decided on 5th December, 1987. West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑‑ ‑‑‑Ss. 2, 3 & 5‑‑Muslim Family Laws Ordinance (VIII of 1961) S.4‑ Object and requirements of S.4, Muslim Family Laws Ordinance, 1961‑ Words "in the event of" in S. 4 of Ordinance 1961‑‑Meaning‑ Succession‑‑Sons of a female who had predeceased her mother were entitled to receive the same share, which their mother, if alive, had taken on the death of her father and S. 4, Muslim Family Laws Ordinance, 1961, clearly recognizes their right of succession. The words 'in the event of occurring in section 4, Muslim Family Laws Ordinance, 1961 refer only to the death of the son or daughter of the propositus occurring before the succession opens. These words would bring within their compass the sons and daughters dying before as well as after the Ordinance came into force. The only condition is that the death should occur before the succession has opened and if the succession opens after the promulgation of the Ordinance, section 4 would apply with full force and the children of the predeceased son or daughter of the propositus would be entitled to be included in the succession to the estate of the propositus. One consideration, which has to be borne in mind in construing section 4 of the Ordinance is the purpose for which this law was passed. The Ordinance aims at alleviating the sufferings of the children whose unfortunate lot it is to lose their father or mother during the lifetime of their grandfather or grandmother as the case may be. The construction of such statutes should be just, sensible and liberal so as to give effect to the purpose for which they are passed. It is not the requirement of section 4 of the Muslim Family Laws Ordinance, 1961 that the occurrence of the death of the son or daughter of the propositus as well as the opening of succession should both take place subsequent to the promulgation of the Ordinance. The only requirement of the section is that succession should open after the Ordinance is brought into effect even though in some cases a part of the requisites for its operation such as the death of the plaintiff's mother is drawn from a time antecedent to the promulgation of the Ordinance. Combined reading of sections 2, 3 and 5 of Act V of 1962 and section 4 of the Muslim Family Laws Ordinance, 1961 would plainly show that sons of a female propositus who had predeceased her mother were entitled to receive the same share, which their mother, if alive, had taken on the death of her father. Section 4 of the Family Laws Ordinance clearly recognises their right of succession. Yousuf Abbas and others v. Mst. Ismat Mustafa and others PLD 1968 Kar. 480 and Sakhi Muhammad v. Ahmad Khan and 3 others 1980 C L C 1006 ref. Kamal Khan alias Kamla v . Mst. Zainab P L D 1983 Lah. 546 distinguished. Syed Zafar Ali Shah for Appellants. Sh. Zamir Hussain for Respondent Nos. land

2. Ch. Zamarud Hussain for Respondent No.3. Ch. Muhammad Akram for Respondents Nos.4 and

5. Abdul Hakim for Respondents Nos.6, 8 and

9. Date of hearing: 28th November, 1987. JUDGMENT Connected appeals R.S.As. No.536 of 1968, 575 of 1968 arising out of identical facts and requiring decision of a common legal issue are proposed to be disposed of by a single order. Ilam Din son of Nizam Din was owner of some agricultural land situate in revenue estate Chak Darya, Tehsil Jhelum. He died issueless on 6‑7‑1947 and the property owned by him was ordered to be mutated in the name of his widow, Mst. Nemat Bi, to be held by her under usual customary tenure. By section 3, Act V of 1962, her limited estate was terminated with effect from 31‑12‑1962 and the property held by her fell to be distributed amongst legal heirs in terms of section 5 of the aforesaid Act. By mutation No. 293 sanctioned on 2‑6‑1964, Revenue Officer gave 1/4th share to Mst. Nemat Bi widow, 1/2 share to Mst. Sammo, sister, and remaining 1/4th share to Sardar son of Mirza, a predeceased brother of Ilam Din. Ibrahim, Allah Ditta, Adalat and Muhammad Anwar sons of Mst. Fatima Bi also a predeceased daughter of Ilam Din filed a, appeal (Case No.81 of 1964) before Collector; Jhelum. It was allowed or‑ 3‑8‑1964, in the result whereof, property was ordered to be mutated in the names of Mst. Nemat Bi 1/4th share, Ibrahim, Allah Ditta, Adalat, Muhammad Anwar 1/2 share and Mst. Sammo 1/4th. Sardar Khan, a collateral, was excluded from the inheritance. In regard to Mst. Sammo, it was observed that mutation of inheritance in respect of share received by her would be separately entered and decided in favour of her legal heirs. Sardar Khan claimed half share in the property and sued to recover its possession. Mst. Nemat Bi, Ibrahim etc. sons of Mst. ,Fatima