Succession

Letter of administration filed by the respondents was issued in their favour whereas to the extent of pre-deceased brother's children (interveners / petitioners ) , the same was concurrently declined

Validity

Section 4 of the Muslim Family Laws Ordinance, 1961, being on the statute book at the time of filing of the application for grant of Letter of Administration, was not applicable to the present case because it only provides for per stripes share on opening of succession to the children of deceased son and daughter of the propositus; which (Section 4) explicitly was not applicable to the pre-deceased brother's children rather said provision only attracted to the sons and daughters and the relations, who are specifically mentioned in it

As regards the question of analogy, notably, the matter of inheritance among Muslims is strictly governed by law and its provisions are well-defined leaving no ambiguity about the persons who are entitled to inheritance in the estate of the deceased

In the present case, deceased was survived by brothers and sisters and also two sons of pre-deceased brother

In terms of the table of sharers provided in the Mohammadan Law, a full sister is shown to be 1/2 sharer while table of residuaries include full brother's son; the son of pre-deceased sister is not mentioned in the table of sharer nor in the table of residuaries; the children of a pre-deceased sister are included in subsection (2) of S.68 of Mulla's Mohammadan Law, which lays down the list of distant kindred

The distant kindred only inherits when there are no residuaries

Under such circumstances, the properties and other assets of the deceased are required to be distributed amongst the brothers and sisters, who survived deceased and if anything is left for distribution, only then it can be given to the distant kindred

In the present case, since the deceased was survived by siblings, resultantly nothing would be left for its distribution amongst the legal heirs of predeceased brothers and sisters

Thus, the Courts below had rightly declined the application of the petitioners, which being well reasoned were not open for interference by High Court

Revision was dismissed, in circumstances.

Section 4 the Muslim Family Laws Ordinance, 1961, entitles the grandchildren for receiving the share which their father would have inherited had he been alive

Though the Federal Shariat Court has declared the S. 4 of the Muslim Family Laws Ordinance, 1961, to be repugnant to Islam but the operation of verdict stands suspended automatically in the wake of an appeal filed before the Supreme Court.

Petitioner was employee and after retirement was getting pension and was not dependent on deceased, rather he himself was getting salary as a government employee

Dependent was a person who had no earning and was wholly dependent on income of his son

Mere living in same house did not mean that petitioner was dependent on his late son

Benefits which had already become receivable by deceased during his life time payable by employer when he was alive or service benefit which employer gave as to an employee and name of family member of employee to receive it after his death, such was service grant and did not become inheritable by all legal heirs of the employee

High Court declined to interfere in the order passed by Lower Appellate Court

Revision was dismissed, in circumstances.

Section 4 of the Muslim Family Laws Ordinance, 1961, notwithstanding the fact that it has been declared repugnant to the injunctions of Islam by the Federal Shariat Court in the case of "Allah Rakha and others v. Federation of Pakistan and others" [PLD 2000 Federal Shariat Court 1] still holds the field in view of proviso to Art. 203-D(2) of the Constitution

Decision of Federal Shariat Court was assailed before the Supreme Court in appeal and same is still pending adjudication, thus, in accordance with the proviso to Art.203-D(2) of the Constitution, the decision of the Federal Shariat Court before disposal of the appeal by the Supreme Court is not effective.

Son/daughter of a predeceased son can get their share in the property of their grandfather, but it would be subject to the shares as provided in the Holy Quran and if the distribution of share under the provisions of S. 4 is overlapping or inconsistent then Shariat would prevail.

Petitioner filed a suit for declaration to the effect that she being the widow of predeceased son of propositus was entitled in the legacy of her father-in-law

Validity

Section 4 of Muslim Family Laws Ordinance, 1961 clearly reflected the intention of legislature that in order to cater the suffering of sons or daughters of predeceased son, they could get their share as if the predeceased son or daughter was alive at the time of death of his/her propositus

Question as to whether other legal heirs of predeceased son or daughter could also be benefited from the provisions of S. 4, remained controversial, however, S. 4 could not be interpreted other than as it was and for whose benefit it was promulgated

In fact, the benefit was provided to the sons and daughters of a predeceased in the legacy of their propositus whereas the other legal heirs of a predeceased son/daughter might not be the legal heirs of grandfather or grandmother either in accordance with the text of the Holy Quran or tables provided by Islamic Law, especially the widow of predeceased son with relation to the legacy of her father-in-law or mother-in-law, had got no concerned, whatsoever

Neither she was sharer nor residuary

Legacy of her father-in-law or mother-in-law, in the event of the death of her husband in the lifetime of his father/mother, being predeceased son is not entitled

Revision petition was dismissed.

