2026 PLP 851 (CLC)

GHULAM ABBAS NAICH, MEMBER (RS&EP)

This order intends to decide the appeal dated 21-08-2024, filed by the above named applicant under Section 161 of Sindh Land Revenue Act, 1967, against the impugned order dated 28-06-2024, passed by the Additional Commissioner-II, Hyderabad Division, in exercise of Suo motu jurisdiction in respect of dispute over Entries Nos. 302 and 303, dated 08-02-2023 and subsequent entries, Deh Bau-Dero, Taluka and District Matiari.

2. This appeal raises a narrow but recurring question: whether the fotikhata (mutation of inheritance) of the late Pir Noor Shah Hashmi, the propositus, was lawfully mutated by Entry No. 302 dated 08-02-2023 in respect of land bearing Survey Nos. 370 to 381 and 408, measuring 70-34 acres, situated in Deh Bau-Dero, Taluka and District Matiari. The mutation entry included the predeceased son, late Syed Amjad Ali Shah, and consequently, a separate fotikhata for the late Syed Amjad Ali Shah was made through Entry No. 303 on the same date 08-02-2023 in favour of his legal heirs comprising his children and widow. However, neither the predeceased daughter of the late Pir Noor Shah Hashmi, namely Mst. Bibi Yasmeen was reflected in the foti khata badal Entry No. 302 dated 08-02-2023, nor were her children included therein. Consequently, while the children and widow of the predeceased son, late Syed Amjad Ali Shah, inherited from the land left by Pir Noor Shah Hashmi, the children of the predeceased daughter were altogether deprived of their inheritance rights. The central question is whether the Additional Commissioner-II could, in Suo Motu proceedings, cancel those entries wholesale on the alleged ground of non-observance of Muhammadan law. This determination turns squarely upon Section 4 of the Muslim Family Laws Ordinance, 1961 (MFLO), the limited nature of mutation proceedings under revenue law, and the binding force of superior courts' pronouncements.

3. Brief background of this litigation, as appears from the perusal of case papers is that a reference was made by the Deputy Commissioner, Matiari, through letter No. DC/MISC/REV/2029 dated 05-06-2023, recommending to the Commissioner, Hyderabad Division cancellation of Entries Nos. 302 and 303, dated 08-02-2023. The reference recounted that Pir Noor Shah Hashmi owned 0-25 paisa share in the above survey numbers (total 70-34 acres). Upon his death on 17-01-2017, foti khata Entry No.302 was made among his heirs including Syed Amjad Ali Shah (already deceased before his father) while Mst. Bibi Yasmeen (a predeceased daughter) was not reflected; Entry No.303 mutated the estate of Syed Amjad Ali Shah to his legal heirs. The reference sought cancellation so that "fresh foti khata" be made "as per Muhammadan law". Acting on that reference, Additional Commissioner-II, Hyderabad Division, after proceedings, passed the impugned order dated 28-06-2024, holding that Entry No.302 and subsequent entries were kept "without observing legal formalities" and that inheritance was "not changed in accordance with Muhammadan Law", therefore Entries Nos. 302 and 303 both dated 08-02-2023 and subsequent entries were cancelled, with the direction to change the foti khata of Pir Noor Shah Hashmi "as required under Section 42 of the Sindh Land Revenue Act, 1967." Hence, this appeal.

4. Despite repeated notices, none present for either side on this fourth consecutive date of hearing i.e. 29-08-2025. The Court proceeded to decide on the basis of the memo. of appeal and the narratives of two sides produced in the impugned order, treating them, in the interest of justice, as written arguments of both sides.

5. The applicant has contended that her grandfather, late Pir Noor Shah Hashmi, who had contracted two marriages, passed away on 17-01-2017, leaving behind five sons and six daughters. She maintains that under Section 4 of the Muslim Family Laws Ordinance, 1961, the children of any predeceased son or daughter inherit per stirpes, and in her case, succession proceedings regarding the moveable estate of the deceased have already attained finality through orders of the Hon'ble High Court, thereby affirming the representational rights of such grandchildren. Accordingly, the revenue entries Nos. 302 and 303 both dated 08-02-2023, lawfully gave effect to this statutory entitlement. She further clarified that while the children of her late father, Syed Amjad Ali Shah, were rightly reflected, the inclusion of Mst. Noor Jehan (widow of the predeceased son) in Entry No.302 was erroneous since she does not inherit directly from the propositus under Section 4, and she raised no objection to deletion of her name. The applicant stressed that the impugned order passed by the Additional Commissioner-II, Hyderabad Division ignored both binding law and judicial determinations already rendered in succession proceedings. On the other hand, Respondents 13 and 14, Syed Ahsan Ali Shah and Mst. Noor Jehan, filed a statement of no-objection, expressly supporting the allowance of the present appeal. By contrast, the opposing respondents, before the learned Additional Commissioner-II, took the position that, in accordance with a strict classical interpretation of Muhammadan Law, the predeceased children of the propositus were to be excluded altogether, thereby refusing to acknowledge the statutory provision introduced by Section 4 of the MFLO, 1961, which ensures representation of such heirs in the inheritance.

