RAJWALI (Deceased) Through His Legal Heirs And 4 Others vs ALLAH DAD
This matter arises from a petition for leave to appeal against the judgment of the Lahore High Court, which dismissed a Regular Second Appeal and upheld the concurrent judgments of the lower courts in a declaratory suit concerning inheritance. The original suit was filed by the respondents seeking their share in the estate of Shahwali, who died in 1921 leaving a limited estate to his widow Gulab Khatoon, who passed away in 1962. The trial court divided the estate among the widow's heirs, the sisters of the deceased, and collaterals. A contention was raised by the petitioners that upon the death of one collateral, Ghulam Muhammad, in 1939, his share should have devolved solely upon Rajwali, the only surviving collateral at that time, rather than being distributed among predeceased collaterals. The Supreme Court noted that this question, along with the effect of failing to implead necessary parties in the first appeal, requires examination. Consequently, the Supreme Court granted leave to appeal subject to furnishing security.
- Whether the share of a collateral who dies after the opening of inheritance should devolve solely upon the surviving collateral at the time of his death?
- What is the legal effect of the failure to implead necessary parties in the first appeal arising from a declaratory decree?
ORDER
1. MUHAMMAD AFZAL ZULLAH, J.-- Leave to appeal has been sought from judgment, dated 2-2-1985 of the Lahore High Court; whereby a Regular Second Appeal arising out of a declaratory decree in a suit relating to inheritance, was dismissed and first appellate judgment of affirmation of the decree, was upheld.
2. The respondent-side had filed a declaratory suit seeking their share in the estate left by one Shahwali who died in 1921. The property in question went to Gulab Khatoon Shahwali's widow as limited estate because Shahwali was issueless. Gulab Khatoon died in 1962. The question of inheritance then arose as explained by both the learned counsel. The learned trial Judge decided the question of inheritance on the basis that one-fourth would go to the heirs of Gulab Khatoon.
3. Out of the remaining three-fourth, one-third each to Mst. Amiran and Mst.Himtan sisters of Shahwali. There would still be left 1/12th share which was allowed to four collaterals of Shahwali (deceased); namely, Rajwali, Sanghar, Ghazan and Ghulam Muhammad with share of 1/48th each.
4. Ghulam Muhammad having in the meanwhile died (but after Shahwali), his 1/48th share received from the estate of Shahwali was distributed as follows: One-third to Ashraf Khatoon, the mother of Ghulam Muhammad and through her to her heirs; The remaining two-third was given to the collaterals of Ghulam Muhammad, namely, Rajwali (petitioners' predecessor-in-interest) Ghazan and Sanghar in equal shares.
5. Learned counsel for the petitioners had contended that at the time of death of Ghulam Muhammad in 1939 only Rajwali was alive. Sanghar and Ghazan had already died in 1924 and 1939 respectively. Therefore, the two-third share out of 1/48th from Shahwali's estate which was deemed to have gone to Ghulam Muhammad should have been given to Rajwali the surviving collateral of Ghulam Muhammad at the time of his death.
6. This question needs consideration. It would also need examination as to what is the effect of the petitioners' failure to implead some necessary parties in the First Appeal filed against the decree passed by the learned trial Court.
7. Leave to appeal accordingly, is granted.
8. Security Rs.2,500.