2007 PLP 1787 (CLC)

SAID MAROOF KHAN, J.--The dispute between the parties relates to inheritance of one Mamda who died in the year 1999. On his death inheritance mutation No.3556 in respect of his landed property measuring 875 Kanals, 4 Marla situated in the limits of Village Ramak, Tehsil and District D.I. Khan was sanctioned in favour of his two sons and two daughters i.e. the present petitioners on 22-5-1999 and on the same day petitioner No.1 alienated some of the inherited property in the name of one Naseeb Khan vide sale Mutation No.3557. The respondents Muhammad Hussain, Muhammad Riaz, Ashiq Hussain and Mumtaz Hussain the sons of Mst. Saddo Mai a pre-deceased daughter of Mamda were deprived of the inheritance of the deceased, therefore, they instituted a declaratory suit on 5-11-1999 challenging the validity of the above mutations and claimed 1/7th share in the above property.

2. The petitioners Allah Diwaya, Mithu, Mst. Mato Mai and Mst. Bakho Mai submitted their written statement and contested the suit, inter alia, on the ground that Mst. Saddo Mai the mother of the respondents had died prior to the death of her father and as such the respondents being her legal heirs were not entitled to any share out of the estate of Mamda deceased. After recording the evidence of the parties the learned Civil Judge-VI D.I. Khan decreed the suit in favour of the respondents i.e. legal heirs of Mst. Saddo Mai vide judgment dated 13-5-2005. The petitioners had questioned the above judgment by filing appeal but that was dismissed by the learned Additional District Judge-IV D.I. Khan vide judgment dated 7-1-2006 and consequently the petitioner filed the instant revision petition.

3. Mr. Muhammad Yousaf Khan learned counsel for the petitioners contended that section 4, Muslim Family Laws Ordinance under which the respondents i.e. the legal heirs of Mst. Saddo Mai claimed share in the disputed property has been declared violative of the Injunctions. of Islam by the Federal Shariat Court in the case of Allah Kakha and others reported as PLD 2000 FSC 1 and as such the respondents cannot inherit any share out of the disputed property and that the Courts below had wrongly and .illegally declared them entitled to inheritance of the deceased Mamda. On the other hand, Mr. Muhammad Iqbal Ghuncha learned counsel for the respondents argued that since appeal against the above Judgment of Federal Shariat Court is pending adjudication in the Honourable Supreme Court, in view of Article 203-D(2) of the Constitution of Islamic Republic of Pakistan, 1973 the rule laid down in the above judgment cannot be given effect till the disposal of the appeal.

4. I have considered the submissions of learned counsel for the parties and perused the record. Admittedly Mst. Saddo Mai was the sister of the petitioners and the mother of respondents Nos.1 to 4 and had she been alive, she would have inherited 1/7th share out of the estate of deceased Mamda. However, she died during life time of her father Mamda and on the death of the latter the petitioners got attested the inheritance mutation in their favour and excluded the respondents from the inheritance .of their maternal .grandfather although under the provision of section 4 Muslim Family Laws Ordinance, 1961 they were entitled to get 1/7th .share which their mother would have inherited had she been alive. The plea of the petitioners that section 4 of Muslim Family Laws Ordinance being against the Injunctions of Islam has been struck down by the Federal Shariat Court in the case reported as PLD D 2000 FSC 1 and as such the. petitioners cannot get any share out of the property of the deceased is without substance because it is an admitted fact that the verdict of the Federal Shariat Court in the above case has been challenged before the Honourable Supreme Court and the appeal is pending adjudication so in view of Article 203-D of the Constitution of Islamic Republic of Pakistan the decision of the Federal Shariat Court stands suspended till the disposal of appeal PLD 2003 SC 475.

5. Even otherwise the verdict given by the Federal Shariat Court in the above judgment is not applicable to the instant case because para.63 thereof reveals that the provision of section 4, Muslim Family Laws Ordinance which has been .held repugnant to the Injunctions of Islam shall cease to have effect from 31-3-2000 whereas the record of the present case indicates that Mamda the predecessor-in-interest of the parties died about one year prior to, the above decision of the Federal Shariat Court in Allah Rakha's case and the succession in respect of the property of the deceased opened in the year 1999. The inheritance mutation was also attested in 1999 and at that time section 4, Muslim family Laws Ordinance was not declared repugnant to the Injunctions of Islam. The four contesting respondents being the legal heirs of the, deceased were, therefore, entitled to get their due share out of the property of their predecessor Mamda deceased and as such the Court below had rightly decided the case in their favour. The concurrent findings of the Courts below are not suffering from any illegality or irregularity calling for interference by this Court in revision. 'The revision petition being without substance is hereby dismissed with costs. H.B.T./160/P Revision dismissed.