1985 PLP 818 (CLC)

The facts giving rise to this revision are that one Fazal son of Bahadur of village Jhangra, Tehsil Abbottabad, died somewhere in 1975 leaving behind a son Abdullah and 4 daughters (respondents 2 to 5). Abdullah died in the lifetime of his father and succeeded only by a daughter namely Mst. Anwar Jan plaintiff. Mutation No-.3352 regarding the inheritance of Fazal was attested on 24-2-1976 whereby 1/3rd share was mutated in the name of Mst. Anwar Jan daughter of Abdullah and the remaining 2/3rd was given to the 4 daughters of Fazal deceased. The mutation was challenged in appeal by Fazal Din and others (petitioners) as collaterals of Abdullah claiming 1/6th share in his inheritance. Their appeal was accepted by the Collector and by rejecting the mutation the case was remanded to the Revenue Officer. Mst. Anwar Jan, daughter of Abdullah feeling aggrieved filed a declaratory suit to the effect that she being the only child of Abdullah who had predeceased his father was entitled to inherit the entire share which would have devolved on her father had he been alive at the time when the succession opened to the estate of Fazal deceased and that the inheritance mutation was correctly attested to the extent of 1/3rd share in her favour. The suit was resisted by Fazal Din and others petitioners on the ground that the plaintiff being the daughter of Abdullah could inherit only 1/2 share in his inheritance under the Muslim Law and the remaining half would devolve upon them as collaterals. However, their contention did not prevail with the trial Court and the plaintiff's suit was decreed on 18-2-1978. The finding of the trial Court was affirmed by the learned District Judge, Abbottabad and .the appeal filed by the petitioners was dismissed on 12-9-1979. Both the learned Courts below by reference to section 4 of the Muslim Family Laws Ordinance, 1961 (VIII of 1961), came to the conclusion that the plaintiff being the daughter of Abdullah who had predeceased his father would inherit his entire 1/3rd share in the property. The contention of the petitioners that she would inherit only to the extent of her Muslim Law share in the inheritance of her father did not prevail. Fazal Din and others feeling aggrieved have come in revision to this Court.

2. The learned counsel for the petitioners did not dispute that section 4 of the Muslim Family Laws Ordinance was applicable to the case. However, his contention is that under this section the plaintiff was given the right only to inherit from her predeceased father but the inheritance would be in accordance with the Muslim Personal Law whereunder she could inherit only half of the share in the estate of her father and the remaining half was to devolve on the petitioners who were admittedly collaterals of the deceased. The argument of the learned counsel is not supported by the language used in section 4 of the Ordinance which is in the following terms: "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 stirpes receive a share equivalent to the share which such son or daughter, as the case may be', would have received, if alive." The section clearly postulates that the children of a predeceased son or daughter shall per stirpes receive a share equivalent to the share which such son or daughter would have received if alive. The word 'equivalent' in the section clearly denotes that the plaintiff is to inherit the entire share of her father which would have devolved upon him A had he been alive at the time of the death of the propositus. The contention that the plaintiff would get her Muslim Law share in the inheritance of her father is not supported by the language used in the section. The learned counsel for the petitioners relied on Kamal Khari v. Mst. Zainab P L D 1983 Lah. 546 wherein an earlier decision of the Peshawar High Court, Mst. Zarian Jan v. Mst. Akbar Jan P L D 1975 Pesh. 252 was dissented from and it was held that the Law never intended to give a share to the grand-child more than what would have been his due if the parent was actually alive when the succession opened. It was further observed that:- "In the event of there being a single surviving grand-child the principle of per atirpes is pushed to the background but cannot be employed to support a principle which militates against the Islamic Law of Inheritance." This interpretation of section 4 of the Ordinance, and I say so with profound respect, is not warranted by the language used therein. If the intention of the Law was to exclude a female child of a predeceased) father from inheriting his entire share nothing was easier for the law- maker to have said so. The language used in the section is clear. enough to enable the plaintiff to inherit the entire share of her father and not the share to which she was entitled under the Muslim Law. It appears that the idea of succession per stirpes was purposely borrowed from the Shia Law whereunder the children of a predeceased son are to inherit the entire share which would have devolved upon their father .had he been alive at the time of the opening of the succession. As against this, per capita distributation, recognized by the Sunni Law, takes place when all the heirs claim in their own right in equal degree of kindred and not per stirpes in the right of another person. In view of the clear and unequivocal language used in the; section the plaint and ordinary sense of the words is to be adhered to irrespective of the consequences that may follow. The explicit language of the statute manifests the intention of the Law Maker that it was intended to enable the children of predeceased son or daughter to inherit the entire share which would have devolved upon their parent if he or she was alive when the succession opened. No doubt in the section the word "Children" of a predeceased son or daughter has been used but under section 13(2) of the General Clauses Act, 1897, the words in the singular are to include the plural and vice versa. The case reported in P L D 1975 Pesh. 252 is on all fours with the case in hand. In that case Mst. Akbar Jan daughter of Shah Zaman questioned the inheritance mutation of her father whereby 2 shares 1/3rd out of 6 shares were given to Mst. Akbar Jan and the remaining 4 shares (2/3rd out of 6 shares) were given to Mst. Zarina Jan who was the daughter of Mir Afzal the predeceased son of Shah Zaman. Her suit was dismissed by the trial Court. But on appeal the District Judge granted the decree prayed for by holding that the inheritance mutation of Shah Zaman was wrongly , attested by giving 2/3rd share to Mst. Zarina Jan in the property of Shah Zaman and that she would be entitled to only 1/3rd share and the rest of it was to be given to Mst. Akbar Jan plaintiff. However, this finding was set aside in second appeal by the High Court and it was observed:- "Under the Ordinance Mst. Zarina daughter of Mir Afzal is entitled to inherit the same share to which her father Mir Afzal was entitled in the inheritance of his father Shah Zaman, The person is that the Ordinance by adopting the principle of per stirpes distribution of inheritance meant to keep intact the share of predeceased son or daughter to be inherited by his son or daughter i.e. according to it, the heirs of the predeceased issue will inherit from propositus what their predecessor-in interest would have inherited." Mst. Zarian Jan the daughter of predeceased son of Shah Zaman, therefore, held entitled to inherit the entire share of her father.

3. In this view of the matter the interpretation put on section 4 of the Ordinance by the learned counsel for the petitioners clearly violates the language used therein and, therefore, cannot be accepted. Further, no error of jurisdiction is involved in the case warranting interference in revision under section 115 of the Code of Civil Procedure.

4. The revision having no merit is accordingly dismissed. However, the parties are left to bear their own costs. M.Y.H . Petition dismissed.