P L D (Rev (PLP)

FIDA HASSAN, F. C.‑This revision petition has been forwarded by the Commissioner Rawalpindi vide his note dated 21st May 1953. The following pedigree‑table may be referred to for appreciating the facts of the case :‑ NEK ALAM ______________________|___________________ | | | Ghulam Ali Shah Muhammad Shah Bahadur Shah | (Appears to __________________|___________ | have died | | | Issueless). Mst. Hayat Habib Alam Shah ______|________ Begum | | | | Ahmad Shah Muhammad Shah (widows) __________________________|______ | | | Mst. Mehr‑un‑Nisa Aimna Bibi Nur Begum Begum Habib Alam Shah executed a registered will on the 20th May 1932 whereby his inheritance was to devolve on his three widows Mst. Nur Begum, Almna Bibi and Mehr‑un‑Nisa Begum. On the death of Habib Alam Shah, the mutation of inheritance was attested in favour of the three widows presumably in accordance with custom. It was stipulated In the will that on the demise of one widow, the remaining two widows would succeed to her estate and similarly on the death of the second widow, the third living widow would get her estate. Mst. Nur Begum died on the 30th April 1949, and the Revenue Officer mutated her estate in favour of the two surviving widows. This order, having been brought to the Collector's notice as running counter to the Panjab Muslim Personal Law (Shariat) Application Act (IX of 1948), was reviewed, and thereafter the Revenue Officer mutated the estate as follows :‑ (1) Mst. Hayat Begum, sister of Habib Alam Shah: J share and (2) Ahmad Shah and Muhammad Shah‑ (i) as heirs of Mst. Nur Begum ; 1/12 and (ii) as cousins of Habib Alam Shah : 5/12 Total J share. On appeal, the Collector upheld the order of the Assistant Collector. Mst. Mehr‑un‑Nisa and Aimna Bibi filed a revision petition before the Commissioner contending that even if the mutation was to be disposed of in accordance with the Punjab Muslim Personal Law (Shariat) Application Act, 1948, they were entitled to a share in terms of section 3 of the Act. Sometime after filing their revision, they submitted another petition praying that as the succession had not opened because of the presence of the two co‑widows (petitioners), section 3 of the Punjab Muslim Personal Law (Shariat) Application Act should not be made applicable to the case. The learned Commissioner, while forwarding the case, has recommended that the order of the Assistant Collector and the Collector should be set aside on the ground that section 3 of the Punjab Muslim Personal Law (Shariat) Application Act has been mis-applied in the case in so far that the petitioners who were also entitled to succeed to the estate of Mst. Nur Begum, were excluded. I have heard counsel for parties. Learned counsel for the petitioners tried to argue that to this case the limited Interest should be deemed to terminate only after the death of the last surviving widow, because all the widows for the purposes of the limited interest, are one entity. Learned counsel failed to cite any authority in support of this proposition. On the contrary, learned counsel for the respondents relied on P L D 1952 (Rev.) Pb. 294, which lays down that under section 3 of the Punjab Muslim Personal Law (Shariat) Application Act, succession applies to both testamentary and intestate succession, viz: a will cannot overrule the statutory provisions of the Punjab Muslim Personal Law (Shariat) Application Act. In the circumstances enumerated above, It Is clear that Assistant Collector and the Collector committed a material irregularity in ignoring the provisions of section 3 of the Punjab Muslim Personal Law (Sharia:) Application Act, 1948. As pointer out by the Commissioner the succession in this case will be deemed to open out on the death of Habib Alam Shah which took place before the enforcement of the Punjab Muslim Personal Law (Shariat) Application Act. The petitioners will, therefore, succeed to the estate of Mst. Nur Begum as widows of Habib Alam Shah. I accept the petition and, setting a side the order of the Assistant Collector 11 Grade and Collector, direct that the mutation should be sanctioned in accordance with the shares of .4 the heirs according to shariat as laid down in table of shares at page 33‑A of Mulla's Muhammadan Law (10th Edition), as follows:‑ (1) Mst. Hayat Begum sister of Habib Alam Shah : share. (2) Mst. Mehr‑un‑Nisa and Aimna Bibi widows (in equal shares : share ; and (3) Ahmad Shah and Muhammad Shah sons of Ghulam All Shah collaterals : share. No order as to costs. Parties to be informed. A. H. Petition accepted.