1987 PLP 1560 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑The dispute in this appeal relates to 3/4th share in the estate of one Allah Jurio comprising agricultural land who died issueless in 1963. The remaining 1/4th share of the estate of the deceased was inherited by Mst. Basran the widow of deceased Allah Jurio and there is no dispute about this matter. The respondents who are the sons of Mst. Bachal, the real sister of deceased Allah Jurio claimed the disputed 3/4th share in the estate of the deceased as his lawful heirs and successors. On the other hand the appellant claiming to be a distant cousin (collateral) of deceased Allah Jurio asserted that he and the deceased were the descendants of the common ancestor in the agnatic male line. Thus he claimed the right to inherit to the exclusion of the respondents.

2. Upon the death of the deceased initially the parties litigated their rival claims before the revenue authorities and ultimately this litigation culminated with the order passed by the Commissioner upholding the right of the appellant to succeed to the property in dispute as distant cousin to the exclusion of the respondents.

3. Being dissatisfied with the decision of the revenue authorities, the respondents filed S.C. Suit No.96 of 1966 in the Court of Civil Judge, Nawabshah, for declaration and injunction in respect of their right and title by virtue of their alleged right of inheritance to the disputed property as against the appellant. The appellant contested the suit and denied the claim of the respondents, asserting his right to inherit to the exclusion of the respondents. The trial Court held that the respondents were not entitled to inherit the disputed property from deceased Allah Jurio and that the appellant and Mst. Basran were the legal heirs of the deceased to succeed to his property. Accordingly the suit of the respondents was dismissed on 30th April, 1969. The appeal filed by the respondents was also dismissed by the learned Additional District Judge, Nawabshah, vide his judgment dated 8th July, 1970. Ultimately the respondents approached the High Court of Sind in a further appeal and a learned Single Judge who decided the appeal came to the conclusion that there can be no dispute regarding the fact that both parties were related to the deceased. From the judgment it appears quite clearly that the learned Single Judge held that the appellant was a distant cousin of the deceased, being the lineal descendant of the great grandfather of the deceased, whereas the respondents were the sister's sons of the deceased. Having come to this conclusion the learned Judge went on to hold that both parties fell within the category of heirs known in the Islamic Law as distant kindred. Applying then the rule of nearer in degree of relationship to exclude the more remote, the learned Judge held that the respondents being the sister's children of the deceased would exclude the appellant who comes in the remoter degree of descendants of immediate grand parents. In this view of the matter the learned Judge by his judgment dated 28th February, 1983, accepted the appeal of the respondents setting aside the judgment and decree passed by the Courts below, with the result that the suit of the respondents was decreed.

4. Leave was granted to the appellant in order to examine the contention that the learned Judge in the High Court had misconceived the true legal position under the Muslim law, inasmuch as, on the facts established the appellant fell within the category of residuaries being related to the deceased through a male ascendant and therefore, would exclude the respondents who fell in the category of distant kindred.

5. We have heard the learned counsel for the parties at some length. According to Syed Ameer Ali in his book on Mahomedan Law under the Hanfi Law of Succession the heirs connected to the deceased by the tie of blood are divided into three classes, namely, sharers, I agnates and uterine relations. The agnates are called residuaries and the uterine relations are called the distant kindred. According to the learned author and this is well‑established the sharers take their specified portions and the residue is then divided among the agnates. If there should be no agnates but only uterine relations, the residue would revert or return to the sharers in proportion to their shares except in the case of the husband or wife. It is only when there are neither "sharers" nor "agnates" that the estate is divided among the uterine relations. From these established rules governing the succession under the Hanfi Law, it is clear that in the presence of an heir belonging to the category of "residuaries" no one falling in the class known as distant kindred can inherit the property of the deceased. In view of this clear legal position the appellant would exclude the respondents who fall within the category of distant kindred being related to the deceased through the intervention of a female. Learned counsel for the respondents very fairly conceded to the legal position and raised no argument against it. His only submission was that the appellant was not proved according to the evidence on record that he was the distant cousin of the deceased. However, we are not inclined to enter into this question of fact which stands concluded by concurrent findings of all the courts below.

6. The position that emerges is that the basis on which the learned Judge disentitled the appellant from his right of inheritance was unsound on the legal plane and cannot, therefore, be sustained. In the result this appeal is allowed and the judgment and decree passed by the learned Judge in the High Court dated 28th February, 1983, is set aside, restoring the decree passed by the trial Court. There will, however, be no order as to costs. K.B.A./M‑140/S Appeal accepted.