MST. ZARINA JAN Versus MST. AKBAR JAN REPRESENTED BY 5 HEILS

1. This Regular Second Appeal arises out of the following facts :-

2. Mst. Akbar Jan daughter of Shah Zaman brought a suit thereby question ing the attestation of Mutation No. 4897 relating to the inheritance of Shah Zaman, father of the plaintiff. For convenient understanding, the pedigree- table of Shah Zaman may be reproduced below

SHAH ZAMAN

3. |

4. __________________|___________________

5. | |

6. Mir Afzal (died in Mst. Akbalr Jan. the life time of his father)

7. |

8. |__________________

9. |

10. Mst Zarina Jan.

11. According to the inheritance mutation, 2 shares (1/3rd out of 6 shares) were given to Mst. Akbar Jan and the remaining 4 shares (2/3rd out of 6 shares) were given to Mst. Zarina. representing her father according to Muslim Family Laws Ordinance, 1961. The suit of the plaintiff was dismissed. The learned lower Appellate Court set aside the decree of the trial Court and accepted the appeal in the following terms:--

12. "It is conceded by both the learned counsel for the parties that as far as Mir Afzal and Mst. Akbar Jan are concerned, they have inherited the correct shares from their father Shah Zaman. The question will now arise that on the death of Mir Afzal, what will be the shares of his defendants. Whether the whole of his share will go to his only daughter Mst. Akbar Jan will also inherit from him according to Shariat. Section 4 of the Muslim Family Laws Ordinance, 1961 has given a right to the heirs of a pre-deceased son to inherit the share of their father in the property of their grand-father. This section has not ousted the application of Shariat in other matters of inheritance. In my opinion, Shariat will apply to the inheritance of Mir Afzal father of Mst. Zarina Jan. In that manner, the share of Mst. Zarina Jan will be one half in the property of her father and one half of the property will go to the other heirs of Mir Afzal. Mst. Akbar Jan is, the only other heir of Mir Afzal, and she is to inherit the other half. Thus the shares of Mst. Zarina Jan will be 1/3rd and of Mst. Akbar Jan will be 1/3rd in the property of Mir Afzal. The mutation in question has, therefore, wrongly been attested by giving 2/3rd share to Mst. Zarina Jan in the whole property of Shah Zaman. She should have been given 1/3rd share and the rest of it should have been given to Mst. Akbar Jan."

13. Section 4 of the Ordinance reads :-

14. "In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time of the succession opens, shall per stirpes receive a share equivalent to the share which such son or daughter, as the case may be, would have received, if alive."

15. The Dictionary meaning of 'stirpes' is :- "branch of family, person from whom a family descends".

16. In the context of interpretation of the matter under consideration, the above meaning of the word must be kept in view. In the section of law reproduced above, the words :-

17. ". .shall per stirpes receive a share equivalent to the share which such son or daughter . . . . . .would have received, it alive."

18. Are important to note. Under the Ordinance Mst. Zarina daughter of Mir Afzal is entitled to inherit the same share to which her father Mir Afzal was entitled in the inheritance of his father Shah Zaman. The reason is that the Ordinance by adopting the principle of per stripes distribution of inheritance meant to keep intact the share of predeceased son or daughter to be inherited by his son or daughter i.e. according to it, the heirs of the pre-deceased issue will inherit from propositus what their predecessor-in-interest would have inherited. To elucidate it further, Mir Afzal died before the death of his father, however, within the meaning of 'if alive' in section 4 of the Ordinance, he (Mir Afzal) is notionally alive and will remain as such for inheritance on the death of his father Shah Zaman. In my humble view, the learned lower Appellate Court erred in opening the succession of Mir Afzal for division between his daughter and sister. The impugned interpretation militates against the letter and spirit of section 4 of the Ordinance which could not be the intention of the Law Makers. No other point was urged. On this view of the matter, I hold that the mutation endorsed by the learned lower appellate Court has rightly been attested and the appeal is accordingly accepted. The parties are, however, left to bear their own costs.

19. S. A. H. Appeal accepted.