YAHIA MUSTAFA Versus MUJEEB ELAHI
ORDER
ARBAB MUHAMMAD TAHIR, J.--- Through the instant Regular First Appeal in terms of section 96 of the Code of Civil Procedure, 1908 (C.P.C.), the appellant impugns judgment and decree dated 24.01.2022 passed by the learned Civil Judge 1st Class (West), Islamabad, whereby while passing the final decree in a suit for possession through partition, held that the successors-in-interest of Munir Elahi are not entitled to inherit the share of Munir Ellahi from Maqbool Elahi (late) .
2. Succinctly, the facts are that respondent No.1/ Mujeeb Ellahi instituted a suit for possession through partition of House No.4, Street No.39, Sector G-6/2, Islamabad (measuring 30' 80') (hereinafter the property ). The said property was owned by Mst. Shaukat-Un-Nisa wife of Maqbool Ellahi , who passed away on 31.01.1999, leaving behind legal heirs described in paragraph 2 of the plaint. The said suit was preliminary decreed vide judgment, dated 19.04.2014. After completion of further proceedings, the learned trial court passed the final decree vide judgment and decree, dated 24.01.2022, being impugned through the instant appeal.
3. Learned counsel for the appellant argued that the learned trial court erred in law by holding that the appellant, respondents Nos. 7 and 8 are not entitled to inherit share of Munir Ellahi from Maqbool Ellahi (late) ; that section 4 of the Muslim Family Laws Ordinance, 1961 (hereinafter " MFLO ") protects the share of the legal heirs of Maqbool Ellahi , who are the children Munir Ellahi ; that although the said provision of law has been held to be in contravention of the Islamic injunction by the learned Federal Shariat Court, however, the said judgment has been assailed before the Shariat Appellate Bench of the Supreme Court and by virtue of the proviso to Article 203D(2) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter the " Constitution ") its operation shall remain suspended pending final disposal of the appeal.
4. Learned counsel for the respondent No.3 on the other hand has argued that in accordance with the spirit of Article 2A and Article 227 of the Constitution, it is duty of the State to bring the laws in conformity with the injunctions of Islam; the relief under the proviso to sub-article (2) of Article 203D of the Constitution is on technical grounds; even for the sake of argument, if the sons of late Munir Elahi are admitted to entitlement of inheritance share, yet the widow of late Munir Elahi is not entitled to inherit share of her late husband from late Maqbool Elahi; the grounds raised in the appeal were not objected to before the learned trial court, hence the same cannot be raised at appellate stage; the appeal is not maintainable.
5. It is noted that the respondents Nos. 1-A to 1-C, 2 and 4 to 9 did not turn up despite publication of notice in the daily newspaper "Jang", therefore, vide order dated 20.12.2024, the said respondents were proceeded against ex-parte.
6. Heard. Record perused.
7. The appellant Yahia Mustafa and respondent No.8- Habib Ali are sons of Munir Elahi , who passed away on 02.05.2006, whereas, respondent No.7- Mst. Yasmin Munir Elahi is widow of late Munir Elahi . Munir Elahi is the son of late Maqoboo Elahi , who passed away on 05.01.2009. The owner of the property i.e. late Mst. Shaukat un Nisa is the wife of late Maqbool Elahi who passed away on 31.01.1999.
8. There is no dispute regarding entitlement of appellant- Yahia Mustafa , respondent No. 7 ( Mst. Yasmin Munir Elahi ) and respondent No.8 ( Habib Ali ) to inherit share of late Munir Elahi from Mst. Shaukat un Nisa . The controversy relates to denial by the learned trial court of the devolution of inheritance from Maqbool Elahi to the successors-in-Interest of late Munir Elahi , who passed away in the life time of his father- Maqbool Elahi . For the sake of convenience the relevant portion of the impugned judgment is reproduced below.-
"Parties have already produced oral evidence to the extent of above mentioned legal heirs. As Munir Ellahi son of the deceased Shoukat Un Nisa died prior to his father namely Maqbool Ellahi therefore, the successor-in-interest of Munir are not entitled to inherit the share of Munir Ellahi from Maqbool Ellani (late)."
9. It has been argued on behalf of the appellant that while concluding that the successor-in-interest of late Munir Elahi are not entitled to inherit the share of late Munir Ellahi from Maqbool Elahi (late), the learned trial court omitted to consider section 4 of the MFLO, which protects their right to inheritance. For the sake of convenience, section 4 of MFLO is reproduced below.-
"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 stripe receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive".
10. Bare perusal of the above reproduced provision shows that if a son or daughter of the deceased person dies before the succession opens (i.e., before the estate is officially distributed), their children (i.e., the grandchildren of the propositus) will inherit the portion that the deceased son or daughter would have received had he/she been alive. In simpler terms, this provision ensures that if a child of the propositus (the deceased person) dies before the inheritance is distributed, their own children (the propositus's grandchildren) can still receive their parent's share of the Inheritance, divided equally among them.