6. The contest before the Additional Commissioner-II, led by Syed Pir Ameer Ali Shah was that only the surviving children of the propositus inherit and that predeceased children (and by implication their lines) are excluded by "Muhammadan law"; therefore Entries Nos. 302 and 303 be cancelled.

7. After perusing the case paper in detail, this Court is of the considered view that: a. Section 4, MFLO 1961 is a benevolent reform that engrafts representation for children of a predeceased son or daughter to take per stirpes the share their parent would have taken if alive when succession opened. The Supreme Court in Mst. Fazeelat Jan v. Sikandar (PLD 2003 SC 475) reaffirmed that Section 4 remains operative (pending decision of the Shariat Appellate Bench on the Federal Shariat Court's earlier view) and governs succession accordingly. b. Earlier, in Kamal Khan v. Mst. Zainab (PLD 1990 SC 1051), the Supreme Court recognized the legislative policy underlying Section 4 and addressed how the representational share is to be worked per stirpes so that the orphaned grandchildren do not exceed the quantum their predeceased parent would have obtained. c. Most recently, the Supreme Court in Kalsoom Begum v. Peran Ditta and others, 2022 SCMR 1352, clarified two points of continuing relevance: (i) Section 4 continues to be the subsisting law of Pakistan unless and until the Shariat Appellate Bench holds otherwise; and (ii) the doctrine of representation does not extend beyond grandchildren (i.e., great-grandchildren are not covered by Section 4). d. These pronouncements are binding under Article 189 of the Constitution; and High Court decisions declaring/implementing these principles bind revenue authorities within the province under Article

201. Revenue forums cannot ignore or whittle down the effect of such judgments. Application to the present case: The propositus, Pir Noor Shah Hashmi, died on 17-01-2017. It is well established law of inheritance in Sharia that the succession opens at the time of death of propositus. His predeceased son, Syed Amjad Ali Shah, therefore, could not inherit; but his children (including the present applicant and Syed Ahsan Ali Shah) inherit per stirpes under Section