Petitioner was employee and after retirement was getting pension and was not dependent on deceased, rather he himself was getting salary as a government employee

Dependent was a person who had no earning and was wholly dependent on income of his son

Mere living in same house did not mean that petitioner was dependent on his late son

Benefits which had already become receivable by deceased during his life time payable by employer when he was alive or service benefit which employer gave as to an employee and name of family member of employee to receive it after his death, such was service grant and did not become inheritable by all legal heirs of the employee

High Court declined to interfere in the order passed by Lower Appellate Court

Revision was dismissed, in circumstances.

Presumption of correctness attached to the entries of educational testimony by the Educational Institutions, NADRA and other official documents issued by the authorities stating the fact while performing his duty

Such book, register or record was kept, was itself a relevant fact

Official document produced in accordance with law would always carry sanctity and strong evidence required to cast an aspersion on genuineness, and would be binding on the parties to lis.

Document could be rebutted by document only.

For determination of title, the same could be decided by the civil court of competent jurisdiction by way of filing civil suit for the purpose to establish the claim and recovery of share.

Appellants contended that they being descendent/legal heirs of the deceased were entitled for group insurance, gratuity, pensionary benefits, amount in Bank account, and immovable property

Respondent alleged that deceased was issueless and appellants were adopted son and daughter thereof

High Court remanded the matter to Trial Court, which dismissed said applications

Validity

Respondent produced oral evidence (13 witnesses) but appellants produced in their favour official record/official documents through concerned representatives without objection from respondent, i.e. NADRA record; school registration/leaving certificates; local certificates; opening documents of Bank account/nomination of GP Fund Account

Presumption of correctness was attached to the documents of official record

Deceased mentioned his name in all documents from school admission up to obtaining National Identity Card without objection from respondent

Oral evidence of respondent could not rebut the documentary evidence of appellant

Appeal was accepted.

Held, in the event of death of any son or daughter of the propositus before the opening of the 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.

After partition the four sons moved to Pakistan and three of them ("the claimants") filed a claim before the Settlement and Rehabilitation Authorities urging that the abandoned agricultural land pertaining to their share should be verified as their names duly stood entered in the Pedigree Table of their late father

Said applications were dismissed by the Rehabilitation Commissioner on the ground that according to the revenue record received from India, only the eldest son was mentioned as the sole owner of agricultural land and the other three sons i.e. the claimants had failed to agitate for correction of entries in the said revenue records from the time they attained majority until partition

Held, that Jamabandi clearly showed that the entry in the Revenue Records with respect to the land was in the name of the eldest son followed by "etc.", which clearly established that that the eldest son was not the exclusive owner of the said land as the mention of "etc." was a reference to the three other sons i.e. claimants who were minors at the time of their father's death in the year 1917

Moreover the head of the clan/cast, to which the parties belonged, had provided sworn evidence before the Rehabilitation and Claims Commissioner regarding the non-applicability of the Rule of Primogeniture in their clan/cast

Claim against the abandoned land in India, which had been accepted, had to be shared equally between the four brothers

Review petition was dismissed in circumstances.

Subsequently plaintiff wanted to undo his own acts whilst contending that the mutations did not conform with S. 20 of the Colonization of Government Lands (Punjab) Act, 1912 ('the Act') insofar as his widow mother was not entitled to one-third share in the property

Proprietary rights had been acquired by the widow pursuant to S. 30 of the Act and 'sanad sultani' was issued in her favour; the proprietary rights were also recorded vide a mutation

Once proprietary rights had been acquired, it became a case of merger of the tenancy or occupancy rights in absolute rights of ownership

Acquisition of propriety rights by the widow had been done with the full knowledge and consent of the plaintiff; he could not therefore raise objections thereto, let alone file a suit to undo the same thirty-three years after the said proprietary rights had been acquired

Plaintiff took no action with regard to the said acquisition of proprietary rights by his widow mother and did not approach the authorities designated under the Act to undo the same and/or to grant proprietary rights of the widow to him

Conduct of plaintiff and his successors in pursuing the litigation by depriving the rightful owners of the property was deplorable

Supreme Court directed that in case the land in question was held by the plaintiff or his successors, it shall be immediately handed over to their rightful owners without delay

Appeal was dismissed accordingly.

