1989 PLP 916 (MLD)

2. The sole question to be examined in this case is how the inheritance of Miran Bakhsh, the last male holder, would be governed after his death in accordance with the provisions of Paragraph 46‑A of the Rehabilitation Settlement Scheme, 1956.

3. The admitted facts are that the estate left by Miran Bakhsh was mutated under the custom in favour of his widow Mst. Alamay as a limited owner. The mutation of inheritance was, accordingly, sanctioned on 11‑8‑1953 under the Shariat Law. Abadan son of Jewa was not given any share in the estate left by Miran Bakhsh. The matter ultimately went to the High Court in Writ Petition No.541‑R‑65, wherein the case was remanded by order dated 24‑6‑1974 for decision afresh in accordance with Para. 46‑A of the Settlement Rehabilitation Scheme and the observation made in the order.

4. Learned counsel for Jamal Din, etc. petitioners in Writ Petition No.10‑12 R‑76 submits that since Gohari, grand‑father of Abadan, died before the death of Miran Bakhsh (the last male holder), under the principle that nearer in degree excludes the remoter, the estate would be inherited by Karim Bakhsh, who was alive at the time of death of Miran Bakhsh, the last male holder. In this way, 1/8th of Miran Bakhsh's state shall go to his widow, Mst. Alamay, 2/3rd to his daughters as he has no son and the remaining share of the property to the extent of 5/25 shall go to Karim Bakhsh. Since Gohari died before Miran Bakhsh, he would not inherit anything. Both Jiwa and his son Abadan as also Allah Bakhsh son of Gohari would also be excluded.

5. Learned counsel for Taj Muhammad, etc. petitioners in Writ Petition No.1418‑R‑76 contends that the inheritance of Mst. Alamay, after her termination as limited owner, will be governed under Paragraph 46‑A of the Rehabilitation Settlement Scheme, 1956, according to which the heirs, who had already died, would get inheritance at the time of death of Mst. Alamay, whose rights were terminated. Accordingly, mutation was sanctioned on 11‑8‑1953 which was never challenged by the petitioners in Writ Petition No.1042‑R‑

76. Therefore,it does not lie now in their mouth to object to the rights of the petitioners Taj Muhammad, etc.

6. It is next contended that the learned Settlement Commissioner while giving the right to Jewa has wrongly excluded the heirs of Allah Bakhsh who is equally entitled to, being the son of Gohari. Therefore, the impugned order is liable to be set aside. It is stated in the impugned order that Allah Bakhsh son of Gohari was not entitled to the disputed share in the inheritance as his father Gohari has pre deceased Miran Bakhsh, according to the statement made by Abadan before him.

7. The respective contentions of the learned counsel for the parties are to be viewed in the light of paragraph 46‑A of the Rehabilitation Settlement Scheme, 1956, which provides that "in respect of agricultural property held by a Muslim female as a limited owner under the Customary Law., succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of last full owner, had the Shariat Law been applicable at the time of such death, and in the event of the death of any of such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Shariat Law."

8. In Muhammad Yaqoob v. Member, Board of Revenue, Lahore PLD 1973 SC 304, the scope of Paragraph 46‑A of the Rehabilitation Settlement Scheme, 1956, has been dealt with. It was held that under Paragraph 46‑A of the Scheme, succession is to be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the A time of the death of the full owner, had the Shariat Law been applicable at the time of such death. In other words, the property would devolve upon such persons as would have been entitled to succeed under the Shariat Law upon the death of the last full owner.

9. In order to appreciate the point involved in the matter, a reference to the pedigree‑table would be useful. One Rehman had three sons, namely, Gehna, Hashim and Qasim. Gehna had Miran Bakhsh as his son, whose estate was inherited by his widow Mst. Alamay as limited owner after his death. Hashim had his son Karim Bakhsh who has in his turn Jamal Din. Qasim had two sons Allah Bakhsh and Jewa. Jewa was the father of Abadan.

10. In the instant case, a finding was recorded in the impugned order that Jewa was alive at the time of death of Miran Bakhsh and died five years after the death of Miran Bakhsh. Since Jewa died, on the termination of the limited estate, his successor Abadan would get his due share under Paragraph 46‑A of the property in question.

11. The learned Settlement Commissioner failed to appreciate and consider that respondent No.2. Abadan, in his statement recorded by the learned Settlement Commissioner, deposed that his grand‑father Gohari, who was first cousin of Miran Bakhsh, whose estate is in quest;on, was not alive at the time of death of Miran Bakhsh. This being so, if grand‑father of Abadan was not alive at, the time of death of Miran Bakhsh, his father Gohari was not eligible to inherit the property out of the estate left by Miran Bakhsh. If that is so, then Abadan, being grandson of Gohari, is also not entitled to any share in the estate left by i Miran Bakhsh. This aspect of the matter has not been considered by the learned Settlement Commissioner, who passed the impugned order.

12. In view of the above, both the writ petitions are accepted, the impugned order is declared as without lawful authority and of no legal effect. The case is remanded to the Chief Settlement Commissioner/Member. Board of Revenue, Punjab, Lahore, for its entrustment to a Notified Officer for decision afresh in I) accordance with law as to when Miran Bakhsh, Gohari, Jewa and Allah Bakhsh died and what was the effect of inheritance in the light of paragraph 46‑A of the Scheme, after providing an opportunity of being heard to the parties and allowing them to adduce evidence, if any in respect thereof. The parties are directed to appear before the Chief Settlement Commissioner/Member, Board of Revenue, Punjab, Lahore on 10‑1‑1989. There shall, however, be no order as to costs. M.Y.H./J‑42/L Case remanded.