4. By contrast, the widow of the predeceased son (Mst. Noor Jehan) is not a "child" within Section 4 and therefore does not inherit directly from the propositus. (Her rights, if any, lie in the estate of her deceased husband, not in the estate of the father-in-law.) The no-objection filed by Respondent No. 14 further removes any factual controversy on this limited correction. Likewise, Mst. Bibi Yasmeen, predeceased daughter of Pir Noor Shah Hashmi will not inherit, but her children would inherit per stirpes. e. It is trite that mutation entries are fiscal in nature; they neither create nor extinguish title. They exist to keep land revenue records in line with pre-existing rights, usually established under personal law or by competent civil court orders. Wholesale cancellation of inheritance mutations, without pinpointing a specific legal infirmity and without conforming them to declared rights, is impermissible. f. Section 42 of the Sindh Land Revenue Act, 1967 provides the procedural mechanism for making/altering entries on proof of acquisition of rights (including fotikhata). That provision does not authorize ignoring binding judicial determinations or statutory entitlements such as Section 4, MFLO, 1961; it requires the revenue officer to record the correct legal succession. g. Even assuming that revisional/oversight jurisdiction could be invoked to correct a mutation, such jurisdiction must be exercised judiciously, lawfully, and with cogent reasons. The impugned order is not sustainable and is predicated upon an incorrect premise that overlooks the representation rights of a predeceased child, as expressly provided under Section 4 of the Muslim Family Laws Ordinance (MFLO)-a special statute having overriding effect over general law. The Honorable Supreme Court has consistently held this provision to be the controlling law in matters of inheritance. By directing blanket cancellation of the mutation and ordering a "fresh fotikhata" without reference to Section 4 of the MFLO and existing court orders pertaining to the propositus' estate, the Additional Commissioner-II has misdirected himself in law and exceeded his jurisdiction. h. Moreover, there already existed a superior court adjudication in connected succession proceedings that recognized the representational line of the predeceased son. The revenue authorities were duty-bound to harmonize the land records with such judicial recognition, rather than nullify it. Article 201 of the Constitution binds all subordinate fora to follow the law as declared by the Honorable Supreme Court and the High Court within the province. i. On adjudication of the case by this Court and in view of the no objection by Respondents 13 and 14, two targeted corrections emerge: (a) Children of the predeceased son, Syed Amjad Ali Shah (including the present applicant and Syed Ahsan Ali Shah) should be reflected as representational heirs in the propositus' inheritance (per stirpes) under Section 4, MFLO, 1961 in entry No. 302 dated 08-02-2023. (b) Mst. Noor Jehan (widow of the predeceased son), not being a "child" within Section 4, shall not inherit as a legal heir of the propositus. Her own succession rights against the estate of her deceased husband remain untouched by this order. (c) Children of the predeceased daughter (to be determined as per law), Mst. Bibi Yasmeen should also be reflected as representational heirs in the propositus' inheritance (per stirpes) under Section 4, MFLO, 1961 in entry No. 302 dated 08-02-2023. (d) The Entry No. 303 pertaining to Pir Amjad Ali Shah is liable to be cancelled, inasmuch as the same survey numbers already inherited from Pir Noor Shah have been transcribed therein. A perusal of Section 4 makes it manifest that only the children of a predeceased son or daughter of the propositus are entitled to succeed. Contrary to this mandate, a separate foti khata was prepared in the name of Pir Amiad Ali Shah, which consequently brought his widow into the record. As a result, Mst. Noor Jehan, being the widow of Pir Amjad, was reflected as a sharer in the estate of Pir Noor Shah-an arrangement that runs counter to the very spirit and object of Section

4. Accordingly, Entry No. 303 is redundant and liable to be expunged. In Entry No. 302, the name of the predeceased son, Pir Amjad Ali Shah, is required to be substituted by his children, namely Ahsan Shah and Bibi Kashaf, in strict conformity with the ratio laid down by the Honourable Supreme Court.

8. Accordingly, this appeal is ALLOWED. The impugned order dated 28-06-2024, passed by the Additional Commissioner-II, Hyderabad Division, cancelling Entries Nos. 302 and 303, dated 08-02-2023 and subsequent entries, is SET ASIDE with further orders: i) Entry No. 302, dated 08-02-2023, shall stand restored subject to the following specific corrections/clarifications in the record-of-rights: a) The children of the predeceased son, late Syed Amjad Ali Shah, including the present applicant Mst. Bibi Kashaf and Syed Ahsan Ali Shah (Respondent No. 13), shall be entered in Entry No. 302, dated 08-02-2023, as representational heirs per stirpes under Section 4 of the MFLO, 1961, inheriting the full share of their late father, Syed Amjad Ali Shah. b) If Mst. Bibi Yasmeen (predeceased daughter of the propositus) left surviving issue at the opening of succession date 17-01-2017, such children shall, upon proper determination under Section 42 of the Sindh Land Revenue Act, 1967, be mutated as representational heirs of the propositus under Section 4 of the MFLO, in appropriate fractional shares per stirpes. If no such issue existed at the relevant time, no entry shall be made in her name or lineage line. a) Foti khata badal Entry No. 303 dated 08-02-2023 stands cancelled, as the predeceased son of the propositus, late Syed Amjad Ali Shah, would not himself inherit the property, Rather, his children would directly inherit from the propositus under Section 4 of the MFLO, 1961, as elaborated at para 8 (a) above. ii) The Mukhtiarkar and the Assistant Commissioner, Matiari, shall: a) Implement the above orders and; b) Verify (summarily) the existence or otherwise of issue of Mst. Bibi Yasmeen as on 17-01-2017. ii) Until completion of the above corrections, the Sub-Registrar/Revenue offices shall not register/attest any transfer of the subject shares in Survey Nos.370 to 381 and 408 of deh Bau Dero, Taluka Matiari that would defeat the present order. iii) Nothing herein shall affect the rights of Mst. Noor Jehan in the estate of her deceased husband, which is a matter distinct from Section 4 succession to the propositus.

9. Reserved for order on 29-08-2025 and announced on this 19th day of September 2025 at Hyderabad. MQ/13/Rev Appeal allowed.