Section 3 of Muslim Family Laws Ordinance, 1961 had provided that the provisions of said Ordinance would have effect notwithstanding any law, custom or usage

Muslim male heir who had acquired any agricultural land under the custom was to be deemed to have become an absolute owner upon acquisition of such land as if such land had devolved on him under the West Pakistan Muslim Personal Law (Sharia) Application Act, 1962

Mutation in question was attested in favour of the mother of plaintiff when she married the father of plaintiff

Appellate Court had discussed all the evidence and question of law as well as facts while passing the impugned judgment and decree

No irregularity or illegality had been pointed out in the impugned judgment passed by the Appellate Court

Revision was dismissed in circumstances.

Contention of plaintiff was that he was owner in possession of his share in the suit property inherited to himon the death of his father

Suit was dismissed being time-barred

Validity

No question of limitation would arise in cases where the controversy before the Court was with regard to legacy of a Muslim died before 1935 in the era of Riwaj (Custom)

Mere attestation of mutation which excluded a co-sharer or female co-sharer could not be made basis for holding that limitation would run against plaintiff from the date of attestation of impugned mutation

Where matter was exclusively with regard to illegal entries made during course of Riwaj (Custom) which were kept intact even after promulgation of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 then question of limitation or adverse possession would not operate as a barring factor in the way of correction of said entries or readjustment of shares of legal representatives in accordance with Injunctions of Islam

Findings recorded by both the Courts below could not sustain, in circumstances

Impugned judgments and decrees passed by the Courts below were set aside

Revenue authorities were directed to make relevant correction in the Record of Rights keeping in view S.3 of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 the whole suit property

Revision was allowed, in circumstances.

Legacy of Muslim would be divided amongst his heirs according to Islamic Law even though he had died prior to the promulgation of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935

Share of female limited owner on termination of her limited interest was in terms of Islamic Law

Plaintiffs being legal heirs of deceased were entitled to get their shares in the legacy

Entitlement of plaintiffs was not only recognized by the law of the land but also by the Islamic Law which could not be extinguished by any mutation

Any co-sharer, in possession of joint property, should be deemed as holding the possession on behalf of all the co-sharers

No limitation would run against the co-sharer

Every successive wrong entry in the revenue record would give a fresh cause of action

No wrong entry could be legitimized with the efflux of time

No illegality or irregularity had been pointed out in the impugned judgments and decrees passed by the Courts below

Revision was dismissed in circumstances.

Claimants' predecessor-in-interest having been deprived of his share from the legacy of father on the ground that he had been adopted by his maternal grandfather and had inherited from him

Effect

Plea of plaintiff was that she was entitled to inherit from the estate of her propositus whereas defendants contended that predecessor-in-interest of plaintiff was deprived of inheritance in accordance with the custom

Suit was dismissed by the Trial Court but Appellate Court decreed the same

Validity

Customary appointment of an heir did not involve the transplantation of a person from one family to another

Tie of kinship with the natural family would not dissolve and the fiction of blood relationship with the members of new family had no application to the appointed one

Relationship created among the appointer and appointee was personal by choice and did not extend beyond the contracting parties on their sides

Decisions with regard to succession must take place as per custom applicable to the parties concerned otherwise Muslims were to be administered by Islamic Law for succession among them

Defendants were bound to prove that custom prevailed for years and years without any interruption among their tribe as per their common will and unanimous intention

Heir ordained by Islamic law in absence of custom could not be deprived of his legal share from inheritance which would vest in him automatically upon the death of his propositus

Benefit of S. 5 of Muslim Personal Law (Shariat) Application Act, 1948 could only be extended if it was proved that parties were governed by the practice otherwise Islamic Law was to be applied

Nothing was on record that family of the parties was governed by custom that an heir could be deprived of his shari share from the legacy of his father

Impugned inheritance mutation could neither be supported nor perpetuated in circumstances

Fraud would vitiate every solemn transaction and Court should not endorse and perpetuate a fraud once it was proved to have been committed

Any transaction found to be result of misrepresentation could not be protected on the sole score of limitation

Limitation did not apply in case of inheritance; no limitation would run for a co-sharer and barrier of limitation would not be any hurdle in the enforcement of rights of inheritance

Entries in the revenue record would afford fresh cause of action to the plaintiff and adverse entries if allowed to remain unchallenged did not extinguish right of a party against whom such entry had been made

Every fresh entry in the revenue record would give fresh cause of action to the plaintiff to challenge the same

Revision was dismissed in circumstances.

