1992 PLP 935 (SCMR)

Mst. Zainab v. Kamal Khan alias Kamala PLD 1990 SC 1051 rel. Sahibzada Ahmad Raza Khan Kasuri, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner. Muhammad Munir Peracha, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents Nos.1 to

9. Nemo for Respondent No.10. Date of hearing: 28th October, 1991. WALI MUHAMMAD. KHAN, J.‑‑‑Mst. Qabal Jan, petitioner herein, seeks leave to appeal against the judgment and decree of a learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi dated 27‑3‑1991 whereby her Revision Petition against the judgment and decree of the Civil Judge, Attock dated 27‑2‑1988 and that of the Appellate Court of Additional District Judge, Attock dated 2‑7‑1989, was dismissed in limine.

2. The facts culminating in the above decrees are that Saadullah, predecessor‑in‑interest of the parties, owned considerable landed property. He died in the year 1963 leaving behind Mst. Amir Jan (widow), Mst. Habab Jan (daughter) and Mst. Qabal Jan daughter of Muhammad Akram (predeceased son). His inheritance mutation, according to para. 5 of the plaint, was attested in the name of Mst. Amir Jan (1/8th share), Mst. Habab Jan (1/2 share), Mst. Qabal Jan plaintiff (1/6th share) and Najab Khan predecessor‑in‑interest of defendants 3 to 8 (5/24th share). This was challenged by the plaintiff/petitioner through a declaratory suit claiming 7/16th share in the inheritance of Saadullah Khan. The suit was contested, issues framed, evidence led pro and contra thereon recorded and the learned trial Court passed a declaratory decree to the extent of 7/24th share only in favour of the plaintiff Still not satisfied, she preferred an appeal against it but with no success . Her revision petition before the High Court also failed.

3. An application for the amendment of the plaint to include the area left behind by Saadullah Khan, inadvertently omitted from the plaint, also requires consideration and disposal.

4. The petition is barred by 7 days. Application for condonation of delay was argued by the learned counsel for the petitioner but he could not satisfy us that the late submission of the petition was on account of circumstances beyond the control of the petitioner and therefore the same is rejected. However, since valuable right of the parties to the inheritance of their predecessor is involved, we propose to examine the case to satisfy ourselves about the correctness and legality of the judgments of the lower forums.

5. Mst. Amir Jan was rightly given 1/8th share and Mst. Habab Jan 7/24th share. The controversy is only with regard to the 14/24th share which would have been inherited by Muhammad Akram, father of Mst. Qabal Jan plaintiff/petitioner, if he was alive. The plaintiff/petitioner claims the same in toto under section 4 of Muslim Family Laws Ordinance, 1961. This very proposition of law came up for consideration before this Court in Mst. Zainab v. Kamal Khan alias Kamala PLD 1990 SC 1051 wherein it was held, in para. 15 of the judgment, that a grand‑child is not entitled to more share than what could be inherited from the parents according to Islamic Law. As such, Mst. Qabal Jan can only claim 1/2 share of the area to which Muhammad Akram, her father, would have been entitled if alive at the time of death of Saadullah Khan deceased. The trial Court has, therefore, rightly decreed her suit to the extent of 7/24th share.

6. However, the matter does not end here. The remaining 7/24th share of Muhammad Akram is also to be distributed amongst his other Shari heirs. The learned counsel for the parties frankly conceded that Mst. Amir Jan being his mother will receive 1/6th share out of the same which comes to 7/144th share in the entire area and Mst. Habab Jan, sister, will get the residue i.e., 7/24th minus 7/144th equal to 35/144th in the entire area in addition to the area inherited by them as Shari heirs of Saadullah deceased. The shares allotted to them in the inheritance mutation are obviously incorrect.

7. This petition is resultantly converted into an appeal and it is ordered that the Revenue record may be corrected regarding the entire area left behind by Saadullah deceased, whether included in the present litigation or not. There is no order as to costs. AA./Q‑44/S Order accordingly.