2026 PLP 120 (CLC)

ARSHAD HUSSAIN KHAN, J.

Through present S.M.A. the petitioner seeks to grant Succession Certificate / Letter of Administration in respect of the debts/securities/properties of the deceased Noor Muhammad who died intestate on 16.03.2021 at Karachi leaving behind widow-Amna Ashfaq and a (minor) daughter Noor Fatima. The deceased had no male issue, his only brother-Muhammad Pervaiz was entitled to share in the properties of the deceased, however, since he died prior to death of the deceased Noor Muhammad, as such, keeping in view the Fatwa obtained from Darul Uloom Karachi his sons namely; Muhammad Nouman and Muhammad Salman (nephew of the deceased) excluding his daughters (present objectors) were impleaded/arrayed as legal heirs of the deceased in the present case. However, upon knowledge of the present case the objectors namely; Naila Shahbaz and Shumaila Imran (the daughters of Muhammad Pervaiz) filed objections to the present petition claiming their shares in the deceased's properties through her father with the prayers that they being daughters of Muhammad Pervaiz may also be impleaded as legal heirs in the present petition and the case may be decided as per shares of all the legal heirs. Upon notice of the objections, the petitioner filed her reply denying the allegations and seeking rejection of the objections.

2. Learned counsel for the objectors during the course of arguments while referring to different provisions of the Succession Act, 1925 and Muhammadan Law has contended that the Muslim Law recognizes three types of heirs, Sharers, Residuaries and Distant Kindred. It is contended that in the instant case since the deceased did not have any male issue as such after distribution of shares amongst the sharers, the remaining shall go to residuary, which in the present case was his brother-Muhammad Pervaiz since who had also died earlier to the deceased-Noor Muhammad, the share of Muhammad Pervaiz shall devolve upon his sons and daughters being Distant Kindred. It is argued that the Islam provides rightful share to women in inheritance. Further the women rights are protected by different applicable laws in Pakistan including Muslim Family Law Ordinance, 1961, and Muslim Personal Law 1962 ete. ete. He has argued that according to Islamic Law, if the deceased is not survived by son, or grandson or father or grandfather i.e. none amongst the residuaries, then the brother, and in the absence of brother his son, and in the absence of son, his grandson will be entitled to share in the inheritance as residuary and the female would also join them in shares claiming half of the share as compared with male. He has lastly argued that the objectors being the distant kindred are also entitled for their shares in the assets left by the deceased. In support of his stance learned counsel has relied upon the case law reported as Yasin Hassan (Deceased): In the matter of SMA [2023 MLD 1354] and Noor Muhammad and others v. Mst. Sukhan (deceased) through LRs. and others [2023 MLD 1357] and Mumtaz Bibi and others v. Public at Large and others [2023 YLR 675).

3. Learned counsel for the petitioner while reiterating the contents of reply to the objections has contended that the nephews of the deceased were arrayed in the present petition keeping in view the Fatwa obtained from Darul Ullom Karachi. It is contended that as per Muslim law of Inheritance, the nephew of a deceased falls within the ambit of residuary whereas niece as Distant Kindred. He further submits that distant kindred would not inherit at all if a deceased was survived by either the sharers or the residuaries. He while referring to different Hadiths submits that male relative on the father's side is entitled to inheritance and the closer relatives take precedence over the distantly related. Lastly, he has urged that according to Hanafi Law of Inheritance and the aforesaid Fatwa, all the three nieces [daughters of the deceased Muhammad Parvez) are not entitled to any shares in the properties of the deceased Noor Muhammad; hence the objections of the Objectors are liable to be rejected and the petition may be allowed as prayed. Learned counsel in support of his stance has relied upon the case of Waris Ali and others v. Rasoolan Bibi (PLD 2014 SC 779] and Mst. Fatima through her legal hiers and another v. Lal Khan and 19 others [2001 CLC 229].