Grandchild to be entitled to inheritance if mother / father of such grandchild had predeceased such grandchild's grandfather/grandmother

Benefit of S.4 of the Muslim Family Laws Ordinance, 1961

Scope

Declaration that S.4 of the Muslim Family Laws Ordinance, 1961 was repugnant to the Injunctions of Islam by Federal Shariat Court

Application of S. 203D of the Constitution

Scope

Question before the High Court was whether children of the predeceased daughter/son of a person were entitled to inheritance/succession after death of such person in line with S.4 of the Muslim Family Laws Ordinance, 1961; which section had been declared repugnant to the Injunctions of Islam by the Federal Shariat Court

Held, that whilst it was a fact that S.4 of the Muslim Family Laws Ordinance, 1961 had been declared repugnant to Injunctions of Islam by the Federal Shariat Court, however, Art. 203D of the Constitution would apply to such decision for said order of Federal Shariat Court had been challenged before the Shariat Appellate Bench of the Supreme Court, and thus said judgment would become operative only after disposal of said appeal by the Shariat Appellate Bench of the Supreme Court and therefore, till such time, those entitled for benefit of S. 4 of the Muslim Family Laws Ordinance, 1961 shall continue enjoying fruit thereof, which entitled grandchild for receiving share which their mother/father would have inherited, had she/he been alive.

Orders passed in absence of legal heirs could not be treated as orders passed on "objections" in order to treat an application for letter for administration as contentious, which could only be converted into a suit if the objections filed were prima facie tenable and objectors were to be treated as defendants in terms of S.295, Succession Act, 1925

When there was neither "objections" nor "objectors" on record, order under O.XX, R.13, C.P.C. could not be passed.

Whenever dispute had come before the court of law with regard to succession to the estate of deceased Muslim he would be deemed to have died under the domain of Muslim Law even if death had taken place before coming into force of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935

Daughters of deceased could not be deprived on the basis of custom rather they would be entitled to their shari share as provided in Islamic Law

Plaintiffs being daughters of deceased were entitled to their shari legal share under the divine law which could not be extinguished by any instrument of mutation

Plaintiffs became co-sharers in the property on the death of propositus

Possession of one co-heir/co-sharer would be deemed to be held on behalf of all co-heirs/co-sharers

Limitation would not run against co-sharer

Every successive adverse entry in the revenue record would give a fresh cause of action

Suit of plaintiffs being a matter of inheritance was within time

No illegal act or wrong entry could be legitimized with efflux of time howsoever long it might be

Appellate Court had committed illegality while setting aside the judgment and decree of Trial Court

Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored

Suit filed by the plaintiffs was decreed

Revision was allowed in circumstances.

Mother would inherit the whole estate of deceased son according to Shia and Sunni laws of succession if he died issueless and father of deceased was also not alive

"X" was step brother of "Y" and he was not entitled to get any share in the estate of "Y"

Inheritance mutation in favour of mother of "Y" in the revenue record was rightly attested

Mother of "Y" became absolute owner of land in her possession after 15-03-1948

Consent decree passed in favour of step brother of "Y" had become in-executable under S. 2-A(b) of Punjab Muslim Personal Law (Shariat) Application Act, 1948

Step brother of "Y" was excluded from the arena and property in possession of mother of "Y" after 15-03-1948 which would go to her legal heirs

Consent decree was passed in the year 1946 before the promulgation of Punjab Muslim Personal Law (Shariat) Application Act, 1948 which was past and closed transaction

Daughter of mother of "Y" was entitled to the extent of property which was in the name of her mother at the time of her death

Suit filed by the daughter of mother of "Y" was decreed to the extent of such property whereas that of step brother was dismissed

Revision was disposed of accordingly.

