2004 PLP 1304 (MLD)

This judgment shall decide Civil Revisions Nos. 399 and 400 of 2000, as common questions are involved and both the matters were ordered to be heard together.

2. Admitted facts of these cases are that the suit lands were owned by Khan Muhammad son of Niaz Ali. He died somewhere in the year 1990. He was survived by respondents Nos.2 to 4 as daughters and respondent No.1 as daughter of the pre‑deceased son of Khan Muhammad, Fazal Dad petitioner No.6 and Pehelwan Khan (predecessor‑in‑interest of petitioners Nos. 1 to 5 and respondent No.5) as brother. Mutation of Inheritance No.3299 of village Darkali Mahmoori was attested on 9‑12‑1990 in C.R. No.399 of 2000. While Mutation No.492 of village Totah was attested on 20‑11‑1990 (C.R. No. 400 of 2000). The estate was mutated in favour of respondents Nos.2 to 4 i.e. the daughters of Khan Muhammad and respondent No. 1 daughter of pre‑deceased son of Khan Muhammad in both cases. The petitioners filed these suits to question the said mutations by claiming that since the said two brothers of Khan Muhammad were alive, the residue after satisfying shares of his daughters and the said daughter of his pre deceased son had to revert to the brothers and consequently to the petitioners as collaterals of Khan Muhammad. The suits were contested. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed both the suits on 5‑5‑1999 while two first appeals were dismissed by a learned Additional District Judge, Rawalpindi on 25‑4‑2000.

3. Learned counsel for the petitioners in the first instance has tried to argue that the provisions of the Muslim. Family Laws Ordinance, 1961, are against the injunction of Islam and this being so, after settling the shares of the daughters, the residue would 'tie going to the petitioners and respondent No. 1 the daughter of pre‑deceased son would be excluded. His further contention is that even if section 4 is assumed to be valid peace of legislation, then in view of the law laid in the case of Mst. Zainab v. Kamal Khan alias Kamla (PLD 1990 SC 1051), after satisfying the shares of the daughter of pre‑deceased son, as also daughters of Khan Muhammad i.e. respondents Nos. 1 to 4 the residue would be reverting to the petitioners being collateral of Khan Muhammad. Learned. counsel for the respondents, on the other hand, relies upon the case of Mst. Qabal Jan v. Mst. Habab Jan and 9 others (1992 SCMR 935) to support the impugned judgment and decrees.

4. I have given some thought to the respective contentions of the learned counsel in view of the admitted factual position of these cases. Now in the said case of "Mst. Zainab" decided on 12‑7‑1990, their lordships interpreted rather defined the term "per stripes". It was concluded that term means a share according to the stocks or roots or family as against per capita which means share per head‑. It was then held that section 4 has been added to cater the needs of grand‑children and to remove their sufferings but it cannot be interpreted so as to decrease the share of other descendants. It was then observed that according to the said provisions a share from the deceased grand‑father property' has been bestowed upon the children of predeceased son or daughter but this does not mean that other heirs of the deceased would be excluded from their share of inheritance. It was finally observed that grand‑children are not entitled to more share than what could be inherited from the parents according to Islamic law, consequently estate would be divided in proportion of the respective shares their parents and heirs claiming through different line of descent would get their own share per stripes. Now this judgment of course fully supports the contentions of the learned counsel for the petitioners.

5. However, the said case of "Mst. Qabal Jan" being relied upon by the learned counsel for the respondents and which has also been made basis of impugned judgments equally supports the case set up by the respondents. Now in this judgment rendered on 28‑10‑1991, their lordships after referring to the said case of "Mst. Zainab" held that after settling share of daughter the remaining residue pertaining to the share of predeceased son was to be distributed amongst, "his" other heirs. In the said case the sister of the said son was found entitled to get the residue while the daughter of the pre‑deceased son i.e. the petitioner before their lordships was entitled to get 1/2 share in the share of her father in the estate of Saadullah, grand‑father. It will be seen that in the said case of "Mst. Qabal Jan", male collaterals as such were not involved. The prepositus namely, Saadullah was survived by a widow, a daughter and Mst. Qabal Jan the daughter of predeceased son Muhammad Akram. There is also reference to one Najab Khan in whose favour 5/24 share was mutated but it is not evident from the said report as to who this Najab Khan was. Be that as it may, the appeal was filed before their lordships with the plea that the said lady was entitled to the entire share of her father in the estate of her grand‑father, which plea of course was not accepted. However, in para. 6 of the judgment remaining 7/24 share i.e. residue pertaining to the share of pre‑deceased son was dealt with and distribution was made by their lordships by settling the share of Mst. Ameer Jan being mother of the said pre‑deceased son and giving residue to Habab Jan, his sister. There is a note that this would in addition to the area inherited by the said persons as heirs of Saad Ullah deceased. There can be no manner of doubt that share coming down to pre‑deceased son was treated as his estate notwithstanding the fact that residue was to be thereafter settling share of the daughter and was treated as part of his estate and distributed as such and was not added back to the estate of Saadullah prepositus. This latter judgment given in the light of said judgment in the case of "Mst. Zainab" is binding upon this Court and this being so, no legal or jurisdictional defect is to be found with the impugned judgments of the learned Courts below. So far as the first contention of the learned counsel for the petitioners is concerned, I am afraid that Article 203(G) of the Constitution of the country places a bar upon this Court to entertain the said plea. Besides, I am told that this very question is, pending consideration before the Hon'ble Shariat Appellate Bench of the Supreme Court.

6. Both the civil revisions accordingly are dismissed without any order as to costs. M.A.W./R‑33/L Revision dismissed.