P L D 1967 Lahore 1214 (PLP)

It must be remarked that in the succession of the `Asabah proper when the relations are of the same degree of affinity, pre ference is given to the strength of blood or consanguinity. The Durr‑ul‑Mukhtar lays down as a legitimate conclusion from the Prophet's doctrine, surely kinsmen by the same father and mother shall inherit before kinsmen by the same fairer only; that where relations are of an equal degree of affinity, regard is to be paid to the strength of blood. For example when the deceased leaves a full‑brother and a half‑brother by the same father only, though the degree of affinity is the same, yet the tie of blood being stronger in the case of a full‑brother than in that of the half‑brother, preference is given to him. In the same way the son of a full‑brother is preferred to the son of a half brother on the father's side. So also when there is with the brother's son a paternal uncle, the uncle has no interest in the inheritance. Lineal male descendants exclude all agnates in the ascending as well as collateral lines. The Fatawai‑Alamgiri defines the asabah‑be‑nafsihi to mean `every male into whose line of relation to the deceased no female enters.' `Such residuaries are of four sorts‑the offspring of the deceased, and his root, the offspring of his father, and the offspring of his grandfather. Hence the nearest of the resi duaries is the son; then the son's son, how‑low‑soever; then the father; then the grandfather, or father, now‑high‑soever; then the full‑brother ; then the half‑brother, by the father; then the son of the full‑brother, then the son of the half‑brother by the father; then the full paternal uncle; then the half paternal uncle on the father's side; then the son of the, full paternal uncle; then the son of the half‑paternal uncle; then the full‑paternal uncle of the father; then the half‑paternal uncle of the father on the father's side; then the son of the father's full paternal uncle; then the son of the father's half‑paternal uncle on the father's side; then the 'paternal uncle of the grandfather; then his son how‑low‑soever. When there are several residuaries in the same degree, the property is divided between them `by bodies, not by families' (i.e. per capita and not per stirpes). As, for instance, when there is a son of one brother and ten sons of another, or the son of one paternal uncle and ten sons of another, the property is to be divided into eleven parts, of which each takes one part. (2) Residuaries in another's right.‑The Residuraries in another's right are those females who become residuaries only when they co‑exist with certain males, that is, when there happen to or, males of the same degree, or who, though of a lower degree. would take as such (Durr‑ul‑Mukhtar pp. 864, 865) These are four in number, viz.:‑‑ (a) Daughters (with sons). (b)Son's daughters (with son's son or a male descendant still further removed in the direct line. This applies to the daughters of all lineal male descendants however low. For example, when there is a son's daughter CO‑existing with a son's daughter, the latter takes her half (like the daughter of the deceased), and the one‑sixth goes to the son's daughter and so on. If there are two son's daughters, the son's daughter will take nothing unless she has a lineal mole descendant of the same or lower degree co‑existing, such as a brother or nephew. (c) The full sister (with her own or full brother). (d) The sister by the same father, or, in other words, a consanguine sister (with her brother). When the females are of the same degree as the males (or as in the case of son's daughters or the daughters of a son's son bow‑low‑soever‑when they co‑exist with lineal male descend ants though of a lower degree)‑each female takes half the share of a male. For example, where there are two sons and three daughters or two brothers and three sisters, each daughter or sister, as the case may be, will take one‑seventh, whilst each son or brother two‑sevenths. Residuary with another.‑It must be remembered, however, that many males may become in certain contingencies, resi duaries but it does not foil,‑w that in all cases their sisters would become residuaries with them. ‑ It is only when the female is a sharer herself that instead of taking a share, she takes as a resi duary when co‑existing with a male residuary. For example, if a man dies leaving behind him a widow, a paternal and an aunt, be the latter by the same father and, mother, or by the same father only', the aunt, not being a share according to law, is not entitled to any share in the inheritance of her deceased nephew, and her brother (the uncle) takes the entire after allotment of the widow's share. When there is one sister of the whole blood, and consanguine brother and sisters, the full sister will take her half, and the residue will be divided among the half‑brothers and sisters in the propotion of two to one. When there are several full sisters, they will take their two thirds, and the remainder will be divided as above. When the deceased leaves only a full‑sister and a consanguine sister, they take a moiety and one‑sixth respectively, and the residue is divided among them pro rata. When there are two or more full‑sisters and several consan guine sisters, but no (consanguine) half‑brother, the full‑sisters take the whole, the consanguine, sisters take nothing. (3) Residuary with others.‑The Residuaries with others are‑ (a) Full‑sisters with daughters or son's daughters. (b) Consanguine sisters with daughters or son's daughters, When there is one daughter or son's daughter with a full consanguine sister, the daughter or son's daughter takes her moiety, and the remainder goes to the sister. When there are several daughters or son's daughters, they take two‑thirds, and the residue appertains to the sister. When there are several daughters and full‑sisters with son's daughters, the daughters and full‑sisters exhaust the inheritance. If there are two daughters, a son's daughter, and a lineal male descendant such as a son's son or a son's grandson, the two daughters take two‑thirds between them; the son's son takes two ninths, being two‑thirds of the residue, and the son's daughter takes the remaining one‑ninth. When the deceased leaves a daughter and several daughters of a pre‑deceased son, the daughter takes her half and the son's daughters one‑sixth, and the residue is divided among the daughter and son's daughters pro rata; but if there are two or more daughters, they take two‑thirds as their share and the remainder by turn and 'there is nothing for the son's Daughters'; but if there is a male among them, he makes the females (whether they be his sisters or cousins) residuaries with him, so that if there were two daughters or more, they would have two thirds between them, and the remainder would pass to the children of the son, in the proportion of two parts to the males and one part to the females. The male may be of a lower degree, still he would make them residuaries with him; so that the remainder would be between him and them in. the same proportion, or two parts to each male, and one to each female."

5. The above passage will show that the female children the grandfather how‑high‑soever are not included in the category of "Residuaries in their own right". The passage quoted iii ~i~31ia is to the same effect though it is somewhat in a jumbled form. When it is stated that a daughter acts as a residuary in the right of the son, or when the son's daughter acts as a residuary in the right of the son's son or the full sister acts as a residuary in the right of the full brother, and the consanguine sister acts as a residuary in the right of the consanguine brother, then all these relations,, namely, the son, the son's son, the full brother and the consanguine brother are the relations of the propositus and not any common ancestor (or as a matter of fact as is the present case of the great grandfather of the propositus). The matter is made further clear by Mulla himself on page 70 of the same book, where under the heading Female Residuaries, it is written as follows: "Female Residuaries.‑There are two points to be noted in connection with female residuaries, which are stated below. (1) The female residuaries are four in number, of whom two are descendants of the deceased, namely, the daughter and son's daughter h. 1. s., and the other two are descendants of the deceased's father, namely, the full sister and consanguine sister. No other female can inherit as a residuary. (2) All the four females inherit as residuaries with corresponding males of a parallel grade. But none of these except the son's daughter h.‑I. s. can succeed as a residuary with a male lower in degree than herself. Thus the daughter cannot succeed as a residuary with the son's son, nor the sister with the brother's son; but the son's daughter may inherit as a residuary not only with the son's son but with the son's son or other lower son's son; see ill. (m) and the note thereto." The illustrations in support of the above are given as illustrations Nos. 1, 2, 5, 6 and 8 under section 65 on pages 65 to 69 of Mulla's Book. Since these illustrations are by themselves clear, I need not dwell upon this point any further.

6. The upshot of the above discussion is that both the Courts below have rightly interpreted the law and there being no force in the appeal the same is hereby dismissed leaving the parties to bear their own costs. A.H. Appeal dismissed.