1998 PLP 448 (SCMR)

MANZOOR HUSSAIN SIAL, J.

The petitioner in the aforenoted three petitions seek leave to appeal against judgment dated 14-12-1993 of the Lahore High Court passed in Regular Second Appeal No. 422 of 1965 and Civil Revision No. 2851-D of 1989.

2. The facts in brief, relevant for disposal of these petitions, are that one Maula Bakhsh, the predecessor-in-interest of the parties was owner of agricultural land measuring 599 Kanals, 12 Marlas in Village Wah-Garey and 13 Kanals, 5 Marlas in Village Trideeywali, District Sheikhupura. He was also owner of three houses in Village Wah-Garey. He died in the year 1924 and was survived by Mst. Jiwan (widow), Mst. Zainab Bibi (dalughter) an,', Mst. Allah Jawai (sister). On his death his entire estate was mutated in the name of Mst. Jawan, his widow as limited owner. In the year 1941 Mst. Jewan gifted away property held by her in favour of Nazir Ali and Faqir Ali sons of her daughter Mst. Zainab Bibi. The collateral of Maula Bakhsh challenged that transaction of gift through a suit for declaration to the effect that the gift made by Mst. Jewan in favour of the donees was void and of no legal consequence qua their rights in the property. Some other transactions in respect of the suit property were also subject of litigation between the heirs of Maula Bakhsh. Mst. Allah Jawai also instituted suit claiming 7/16th share in the suit property on the ground that she was sister of Maula Bakhsh deceased. The suit was contested and even the factum of she being the sister of Maula Bakhsh deceased was not admitted. Ultimately, the dispute inter se the parties came up for determination before this Court in Civil Appeals Nos. 1095 and 773 of 1992 which were disposed of vide judgment dated 10-1-1993 in the following terms:-- "Both the learned counsel stated that the question whether Mst. Allah Jawai was a sister of the last male holder Maula Bakhsh not having been decided by the High Court, the case should be remanded to it, so that the parties should have opportunity if needed, of taking the matter of Supreme Court. They, as already noted, agreed that regardless of the legal technicalities (including of abatement, finality of orders), the controversy regarding inheritance should be decided on the basis of the Islamic Law on the subject. They also agreed that Mst. Jiwan the widow had held the property as limited owner; therefore, the devolution under the Islamic Law shall be in accordance with the said position of the estate of Mst. Jiwan. They have also agreed that in case of a positive finding by the High Court that Mst. Allah Jawai was the sister of the deceased, last male-holder, she would get her share in accordance with Islamic Law and same will be the position of the two other heirs; namely Mst. Jiwan and Mst. Zainab Bibi, daughter. They would also get their respective shares under the Islamic Law. The gift made by Mst. Jiwan widow to the two sons of Mst. Zainab Bibi shall be treated as void and non-existent. However, it will be open for the High Court to distribute the share of the widow Mst. Jiwan in accordance with Islamic Law of Inheritance. Counsel's conduct is commendable, as conducive to Islamic culture litigation. The agreement reached by the learned counsel thus is fair and in accordance with the spirit of the Islamic Law of Inheritance. We accepting the said agreement, accordingly, allow this appeal partly and remand the case to the High Court for the purposes above stated. "

3. On remand, the High Court vide impugned judgment dated 14-12-1993 held that Mst. Allah Jawai was sister of Maula Bakhsh, the last male-holder as also that she was entitled to 7/16th share of the estate of Maula Bakhsh deceased. hence, these petitions.

4. Learned counsel for the parties conceded that the judgment of this Court, referred to above, was neither challenged in review before this Court nor otherwise, as such it attained finality. It is, thus, binding inter se the parties. We, therefore, find no substance in these petitions, on merits. However, to obviate the possibility of further litigation, the shares of the heirs of Maula Bakhsh deceased in the estate left by him are determined as under:-- Maula Bakhsh (deceased) last male-holder _____________________________________________________________________ | | | Mst. Jiwan widow 1/8 Mst. Zainab Bibi Mst. Allah Jawai daughter 1/2 sister 3/8 (as residuary) | Mohammad Ali Brother of Mst. Jiwan I/8 In this way, 1/2 share devolved upon Mst. Zainab Bibi daughter as sharer to the estate of Maula Bakhsh deceased. 1/8th share devolved upon Mst. Jiwan widow and 3/8th share on Mst. Allah Jawai, sister, as residuary. It is apparent from para.7 of this petition, Mutation No.931 at page 1991 and statement of Nazir Ali petitioner, at page 149 of the Paper Book that Mst. Zainab Bibi predeceased Mst. Jiwan, her mother. Mst. Jiwan died on 20-10-1960 before the enforcement of Family Laws Ordinance 1961. Since the beneficiaries of the estate of Maula Bakhsh namely Mst. Zainab Bibi, Mst. Allah Jawai and Muhammad Ali had died, the further appointment of the shares of inheritance among the surviving heirs shall be in accordance with Shariat Law. These petitions are, converted into appeals and in terms indicated above are disposed of. A.A./N-444/S Order accordingly.