MUHAMIVIAD KHAN Versus ROSHAN BIBI

This second appeal under section 100, C.P.C. was directed against the judgment and decree dated 18‑9‑1982 of Mr.Farrukh Amin, the then Additional District Judge, Sialkot, whereby he set aside the judgment and decree dated 21‑1‑1977 of the learned trial Court and accepting the appeal d:;creed the suit for possession in its entirety.

2. The necessary facts briefly stated are that Roshan Bibi respondent filed a suit for possession with the averments that the land in dispute was owned by Roshan who was her real brother. It was added that the respondent‑plaintiff and her deceased brother belonged to Shia faith and as such according to Shia Law of inheritance all the property of Roshan deceased fell to the share of the plaintiff respondent but the defendants‑appellants who are collaterals of Roshan got mutated one half share of the property in dispute in their names unlawfully. She pleaded that she was not present at the time of attestation of mutation and she otherwise did not know of the attestation of the mutation in question as she has been receiving the produce of the land but on coming to know of this mutation she filed an application before the Revenue Officer who directed her to approach the civil Court. The appellants‑defendants contested the suit and in view of the pleadings of the parties the learned trial Court framed as many as four issues.

3. Roshan died issueless and without wife in 1951. Mutations No.628 and 504 of his inheritance pertaining to the property in the two villages, namely, Boghal and Chanderkey, were attested in 1956. The learned trial Court decided the issue pertaining to the question whether Roshan deceased belonged to Shia faith against the plaintiff‑respondent. Under issue No.2 the mutations were upheld as under both these mutations the respondent‑plaintiff was held entitled to one‑half of the property left by the deceased. It was held that the respondent plaintiff had received her share as sharer and she cannot claim as residuary also. This finding was set aside on appeal by the learned Appellate Court vide the impugned judgment observing that it is well‑established that distant kindred can only inherit with husband and wife but cannot do so in the presence of any other sharer and that the residue left after distributing the share of the sharer reverts back to him under the doctrine of Raad, if there is no residuary to inherit. In support of this observation no principle of Mahomedan Law was cited. A reference to the Principles of Mahammadan Law by D.F. Mulla 1975 Edition page 68 would show that full sister inherits one‑half as sharer and paternal uncle's sons inherit the other half as residuaries. The two mutations allowing one half share to the plaintiff being sister of Roshan deceased were, therefore, perfectly valid in law and the learned trial Court was also, therefore, right in holding that the plaintiff under the impugned mutations had received her due share as sharer and that she cannot claim as residuary also. The learned trial Court was, therefore, justified in dismissing the suit. It is obvious that the learned Additional District Judge erred in law in reversing the judgment and decree of the learned trial Court. In this view of the matter the judgment and decree dated 18‑9‑1982 of the Additional District Judge is not sustainable in law. The same is, therefore, hereby set aside with the result that the judgment and decree of the trial Court dismissing the suit of the respondent‑plaintiff stands restored. As none has entered appearance to oppose this second appeal there will be no order as to costs.

H.B.T./M‑828/L Appeal accepted.