2007 PLP 1798 (MLD)

MUNIB AHMAD KHAN, J.

Only controversy in the suit involved is as to whether Predeceased son's legal heirs are entitled to inherit the estate of their grandfather in terms of section 4 of the Muslim Family Laws Ordinance, 1961 (hereinafter referred to as "Ordinance 1961"). Both the learned counsel agreed that since there is no factual controversy expect the legal, therefore, they were not willing to adduce any evidence. Their said intention was recorded in the order, dated 7-3-2000 and thereafter on 25-4-2000. Hence the matter was placed for arguments which situation repeated on several past dates but it was adjourned on one or other ground. Today learned counsel again took same position and after inviting attention towards the factual position in respect of the death of predeceased son of grandfather, they requested for a decision on that legal issue. From the factual position as well as dates given by the learned counsel, the plaintiff is claiming through his father Ali Muhammad who died in 1958 while his father i.e. grandfather of the plaintiff, namely, Abdul Rehman died in 1975. Under the Islamic Sharia, the predeceased son is not entitled to any inheritance as only the survivors to a deceased are entitled to the inheritance. The instant case has been based on section 4 of the Ordinance, 1961, which is reproduced as under:-- "(4) Succession.

In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive." Now the question before the Court is only to see whether keeping in view the dates of death of above persons vis-a-vis section 4 of the Ordinance 1961, the plaintiff (now represented by his legal heirs after his death during pendency of suit) is entitled to inheritance or not? Learned counsel for the defendants had argued that the plaintiff is not entitled to as the Muslim Family Laws Ordinance, 1961 was promulgated on 15-7-1961 and its applicability is in terms of section 1(3); after issuance of Notification, for its commencement which was issued as published in PLD 1961 Central Statutes Page 337 commencing the law from the date of its promulgation. According to learned counsel for the defendants, it is admitted fact that father of the plaintiff died in 1958, therefore, plaintiff is not entitled to inherit as section 4 of the Ordinance, 1961 is not retrospective and at the most can apply from the date of promulgation. On the other hand, learned counsel for the plaintiff has argued that section 4 of the Ordinance, 1961 is clearly in respect of opening of succession which has admittedly been in the year, 1975 when Abdul Rahman, grandfather of plaintiff died, leaving behind certain properties, therefore, according to language of section 4 of the Ordinance, 1961, said section will come into operation from the time of opening of succession, therefore, irrespective of death of predeceased son, the inheritance is to be decided keeping in view the date of opening of succession. To overcome these arguments of the plaintiff, learned counsel for the defendant referred a judgment passed by the Hon'ble Shariat Court on 18-12-1993 in Shariat Petition No. 29/I of 1993 and another petition and has stated that section 4 of the Ordinance, 1961 has been declared as repugnant to the Injunctions of Islam and has ceased to be effective. I have gone through the judgment of learned Sharait Court, in which it has been stated as follows:-- "In view of the foregoing discussion we hold that the provision contained in section 4 of the Muslim Family Laws Ordinance, 1961, as presently in force is repugnant to the Injunctions of Islam and direct the President of Pakistan to take steps to amend the law so as to bring the said provision in conformity with the Injunctions of Islam. We further direct that the said provisions which have been held repugnant to the Injunctions of Islam shall cease to have effect from 31st day of March, 2000." From the above, it is apparent that ineffectiveness of the said section has been made from 31st day of March, 2000 while admittedly inheritance has opened in 1975. Even otherwise according to Article 203-D of the Constitution, Shariat Court is to send its recommendation to the Government for amendment in any law in terms of its judgment and thereafter on action of the Government, law is to be amended accordingly. It has also been pointed out by the learned Counsel for plaintiff that the said decision of the learned Shariat Court is pending before the Hon'ble Supreme Court in appeal and secondly family law has been given protection from any amendment in terms of Article 8(3)(b)(i) of the Constitution and finds mention in 5th Schedule of the Constitution. In this reference some authorities i.e. 2005 SCMR 1534, 2005 SCMR 1995, 2005 SCMR 1271, (sic) CLC 1240 and 2005 CLC 1160 have been examined. In all these authorities section 4 of the Muslim Family Laws Ordinance, 1961, has been held valid and operative as the same is existing law and it has even been protected under the Constitution, 1973. Without touching the question of amendment in the Family Law in terms of Shariat Court judgment, the case in hand is simple as even if the judgment of the learned Shariat Court is taken into consideration then, according to it section 4 of the Muslim Family Laws Ordinance, 1961 has been made ineffective from 31st day of March, 2000 while succession has been opened in 1975, after death of grandfather. The prayer in the suit, inter alia, is to declare that the plaintiff is entitled to inherit in terms of section 4 of the Ordinance, 1961. Since the parties have not led any evidence in respect to question of money or other property etc., therefore, sharing cannot be decided. However. In the light of above, the suit of the plaintiff is decreed to the extent and with declaration that the plaintiff Muhammad Rauf is entitled to inherit from the Estate of his grandfather Abdul Rahman in lieu of his father in terms of section 4 of the Ordinance, 1961 and after death of plaintiff the right has been devolved upon his legal heirs i.e. the present plaintiffs. H.B.T./M-124-K Suit decreed.