4. Firstly, in order to deal with the Objectors' objection i.e. the female [two nieces] would also join in shares claiming half of the share as compared with male, Para-61 [Classes of heirs] of Hanafi Law of Inheritance of Principles of Muhammadan Law by F.D Mullah (First Edition 2011) read as follows:

61. Classes of heirs: There are three classes of heirs, namely; (1) "Sharers" are those who are entitled to a prescribed share of the inheritance. (2) "Residuaries" are those who take no prescribed share but succeeded to the "residue" after the claims of the sharers are satisfied and (3) "Distant Kindred" are all those relations by blood who are neither Sharers nor Residuaries.

5. The first step in the distribution of the estate of a deceased Muhammadan, after payment of his funeral expenses, debts, and legacies is to allot their respective shares to such of relations as being to the class of sharers and are entitled to a share. The next step is to divide the residue (if any) among such of the residuaries as are entitled to the residue. If there are no sharers, the residuaries will succeed to the whole inheritance. If there be neither sharers nor residuaries, the inheritance will be divided among such of the distant kindred as are entitled to succeed thereto. The distant kindred are not entitled to succeed so long as there is any heir belonging to the class of sharers or residuaries.1 The Supreme Court of Pakistan in the case of Waris Ali (supra) while dealing with issue regarding the distribution of inheritance between the Qur'anic share holders of the deceased and the son of a pre-deceased brother (nephew), inter alia, held that there are two fundamental principles of the Islamic Law of Inheritance accepted by the Sunni Fiqah. 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 Residuaries. The agnates are the persons related to the deceased through a male link. Consequently, the son of a deceased brother is a male agnate.

6. In the case in hand, admittedly the parties belong to the Hanafi Fiqqah and according to the Hanafi Law of Inheritance mentioned [under Paras 63, 65 and 67] in the Principles of Muhammadan Law by F. D Mullah (First Edition 2011), which contain a detailed lists of Sharers, Residuaries and the Distant Kindred, wife of the deceased falls within the class of Sharers, who are entitled to a prescribed share of inheritance and one minor daughter of the deceased also falls within the class of Sharers in absence of son. As far as two nephews of the deceased are concerned, they fall within the category of Residuaries. Whereas, the deceased's two nieces [Objectors herein] fall within the class of Distant Kindred, who are not entitled to any share according to the Hanafi Law in presence of Sharer and the Residuaries.2 Moreso, the aforesaid Fatawa which has been obtained and filed by the petitioner also shows that the nieces of the deceased will not be entitled for the share of any of the properties, left behind by the deceased, except the two nephews, who are mentioned in the Family Registration Certificate. Consequently, in this case, the widow and the daughter will be entitled to get their shares as Sheraers and the sons of the brother of the deceased are entitled to get their residuary shares by virtue of being male relatives on the father's side and it should be divided equally among them as Residuaries. The Objectors [nieces of the deceased) will not be entitled to get any thing because they are not among the male relatives on the father's side. In the circumstances, the objections of the Objectors being misconceived are rejected.

7. Since the objections have been rejected, as such, there appears no impediment in taking up the main petition. From perusal of the record, it appears that in the present petition, the legal heir at serial No. 1 is the petitioner and widow of the deceased, whereas legal heir No.2 is the daughter, who is the minor. Legal heirs Nos. 3 and 4 are the nephews who have sworn their affidavits of "No Objection" in favour of the petitioner for grant of present SMA.

8. The affidavits of two independent witnesses namely; (1) Muhammad Yousuf son of Umer and (2) Javed Akbar son of Akbar Khan are also available on the record, which support the contents of the petition.

9. The petitioner, legal heirs and the independent witnesses appeared before this Court, admitted and acknowledged the contents of their respective affidavits sworn in support of the petition.

10. The deceased at the time of his death left behind moveable/immovable properties, details whereof are mentioned in the Schedule of Property [available at Page 21]. Record also shows that the publication of the main petition has been effected in the "Daily Jang, Karachi dated 28.09.2022. In this regard, a report of Deputy Registrar (O.S) dated 06.10.2022 is also available on the record. For the foregoing discussion, in my opinion, there is no legal impediment to grant the present SMA. Accordingly, this SMA is allowed as per Rules. MQ/A-82/Sindh Application allowed. 1 Ibrahim and 4 others v. Rehmat Ali and 6 others [PLD 2002 SC 741]. 2 Abdul Khaliq and another v. Fazalur Rehman and others [PLD 2004 SC 768].