2002 PLP 3245 (YLR)

Issues: (1) Whether the suit is barred by time? (2) Whether the plaintiffs are legal heirs of Mst. Ghulam Janat and Sher Muhammad deceased? (3) Whether Mutation No.646 dated 13‑7‑1964 and Mutation No. 1114 dated 28‑1‑1986 are collusive ineffective, illegal and inoperative upon the rights of plaintiffs? (3‑A) Whether the suit is not maintainable under section 42 of the Specific Relief Act ? OPD (3‑B) Whether the suit is not properly valued? If so, what is its proper value? OPD (3‑C) Whether the defendants are entitled for special costs under section 35‑A of C.P.C., if so, to what amount? OPD (4) Relief.

3. The learned trial Court found that plaintiffs/respondents were the legal heirs of Sher Muhammad and Mst. Ghulam Janat and consequently held that the suit was within time and was also maintainable. Upon material issue No.2 it came to the conclusion that Rahim Bux was pre‑deceased son of Sher Muhammad and Mst. Ghulam Janat. It was also found that Mst. Nizam Khatoon was the widow and Mst. Aziz and Mst. Maqsood were the daughters of Rahim Bux. Although it was contended before the trial Court by the petitioners that even if the respondents were held to be the widow and daughters of predeceased son of Sher Muhammad and. Mst. Ghulam Janat. at least Mst. Nizam Khatoon as widow shall not be entitled to inherit under section 4 of Muslim Family Laws Ordinance, 1961, yet the learned trial Court proceeded to declare the widow as well as the daughters of pre‑deceased son to be entitled to inheritance. Consequently, the suit of respondents was decreed vide judgment and decree dated 24‑5‑1989 and it was held that the two daughters as also the widow of Rahim Bux were entitled to inherit Sher Muhammad and Mst. Ghulam Janat. The petitioners preferred an appeal which was dismissed vide judgment and decree dated 24‑10‑1989. The learned Appellate Court upheld the findings of the trial Court and interpreted section 4 of the Muslim Family Laws Ordinance, 1961 in the same manner according to which not only the daughters but also the widow of pre‑deceased son was held to be entitled to inherit the estate of Sher Muhammad and Mst. Ghulam Janat.

4. Zamir A. Khan. Advocate, appeared in support of the civil revision while no one appeared to represent respondents despite service. It is established on the record that Sher Muhammad died on 14‑2‑1964 while his widow Mst. Ghulam Janat died on 1986. It is also not denied that Rahim Bux another son of Sher Muhammad had pre‑deceased him and that his daughter had taken place after enforcement of Muslim Family laws Ordinance, 1961. It is not disputed that Mst. Nizam Khatoon respondent No. 1 is widow and Mst. Aziz and Mst. Maqsood respondents Nos.2, and 3 are the daughters of the said Rahim Bux. However the dispute turns upon the interpretation of section 4 of the Muslim Family Laws Ordinance, 1961, in order to determine as to who are the legal heirs of a pre‑deceased son who are entitled to inherit under the said provision of Law.

5. Section 4 of the Muslim Family Laws Ordinance, 1961 provides: "Succession.‑‑In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such sort or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter as the case may be, would have received, if alive."

6. The precise question which falls for determination in this civil revision is whether upon the text of section 4, a widow of pre deceased son could also inherit alongwith children of the pre‑deceased son. This matter was first considered in Kamal Khan alias Kamala v. Mst. Zainab (PLD 1983 Lah. 546),. wherein it was held that it is only the children of the pre‑deceased, son or predeceased daughter of propositus who would inherit in accordance with the Muslim Law sharer and that the widow of pre deceased son would be excluded on the strength of the provisions of section 4 (ibid) The remaining share of pre‑deceased son would be distributed amongst the residuaries. The judgment in the case of Kamal Khan (Supra) was challenged in the Supreme Court. wherein, it was ruled in case titled Mst. Zainab v. Kamal Khan (PLD 1990 SC 1051) that the true interpretation of section 4 of the Muslim Family Laws Ordinance, 1961 would be to entitle the children of the pre deceased son or daughter to claim inheritance of the propositus and that the widow of the predeceased son is not so entitled. This being the‑ legal position, this civil revision is partly accepted and it is held that Mst. Aziz and Mst. Maqsood respondents Nos.2 and 3 shall be entitled to 2/3rd share out of the share which Rahim Bux would have inherited and that respondent No.1 Mst. Nizam Khatoon would be excluded and that remaining 1/3rd share of Rahim Bux would go to the petitioners and respondents Nos.4 and 5 as residuaries. The judgments and decree dated 22‑10‑1989 of the Appellate Court and the decree dated 24‑5‑1989 of the trial Court is accordingly modified. As a result Mutation No.646 dated 13‑7‑1964 and Mutation No. 1114 dated 28‑1‑1986 shall be accordingly rectified. Parties to bear their won costs. Q.M.H./M.A.K./G‑148/L Order accordingly.