ABDUL MAJID AND Others vs SHAMSHER ALI AND Other
This petition for special leave to appeal arose from a dispute over land inheritance. The petitioners, who are the children of Mst. Jaini, claimed a share in the estate of the deceased propositus, Nazir Ali. The core legal question was whether the petitioners, as 'distant kindred', could inherit in the presence of the respondents, who were established as 'residuaries' of category No. 3 under Islamic law. The High Court had dismissed the petitioners' constitutional petition, confirming that 'residuaries' have a preferential right of inheritance and exclude 'distant kindred'. The Supreme Court upheld this decision, refusing to entertain a new factual plea raised by the petitioners regarding the survival of another relative (Allah Diya) at the time of the propositus's death, as this factual point was not raised before the departmental forums and lacked authentic evidentiary support. Consequently, the Court dismissed the petition, establishing that new factual contentions requiring evidence cannot be raised for the first time at the appellate stage before the Supreme Court.
- Whether 'distant kindred' are excluded from inheritance under Islamic law in the presence of 'residuaries' of category No. 3?
- Can a party raise a new factual plea for the first time before the Supreme Court if it was not raised before the departmental forums or supported by authentic evidence?
- Whether a case should be remanded to investigate a factual claim of survivorship when no supporting evidence has been produced over a prolonged period of litigation?
- Article 199, Constitution of Pakistan 1973
ORDER
KARAM ELAHEE CHAUHAN, J.-It is not necessary to go into the lengthy detail of the litigation through which this case passed and it will be sufficient for our purpose to state that the petitioners, who are sons and daughters of Mst. Jaini, claimed a share in the land in dispute on the ground that they are heirs to the propositus Nazir Ali. It was found that the petitioners were "distant kindred" and as such could not get any share in the land in the presence of the respondents who were "residuaries" of category No. 3 and who as such had a preferential right to exclude them.
2. The petitioners filed a constitutional petition being W. P: 322-R/65, but without any success as the same was dismissed by the High Court on 15-1-1975.
3. The petitioners have come up in a petition for special leave to appeal against the same to this court.
4. Learned counsel could not challenge the finding that his clients belonged to the category of "distant kindred" as against the respondents who were "residuaries" as mentioned above. However, his submission was that the propositus Nazir Ali had a brother Allah Diya who was alive at the time of the death of the propositus. It was submitted that from that point of view as Mst. Jaini was a sister of the respondents (both being children of Allah Diya) therefore she too would succeed simultaneously with the respondent's who were her brothers. It was submitted that in that way the share which should have gone to Mst. Jaini would now devolve upon them. The contention has no merit. The petitioners never raised an such plea before any of the departmental forums and the point being of a factual nature (namely, whether Allah Diya survived the propositus) we are not prepared to allow it to be urged at this late stage of the case. Especially when the High Court also did not permit them to raise it particular when it was not supported by any authentic evidence. The petition has remained pending in this Court for about five years and until mow there is nothing with the petitioners to support their aforesaid plea. Learned counsel then requested for remand of the case on this point but as stated above there is no legal justification to do so. We hold accordingly.
5. The result is that this petition has no merit and is dismissed.