MUHAMMAD SIDDIQUE vs SHAH PASAND KHAN AND Other
This matter arises from a petition for special leave to appeal filed against the judgment of the Peshawar High Court, which set aside the ad interim injunction granted to the petitioner by the Additional District Judge. The petitioner had filed a suit seeking a declaration and a temporary injunction to restrain his 120-year-old grandfather from alienating his immovable property, alleging that the grandfather was of failing mental and physical condition and under the undue influence of other defendants. The core legal question was whether a presumptive heir can restrain an ancestor from alienating property during their lifetime based on an expectation of inheritance. The Supreme Court held that under Muhammadan Law, a presumptive heir has no vested right in praesenti in the property of an ancestor and possesses only a spes successionis, which is a mere expectation of succeeding by survival. Consequently, a presumptive heir cannot restrain an ancestor from dealing with or disposing of their property during their lifetime. The petition was accordingly dismissed in limine.
- Whether a presumptive heir has a vested right in praesenti in the property of an ancestor during the ancestor's lifetime?
- Does Muhammadan Law recognise spes successionis or an expectation of succeeding to the property of another by survival?
- Can a presumptive heir maintain an action to restrain an ancestor from disposing of their immovable property?
ORDER
1. ABDUL KADIR SHAIKH, J.-The facts, shortly stated, are that Muhammad Siddique, petitioner herein, filed a suit against his grandfather Shah Pasaqd Khan, respondent No. 1 herein, and the other respondents seeking a declaration that his grandfather who is an old man of 120 years with failing mental and physical condition, is under the influence of other defendants and they are-taking undue advantage by persuading his grandfather to alienate his immovable property in their favour. The plaintiff further prayed for grant of a temporary injunction restraining his grandfather from disposing of his property.
2. The trial Judge rejected the request for temporary injunction but on appeal at petitioner's instance, the Additional District Judge, Mardan, reversed the order of the trial Judge and issued an ad interim injunction as prayed for.
3. The Peshawar High Court; however, in revision, set aside the order of the learned Additional District Judge, and the petitioner has now filed this petition for special leave to appeal.
4. The view that prevailed with the learned Single Judge in the High Court who heard the case is that during his lifetime, Shah Pasand Khan is entitled to deal with his property in any manner he likes, and he rejected the plea that the doctrine spes successionis was attracted in view of the dictum laid down by this Court in Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624), that the Muhammadan Law does not recognise spes Successionis, i. e. An expectation or hope of succeeding to the property of another by survival and that till that death occurs a presumptive heir has no right at all in the property of his ancestor.
5. Since the petitioner has no vested right in praesenti in the property belonging to his grandfather, he cannot be allowed to restrain him from disposing of the property in any manner. This petition, therefore, has no merit, and is accordingly dismissed in limine.