2011 PLP 736 (CLC)

KH. IMTIAZ AHMAD, J.

This Civil Revision under section 115, C.P.C. is directed against the judgment and decree dated 7-10-1996 passed by the learned Additional District Judge, Khanewal whereby, while accepting the appeal, he set aside the judgment and decree of the trial court and dismissed the suit of the plaintiffs.

2. The relevant facts for the disposal of this civil revision are that one Rab Nawaz was the owner of land in different villages .fully mentioned in the head note of the plaint. The said Rab Nawaz died in the year 1990 and he was survived by his legal heirs namely Mst. Alam Khatoon, the widow, Umar Nawaz and Arshad Nawaz, the minor sons of Haq Nawaz and said Haq Nawaz was the real brother of Rab Nawaz and Muhammad Bakhsh son of Khuda Bakhsh and the said Khuda Bakhsh was also the real brother of Rab Nawaz. Both Haq Nawaz and Khuda Bakhsh had died prior to the death .of Rab Nawaz. The claim of the plaintiffs i.e. Mst. Alam Khatoon, Umar Nawaz and Arshad Nawaz against the defendant Muhammad Bakhsh was that he was only entitled to 1/4 share of the property left by said Rab Nawaz but the mutation of p inheritance and the order of A.C/Collector, Kabirwala dated 29-1-1995 and Mutation No.297 dated 31-3-1993 were illegal since in the said mutations, Muhammad Bakhsh defendant was given excess share. Therefore, suit for declaration was filed by the plaintiffs. The defendant Muhammad Bakhsh filed the written statement and supported the mutations on the ground that after deducting the share of widow Mst. Alam Khatoon, the rest of the property was to be devolved upon the pre-deceased brothers of Rab Nawaz deceased namely Haq Nawaz and Khuda Bakhsh and in this way, since the defendant was the only son of Khuda Bakhsh so, he was entitled for half of the share of the property left after deducting the share of the widow while the remaining property was to be devolved upon the plaintiffs Umar Nawaz and Arshad Nawaz who were the sons of Haq Nawaz. Thereafter, the learned trial court on 23-10-1995, recorded the better statements of the parties which was to the effect that when Rab Nawaz died, his widow Mst. Alam Khatoon was co-sharer. Rab Nawaz had two brothers namely Haq Nawaz and Khuda Bakhsh who had also died prior to the death of Rab Nawaz. The defendant Muhammad Bakhsh was the only son of Khuda Bakhsh while Umar Nawaz and Arshad Nawaz were the sons of Haq Nawaz. On the basis of this better statement, the learned trial court decided the case since a legal question was involved in the judgment and decree dated 8-1-1996 observing therein that plaintiffs Nos.2 and 3 who were the sons of Haq Nawaz and the defendant, fall in the same category and they have to inherit in their personal status equally and not in accordance with the share of their deceased fathers and resultantly, decreed the suit.

3. Feeling aggrieved by the said judgment and decree, the defendant preferred an appeal and the learned Additional District Judge, Khanewal vide judgment and decree dated 7-10-1996, accepted the appeal by observing that being sons of the pre-deceased brother Rab Nawaz deceased, appellant as well as respondents Nos.2 and 3 would automatically step in the shoes of their fathers respectively and will get share from the inheritance of Rab Nawaz according to the share which their deceased father would have been entitled to get., It was further observed that the impugned Mutation No.297 as well as order dated 29-1-1995 passed by A.C./Collector Kabirwala, the appellant and respondents No.2 and 3 had rightly been given 3/8th share respectively and resultantly, dismissed the suit of the plaintiffs hence, this Civil Revision.

4. The learned counsel for the petitioners contended that since the sons of pre-deceased brothers of deceased were alive at the time of death of Rab Nawaz so, they were entitled to inherit in equal shares and there was no occasion for the learned Addl. District Judge to hold that they had to inherit the property according to the share of their fathers.

5. On the other hand, learned counsel for the respondent Muhammad Bakhsh supported the impugned judgment and decree of the learned Additional District Judge.

6. Arguments heard. Record perused.

7. The only legal question is involved in the present Civil Revision with regard to inheritance. There is no dispute that the widow namely Mst. Alam Khatoon was entitled to 1/4th share: There were two sons from the one brother of Rab Nawab deceased and one son from the' other brother of deceased Rab Nawaz. The only controversy is that all the three said persons were entitled in equal shares or the two sons of one brother would get share equal to the share of the other son of the brother.

8. In the book of Syed Ameer Ali in Chapter-11, page 50, it is stated that: "When there are several residuaries in the same degree, the property is divided between them 'by bodies, not by families' (i.e., Per capita and not per stirpes). As, for instance, when there is a son of one brother and ten sons of another, or the son of one paternal uncle and ten sons of another, the property is to be divided into eleven parts, of which each takes one part"

9. Similarly, on page 702 of book by Baillie, the same principle has been laid down. In this way, it is established that since Haq Nawaz had two sons namely Umar Nawaz and Arshad Nawaz and Khuda Bakhsh had one -son namely Muhammad Bakhsh so, after excluding the share of 1 widow, the remaining property was to be devolved in three parts, each of them obtain 1/3 share of the property. It may also be mentioned here that the parties are governed by 'Hanfi' law since it was not a case of either party that they were governed by 'Shia' sect.

10. It may also be mentioned here that the same proposition carne up for consideration in a case titled Abdul Sattar Khan and another v. Rafiq Khan and others 2000 SCMR 1574 and the same principle was laid down by the august Supreme Court of Pakistan.

11. In view of what has been said above, it is clear that the learned Additional District Judge committed illegality by observing that the appellant in the said appeal and the respondents No.2 and 3 were entitled to get shares according to the shares of their fathers. Thus, this Civil Revisions stands accepted with the result that the judgment & decree dated 7-10-1996 passed by the learned Addl. District Judge, Khanewal is set aside while the judgment and decree of the learned trial court dated 8-1-1996 stands restored/upheld. M.U.Y./U-21/L Petition accepted.