SARBULAND Versus ASHIQ ALI

This civil revision has been filed by the petitioners to call in question the judgment and decree dated 8‑10‑1988 passed by, the learned Additional District Judge, Muzaffargarh, whereby, the judgment and decree, dated 6‑10‑1987 passed by the learned Civil Judge, Alipur, dismissing the suit of the respondents, was set aside.

2. Briefly stated the facts of the case are that plaintiffs/respondents (herein) and instituted a suit for declaration that they are entitled to inherit the property of their predeceased mother Mst. Balqees, daughter of Muhammad Ismail, their maternal grandfather. They averred in the plaint that the said Muhammad Ismail was the owner of the property measuring 68 Kanals and 19 Marlas situated at Mauza. Khairpur Sadat, Tehsil Alipur, Khata No.818 (previous) and Khata.No.852/836 (resent) and mutation of inheritance No.4098 dated 31‑1‑1974 which was sanctioned in favour of the defendants/petitioners (herein) is illegal, ineffective and as a consequential relief, they claimed possession of the suit land. The petitioners contested the suit on the ground that deceased Muhammad Ismail died about eight years before the promulgation of Muslim Family Laws Ordinance, 1961, and, hence, the respondents were not entitled for the inheritance of deceased Ismail as the provisions of section 4 of the Ordinance is not retrospectively applicable. The petitioners filed their written statement. On the basis of the pleadings of the parties, trial Court framed the following issues:‑‑

After recording and appreciating the evidence pro and contra of the parties, the trial Court, vide judgment and decree dated 6‑10‑1987 dismissed the suit. Feeling aggrieved, the plaintiffs/respondents preferred an appeal and the learned Appellate. Court/Additional District Judge, Muzaffargarh, vide judgment and decree dated 8‑10‑1988 accepted the appeal, set aside the findings of the trial Court and decreed the suit.

3. Learned counsel for the petitioners contended that Ismail father of the defendants/petitioners died eight years before promulgation of Muslim Family Laws Ordinance, 1961, and as such plaintiffs/respondents are not entitled for his inheritance. He further contended that section 4 of said Ordinance is against the Injunctions of Islam and the plaintiffs/respondents being children of predeceased daughter are not entitled for inheritance of their maternal grandfather. He relies on the' case of Mst. Farishta v. Federation of Pakistan PLD 1980 Pesh. 47 ‑and continued that suit being barred by time is liable to be dismissed and the trial Court .has rightly declared the suit barred by time.

4. On the other hand, learned counsel for the respondents controverted the arguments of the learned counsel for the petitioners and contended that provisions of section 4 of the Muslim Family Laws Ordinance are not against the Injunctions of Islam and the children of predeceased son or daughter, of the owner of the property are entitled to inherit the property equal to the share of their father or mother, as the‑ case may be.

5. I have heard the learned counsel .for the parties and also perused the record. The question that boils down for determination in this case is (1) whether Ismail deceased died eight years before the promulgation of Muslim Family Laws Ordinance, 1961, (2)' whether the plaintiffs/respondents are entitled for the inheritance of Ismail (deceased), being children of predeceased daughter of Ismail, (3) whether the provisions of Muslim Family Laws Ordinance are against the Injunctions, of Qura'n and Sunnah.

6. The case of the petitioners is that Muhammad Ismail, deceased, died nine years before the promulgation of the Muslim Family Laws Ordinance, while the case of the plaintiffs/respioridents as that, Muhammad Ismail died after the promulgation of the aforesaid law. The plaintiffs/respondents instituted to suit on 17‑4‑198.3 and an‑par No1of the plaint it is alleged that Ismail died nine years before the inmitittion of the suit: The death of owner of the property,, father of Mal Balqees, Ismail was not incorporated intire relevant register. Both the parties only produced oral evidence regarding ‑his death. The defendants/ petitioners in para.1 of the written statement in reply to para. 1 of the plaint has stated that their father had died between the years 1980 to 1965. They, however, not categorically alleged in which year and‑ when, where Ismia deceased died. Shamshad, D.W.3 had stated that Ismail died‑ six months prior to the sanctioning of mutation. A copy of Roznamcha Waqiati Exh.P.I. has been produced, which was entered on 23‑1‑1973 and the mutation of inheritance was attested on 31‑1‑1974. It is thus, flowing from the record of the case that Ismail had died in the year 1973, when the Muslim Family Laws Ordinance, 1961, was prevailing. The case of the plaintiffs/respondents that their mother Mst. Balqees died before the death of Ismail, her father, and they being children of pre‑deceased daughter of their maternal grandfather are entitled for the inheritance to such share to which their mother would have been entitled, had she been alive.

7. In‑order to appreciate the legal position and find answer to the above said question, it may be necessary to refer section 4 of the Muslim Family Laws Ordinance, 1961, which reads as under:‑‑

" Succession .‑‑‑ 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 the succession opens shall per stripes receive a share equivalent to the share which such on or daughter, as the case may be, would have receive, if alive."