Petitioner sought review of order passed by High Court under S.295 of the Succession Act, 1925, whereby in view of contentious nature of succession proceedings, application seeking issuance of letters of administration were converted into a civil suit

Contention of applicant inter alia was that impugned order, which converted proceedings into suit for administration and stated that the preliminary decree be passed was contrary to law; and the suit should be regular suit and not a suit for administration

Validity

Impugned order identified the parties and identified as to who should be the plaintiff and defendant and mentioned that the suit would be in the form of a suit for administration of the properties of the deceased and therefore all ingredients of S.295 of the Succession Act, 1925 and O.XX, C.P.C. were fully adhered to

When parties were legal heirs of the deceased and were contesting with regard to share in property left by the deceased, in such situation any one of the legal heirs could file a suit for administration of properties or file an application under S.278 of the Succession Act, 1925 for grant of "letter of administration" and in terms of S.295 of the Succession Act, 1925 in the case where there was contention, then proceedings were supposed to be converted as nearly as they could be, into a "regular suit" according to provisions of the C.P.C.

Court in the impugned order exercised powers of a court of original civil jurisdiction and once an order was passed, the court also had power to take further steps to minimize delay in disposal of dispute and the court was under a statutory obligation to pass an order for preliminary decree

Use of the word "shall" in O.XX, R.13, C.P.C. was of mandatory nature, and the C.P.C. did not envisage any other form a suit except for a suit for administration of properties under O.XX, C.P.C.

No error on the face of record was found in the impugned order

Review application was rejected, in circumstances.

Section 281 of the Succession Act, 1925, which was a rule of procedure, was not of any particular importance in a non-contentious case, when the existence and content of a Will was uncontested and the entire matter was being proceeded consensually, with the concurrence of the executors and legatees/heirs.

Incorrect periodical entry did not operate as a bar to such entitlement of lawful successors nor limitation could be pressed in such like matters

If a lis involved a dispute with regard to status of successors then same would fall out of the scope of Succession Act, 1925 being summary one and would require determination by a Civil Court.

Riwaj (custom) claimed by defendant had no record and the area where property-in-dispute was located was totally Muslim inhabited area and there was no evidence on record that non-muslims were residing there and alleged Riwaj was enforced

Riwaj of not giving inheritance to female was contrary to Injunctions of Islam and could not be enforced or promulgated

In presence of Islamic Law of inheritance which was based on Quranic injunctions, it could not be presumed that un-Islamic Riwaj could be enforced

Under the law of inheritance, plaintiff would become co-owner in legacy of her deceased father to the extent of her share

Revision was allowed and suit stood decreed as prayed.

Section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 applied since December 31, 1962.

Contention of the plaintiff was that inheritance mutation was attested by practicing fraud and daughters of the deceased had been disinherited

Suit was dismissed by the Trial Court but same was decreed by the Appellate Court

Validity

Son of the propositus in whose favour inheritance mutation had been sanctioned was minor and there was no question of fraud or misrepresentation

Daughters of the deceased had been mentioned in the said mutation

Suit property was transferred in favour of widow as life interest

Simple statement of the plaintiff that mutation was based upon misrepresentation and fraud was not sufficient to brush aside the subsequent mutations

After 74 years of attestation of mutation in question it was impossible to produce the attesting witnesses of the same

Onus to prove the transaction shifted upon the beneficiary when the plaintiff succeeded in discharging his initial onus which had not been discharged in the present case

Mother of the plaintiff died after 64 years of the attestation of mutation and even after 11 years after the death of his mother the suit had been filed which was time barred

Delay of filing suit was fatal which created waiver on behalf of mother of the plaintiff who never challenged impugned mutation in her life time

Inheritance opened in the year 1930 at the death of the deceased and minor inherited in accordance with custom and suit was not maintainable

Impugned judgments and decrees passed by the Appellate Court were set aside and that of the Trial Court were restored.

Provisions of S. 4 of Muslim Family Laws Ordinance, 1961 were applicable to a specific category of class of legal heirs i. e. sons and daughters of deceased which could not be applied to the son of predeceased sister of deceased

Sons and daughters of predeceased sister would come in the third category of legal heirs i.e. distant kindred

Shares out of assets at first were to be consumed by the sharers and left over to be consumed by the residuaries and if there were no residuaries then same had to revert back to the sharers

If sharers and residuaries were available then distant kindred were not entitled to share under Islamic Law

Both the sharers and residuaries were available in the present case and there was no question of inheritance by distant kindred

Plaintiff being in the third category of legal heirs was not entitled to inherit share from the assets left by the deceased in presence of sharers and residuaries

Plaint could not be rejected in piecemeal

Application for rejection of plaint was dismissed in circumstances.