11. It is trite law that section 4 of MFLO enables the successor-in-interest to get share of his father who died during the life-time of grand-father. This provision was reviewed by the Hon'ble Federal Shariat Court on the touchstone of Islamic Law in the case of " Allah Rakha and others v. Federation of Pakistan and others" (PLD 2000 FSC 1) and it was struck down being against injunctions of Islam. The referred judgment of the Hon'ble Federal Shariat Court was challenged before Shariat Appellate Bench of the Hon'ble Supreme Court of Pakistan and the appeal is pending adjudication. In such eventuality, the first proviso to sub-article (2) of Article 203-D of Constitution is attracted, which reads as under.-
"Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal"
12. In view of the first proviso to sub-article (2) of Article 203-D of Constitution, the judgment rendered by the Hon'ble Federal Shariat Court in Allah Rakha's case, supra, shall not take effect before the disposal of pending appeal in the Hon'ble Supreme Court. The Honorable Supreme Court of Pakistan in the case titled " Hassan Aziz and others v. Meraj ud Din and others" (2022 SCMR 1131) while dealing with similar case ruled as under.-
"As noted in the impugned judgment section 4 has been declared to be contrary to the Injunctions of Islam by the Federal Shariat Court ("FSC") by its judgment reported as Allah Rakha and others v. Federation of Pakistan and others PLD 2000 FSC 1. However, this judgment is under appeal before the Shariat Appellate Bench of this Court (C.Sh.A 1/2000 and connected cases (Tanveer Jehan v. Federation of Pakistan and others)). Article 203G of the Constitution provides, inter alia, that no court Including this Court itself shall, save as provided in Article 203F (which provides for appeals to the Shariat Appellate Bench), "entertain any proceeding or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the [Federal Shariat] Court". The proviso to clause (2) of Article 203D provides, inter alia, that if an appeal has been preferred to the Shariat Appellate Bench then the decision of the FSC shall be deemed stayed pending disposal of the appeal. The position that emerges therefore is that for purposes of deciding this matter section 4 of the Ordinance is to be regarded as being in the field but the provision must be interpreted and appiled on its own footing, purely as a matter of statutory interpretation."
13. It is significant to note that section 4 of the MFLO ( reproduced above ) restricts its application only to the "children of predeceased son or daughter of the propositus" and does not extend to "legal heirs". It excludes the spouse of predeceased son/daughter of the propositus to inherit share from the propositus. In Hassan Aziz's case, supra, the Hon'ble Supreme Court held as follows.-
The point is then reinforced by the immediately succeeding words, "the children of [the predeceased) son or daughter, if any, living at the time the succession opens" (emphasis supplied). The words emphasized impose a clear limitation: section 4 applied only to those grandchildren as are alive at the time of death of the propositus. Had these words been absent then, perhaps, a case could be made out for the interpretation put forward by learned counsel for the leave petitioners. However, the words do exist and therefore must be given due effect. To accept the case sought to be made out would, in effect, erase, them from the statute. That would be contrary to well established rules of interpretation. It is of course well known that under the rules of Muslim inheritance the legal heirs of a predeceased son or daughter do not inherit from the parent of the predeceased. Section 4 carves out a carefully constructed exception from this rule. It is not without significance that the section does not refer to the legal heirs of the predeceased son or daughter: the words used are "the children of such son or daughter" and not "legal heirs'. Quite obviously for the predeceased son or daughter to have children they would have to have had a spouse, who could also be alive when the parent passes Cop away. Yet, any spouse is excluded from the applicability of section 4.
14. To sum up, the above discussion leads this Court to conclude that unless the Hon'ble Supreme Court decides otherwise in the appeal pending against the judgment of Hon'ble Federal Shariat Court in Allah Rakha's case, supra, the provisions of section 4 of MFLO shall be given effect as the same enjoy the status of a binding law. The learned trial court erred in law by holding that the successors-in-interest of Munir Elahi are not entitled to inherit the share of Munir Ellahi from Maqbool Elahi (late) . The said conclusion to the extent of Yaha Mustafa and Habib Ali i.e. the grandchildren of the propositus is contrary to section 4 of MFLO, however, as held by the Hon'ble Supreme Court in Hassan Aziz's case, supra, the spouse/widow of Maqbool Ellahi is excluded from application of section 4 of MFLO, hence she will not inherit the share of Munir Elahi from Maqbool Elahi .
15. For what has been discussed above, the instant appeal is partially allowed. Consequently, Yahia Mustafa and Habib Ali , both sons of Munir Elahi (late) are held entitled to inherit the share of Munir Elahi (late) from Maqbool Elahi (late). Mst. Yasmin Munir Elahi widow of Munir Elahi (late) is excluded from application of section 4 of MFLO, therefore, to her extent the Impugned judgment and decree do not call for interference. The impugned judgment and decree shall accordingly stand modified. Parties are left to bear their own costs.
MQ/47/Isl. Appeal allowed.