2014 PLP 1205 (SCMR)

ANWAR ZAHEER JAMALI, J.

This civil appeal with leave of the Court arises out of the judgment dated 21-4-2011, in Civil Revision No.78 of 2009, passed by the Peshawar High Court, Peshawar, whereby the said civil revision was dismissed in limine and consequently the concurrent findings of the two Courts below in favour of respondents were maintained.

2. Briefly stated, relevant facts leading to this litigation are that on 25-1-1993, respondent No.1 Gul Banda brought Civil Suit No.259/1 of 2006, before the Court of Civil Judge, Takht-e-Nasrati, District Karak, seeking declaration that the mutations Nos.16796-16797, attested on 14-11-1954, mutation No.21500, attested on 8-10-1973, and mutation No.21678, attested on 16-5-1974, relating to certain lands at Mauza Chokara, Tehsil Takht-e-Nasrati, District Karak (in short "the suit land"), were forged and tampered, which were attested without her knowledge. After filing of written statement on behalf of present appellants, who are statedly legal heirs of Rehmat Khan; framing of issues and recording of parties' evidence, vide judgment dated 25-1-2007, the suit of the respondent was partly decreed to the extent that mutation No.21500, attested on 8-10-1973, was declared null and void and the revenue officials were directed to correct the said mutation according to the law of inheritance.

3. The appellants being aggrieved by the aforesaid judgment, preferred Civil Appeal No.33/13 of 2007 before the Court of Additional District Judge Takht-e-Nasrati on 19-3-2007, which was proceeded and dismissed vide judgment dated 18-9-2008. The civil revision preferred by the present appellants before the High Court, being Civil Revision No.78 of 2009, also met with the same fate and dismissed vide impugned judgment dated 21-4-2011.

4. The controversy relating to inheritance of the suit land from the estate of Badshah Mir, who died issueless, involved in this appeal is that deceased at the time of death, left behind his mother, Mst. Behram, three sisters, Gul Juma, Zar Juma and Gul Banda, and Rehmat Khan his consanguine brother as his legal heirs. Accordingly, upon the opening of inheritance, mother of the deceased got 1/6th share from his estate/the suit land, three real sisters got 2/3rd share, while Rehmat Khan, consanguine brother of the deceased Badshah Mir also succeeded to manage remaining 1/6th share in his name, vide mutation No.21500 dated 8-10-1973. Such claim of Rehmat Khan was challenged by the real sister of the deceased Mst. Gulbanda, which was found against the principles of Muhammadan Law of inheritance and, thus, set aside by the civil Court. This view was also confirmed by the appellate and the revisional Courts against the predecessor-in-interest of the appellants vide their respective judgments dated 18-9-2008 and 21-4-2011.

5. We have heard the arguments of the learned Advocate Supreme Court for the appellants as well as the respondents Nos.1 and 2 and perused the case record. There is no dispute as regards 1/6th share from the estate of deceased, devolving upon his mother Mst. Behram and 2/3rd share in favour of his three real sisters named above, which is in conformity with Divine dictate, per Verse No.176 of Sure An-Nisa from the Holy Quran, which, for ease of reference is reproduced as under:-- They ask thee for a pronouncement. Say: Allah hath pronounced for you concerning distant kindred. If a man die childless and he have a sister, hers is half the heritage, and he would have inherited from her had she died childless. And if there be two sisters, then theirs are two-thirds of the heritage, and if they be brethren, men and women, unto the male is the equivalent of the share of two females. Allah expoundeth unto you, so that ye err not. Allah is Knower of all things. (English translation by Pickthall)

6. The other part of the controversy relating to remaining 1/6th share agitated in the appeal, which is the main issue, is as to whether under the category of residuaries, per Muhammadan Law, it would devolve upon three real sisters of the deceased in preference to consanguine brother by following the doctrine of return (Radd), or it would go to Rehmat Khan as residuary, being consanguine brother of the deceased. In this regard, we have perused the table of residuaries in the form of a chart given in the book "Principles of Mahomedan Law" by D.F. Mulla, a renowned scholar, researcher and jurist, and seen that the real sisters being nearer in degree of relationship with the deceased stand at serial No.6, while the consanguine brother stands at serial No.7. For ease of reference, the said chart is reproduced as under:-- "TABLE OF RESIDUARIES IN ORDER OF SUCCESSION- Sunni Law I. DESCENDANTS: (1) SON. Daughter takes as a residuary with the son, the son taking a double portion. (2) SON'S SON h.l.s.-the nearer in degree excluding the more remote. Two or more son's sons inherit in equal shares. Son's daughter h.l.s. takes as a residuary with an equal son's son........ II. ASCENDANTS: (3) FATHER. (4) TRUE GRANDFATHER h.h.s.- the nearer in degree excluding the more remote. III. DESCENDANTS OF FATHER: (5) FULL BROTHER. FULL SISTER- takes as a residuary with full brother, the brother taking a double portion. (6) FULL SISTER- In default of full brother and the other residuaries above-named, the full sister takes the residue (7) CONSANGUINE BROTHERS. CONSANGUINE SISTER.- takes a residuary with consanguine brother, the brother, taking a double portion. (8) CONSANGUINE SISTER.- In default of consanguine brother and the other residuaries above-named, the consanguine sister takes the residue,............. (9) FULL BROTHER'S SON. (10) CONSANGUINE BROTHER'S SON. (11) FULL BROTHER'S SON'S SON. (12) CONSANGUINE BROTHER'S SON'S SON. Then come remoter male descendants of No.11 and No.12, that is, the son of No.11, then the son of No.12, then the son's son of No.11, then the son's son of No.12 and so on in like order. IV. DESCENDANTS OF TRUE GRANDFATHER h.h.s. (13) FULL PATERNAL UNCLE. (14) CONSANGUINE PATERNAL UNCLE. (15) FULL PATERNAL UNCLE'S SON. (16) CONSANGUINE PATERNAL UNCLE'S SON. (17) FULL PATERNAL UNCLE'S SON'S SON. (18) CONSANGUINE PATERNAL UNCLE'S SON'S SON. Then come remoter male descendants of Nos.17 and 18, in like order and manner as descendants of Nos.11 and

12. MALE DESCENDANTS OF MORE REMOTE TRUE GRANDFATHERS - in like order and manner as the deceased's paternal uncles and their sons and son's sons."

7. This being the legal position, the only submission of the learned Advocate Supreme Court for the appellants that since 2/3rd share has been already inherited by the three real sisters of the deceased in their capacity as sharers, therefore, the remaining 16th share of the estate of the deceased would devolve on his consanguine brother, arrayed at serial No.7 of the residuary, is ill-founded and misconceived. As applying the doctrine of return (Radd) and rule of "exclusion", the three sisters of the deceased would not only inherit 2/3rd share, as sharers, from the estate of their deceased real brother, having died issueless but being nearer in the category of residuary at serial No.6, the remaining 1/6th share will also devolve upon them in such capacity. Thus, in their presence, the consanguine brother, being at serial No.7; would not inherit anything from the estate of the deceased as residuary. We have confronted learned Advocate Supreme Court for the appellants with this legal position to which he has not been able to give any rebuttal to this proposition.

8. This being the position, this appeal being devoid of merits, is dismissed. MWA/S-13/SC Appeal dismissed.