2004 PLP 227 (YLR)

ISSUES: (1) Who among the parties is entitled to inherit the property left by Malang Khan deceased duly mentioned in the head-note of the plaint? OPPs. (2) Whether the plaintiffs are only legal heirs of Malang Khan deceased excluding the defendants under the Shia Law? OPP. (3) Whether the mutation of inheritance dated 28‑8‑1986 in favour of defendants is illegal, void, against the facts based on fraud and misrepresentation result of collusion with the Revenue Officials and ineffective upon the rights of the plaintiffs? OPP. (4) Whether the plaintiffs are entitled to possession of the property left by Malang Khan deceased as being his legal heirs? OPP. (5) Whether the suit is not maintainable in its present form? OPD. (6) Whether the plaintiffs have no cause of action? OPD. (7) Relief.

4. In support of their claim, the petitioners‑plaintiffs produced Malik Muhammad Yousaf P.W.1 and Khalid Mehmood as P.W.

2. In documentary evidence site‑plan Exh.P.1. Mutation No.827 Exh.P.2 and copy of death entry (also exhibited as Exh.P.2) copy of Jamabandis 1981‑82 and 1986‑87 Exh.P.3 and Exh.P.4 were produced. Sakhi Muhammad plaintiff also appeared as his own witness but his statement is also recorded as P.W.

1. On the other hand, Haq Nawaz defendant/respondent recorded his statement as his own witness as D.W.

1. In consideration of this evidence and in view of the legal proposition pressed before him, the learned trial Court upon Issue No. 1 found that as the propositus Malang Khan was governed by Shia Law of Inheritance and as at the time of his death, no uncle or aunt on the paternal side was alive, his maternal uncles and maternal aunt, defendants/respondents were alone entitled to inherit his estate. The findings upon the other issues were merely consequential in nature. Resultantly, vide judgment and decree dated 11‑11‑1993 the suit of the petitioners‑plaintiffs was dismissed. The petitioners preferred an appeal. The learned Additional District Judge, Chakwal who seized of the matter reappraised the legal as well as factual aspect of the case and found himself in concurrence with the trial Court in all its findings. Resultantly, the appeal was dismissed vide judgment and decree dated 22‑4‑1996.

5. Mr. Hifz-ur‑Rehman Syed, Advocate for petitioners and Maulvi Ijaz‑ul- Haq, Advocate for respondents have been heard and record perused.

6. The learned counsel for the petitioners has referred to Mulla's Mohammadan Law with particular reference to Chapter VIII dealing with Shia Law of Inheritance. With reference to the claim of the petitioners, it was explained as a background that Shia Law of Inheritance divides the heirs into two groups i.e. heirs by consanguinity, i.e. blood relations and (ii) heirs by marriage i.e. husband and wife. There are three classes of heirs by consanguinity which are as under:‑‑ (1) (i) parents, (ii) children and other lineal descendants h.l.s. (2) (i) grant parents h.h.s., (ii) brothers and sisters and their descendants h.l.s. (3) Paternal and (ii) maternal uncles and aunts of the deceased and of his parents and grand parents h.h.s. and their descendants h.l.s. According to the learned counsel out of these three classes of heirs the first excludes the second and the second excludes the third so, however, that where the heirs of two sections in any class succeed together, the nearer in degree in each section shall exclude the more remote in that section. He further contended that contrary to the Hanafi Law, for the purpose of determining the share of heirs the Shia Law divides the heirs into two classes only namely Sharers and Residuaries. There is no separate class of heirs corresponding to the "distant kindred" of Sunni Law.

7. For explaining the principles of Shia Law as applicable to the case in hand, he referred to the provisions of Articles 90 and 91 of Mulla's Mohammedan Law to canvass that in the first place 2/3 share in the estate has to be assigned to the paternal side and 1/3 to the maternal side and that in the event that there are no uncles or aunt on the maternal side the paternal side shall take the whole, similarly if there be no uncle or aunt on the paternal side, the maternal side shall take the whole. It is urged that both the lower Courts have fallen in error of law in holding that the petitioners who are the legal heirs of Mst. Bhag Bhari who was admittedly the paternal aunt of Malang Khan were not entitled to succession of his estate.

8. On the factual side it has been contended that neither the pedigree‑table as given in the plaint nor through any other evidence on the record, the respondents have succeeded td link themselves as being on the maternal side of deceased Malang Khan. It is contended that respondents had failed to prove that they were the maternal uncles and aunt of Malang Khan who survived him as such at the time of his death.

