1994SCMR2044 (PLP)

‑‑‑‑ Constitution of Pakistan (1973), Art. 185(3)‑‑‑Muhammadan Law‑‑‑Estate of deceased male owner opening up for succession after the death of his widow who was holding it as a limited owner‑‑Sister of deceased and his collateral alone coming forward to claim inheritance‑‑‑No other person claiming to be the heir of deceased coming forward to claim inheritance over the period of years when litigation was going on nor coming forward thereafter‑‑‑Except heirs of deceased and those of widow (to the extent of her share), no one including donee whose gift was declared to be invalid was entitled to inherit the estate of deceased‑‑‑Judgment of High Court to that extent was valid‑‑‑Leave was refused in circumstances. Naveed Shaharyar, Advocate instructed by Mehmood A. Qureshi, Advocate‑on‑Record for Petitioner. K.MA. Samdani Advocate instructed by Ch. Muhammad Aslam, Advocate‑on‑Record for Respondents. Date of hearing: 8th January, 1994. SHAFIUR RAHMAN, J.‑‑‑The petitioner by two separate petitions seeks leave to appeal against the consolidated judgment of the High Court dated 2‑6‑1992 whereby two Regular Second Appeals filed by him were dismissed.

2. The dispute between the parties relates to the estate of one Jehandad who died in 1920. The whole of the property left by him came to Mst. Hafizan as a limited owner who made a gift of it to the petitioner on 26‑12‑1950. Against this gift, suit was filed by sister and a collateral of Jehandad which succeeded on 22‑6‑1960, the gift having been declared inoperative on the reversioners' rights. When Mst. Hafizan died on 9‑12‑1962, suits were filed by reversioners and sisters claiming their interest which suits were decreed on 10‑7‑1965, and the first and second appeals were also dismissed.

3. The learned counsel in assailing the judgment and decree contended that the Court should have protected the gift to the limited extent to which Mst. Hafizan herself was entitled to inherit. Secondly it was contended that there were some other heirs who had not come forward to lay claim and to that extent the gift should have been protected.

4. As regards the protection to the gift the basic question. in the earlier litigation was, and remained, as to whether it could at all be made or not. The interest of Mst. Hafizan being limited, it was held that such gift could not at all be made. If this be the legal position, then protection of a part of it only because Mst. Hafizan could claim a part as heir would not be legally correct. Instead, it is her heirs who have been allowed to inherit that share. A donee cannot claim any share in the property where the gift itself is invalid and inoperative.

5. As regards the presence of other heirs not coming forward to lay claim, the High Court dealt with it as hereunder:‑ "As to the first point, it was not taken in the appellant's pleading before the learned trial Court. It is not known when Mahboob Alam, brother of Noor Dad, had died and whether he had left any heir. Regarding Muhammad Alam, his name did not find mention in the pedigree‑table for the year 1961‑62 (Exh. P.4); it is not known when he had died and whether he was survived by any heir. Concerning the written statement of Mst. Anwar Begum and others, it is sufficient to say that the gift in favour of Ghulam Sarwar, appellant, had been declared to be void by the learned Civil Judge's judgment dated 22‑6‑1960. As has been seen, that decree had become final and it is obvious that the concession of Mst. Anwar Begum and others that it was a valid gift could not confer validity upon it. However that may be, the plaintiffs had claimed possession of their own shares and they were entitled. Admittedly, the appellant, Ghulam Sarwar, was not entitled to anything out of the estate of Jahandad."

6. We find no merit and leave to appeal is refused in both the petitions. AA./G‑439/S Leave refused.