Daughters during life time of their mother under Hindu law of succession were not entitled to inherit from the estate of their father

Such right of daughters would accrue only after the death of their mother

Daughters would succeed if their mother died daring the lifetime of their father

Heritable right would accrue to the daughters not on the death of their father but after the death of their mother though they were not heirs of their mother but of their father

Daughter of deceased was not entitled to inherit from the estate as her mother and the widow of the deceased was alive and not because that she got married during the lifetime of deceased

Movable and immovable properties left by the deceased would be inherited by his widow and sons

Widow would take only a limited interest i.e. 'the widow's estate' in the estate of her husband and in the event of her death the estate would be inherited not by her heirs but by the next heirs of her husband i.e. 'reversioners'

Widow had filed her affidavit surrendering and relinquishing her "life interest" in favour of her sons/other legal heirs of the deceased

Movable and immovable properties left by the deceased be divided amongst his two sons

Application for grant of succession certificate and letters of administration was allowed in circumstances.

Propositus of the parties died in 1978, and on his demise his legacy was to devolve on his two sons, two daughters and children of his pre-deceased daughter

Mutation witnessing succession excluded the children of the pre-deceased daughter, who questioned their exclusion through a civil suit

Said suit was decreed by the Trial Court as well as the High Court

Contention of appellant-defendant was that mutation witnessing the succession was sanctioned in 1978, but the suit challenging such mutation was instituted in 1998, which was hopelessly time barred and was liable to be dismissed

Validity

Where co-heirs became co-owners in the property left by their propositus on his demise, their succession to the property of their propositus became a fait accompli immediately after his demise

Such succession to property, thus, did not need the intervention of any of the functionaries of the Revenue Department and remained as such irrespective of what Patwari, Girdawar and Revenue Officer entered in the mutation sanctioned in such behalf

Since possession of one co-heir or any number of them would be deemed to be on behalf of even those who were out of it, preparation of every new record of rights, in their case, would confer on them a fresh cause of action

No length of time, therefore, would culminate in the extinguishment of their proprietary or possessory rights

Appeal was dismissed accordingly.

Section 4 of the Muslim Family Laws Ordinance, 1961, had been declared against the tenets and Injunctions of Islam by the Federal Shariat Court in its judgment rendered in the case of Allah Rakha and others v. Federation of Pakistan and others (PLD 2000 FSC 1)

Effective date of such declaration

Such declaration even if affirmed by the Shariat Appellate Bench (of the Supreme Court) would take effect from 31-3-2000 in view of the provision contained in Art. 203D of the Constitution

Such declaration could not affect previous operation of law or a succession taking place before such date

Appeal was dismissed accordingly.

Succession provided for in S. 4 of Muslim Family Laws Ordinance, 1961 was for the benefit of orphan sons and daughters of predeceased parent

Such succession had been provided to remedy the discrimination which was believed to exist against grand-children whose parents had died before the succession was opened

Parents of such grand-children would be deemed to be alive for the purpose of succession

Said provision of S. 4 of Muslim Family Laws Ordinance, 1961 was not introduced to give a share to the grand-child more than what would have been his/her due share if the parents were alive when succession was opened.

Succession would depend on the fiction that if "Y" was alive at the time of death of "X", (his mother), "Y" would inherit 1/2 share of his mother in such event along with his brother (defendant) but he could pass on such share of his estate to his daughters as was permissible under the Islamic Law of inheritance

Defendants being surviving children could not get more than 2/3rd of the estate of "Y" as he had no son but only daughter and remaining 1/3rd must revert to the collateral( plaintiff)

Defendants could inherit only to the extent of Islamic share in the estate of their father "Y" notionally assessing that he was alive at the time of death of his mother (propositus) and death of "Y" occurred only subsequent to the death of his mother

Findings of Appellate Court were neither illegal nor suffered from any irregularity or jurisdictional defect

Case was rightly remanded by the Appellate Court

Revision was dismissed in circumstances.

