2002 PLP 3849 (YLR)

Date of hearing: 26th February, 2002. Through the instant civil revision petition the judgments and decrees, dated 28‑6‑1992 and 4‑11‑1993 passed by the learned Civil Judge‑I, Maripur and the learned District Judge, Maripur respectively have been called in question.

2. The breviate of the matter is that inheritance Mutation No.643 qua legacy of Muhammad Sadiq was attested on 6‑10‑1988 in the name of petitioners and respondents Nos. 1 to

4. The petitioners Nos. 1 and 2 claimed themselves to be the sisters while respondents Nos.3 and 4 were the widows of Muhammad Sadiq deceased. The aforesaid mutation also accommodated respondents Nos. 1 and 2 as residuaries. Two distinct suits were filed, one bearing No.311/1 by respondents Nos. 1 and 2 against the petitioners and the other bearing No.186/11 by the petitioners against the respondents 1 and

2. In Suit No.311/1 it was claimed that the present petitioners are not the legal heirs of Muhammad Sadiq whereas in Suit No. 186/1 it was stated that present respondents Abdul Karim and Muhammad Akram being not related to the deceased Muhammad Sadiq have no concern with his legacy and as such the aforementioned mutation was questioned by both the parties. The learned Trial Court consolidated both the suits and by a common judgment the Suit of the respondents bearing No.311/1 was dismissed while the Suit of the petitioner bearing No. 186/1 was decreed but in that suit the respondents were hold entitled to the legacy of Muhammad Sadiq as residuaries. Two rival appeals were filed before the learned District Judge but during the course of arguments the learned counsel for respondents Nos.1 and 2 withdrew from the appeal and in this way the Appeal of the present petitioners bearing No.88/13 was heard but dismissed.

3. The learned counsel for the petitioners has contended that when the Suit of the respondents bearing No.311/1 was dismissed by the learned Trial Court then there was no justification for holding them entitled to the legacy of Muhammad Sadiq as residuaries. He further contended that the impugned mutation was initially entered in the names of the present petitioners and respondents Nos. 3 and 4 but subsequently on the production of a 'Fatwa' Exh.P.W.2/2 the mutation was interfered with and previous entries were crossed and respondents Nos.1 and 2 were added. He further contended that immediately after the attestation of the said mutation the petitioners filed an appeal before the Collector but the petitioners were directed to file civil suit. He urged that respondents Nos. 1 and 2 are not in any manner descendants of a common predecessor to the petitioners and as such the impugned mutation to the extent of the shares of the respondents Nos.1 and 2 was illegally attested. He further while criticising the observations of the learned District Judge given in para. 9 of the judgment argued that the learned District Judge was incorrect in saying that appellants and respondents Nos.3 and 4 (as before him) were given their correct legal shares, thus it was' not for the present petitioners to challenge the share given to present respondents Nos.1 and

2. It was for these who were deprived of. He contended that by the principle of return in terms of section 106 of Muhammadan Law the petitioners are entitled to the remaining inheritance.

4. I have heard the rival arguments and have examined the record. The learned Trial Court has admitted that neither of the party has got any authentic document to prove the accurate pedigree‑table, nevertheless it readily accepted the relationship of the parties with deceased Muhammad Sadiq on the reasoning that D.W.1 has admitted his presence at the time of attestation of impugned mutation ignoring the fact that D. W. 1 had stated that he had objected to the pedigree‑table given in the impugned mutation.

5. The point of anxiety is that the learned Trial Court despite the scanty record on the controversy genealogy has accepted respondents Nos.1 and 2 in the capacity or residuaries and as such they are given inheritance of Muhammad Sadiq. No issue on the point was framed and no evidence was adduced on this salient feature of the case. In the circumstances the judgments and decrees of both the Courts below being open to exception are set aside. In order to resolve the controversy once for all frame the following issues and remand the case to the learned Trial Court to allow the parties to lead their evidence on the freshly framed issues and then decide the case according to law:‑‑ (1) Whether Roshan was the pro‑geniter of the parties through when Abdul Karim and Muhammad Akram can earn the status of residuaries to get inheritance of Muhammad Sadiq in such capacity. (2) If the answer of the above issue is found in negative then would plaintiffs of Suit No.186/1 besides their specific share received the remaining legacy by way of doctrine of return in term of section 106 or Muhammadan Law.

6. Before parting with the judgment may say that this being a very old case the learned trial Court is expected to decide it within 4 months from the date when the parties appear before it. No orders as to costs. H.B.T./605/P Order accordingly.