P L D 1993 Peshawar 117 (PLP)
AMIR AFZAL and 2 others‑‑‑Petitioners Versus GHULAM HAIDER and 2 others‑‑‑Respondent;
| Citation | P L D 1993 Peshawar 117 (PLP) |
| Forum / Court | ‑‑‑‑S. 1(2)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 129‑‑‑Inheritance to the property left by the deceased‑‑‑Doctrine of representation ‑‑‑Applicability‑‑ Plaintiff's plea, that propositus died in the year 1957 (before the promulgation of Muslim Family Laws Ordinance, 1961) remained unsubstantiated on record‑‑‑Best evidence qua the year of death of deceased would have been either his death certificate from the quarters concerned or at least his inheritance mutation‑‑‑Plaintiff having not brought such documents on record, presumption was irresistible that had those documents been produced same would have revealed that deceased had died under the domain of Muslim Family Laws Ordinance, 1961, whereby doctrine of representation had been enforced.‑‑Muhammadan Law. |
| Bench Members | Muhammad Bashir Khan Jehangiri, J |
| Parties | AMIR AFZAL and 2 others‑‑‑Petitioners Versus GHULAM HAIDER and 2 others‑‑‑Respondent; |
Q1: What are the key laws and sections cited in P L D 1993 Peshawar 117 (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1993 Peshawar 117 (PLP)?
The case was heard and decided by the ‑‑‑‑S. 1(2)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 129‑‑‑Inheritance to the property left by the deceased‑‑‑Doctrine of representation ‑‑‑Applicability‑‑ Plaintiff's plea, that propositus died in the year 1957 (before the promulgation of Muslim Family Laws Ordinance, 1961) remained unsubstantiated on record‑‑‑Best evidence qua the year of death of deceased would have been either his death certificate from the quarters concerned or at least his inheritance mutation‑‑‑Plaintiff having not brought such documents on record, presumption was irresistible that had those documents been produced same would have revealed that deceased had died under the domain of Muslim Family Laws Ordinance, 1961, whereby doctrine of representation had been enforced.‑‑Muhammadan Law. bench comprising: Muhammad Bashir Khan Jehangiri, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1993 Peshawar 117 (PLP) (AMIR AFZAL and 2 others‑‑‑Petitioners Versus GHULAM HAIDER and 2 others‑‑‑Respondent;). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Sardar Zaheer Ahmad for Petitioners.
- Abdur Rauf Khan Jadoon for Respondents.
- Date of hearing: 2nd February, 1993.
Headnotes / Summary
(a) Muslim Family Laws Ordinance (VIII of 1961)‑‑‑ ‑‑‑‑S. 1(2)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 129‑‑‑Inheritance to the property left by the deceased‑‑‑Doctrine of representation ‑‑‑Applicability‑‑ Plaintiff's plea, that propositus died in the year 1957 (before the promulgation of Muslim Family Laws Ordinance, 1961) remained unsubstantiated on record‑‑‑Best evidence qua the year of death of deceased would have been either his death certificate from the quarters concerned or at least his inheritance mutation‑‑‑Plaintiff having not brought such documents on record, presumption was irresistible that had those documents been produced same would have revealed that deceased had died under the domain of Muslim Family Laws Ordinance, 1961, whereby doctrine of representation had been enforced.‑‑[Muhammadan Law]. (b) Islamic Jurisprudence‑‑‑ ‑‑‑‑ Law of inheritance‑‑‑Source of law‑‑‑Holy Qur'an is the first and primary source of law‑‑‑Law of inheritance having its origin in the verses of Holy Qur'an was a very striking example of such source‑‑‑Verses of the Holy Qur'an having been specific about the scheme of inheritance, had furnished considerable guidance to the jurists who later on laid down such scheme scientifically. Hamid Khan's Islamic Law of Inheritance by Lahore Law Times Publications, 1980 Edn., pp. 2‑3 rel. (c) Muhammadan Law‑‑‑ ‑‑‑‑Inheritance‑‑‑Heirs under Hanafi School‑‑‑Classification of sharers; residuaries; and distant kindred and mode of their inheritance to the property left by a deceased‑‑‑Sharers are those heirs who have been named in the Holy Qur'an and have been assigned specific