P L D 2014 Supreme Court 779 (PLP)

MIAN SAQIB NISAR, J.- This appeal with leave of the court dated 21-11-2006 entails the fact that one Aimna Bibi died on 17-11-1999; she was survived by Mst. Rasoolan Bibi (respondent) and Mst. Ghulam Fatima (appellant No.2), her two real sisters. Appellant No.1 Waris Ali is the son of Aimna's pre-deceased brother, namely, Khan Muhammad. A mutation of inheritance No.912 dated 27-5-2000 was attested in favour of the above-named, in that half share of the estate was jointly given to two sisters and the remaining half to Waris Ali. Who further sold this inherited share to appellant No.3 vide mutation No.932 dated 8-11-2003. Mst. Rasoolan Bibi (respondent) filed a declaratory suit challenging the aforesaid two mutations asserting that Waris Ali would not inherit the property as being the legal heir of Aimna because Khan Muhammad had predeceased the lady and, therefore, not only his mutation but further mutation in favour of appellant No.3 are illegal and invalid. Appellant No.2 Ghulam Fatima however never joined her sister to challenge these mutations. This suit was decreed by the learned trial court on 5-7-2004, however on appeal, the learned Appellate Court reversed the findings and the verdict of the trial court and held that Waris Ali, being son of pre-deceased brother (Khan Muhammad), would inherit the estate of Aimna. When this decision was assailed in revision before the learned High Court by the respondent which was accepted, the learned Court while setting aside the judgment and decree of the learned Appellate Court has upheld that of the learned trial court. Leave in this case was granted to consider the point "After hearing the learned counsel for the petitioners at length, we grant leave to appeal to consider, inter alia, the question whether Waris Ali, the petitioner No.1, being son of Khan Muhammad, a pre-deceased brother of Late Amina Bibi, was entitled to inherit share from land left by her, under the Muhammadan Law".

2. From the facts of the present case and the leave granting order reproduced above, the only proposition which arises for determination is, what is the status of the two sisters under the Muhammadan Law of Inheritance; what shall be their share of inheritance; and whether Waris Ali could also inherit the estate of his deceased paternal aunt and if so, in what capacity and to what extent. The issue regarding the distribution of inheritance between the two real sisters of the deceased and the son of a pre-deceased brother (nephew) attracts two fundamental principles of the Islamic Law of Inheritance accepted by the Sunni Fiqh. The first principle is that the Qur'anic Sharers are to be given their prescribed shares unless a Qur'anic sharer is excluded by another heir according to the Rules of Exclusion prescribed in the Qur'an and Sunnah and elaborated upon by Islamic Jurisprudence (Sharia). The second principle is that after the Qur'anic Sharers have been given their shares the rest of the estate is divided amongst the nearest male agnates of the deceased as Residuries. The agnates are the persons related to the deceased through a male link. Consequently, the son of a deceased brother is a male agnate. The two sisters are Qur'anic Sharers and their entitlement is expressly mentioned in Surah Al-Nisa, Verse

176. The entitlement of the sisters is subject to exclusion by a son of the deceased. In absence of a son, one sister is entitled to half of the estate and two sisters are together entitled to 2/3rd share of the estate of the deceased. In the presence of a brother of the deceased, however, the sisters inherit not as Qur'anic sharers but as Residuries. This is known as the 'agnatization' of the sisters. In such a situation the brother and the sisters take whatever is left of the estate after the other Qur'anic Sharers have been given their prescribed shares, with each sister taking half the share of the brother. The deceased brother's son (nephew) neither excludes the sisters of the deceased (whereas a son would have done so) nor does he agnatize the sisters of the deceased (as a brother of the deceased would have done). Consequently, the sisters will take their Quranic Share of 2/ 3rd of the estate. The deceased brother's son (nephew) will inherit the rest (the remaining 1/3rd) as a Residuary in his capacity as the nearest male agnate of the deceased. The above principles of Law of Inheritance are succinctly stated in the treatise titled "Succession in the Muslim Family" by Professor N.J. Coulson (see Chapter 2 of the aforesaid treatise). The principles identified by the Professor Coulson are universally accepted in works of Sunni Fiqh. To fortify the above, reference may be also made to the text Mufeed-ul-Warisayan by Maulana Mufti Mahmood Ashraf Usmani, Sheikh-ul-Hadees and Mufti at Jamia Darul Aloom, Karachi. Relevant extract in relation to the proposition in hand is reproduced below:-- In view of the foregoing, the share of two sisters of Aimna Bibi shall be 1/3rd each as Qur'anic sharers and remaining l/3rd shall be inherited by Waris Ali, son of the deceased brother as a residuary. However, it may be pertinent to mention here that Mst. Ghulam Fatima, appellant No.2 ________________ (1) had never joined Mst. Rasoolan Bibi, respondent-plaintiff to challenge any of the mutations through the suit or at any stage thereafter, rather has been defending the said mutations and even has now joined with Waris Ali and his subsequent purchaser. However as per the finding recorded by the learned Appellate Court, it was held that "Ghulam Fatima has voluntarily waived her excessive right and she is satisfied to share given to her through mutation No.912 and the remaining share 5/12 will automatically go to appellant No.3 as bona fide purchaser and she will also be entitled to claim the return of price of remaining share of 1/12 from appellant No.1, if desired". As mentioned above, Mst.Ghulam Fatima had never challenged this judgment and decree of the learned Appellate Court, but has joined Waris Ali as also Mst. Rasoolan (appellant No.3), the purchaser from Waris Ali, before this Court for seeking upholding of the judgment and decree of the learned Appellate Court dated 6-2-2006. Therefore, we declare that Mst. Rasoolan Bibi, respondent in this case shall be entitled to 1/3rd share and the remaining shares in the estate of Aimna shall go as per the judgment and decree of the learned Appellate Court. Accordingly the instant appeal stands allowed in the terms noted above.

3. Before parting, we may however express our profound appreciation to Mr. Salman Akram Raja, learned ASC who has acted as amicus and has provided valuable assistance in resolving the issue at hand. MWA/W-3/S Appeal allowed.