Mian MAZHAR ALI and others vs TAHIR SARFRAZ and others

ORDER

' UMAR ATA BANDIAL, J.---In a suit for partition filed by the heirs of Mehmooda Begum who predeceased her parents, a question has arisen whether her widower, Mian Sarfraz Ahmed, is liable to be treated as her heir along with her children or not. Depending on the answer to that question said Mian Sarfraz Ahmed who is impleaded as one of the parties in the suit shall being the husband, be arrayed as heir in the suit.

2. Learned counsel for the respondents submits that section 4 of the Muslim Family Laws Ordinance, 1961 recognize the right of inheritance of grandchildren of a porosities and this cannot be extended to the widow or widower of such a predeceased heir. In the present case, Mehmooda Begum predeceased her parents and therefore he submits that only the children of Mehmooda Begum are entitled to be heirs of her property inherited from her parents. He has relied on the case law but that deals only with the rights of grandchildren and not the right of other heirs of a predeceased issue of a propositus. On the other hand the learned counsel for the petitioners places reliance on a Supreme Court judgment in the case of Mst. Bhaggay Bibi and others v. Mst.

Razia Bibi and others (2005 SCM R 1595) wherein with reference to provision of section 4 ibid the following observations with regard to right of inheritance of a widow along with her children are made:-"This section does not override the law of Shariah and consequently, the parties will not get more than their share in the property in accordance with law of Shariah and the widows and daughters of Maula Dad would get to which they would have been entitled on the death of Maula Dad, after opening of succession of Mughla. The purpose of enacting section 4 (ibid) was to cater the need for grandchildren to remove their sufferings but this provision cannot be interpreted in a manner effecting the shares of other descendants in the property in accordance with law of Shariah. This Court in Zainab v. Kamal Khan PLD 1990 SC 1051 resolving the controversy arising out of the provision of section 4 of Muslim Family Laws Ordinance, 1961, held that according to law of Shariah, the heirs of predeceased children would inherit what their father or mother would have inherited during their life time on the opening of succession."

' The said judgment places reliance on another precedent of apex Court judgment in the case of Mst. Zainab v. Kamal Khan alias Kamla (1990 SCMR 1051) wherein also it is observed as follows:-- "According to section 4, the share from the deceased grandfather's property has been bestowed upon the children of his Predeceased son but this does not mean that the other heirs of the deceased would be excluded from their share of inheritance."

3. As a result of the foregoing principle laid down by the Hon'ble Supreme Court in the foregoing cases Mian Sarfraz Ahmed widower of Mehmooda Begum in the present case is to be treated as an heir in the proceedings regarding division of the property devolved upon Mehmooda Begum from her parents. .