9. Conversely, the learned counsel for the respondents has fully supported the concurrent judgments and decrees of both lower Courts and contended that correct legal and factual determination has been made by both the lower fora. The learned counsel for the respondents has taken this Court through various provisions of Mulla's Mohammadan Law dealing with the Shia Law of Inheritance to elaborate that in the presence of the maternal uncles and aunt of Shia propositus, the descendants of a paternal aunt would not be entitled to inherit.

10. Arguments have been heard and record perused.

11. Taking up the second contention of the learned counsel for the petitioners first suffice it to say that pedigree‑table defining the inter se relationship of the parties qua Malang Khan deceased itself shows that Haq Nawaz, Muhammad Nawaz and Mst. Fattan Bi were the real brothers and sister of Mst. Ghulam Fatima the mother of Malang Khan. It would thus, be manifest that Haq Nawaz, Muhammad Nawaz and Mst. Fattan Bi who were alive at the time of death of Malang Khan were his maternal uncles and maternal aunt respectively. It is not disputed that Mst. Bhag Bhari, sister of Tiwana who was the paternal aunt of Malang Khan was not alive at the time of his death.

12. The statement of P. W in this respect is as under:‑‑ The statement of Sakhi Muhammad petitioner/plaintiff is also very revealing:--

13. In view of this evidence, it stands fully established that at the time of his death Malang Khan was survived by his maternal uncles namely Haq Nawaz and Muhammad Nawaz and maternal aunt namely Mst. Fattan Bi. It has neither been alleged nor proved by the petitioners that Mst. Bhag Bhari the paternal aunt of Malang Khan was alive at the time of his death. The contention of the learned counsel for the petitioners that respondents have failed to prove their relationship with Malang Khan is completely devoid of force and is repelled.

14. Coming to the legal aspect of the case according to the Article 76 of Mulla's Mohammedan Law, there are three classes of heirs by consanguinity. According to Class III as mentioned in Article 76 both paternal and maternal uncles and aunt fall in this class by consanguinity. According to Article 76(2) where the heirs of two sections of each class succeed together, the nearer in degree in each section shall exclude the more remote in that section Applying this to the instant case, the maternal uncles, Haq Nawaz and Muhammad Nawaz and maternal aunt Mst. Fattan Bi shall exclude the petitioners who are more remote in degree being sons and daughters of Mst. Bhag Bhari paternal aunt of Malang. Khan who had died in lifetime of said Malang Khan. According to Article 90 ibid the order of succession amongst heirs of third class as given in Article 76 ibid has been described in the specific order/arrangement as stated therein. According to this arrangement, the order of succession in the first instance includes the paternal and maternal uncles and aunt themselves of the deceased. It is later in that order that place of their respective descendants is mentioned. It thus becomes manifest that according to Shia Law, the maternal uncles and aunt living at the time of death of propositus shall be entitled to inherit the estate of the deceased as against the descendants of paternal uncles and aunts. The petitioners being descendants of a paternal aunt rightly stood excluded in favour of the respondents.

15. I am fortified in this view by the reference to the provisions of Article 91 ibid. It is correct that according to Article 91(i) 2/3 share of the estate is firstly to be assigned to the paternal side. This paternal side, however, is confined to mean only paternal uncles and aunt. In the present case, however, there is a complete absence of a single paternal uncle or paternal aunt living at the time of death of Malang Khan. This provision of law shall have no application to the instant case. What shall apply, however, is Article 91(4) which is as under:‑‑ Article 91(4):‑‑ "If there be no uncle or aunt on the maternal side, the paternal side takes the whole. Similarly, if there be no uncle or aunt on the paternal side, the maternal side takes the whole. "

16. Applying this provision of law, as there was no uncle or aunt on the paternal side, both the lower Courts have rightly held that the respondents as maternal uncles and aunt shall take the whole of the estate of Malang Khan to the exclusion of the petitioners.

17. For similar reason, the petitioners cannot draw any benefit from the provisions of Article 92 ibid. It is only where there are no uncles or aunts or any kind that children of a deceased uncle etc. can inherit the proportionate share of his predecessor. Even on the touchstone of Article 92 the petitioners have no case.

18. The upshot of the above discussion is that petitioners have not been able to make out any case of interference with the well‑considered judgments passed by both the lower Courts. There is no merit in this civil revision which is hereby dismissed. Parties to bear their own costs. S.A.K./S‑752/L Petition dismissed.