2025 PLP 1153 (CLC)

SAQIB MANAN, MEMBER (JUDICIAL-VII)

The instant petition has been filed against the order dated 27.04.2023 passed by learned Addl. Commissioner (Revenue), Sargodha Division whereby appeal filed by the present respondents was accepted.

2. Briefly stated facts of the case are that the present petitioner filed an appeal before the Assistant Commissioner, Sargodha for cancellation of inheritance mutation No. 27730, dated 30.11.2020 pertaining to land situated in Chak No. 46-NB, Tehsil and District Sargodha which was accepted vide order dated 22.09.2022 whereby the said mutation was set aside and the Revenue Officer Halqa was directed to re-attest inheritance mutation of legacy of Allah Ditta (deceased) in accordance with Sharia Law. Feeling aggrieved by that order, the present respondents filed an appeal before learned Addl. Commissioner (Revenue), Sargodha Division which was accepted vide order dated 27.04.2023 through which the order of Assistant Commissioner was set aside and inheritance mutation No. 27730, dated 30.11.2020 was restored. Hence, this revision petition.

3. The counsel for petitioner Qazi Mureed Ahmad Awan argued that the disputed mutation No.27730, dated 30.11.2020 was secretly and illegally sanctioned. After death of Allah Ditta predecessor in interest of the parties, the inheritance mutation was to be sanctioned according to Sharia Law and shares were to be given to legal heirs of the deceased in accordance with law but it was not done. According to Shajra Nasab of the deceased, Rustam lqbal brother of the petitioner had already died on 10.08.2007 during life time of Allah Ditta so his share was to be devolved upon his offspring. Since Rustam lqbal has no son and he had only one daughter, therefore, daughter of the deceased Rustam lqbal had to inherit her due share out of legacy of the deceased Allah Ditta in place of her father and the remaining share was to be devolved upon the petitioner. But it was not done as through the disputed inheritance mutation No.27730, share of Rustam lqbal was completely given to his daughter which is against the law. The petitioner assailed that order through appeal filed before the Assistant Commissioner, Sargodha for cancellation of the said mutation which was rightly accepted vide order dated 22-09-2022 whereby the said mutation was set aside and the Revenue Officer Halqa was directed to re-attest inheritance mutation of legacy of Allah Ditta (deceased) in accordance with Sharia Law. But the Addl. Commissioner set aside the order of Assistant Commissioner and restored the disputed inheritance mutation while accepting appeal filed by the respondents. The Addl. Commissioner (Revenue), Sargodha Division passed the impugned order in violation of law laid down by higher courts and also by not applying independent judicious mind. Therefore, the impugned order is liable to be set aside by accepting this revision petition. On the force of above arguments, acceptance of the revision petition was prayed for.

4. The counsel for respondents Rana Ghulam Mustafa contended that Allah Ditta was predecessor in interest of the parties who died on 27.10.2020 and after his death, inheritance mutation No,27730, dated 30.11.2020 was sanctioned and due share to legal heirs of the deceased were given according to Section 4 of the Muslim Family Law Ordinance, 1961. Section 4 of the Act VII of 1961 states that: "

4. Succession.

In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive." It is quite clear from the text of this section that the daughter (i.e. respondent) shall receive the whole share of her pre-deceased father. The said mutation was sanctioned in accordance with law after fulfillment of codal formalities whereby all legal heirs were given their due shares without depriving any legal heir or giving more share than against the spirit of law. The present petitioner assailed the said inheritance mutation through appeal which was unlawfully accepted by the Assistant Commissioner which was against the spirit of law. Through unlawful order, the Assistant Commissioner set aside the valid and lawful mutation without assigning any valid and lawful justification. The appeal filed by the respondents was justifiably accepted by the Addl. Commissioner vide order dated 27.04.2023 which was passed after hearing contentions of the parties and consultation of record. No irregularity or illegality has been committed in the said order which may be upheld by dismissing this revision petition. Finally, dismissal of the revision petition was prayed for.

5. I have carefully considered arguments of counsels for the parties and have also perused record of the case file as well as the impugned orders. On examination of record, it transpired that the present petitioner filed an appeal before the Assistant Commissioner, Sargodha for cancellation of inheritance mutation No.27730, pertaining to land situated in Chak No.46/NB, Tehsil and District Sargodha which was accepted vide order dated 22.09.2022 whereby the said mutation was set aside and the Revenue Officer Halqa was directed to re-attest inheritance mutation of legacy of Allah Ditta (deceased) in accordance with Sharia Law. Feeling aggrieved by that order, the present respondents filed an appeal before learned Addl. Commissioner (Revenue), Sargodha Division which was accepted vide order dated 27.04.2023 through which the order of Assistant Commissioner was set aside and inheritance mutation No.27730 was restored. The impugned mutation No. 27730 of 30.11.2020 was passed to decide the inheritance of Allah Ditta son of Sadiq. At the time of death of Allah Ditta tow of his children namely Rustam lqbal and Saiqa Naveed has already died. Hence section 4 of Act ibid was attracted. While approving the impugned mutation the Revenue Officer transferred the whole share of deceased Rustam lqbal to his daughter Shanzay Rustam and whole share of Saiqa Naveed deceased to her children. The matter which is to be considered for adjudication by this court is that the daughter Shanzay Rustam is entitled to half share (1/2) or full share (7/8) of her pre-deceased father. Section 4 of Muslim Family Law Ordinance (VIII of 1961) has laid down the principles for succession of pre-deceased person. Furthermore, I have examined and studied the interpretation of this section spelled out by esteemed superior courts in Qutub-u-Din v. Zubaida (2009 CLC 1273 Lahore), Allah Dewaya v. Hussain (2007 CLC 1787 Peshawar), Qabal Jan v. Habab Jan (1992 SCMR 935), Hasan Aziz v. Meraj (2021 CLC 1821 Islamabad) and finally Saira Yosaf v. Sher (2021 CLC 1593 BOR). The upshort of the above provisions of substantive law and the explanations laid down by superior courts is that the principle of succession in such a case is not inheritance per capita rather it is "per stirpes" i.e. in accordance with the root to which the grandchild belongs. This means that the grand daughter (Shanzay Rustam) will only get the share to which she is entitled had her father not died before her grandfather. The provision of section 4 is a special provision which should not be implemented to increase the share of grandchild beyond normal, or decrease the shares of other descendants.

6. According to Shajra Nasab, Rustam lqbal has no son and he had only one daughter. It is also admitted that the parties are followers of Sunni Law. Therefore, daughter of the deceased Rustam lqbal had to inherit only her due share out of legacy of the deceased Allah Ditta in place of her father i.e. 1/2. But it was not done as through the disputed inheritance mutation No.27730, and whole share of Rustam lqbal was given to his daughter. The Addl. Commissioner while passing the impugned order ignored this very important fact of the case and arrived at a wrong and unfair conclusion which makes the impugned order defective in the eye of law. Therefore, this court finds sufficient grounds to interfere in the same. Consequently, the revision petition is accepted, the impugned order dated 27.04.2023 passed by the Addl. Commissioner (Revenue), Sargodha Division is set aside. The Revenue Officer is directed to re-enter the mutation of inheritance of deceased Allah Ditta in accordance with the principle laid down in preceding paragraph i.e. Shanzay Rustam is entitled to only 1/2 share of the property which her father would have been entitled at the time of death of grandfather Allah Ditta. File be consigned to record room after its compilation. MQ/2/Rev Revision allowed.