Grandson was entitled for receiving shares which his father/mother would have inherited if he/she had been alive at the time of opening of succession

Plaintiffs being legal heirs of their mother were entitled to their shares in the inheritance of their father in his legacy

Operation of judgment passed by Federal Shariat Court would suspend automatically when same had been challenged before the Supreme Court till disposal of appeal by the Shariat Appellate Bench of Supreme Court

Judgments and decrees passed by both the courts below were on correct footing and in accordance with law

Revision was dismissed in circumstances.

"Benevolent fund and group insurance" amount would not be part of "Tarka"

Assets left by the deceased would be termed as "Tarka" but same would not include those things which would fall within the meaning of "concession" "grant" or "compensation" particularly when such things would become due after death of the person.

"Tarka" would be the absolute property of the deceased and same should be governed by law of inheritance of the deceased whereas "concession" was not the property of the deceased but was that of the employer after death of the person and if the employer (giver) wanted it to be given only to one out of hundred legal heirs of the deceased, others would not be legally justified to object the same.

Classes of legal heirs of deceased (in Sunni Hanfi Law of Succession) were sharer, residuaries and uterine (distant kindred).

Succession to the estate of a Muslim would open immediately, he had passed away and title would pass to the legal heirs automatically to the extent of their respective shares ordained by Shariah without any interference by the State functionaries.

Applicants were minor sons of deceased who through their mother assailed entitlement of their grandmother in distribution of salary of deceased

Validity

Parents of deceased, under S.2(5) of Federal Employees Benevolent Fund and Group Insurance Act, 1969, included under the definition of term "family"

Where term "legal heir" or "parents" was used, the same fell within the definition of term of "family" and they were entitled to receive Tarka left by deceased

Mother of deceased was legal heir and family member of deceased, who was wholly dependent upon him and was entitled to have share in salary of deceased as per Sharia according to her sect

High Court declined to interfere in order passed by Trial Court as it did not suffer from any legal infirmity

Application was dismissed in circumstances.

Predecessor-in-interest of plaintiff died in the year 1910 and his legacy devolved upon his daughter according to custom but she was deprived from the same on her marriage

Said property was transferred in favour of defendants in toto which was against the mandate of Shariah as same had to be devolved on the plaintiff and defendants as per their shares in accordance with Shariah

Appellate Court had not considered such aspect of the case and its judgment and decree were nullity in the eye of law

No limitation would run against a person in possession of property as a legal heir

Plaintiff being legal heir of deceased had become co-owner of the property and she would be considered in possession along with defendants as mutation attested under custom had no legal effect on promulgation of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 which had been given retrospective effect

Plaintiff would be deemed to have inherited the suit property in the year 1910 at the time of death of male muslim owner and since then she would be presumed in possession of property

Bar of limitation would not be applicable in case of inheritance

Plaintiff was given her due share and she had no knowledge of transfer of property on the promulgation of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 and her entitlement to inheritance stood established right from the year 1910

Plaintiff could not be said to have estopped by her own conduct

Principle of acquisance would not be applicable in the present case

Succession would open on the death of a muslim and his property would automatically vest in the legal heirs and no intervention of State agencies or revenue authorities would require for the same

Efflux of time did not extinguish any right of inheritance of legal heir as on the death of owner of property he would become co-owner in the same

Limitation would run not from the date of death or attestation of mutation but when the right of successor was denied

No limitation would arise in the matter of inheritance

Suit was within time as same was with regard to matter of inheritance

Revision was accepted and judgment and decree of Appellate Court were set aside and those of Trial Court were restored.

Right to property meant a property which was due to the deceased from any other person, _ and which though not received by the deceased during his life time, but the deceased was legally entitled to raise a claim in respect of the same in his lifetime

"Tarka", thus, included all movable and immovable properties owned and possessed by the deceased at the time of his death, as well as those sums which were due to the deceased from any other person.