Bi, Mst. Said Begurt, aaaghxe, , Gul Muhammad grandson of Mst. Sammo and Muhammad Malik and Abdul Khaliq sons of Mst. Fazal Begum predeceased daughter of Mst. Sammo were impleaded as defendants in the civil suit. Defendants submitted separate written statements. Pleadings of the parties gave rise to as many as eight issues including that of relief. On 30‑11‑1966, suit was dismissed by the trial Court. Court gave 1/8th share to Mst. Nemat Bi, 7/16th share to sons of Mst. Fatima Bi and the remaining 7116th share to Mst. Sammo, real sister of Ram Din. In regard to 7/16th share allotted to Mst. Fatima Bi, it was observed that it shall go to her sons, defendants Nos.3 to 6 in the suit. As for the devolution of share received by Mst. Sammo it was held that it shall be distributed between Muhammad Fazil and Mst. Said Begum, her son and daughter, in the ratio of 2 :

1. From this, it would manifestly appear that Muhammad Malik and Abdul Khaliq ss/o Mst. Fazal Begum were excluded from the inheritance as also Sardar Khan. Four appeals were filed against this decision in the Court of District Judge, Jhelum. All the appeals were disposed of by a common judgment on 13‑3‑1968. Appeal filed by Sardar Khan was accepted and he was found entitled to 1/4th share in the property of Ham Din deceased. Share of Mst. Nemat Bi was increased to 1/4th. Mst. Said Begum and Mst. Fazal Begum were given 1/8th share each alongwith Muhammad Fazil their brother who was allotted 1/4th share in the estate of Mst. Sammo. So far as sons of Mst. Fatima were concerned, they were altogether excluded from the inheritance on the sole ground that section 4 of the Muslim Family Laws Ordinance, 1961, did not apply. It is this decision of the Court below which has been questioned in two second appeals filed before this Court. R.S.A. 536 cf 1968 was filed by Gul Muhammad, who claims that Muhammad Malik and Abdul Khaliq were not entitled to get anything in the property, which was allotted to Mst. Sammo. R . S . A . 575 /68 is on behalf of Ibrahim etc. sons of Mst. Fatima Bi, who had been excluded from inheriting the property of their grandfather. Facts are not in dispute. For proper appreciation of the points requiring decision in the appeals, pedigree‑table indicating the relationship of the parties inter se and to the deceased Ilam Din, last male owner, may be reproduced below:‑ Nizam Din Mst. Sammo Mirza Ilam Din Mst. Nemat (Died on 8-5-1954) (Died in 1944) (Died on Bi 6-7-47) (Defendant No.1) Sardar khan (plaintiff) Mst.Fatima Bi (Died on 23-7-42) Muhammad fazil Mst.fazal Begum Mst.Said Begum (Defendant No.2) Gul Muhammad Respondent no.6 Defendant Defendant Defendant Defendant No.6 No.5 No.4 No.3 Abdul Khaliq Defendant no.8 Muhammad Malik Defendant no.7 Ilam Din died on 6‑7‑1947. He was survived by Mst. Nemat Bi his widow. Mst. Fatima Bi his only daughter had predeceased him on 23‑7‑1942. Defendants No.3 to 6 are her real sons. Mirza real brother of Ram Din died in the year 1944 leaving behind surviving him Sardar Khan, his only son. Mst. Sammo real sister of Ilam Din died on 8‑5‑1954. She had one son and two daughters, namely, Muhammad Fazil, Mst. Fazal Begum, Mst. Said Begum. Mst. Fazal Begum predeceased her mother and died in her lifetime. She was survived by Muhammad Malik and Abdul Khaliq, defendants Nos.7 and 8 in the suit. Gul Muhammad is grandson of Mst. Sammo. As observed above, neither the relationship given in the pedigreetable drawn out above nor the respective dates of deaths are in dispute. Only question falling for decision is about the law regulating the succession and as to who are the true legal heirs and the respective shares to be received by them. 1t was not denied that Mst. Nemat Bi had succeeded her husband as a limited owner under custom to enjoy the property till her rights were terminated. It was also not denied that by section 3 of Act V of 1962, limited estates held by females were terminated and ' the property held by them became available for distribution amongst legal heirs in accordance with section 5 of the aforesaid Act. Section 2 of Act V of 1962 which has a bearing on the point for facility of reference is given below:‑ ' "Notwithstanding any custom or usage in all questions regarding succession (whether, testate or‑ intestate), special Property of females; betrothal, marriage, divorce dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts religious usages or institutions including waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims." However, before Act V of 1962 came on the Statute book with effect from 31‑12‑1962, section 4 of the Muslim Family Laws Ordinance, which gave right of succession to the children of predeceased son or daughter of the Propositus had already taken the