2005 PLP 1595 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

sThe petitioners by virtue of this petition under Article 188 of the Constitution of Islamic Republic of Pakistan, read with Order XXV1, rule 1 of Supreme Court Rules, 1980, have sought review of the judgment dated 30th April, 2002 passed by this Court in Civil Appeal No.679 of 2002, arising out of Civil Petition No.436-L of 1999, which was dismissed with the following observations:-- We find that the petitioners and respondents Nos.4 and 5 have already got, a rightly, one half share of the property of Mughla as inherited by his son late Khizar Hayat. They are also entitled, under the Shariat Law, to get an additional 1/3rd share of the property out of remaining one half of Maula Dad being legal heirs of his brother Khizar Hayat deceased and the respondents Nos. 1 to 3 being daughters of late Maula Dad predeceased son of Mughla deceased are entitled to the inheritance of his property to the extent of 2/3rd share thereof instead of one-half share."

2. Learned counsel for the petitioners has contended that by operation of section 4 of Muslim Family Laws Ordinance, 1961, Maula Dad would get 1/2 share in the succession of Mughla and the widows and daughter of Maula Dad would inherit the share of Maula Dad under the law of Shariah, according to which widow would get 1/8th share and 2/3rd share would go to the daughters as sharers whereas the remaining would go to them as reversionary under doctrine of return but unfortunately, the shares of the parties have not been properly calculated as a result of which the petitioners were deprived of their legitimate right in the inheritance of Maula Dad.

3. We are afraid, learned counsel wants the calculation of the shares of parties in the property of Mughla, the original owner, whereas the dispute related only to the extent of the share of Maula Dad, predecessed son of Mughla in the property. Section 4 of Muslim Family Laws Ordinance, 1961 provides that `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". This section does not override the law of Shariah and consequently, the parties will not get more than their share in the property in accordance with law of Shariah and the widows ' and daughters of Maula Dad would get to which they would have been entitled on the death of Maula Dad, after opening of succession of Mughla. The purpose of enacting section 4 (ibid) was to cater the need of grandchildren to remove their sufferings but this provision cannot be interpreted in a manner effecting the shares of other descendants in the property in accordance with law of Shariah. This Court in Zainab v. Kamal Khan PLD 1990 SC 1051 resolving the controversy arising out of the provision of section 4 of Muslim Family Laws Ordinance, 1961, held that according to law of Shariah, the heirs of predeceased children would inherit what their father or mother would have inherited during their life time on the opening of succession.

4. For the foregoing reasons, we do not find any error in the judgment of this Court under review and consequently this petition is dismissed. M.H./B-29/S Petition dismissed.