shares ‑‑‑Residuaries are all those persons for whom there are no specified shares and who take the residue after sharers have been satisfied, or they take the whole estate if there was no sharer‑‑‑Distant kindred is only entitled to succeed when there is no sharer or residuary. The Hanafi School provides that the heirs can be divided into seven classes, three principal and the four subsidiary classes. The three principal classes are: (i) The Qur'anic Heirs called, "Sharers". (ii) The Agnatic Heirs called, "Residuaries". (iii) The Uterine Heirs called, "Distant Kindred The subsidiary classes of heirs are: (1) The Successor by Contract; (2) The Acknowledged Kinsman; (3) The Universal Legatee; (4) The State. According to Hanafi Law the property of the deceased goes, in the first instance, to the Qur'anic Heirs i.e. Sharers. If the estate is not exhausted by them, it goes, to the Agnatic Heirs or Residuaries. And finally, in the absence of Sharers and Residuaries, the property is distributed among the Distant Kindred. Sharers are those heirs who have been named in the Holy Qur'an and have been assigned specific shares. These are twelve in number, two of them being relations by marriage, that is husband and wife and the rest of them are relations by consanguinity or blood. These are as follows:‑‑ (1) Husband; (2) Wife; (3) Father; (4) True Grandfather hhs; (5) Mother; (6) True Grandmother hhs; (7) Daughter; (8) Son's daughter h1s; (9) Full sister; (10) Consanguine sister; (11) Uterine brother, and (12) Uterine sister. Residuaries are all those persons for whom there is no specified share and Who take the residue after sharers have been satisfied, or they take the whole estate if there is no sharer. A Distant Kinsman is every relation, who is neither a Sharer nor a Residuary: A Distant Kinsman is only entitled to succeed when there is no Sharer or Residuary. There are six sharers who inherit under certain circumstances as residuaries. These are the father and true grandfather h.h.s., the daughter and son's daughter h1s. and the full sister and consanguine sister. Of these, only the father and true grandfather inherit in certain events both as sharers and residuaries. In fact they are the only relations who can inherit at the same time in a double capacity. The other four, who are all females, inherit either as sharers or residuaries. They succeed as residuaries and can succeed in that capacity alone, when they are combined with male relations of a parallel grade. (d) Muhammadan Law‑‑‑ ‑‑‑‑ Inheritance‑‑‑Hana6 Law‑‑‑Deceased leaving behind mother; uterine brother; two uterine sisters; paternal‑uncle; and two parternal‑aunts‑‑‑Respective shares of such heirs‑‑‑Deceased having been survived by a uterine brother and two uterine sisters, his mother would inherit 1/6 share in the estate left by him‑‑‑‑Uterine brother and two sisters would take, 1/3 collectively‑‑‑Residue 1/2 would go to paternal‑uncle; paternal‑aunts would be excluded from inheritance.
Judgment & Decree
(i) The Qur'anic Heirs called, "Sharers". (ii) The Agnatic Heirs called; "Residuaries". (iii) The Uterine Heirs called, "Distant Kindred". The subsidiary classes of heirs are: (1) The Successor by Contract; (2) The Acknowledged Kinsman; (3) The Universal Legatee; (4) The State.
12. According to Hanafi Law the property of the deceased goes, in the first instance, to the Quranic Heirs i.e. Sharers. If the estate is not exhausted by them, it goes, to the Agnatic Heirs or Residuaries. And finally, in the absence of Sharers and Residuaries, the property is distributed among the Distant Kindred.
13. As already stated, Sharers are those heirs who have been named in the Holy Quran and have been assigned specific shares. These are twelve in number, two of them being relations by marriage, that is husband and wife and the rest of them arc relations by consanguinity or blood. These are as follows:‑‑ (1) Husband. (2) Wife. (3) Father. (4) True Grandfather hhs. (5) Mother. (6) True Grandmother hhs. (7) Daughter. (8) Son's, daughter hls. (9) Full sister. (10) Consanguine sister. (11) Uterine brother, and (12) Uterine sister.