Plaintiff nowhere stated that all proceedings of conferment of proprietary rights and further mutations were not in his knowledge when defendants were recorded as owners in suit property on the basis of inheritance

Effect

Filing of suit by plaintiff 58 years after mutations challenging the same in suit were time barred

After attestation of mutation in question, various mutations were not challenged whereby plaintiff impliedly admitted validity of mutation in question

When claim of plaintiff stated in plaint, was that his mother transferred suit property in his name under family settlement after she got daughters married, as such the same negated his claim to inherit exclusively whole of the property left by his father

High Court in exercise of revisional jurisdiction set aside judgments and decrees passed by both the courts below being against evidence and contrary to law, resultantly suit filed by plaintiff was dismissed

Revision was allowed in circumstances.

For proving application of S.20 of Colonization of Government Lands (Punjab) Act, 1912, plaintiff is bound to prove that his propositus was original tenant.

Succession to an estate of a Muslim under Muhammedan Law would open at the time of his death and his legal heirs alive at such time would be entitled to inherit his estate

Section 4 of Muslim Family Laws Ordinance, 1961 was prospective in nature and could not be given retrospective effect to undo or reopen inheritance already concluded under Muhammedan Law prior to promulgation of Muslim Family Laws Ordinance, 1961

Deceased grandfather had died in year 1956, while his son had died in year 1955

Legal heirs of pre-deceased son, thus, would not be entitled to inherit estate of their grandfather under Muhammedan Law

Suit filed by legal heirs of pre-deceased son was dismissed in circumstances.

Inheritance mutation was incorporated into the revenue record and propositus' widow (appellant) was given 1/8 share of the propositus and grand-daughter (appellant) was given remaining 7/8 share

Validity

Grand-daughter of the propositus was entitled to the share equivalent to the one which her deceased-father would have received, if alive, at the time of opening of succession, therefore, she was entitled to 1/2 share of the propositus' property, which her pre-deceased father would have inherited, if he had been alive

Widow of the propositus was entitled to 1/8 share and the rest would go to the relatives according to the law of inheritance

Revision petition was dismissed, accordingly.

Daughter, if assumed not to be traceable or to have died before deceased, would be entitled to her share in land left by deceased

Wife, if died before death of her husband, would not receive any share in land left by him.

Controversy was with regard to distribution of movable and immovable assets left by the deceased among his all legal heirs

Validity

Any financial benefit which an employee could claim from his employer in his lifetime and had also become payable in his lifetime was to be treated as absolute right of employee and if any benefit or any part of it remained unpaid during his lifetime then the same would become heritable and was to be distributed among all his heirs

Service benefit of an employee, which had not fallen due in his lifetime and being a grant or concession on the part of employer of whatever amount, the same would become payable after the death of employee to be distributed only to those members of family who were entitled for the same as per rules and regulations of service

It was the discretion of employer to make rules and regulations in relation to any grant or concession that was intended to give to an employee or after his death to any member of his family

Benefits such as special retirement benefits, special compensation, group insurance under term insurance policy and group insurance under provident fund policy benefits definable as grants and concession on the part of employee and payable after the death of employee could not be treated as heritable by all heirs of employee but were to be distributed to those who were entitled to it under the rules and regulations of service provided by employer

High Court directed to distribute the assets of deceased accordingly.

Plaintiffs had claimed that they were the sons and daughters of one of the sons of deceased original owner who died before death of original owner and that they being grand son and daughter of original owner were entitled to the share of their deceased father

Defendants who were son and daughter of deceased original owner resisted suit on the ground that as plaintiffs' father died prior to the death of original owner, plaintiffs were not entitled to their share in the inheritance of original owner for the reason that S.4 of Muslim Family Laws Ordinance, 1961 had been declared un-Islamic

Plaintiffs were sons and daughters of predeceased son of original owner of the suit property

Original owner died in the year 1987 and the inheritance mutation was attested at the time when Muslim Family Laws Ordinance, 1961 was intact

Plaintiffs being grand sons and daughters of deceased were entitled to the inheritance of their grand father and could not be excluded by any stretch of imagination from the inheritance of their grand father

Subsequent declaration by Federal Shariat Court declaring S.4 of the Muslim Family Laws Ordinance, 1961 un-Islamic, had no relevancy to the facts of the present case as it was the death of the pre-positus which would determine the succession

Even if it was presumed that by then S.4 of Muslim Family Laws Ordinance, 1961, had been declared by Federal Shariat Court to be un-Islamic, same was sub judice in appeal before the Supreme Court (Shariat Appellate Bench) the operation of which stood suspended under Art.203-D of Constitution

Petitions were dismissed.