1989 PLP 1316 (MLD)

Miscellaneous Application No.84 of 1987, decided on 17th Ma , 1987. ‑‑Inheritance‑‑Residuary‑‑Petitioner a cousin‑brother of deceased from paternal side praying for grant of Letters of Administration in respect of property left behind by deceased‑‑Petitioner's sisters whether residuaries and entitled to inherit property of their deceased cousin‑‑Female residuaries are only four in number of whom two are descendants of deceased viz. the daughter and son's daughter howsoever and the other two are descendants of deceased's father viz., full sister and consanguine sister‑‑No other female can inherit as a residuary‑‑Petitioner thus alone was entitled to inherit the property left by deceased and his two sisters would be excluded from inheritance. A.F.M. Mokarim for Petitioner. The petitioner who is the cousin brother of deceased Mst. Zulekha from paternal side has applied for grant of Letters of Administration in respect of the property left behind by her. The petitioner claims that he is the only person entitled to inherit the property left behind by deceased Mst. Zulekha. The petitioner was examined in Court and to a Court question he stated that deceased Mst. Zulekha had 3 brothers, namely Karim, Ghaffar and Sattar all of whom died issueless. He also stated that the deceased Mst. Zulckha had one sister by the name Mst. Fatima who is also dead but her 3 children, namely Yousuf, Zikar and Haroon are alive. The petitioner also stated that he had another brother by the name Haji Yousuf and 2 sisters, namely Hawa Bai and Zubeda Bai, but out of them Haji Yousuf is dead while Hawa Bai and Zubeda Bai are still surviving. The petitioner has filed today in Court an affidavit of Ghulam Muhammad s/o Late Haji Yousuf to prove the death of Haji Yousuf and he was also examined by me. This witness also stated the same facts which were deposed by the petitioner. Mr. A.F.M. Mokarim, the learned counsel for the petitioner contends that although the petitioner has 3 real sisters surviving but they cannot inherit alongwith petitioner as female residuaries. In this connection the learned counsel has referred to the Commentary by Mulla on Muhammadan Law. The learned author in discussion under section 65 observed that except 4 female residuaries, namely the daughter, son's daughter H.L.S: and from among the descendants of the deceased's father, the full sister and consanguine sister, no other female can inherit as a residuary. The learned counsel also referred to another Commentary on Muslim Law by Al‑Haj Mohomed Ullah Ibn S. Jung and at page 125 the learned author has stated as follows:‑‑ "

20. Residuaries in another's right are four females; they are those whose shares are half and two‑thirds; and they become residuaries alongwith the brothers as stated in their cases. But when she takes no share among females and her brother is a residuary, then she cannot become a residuary in his right, i.e. in the case of paternal‑uncle and paternal‑aunt, the whole property is for the uncle and there is nothing for the aunt." In view of the above statement of law it is clear that the petitioner alone will be entitled to inherit the properties left behind by Mst. Zulekha while 2 surviving sisters of the petitioner will be excluded from inheritance. The petition has been published and a copy of the notice of the petition has been pasted on Court Notice Board but no one has opposed the grant of the petition. The petition is accordingly granted. Letters of Administration may be issued to the petitioner in respect of the property shown in the Schedule on execution of personal bond with one surety equal to the value of the assets. M.Y.H./O‑11 /K Administration letters issued.