MUSALLI KHAN AND Another vs Mst. SARDARA
This appeal concerns an inheritance dispute regarding the estate of a common ancestor, Khadi Khan. The respondent, Mst. Sardara, claimed shares in the property as the uterine sister of the deceased Ajun and as the daughter of Qabil Shah. The trial court decreed her a 5/27th share, which the appellate court subsequently modified to a 2/5th share. The Peshawar High Court dismissed the appellant's revision petition. The core legal question before the Supreme Court was the determination of the correct share entitlement of a uterine sister under Islamic Law. Upon review, the Supreme Court held that the lower courts erred in their calculation of the respondent's share. Relying on established principles of Muhammadan Law, the Court clarified that a uterine sister is entitled to a 1/6th share of the deceased's estate, rather than the larger portion previously awarded. Consequently, the Court modified the lower court's decree to reflect the correct 1/6th share entitlement for the respondent, rejecting alternative arguments regarding the calculation of shares based on the sequence of deaths of other family members.
- What is the correct share entitlement of a uterine sister in the estate of a deceased under Muhammadan Law?
- Can a court modify a decree based on an incorrect calculation of inheritance shares under Islamic law?
- Section 63, Muhammadan Law
MIAN BURHANUDDIN KHAN, J.-The dispute in this appeal relates to the property of Khadi Khan common ancestor of the parties. He was survived by three sons namely Aslam, Akram and Hashim, each of whom inherited 1/3rd share in his estate. Hashim had one sort by the name of Ajun who inherited 1/3rd share of his father. The respondent/plaintiff Mst. Sardara claimed 1/2 share as the uterine sister of Ajun who had died issueless. She also claimed 1/3rd share in the property inherited by her father Qabil Shah who was one of the three sons of Aslam son of Khadi Khan.
2. The suit filed by Mst. Sardara was tried by the learned Civil Judge. Nowshera who passed a decree in her (Mst. Sardara's) favour to the extent of 5/27th share in the property in dispute. In appeal the learned Additional District Judge, Nowshera gave a finding that respondent Mst.
Sardara was entitled to 2/5th share out of the entire property left by Khadi Khan and not 5/27th share as calculated and decreed by the trial Judge. He, therefore, modified the decree accordingly.
The appellant Mussalli Khan then filed a Civil Revision in the Peshawar High Court which was dismissed -vide the impugned order dated 4-2-1979. The appellant then sought leave to appeal which was granted by this Court vide order dated 3t)-6-1979 to examine the correct share of Mst.
Sardara as the uterine sister of Ajun as according to the relevant entry of Mullah'.s Muhammadan Law it appears that she was entitled to 1/6th share and not J share in the estate of Ajun.
3. Learned counsel for the appellants contended that Mst. Sardara, respondent being uterine sister of Ajun, was entitled to 1/6th out of inheritance of Ajun. He referred to section 63 of Muhammdan Law perusal of which shows that the contention of the learned counsel is correct that uterine brother or sister is entitled to 1 /6th And not one-half of the share. It has been held by all the courts below that Mst. Sardara is the uterine sister of Ajun. The learned counsel for the respondent also could not controvert this. He, on the contrary, submitted that Muslim was real brother of Mst.
Sardara who died in 1948 ; that for Muslim's share she will get 1/9th of the property of Khadi Khan ; Ajun being uterine brother of Mst. Sardara and Muslim his share in the property of Khadi Khan comes to 1/3rd ; that as Muslim died in the year 1948, therefore, Mst. Sardara would get the share of Muslim 1/9x1/2=1/18 ; that Ajun's share in the property of Muslim, as uterine brother, would be equal to 1/9 x 1/6=1/54 and, therefore, Ajun's total share, after the death of Muslim, would be 1/3rd plus 1/54=19/54 ; that Ajun died in 1947 and Mst. Sardara's share of the property of Ajun would be 19/54 X 1/6= 19/324, and thus, her total share would come to 37/324. But we observe that the learned counsel has conveniently forgotten that he himself ha mentioned that Ajun died in 11947 while Muslim died in 1948, and, therefore, Ajun would not be getting anything from the share of Muslim.
Thus this argument fails.
4. In the light of above discussion we modify the decree and the judgment of the learned trial Court to the extent that Mst. Sardara would be getting 1/6th out of the inheritance of Ajun and not J as held by the Courts below. No order as to costs.