8. t is crystal clear from the reading of the above reproduced law, that the heirs of the predeceased children on the death of the grandfather or grand‑daughter become entitled to their father's share in property of their grandfather. In this respect, reference can be made to cases of Mst. Fazal Jan and another v. 2nd Member, Board of Revenue, N.‑W.F.P., Peshawar and 3 others PLD 1983 SC 53, Gul Muhammad v. Nemat Bibi and 8 others PLD 1998 Lah. 186, Muhammad Fikree and 3 others v. Fikree Development Corporation Ltd. and 8 others PLD 1988 Kar 446, Asghar Ali v. Shahzullah Khan alias Shazullah Khan and 4 others 1993 CLC 545, Amir Afzal and 2 others v. Ghulam Haider PLD 1993 Pesh. 117, Mir Ahmad and another v. Fazal Elahi and another 1995 MLD 1583, Nizamuddin v. Faiz Muhammad PLD 1988 Lah. 321 and Zainul Hassan Mian and others v. Mst. Khuwand Naka and others 1998 MLD 1857. In all the above‑referred cases it has beenlA held that the children of predeceased son or daughter are entitled to inherit he property of their grandfather on his death.

In case of Mir Ahmad noted (supra) the deceased had left behind one son and three daughters. It has been held by the Honourable Judge of Peshawar. High Court that the mother of plaintiffs having predeceased her father, her son would be entitled to such share to‑which their mother would have been entitled had she been alive..

In case of Mst. Fazal Jan noted (supra) the Honourable Division Bench of Peshawar High Court observed that heirs of predeceased children, on the death of the grandfather, become entitled to their father's share in the property of their grandfather.

In case of Asghar Ali noted (supra) it was observed that the children of the predeceased daughter's daughters were entitled to the share which their mother would have received if she had survived on the death of Khairullah, her father. ht case of Mst. Zainab v. Kamal Khan alias Kamala PLD 1990 SC 1051, the Honourable Judges of the Supreme Court observed that the legal heirs of predeceased son of propositus would get their shares on re‑opening of succession on death of propositus in accordance with Muslim Law of Inheritance.

9. In view of the observations made in the cases referred to above, it is, thus, clear that the plaintiffs/respondents as children of Mst. Balqees, daughter of Muhammad Ismail who died two years prior to the death of her father (Muhammad Ismail) would be entitled for the inheritance to such share which their mother Mst. Balqees would have been entitled, had she been alive.

10. So far as the contention of the learned counsel for the petitioners in regard to the provisions of section 4 of the Muslim Family Laws Ordinance, 1961, are contrary to the Injunctions of Islam is concerned, it is suffice to observe that these provisions of the above said section have not been declared against the Injunctions of Islam and still holds good as valid law. As laid down in case of Federation of Pakistan v. Mst. Farishta PLD 1981 SC 120 the Honourable Judges of the Shariat Appellate Bench observed that section 4 of the Muslim Family Laws Ordinance (VIII of 1961) is a special statutory provision which is entitled to be applied only to Muslims of Pakistan as a class by itself and from that point of view constitutes a personal law for the Muslims i.e. Muslim Personal Law in the sense above explained, with the result, that its scrutiny was outside the jurisdiction of the High Court and the judgment and order of that Court, holding to the contrary, is not correct and is liable to be set aside,

11. In case of Muhammad Hassan Musa and others v. Sardar Muhammad Javaid Musa 1995 CLC 51, Honourable Judge of Quetta High Court has observed that grandchildren of deceased (of his predeceased son/daughter) in terms of section 4, Muslim Family Laws Ordinance, 1961, would, thus, be entitled to inherit property of their grandfather to the extent their father/mother would have inherited if they were alive at the time of opening up of succession of deceased (grandfather).

12. Following the principles laid down in the last two above‑referred cases, it is, thus, clear that the Federal Shariat Court or the Federal Shariat Bench of the High Court has not declared the provisions of section 4 of Muslim Family Laws Ordinance, 1961, against the Injunctions of Qura'n and Snnah so far and these provisions still hold good.

13. As to the plea of the learned counsel for the petitioners, that the suit is hit by limitation, it is maintained that the mutation of inheritance was sanctioned in the year 1974 on 31-1-1974 and the present suit was instituted by the plaintiffs/respondents on 17-4-1983 within nine years and in the suit possession of the property has been claimed, meaning thereby, it is a suit for possession and the limitation for suit of possession is 12 years. It is, therefore, observed that the suit was rightly filed within a period of limitation.

14. In view of the above and in agreement with the dictum laid down in all the above-referred cases, I have no hesitation in holding that the judgment and decree passed by the First Appellate Court is unexceptionable: Resultantly, I see no force in this revision petition which is dismissed.

Q.M.H./M.A.K./S-452/L Revision dismissed.