14. Residuaries are all those persons for whom there is no specified share and who take the residue after sharers have been satisfied, or they take the whole estate if there is no sharer.
15. According to AI‑Sirrajiyyah, "A distant kinsman is every relation, who is neither a sharer nor a residuary". So, it can be said that a Distant Kinsman is only entitled to succeed when there is no sharer or residuary. It will be noticed on referring to the Tables of Sharers and Residuaries in the Mulla's Principles of Muhammadan Law that there are six sharers who inherit under certain circumstances as residuaries. These are the father and true grandfather h.h.s., the daughter and son's daughter h1s. and the full sister and consanguine sister. Of these, only the father and true grandfather inherit in certain events both as sharers and residuaries. In fact they are the only relations who can inherit at the same time in a double capacity. The other four, who are all females, inherit either as sharers or residuaries. The circumstances under which they inherit as sharers are set out in the Table of Sharers. They succeed as residuaries and can succeed in that capacity alone, when they are combined with male relations of a parallel grade.
16. In the aforesaid Book "Principles of Muhammadan Law" for the sake of convenience, two separate Tables for Sharers and Residuaries have been set out after taking into account relevant considerations under the Muslim Law of Inheritance. These Tables cater for almost every situation.
17. After having a bird eye view of the broad principles governing the Muslim Law of Inheritance, let me now revert to the case in hand. On the death of Muhammad Ismail, he has been admittedly survived by the following possible heirs and successors:‑‑ (i) Mother. (ii) Uterine brother. (iii) Two uterine sisters. (iv) Paternal‑uncle. (v) Two paternal‑aunts.
18. Mother is principal sharer and always inherits her deceased son. She takes 1/6 of the estate of the deceased when he is survived by a child or child of a son his. She also takes 1/6 when the deceased has left two or more brothers or sisters or even one brother and one sister, whether full, consanguine or uterine. As Muhammad Ismail deceased has also been survived by a uterine brother and two uterine sisters, Mst. Roshan Jan mother would inherit 1/6 share in the estate left by the deceased.
19. In the matters of uterine brothers and sisters there is no distinction of sex and they share equally. Uterine brother or sister, if one will take 1/6 and, if two or more, will take 1/3 collectively; provided the deceased left no child or child of a son his, father or true grandfather. When there is no Residuary belonging to any one of the; (i) Descendants of the deceased, (ii) Ascendants of the deceased, (iii) Ascendants of father of the deceased, then Residuaries in this class succeed in the following order: (1) Full Paternal Uncle; (2) Consanguine paternal‑uncle; (3) Full paternal‑uncle's son; (4) Consanguine paternal‑uncle's son. (5) Full paternal‑uncle's son's son.
20. Having regard to what has been discussed above, the paternal‑aunts are excluded from the estate of Muhammad Ismail deceased. The parties to the dispute would, therefore, inherit the estate of Muhammad Ismail deceased to the extent as detailed below:‑‑ (1) Mst. Roshan Jan mother = = 1/6 (2) Mir Afzal, Uterine brother, Hasan Jan and Mst. Sufaida Jan terine sisters = 1/3 Total 1/3 + 1/6 = 1/2 (3) Residue = 1/2 (4) Ghulam Haider = 1/2 Paternal‑uncle as a Residuary.
21. In the light of the above discussion the appellate judgment and the decree of the learned Additional District Judge is modified and a decree for declaration is granted to the plaintiff that he is entitled to 1/2 share in the estate left by Muhammad Ismail his nephew in both the villages whereas the defendants 2 to 4 are entitled to the remaining 1/2 share in accordance with their sharai shares. The plaintiff‑respondent is not proved to be in possession of the disputed land, therefore, a decree for possession of 1/2 share of the estate left by Muhammad Ismail deceased in villages Banda Faizullah Khan ,and Nawan Shehr Shamali is also granted to the plaintiff‑petitioner. No order as to costs. AA./1467/P Order accordingly.