2001 PLP 192 (MLD)

2. Both the parties brought separate appeals to this Court by leave of the Court. This Court held that the shares determined by the High Court were incorrect. It was held that since one of daughters of Khushi Muhammad, Mst. Resham Jan, had remarried she had lost her right of inheritance and for that reason it was directed that 2/3rd share of the estate shall go to Mst. Alif Noor and Mst. Khero, the other two daughters of the deceased. It was also held that since both the widows of deceased Khushi Muhammad, Mst. Zainab Bi and Mst. Makhani Bi remarried during Dogra regime they will also be deprived of their share. Consequently it was held that 1/8th share of the estate which would have otherwise devolved upon the two widow will also go to the two daughters Mst. Alif Noor and Mst. Khero. As a further consequences it was held that the collaterals of Khushi Muhammad shall be entitled to 1/4th share.

3. The collaterals of Khushi Muhammad, Walayat Ali and others, have filed this review petition in which it is stated that this Court failed to apply statutory provisions contained in the West Pakistan Muslim Personal (Sharait) Application Act, 1948 as applicable to Azad Jammu and Kashmir which is as follows:‑‑ "(3) in respect of immovable property held by a Muslim female as a limited owner, under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any such person before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Sharait); Provided that the share, which the female limited owner would have inherited had the Muslim Personal Law (Sharait) been applicable at the time of the death of the last full owner, shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest. terminates because of death. "

4. According to Ch. Muhammad Sabir, the learned counsel for the petitioners, section 3 reproduced above inter alia lays down as follows,‑ (i) In respect of immovable property held by a Muslim female as a limited owner, succession opens out on the termination of her limited interest; (ii) Upon the opening out of succession as aforesaid, all those persons become entitled to inherit who would have been entitled to inherit the property at the time of the death of the last full owner had (Shariat) been applicable at the time of such death; (iii) If any such person mentioned in (ii) above has died before the termination of the limited interest, succession will devolve on his heirs as if the aforesaid person had died at the termination of the limited interest; (iv) When a female loses her limited interest in the property on account of her marriage or re‑marriage she will get the share which she would have been inherited had (Shariat) been applicable at the time of death of the last full owner.

5. After going through the judgment under review we find that section 3 of the West Pakistan Muslim Personal (Shariat) Application Act, 1948 was not in our notice when the judgment was written. The result is that wrong conclusion were drawn which are inconsistent with the aforesaid provision. In our judgment we did not give any share to one daughter and two widows on account of their marriage and remarriage, respectively, while section 3 clearly lays down that after loosing their limited interest they were entitled to their share in accordance with Shariat. It means that we failed to give effect to the aforesaid provision of law: Ch. Muhammad Sabir rightly relied on the case reported as Muhammad Latif Khan and 15 others v. Muhammad Ashraf Khan and 3 others (1989 CLC 2402) in‑ which this Court held that when a Court fails to implement a provision of a statute it can modify its judgment by reviewing it. The consequence is that the judgment has to be reviewed and that the respective shares of the parties have to be recalculated in light of section

3. The shares work out as follows on the termination of the limited interests,‑

(i) Mst. Makhani Bi and Mst. Zainab Bi widows will inherent 1/8th of the estate in equal shares, (ii) Three daughters Mst. Resham Jan, Mst.Alif Noor and Mst. Khero would inherit 16/24 in equal shares, and (iii) Collaterals of Khushi Muhammad will inherit 5/24 share.

6. It is clarified that if subsequently any of them has died his/her share will devolve on the legal her is in accordance with Shariat. Consequently the review petition is accepted and the judgment under review shall stand modified accordingly. H.B.T/117SC(AJ&K) Review petition accepted.