field with effect from 15‑7‑1961. Succession in the case opened out on 31‑12‑1962 when limited estate of Mst. Nemat Bi was terminated. section 2, Act V of 1962, provided that rule of decision subject to provision, of any enactment for the time being in force shall be Muslim Personal Law (Shariat) in case parties were Muslims. Combined reading of sections 2, 3 and 5 of Act V of 1962 and section 4 of the Muslim Family Laws Ordinance, 1961 would plainly show that sons of Mst.Fatima Bi who had predeceased her mother were entitled to receive the same share, which their mother,' if alive, had taken on the death of her father. Section 4 of the Family Laws Ordinance clearly recognizes their right of succession. In Yousuf Abbas and others u. Mst. lsmat Mustafa and others P L D 1968 Kar. 480, Noorul Arifiit, J. vii section 4 of the Muslim Family Laws Ordinance said:‑ "The words 'in the event of refer only to the death of the son or daughter of the propositus occurring before the succession opens. These words would bring within their compass the sons and daughters dying before as well as after the Ordinance came into force. The only condition is that the death should occur before the succession has opened and if the succession opens after the promulgation of the Ordinance, Section 4 would apply with full force and the children of the predeceased son or daughter of the propositus would be entitled to be included in the succession to the estate of the propositus. One consideration, which has to be borne in mind in construing of section 4 of the Ordinance is the purpose for which this law was passed. The Ordinance aims at alleviating the sufferings of the children whose unfortunate lot it is to lose their father or mother during the ‑lifetime of their grandfather or grand‑mother as the case may be. The construction of such statutes should be just, sensible and liberal so as to give effect to the purpose for which they are passed. The meaning, which Dr. I, Mahmood, ‑seeks to give to the word 'in the event of in section 4, is not only against the plain and unambiguous language of the section, but would lead to unjust and harsh consequences and would defeat the very intent and purpose for which this law was brought. My conclusion, therefore, is that it is not the requirement of section 4 of the Muslim Family Laws Ordinance 1961 that the occurrence of the death of the son or daughter of the propositus as well as the opening of succession should both take place subsequent to the promulgation of the Ordinance. The only requirement of the section is that succession should open after the Ordinance is brought into effect even though in some cases a part of the requisites for its operation such as the death of the plaintiff's mother is drawn from a time antecedent to the promulgation of the Ordinance." This decision was relied upon in the case of Sakhi Muhammad v. Ahmad Khan and three others 1980 C L C 1006 by Khurshid Ahmad, J. In the last case Allah Loke, whose property was to be distributed, had died on 1‑8‑1932 and yet it was held that since the succession had opened out after the enforcement of Muslim Family Laws Ordinance 1961, Section 4 applied and the children of the predeceased son and daughter were given their due share. With respect, it is a correct enunciation of law with which I respectfully agree. Decision in Kamal Khan alias Kamla v. Mst. Zainab P L D 1983 Lahore 546 does not assist the issue. Mirza died in the year 1944. His son Sardar Khan, therefore, was not entitled to succeed. It was not disputed that Mst. Sammo was alive when Ilam Din breathed his last. Fazal Begum, her daughter, had pre‑deceased her. On the strength of Section 4 of the Family Laws Ordinance, her share of the property, which she would have received from her mother, would devolve on her two sons, namely, Muhammad Malik and Abdul Khaliq. It is agreed that Mst. Nemat Bi prior to her marriage with Ilam Din was wife of Muhammad Fazil and had given birth to Gul Muhammad appellant. Mst. Nemat Bi died on 10‑8‑1987. Gul Muhammad, as her only surviving son, succeeded to the property left by her. In the view I take of ,the law regulating succession to the property owned by Ilam Din and held by Mst. Nemat Bi as limited owner, shares of the parties in the disputed property are as under:‑ Mst. Nemat Bi widow 4/32 4/32 Ibrahim etc. son of 14/32 14/32 Mst. Fatima Bi Mst. Sammo 14/32 14/32 14/32 shares vested in Mst. Sammo shall devolve upon her heirs as given below:‑ Mst. Said Begum 7/64 7/64 Muhammad Malik and Abdul Khaliq 7/64 7/64 Gul Muhammad 14/64 14/64 In result, R.S.A.No. 575 of 1968 is allowed and the connected appeal (R.S.A. No.536168) is dismissed. Parties to bear their own costs. M.B. A. /I‑55/L Order accordingly.