2000 PLP 672 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

The petitioners seek leave to appeal against the order of dismissal of Civil Revision No.98-D of 1998, filed by the petitioners against the appellate order of the learned District Judge, Rajanpur who had earlier affirmed the judgment and the decree passed by the learned trial Court non-suiting the petitioners in a claim of inheritance-of one Allah Diwaya deceased.

2. Allah Diwaya was admittedly the, owner of the disputed property. He died in the year 1977 and had been survived by a daughter, another daughter's children and a sister. On 19-10-1977, Inheritance Mutation No.68 of Allah Diwaya deceased was sanctioned in favour of respondents Nos.1 to 4 and one Mst. Ameer Mai who later on transferred her share by way of gift to respondent No .6. Subsequently respondents Nos. I to 4 and 6 transferred their entitlement in the disputed property in favour of respondents Nos.7 to 18 by Mutation No.174 attested on 11-3-1994. On 1-9-1994, the plaintiff- petitioners filed a suit wherein they had assailed the correctness and validity of inheritance Mutation No.68 sanctioned on 19-10-1977, and had claimed that they being the collaterals of the deceased Allah Diwaya were also entitled to inherit their due shares in the disputed property left by Allah Diwaya. The suit was contested by defendants Nos.2 to

18. In the written statement, jointly filed by them on 6-6-1995, it was, inter alia, denied that the petitioners could legally inherit any share in the property left by Allah Diwaya. According to them Allah Diwaya, their predecessor-in-interest, professed Fiqah Jafria and therefore, under the law of inheritance only defendants Nos.l to 6 were entitled to the share in the inheritance of Allah Diwaya and none else including the petitioners could claim any share in the inheritance.

3. On the pleadings of the parties as many as ten issues including the relief, were settled between the parties. But for the purpose of the present petition, only the following issues are pertinent:-- , (1) Whether the plaintiffs are owners in possession of the suit property? OPP. (2) Whether the Mutation No.68, dated 19-10-1977 is against facts, illegal, and ineffective' upon rights of the plaintiff hence the plaintiffs are entitled to the decree as reasoned in the plaintiff? OPP. (6) Whether, Allah Diwaya son of Fateh Muhammad deceased belongs to Shia School of Thought? OPD.

4. The learned trial Judge held on Issue No.6 that Allah Diwaya predecessor-in-interest of the answering respondents was proved to have been professing Fiqah Jafria. The learned trial Judge further held on Issue No. l that the plaintiffs-petitioners could not legally claim any share in the inheritance of Allah Diwaya and thus decided Issue No. l against the petitioners. In view of the findings on Issues Nos. l and 6, the learned trial Judge answered Issue No.2 against the petitioners and held that Inheritance Mutation No.68 dated 19-10-1977 had been correctly sanctioned in favour of the answering respondents. As cumulative effect of the findings noted above and the other issues, the suit of the petitioners was dismissed by the learned trial Judge. In appeal, the learned District Judge, Rajanpur, after exhaustive discussion on the controversy involved upheld the findings of the learned trial Court. Similarly, a learned Single Judge of the High Court maintained these concurrent findings of fact on Issue No.6 that Allah Diwaya deceased was not Sunni but was professing Shia faith: Hence this petition.

5. We have heard Mr. Mubashir Lateef Ahmad, learned Advocate Supreme Court, for the petitioners and Malik Saeed Hasan, learned Senior Advocate Supreme Court for the respondents and have perused the record with their assistance.

6. It is a common ground between the parties that Allah Diwaya deceased was survived by his daughters Mst. Ameer Mai, Mahmood Bakhsh, Muhammad Akhtar, Mst. Aqeela and Mst. Jamila respectively sons and daughters of a predeceased daughter of Allah Diwaya and a sister Mst. Bakhtan defendant No.5. The learned two Courts below and the learned Judge in Chambers in the High Court have concurrently found that Allah Diwaya Professed Shia faith till his death. If that be so and there is no doubt about the fact that such a finding cannot be interfered with in the proceedings before this Court, then under Item 88 of Chapter VIII of Mulla's Mahomedan Law, 1981 Pakistan Edition, the heirs of the Shia by consanguinity are divided into three classes, and each class is subdivided into two sections. These classes are composed as follows:-- I (i) Parents; (ii) children and other lineal descendants h.l.s. II. (i) Grandparents h.h.s. (true as well as false); (ii) brothers and sisters and their descendants h1s. III. (i) paternal, and (ii) maternal, uncle and aunts, of the deceased, and of his parents and grandparents h.h.s. and their descendants h.l.s. (2) Of these three classes of heirs the first excludes the second from inheritance, and the second excludes the third. But the heirs of the two sections of each class succeed together, the nearer degree in each section excluding the more remote in that section.

7. In the instant case Allah Diwaya was not shown to have been survived by his parents, therefore, defendants Nos.l to 4 would inherit the shares according to Shia law as children and other lineal descendants and Mst. Bakhtan defendant No.5 would inherit a share with defendants Nos. I to 4 as surviving sister. The daughters would share 2/3rd while the sister would inherit 1/3. Nothing is left for inheritance to the residuary, namely, the plaintiff who claimed to be the collaterals. The learned counsel appearing for the petitioners could not convince us that the above statement of law is in any manner exceptionable.

8. Assuining for the sake of argument that Allah Diwaya was professing Sunni faith, even then the two daughters would inherit 2/3rd, the sister would inherit the residue and the petitioners being collaterals would have no share in the estate of the deceased.

9. After going through the record of the case in general and perusal of the law of inheritance of both Shia and Sunni, we tend to uphold the findings of the two Courts below and the learned Single Judge in the High Court that whether Allah Diwaya was Shia or Sunni, the petitioners could in either case had no right to inherit any share in the estate left by Allah Diwaya.

10. We are, therefore, of the considered view that no fault can be found with the High Court's judgment which proceeds on correct application of the relevant principles of law to the facts and circumstances of the case leaving no room for interference of this Court. This petition is, therefore, dismissed. Petition dismissed.