Mst. TABASSAM BIBI vs ABDUR RASHID KHAN And 2 OTHER

Agricultural land, in Chak No.219/R:B., Tehsil and District Faisalabad, admittedly, belonged to Mst, Ummat Bibi, who, expired in the year 1973. She was survived by Mst. Tabassum Bibi petitioner/defendant, a daughter of Muhammad Rafiq, pre-deceased son and respondent/plaintiffs namely Abdul Rashid Khan, Abdul Latif Khan and Muhammad Iftikhar Khan sons of Abdul Aziz, a pre-deceased brother of Mst. Ummat Bibi, who, undoubtedly was a "Sunni Muslim".

2. After her demise, Mutation No.1238 was sanctioned on 8-2-1974, whereby, her entire estate fell to the lot of her grand-daughter. Respondents/plaintiffs were, thus, constrained to knock at the door of Civil Court through declaratory suit with perpetual injunction as consequential relief. As residuaries, they expressed their entitlement to inherit one-half of estate of Mst. Ummat Bibi.

3. Such claim embodied in the plaint was duly controverted, repudiated and traversed in the written statement, submitted by the petitioner/defendant, who, conversely. Described herself to be owner of entire estate to the exclusion of respondents/plaintiffs. According to her, is entitled to inherit entire share, which, was to devolve upon her father Muhammad Rafiq. As such suit was resisted and opposed on factual as well as legal plinth.

4.Matters in controversy, arising out of divergent pleadings of the parties, entailed the formulation of following issues:-- (1)Whether the suit is not maintainable in the present form?

(2)Whether the plaint is under valued for the purposes of court-fee and jurisdiction? .

(3)Whether the plaintiffs are heirs of deceased Mst. Ummat Bibi?

(4)Whether the plaintiffs are-entitled to inherit the property in dispute as heirs of Mst. Ummat Bibi, if so, what is its effect on the Mutation No. 1238, dated 8-2-1974 in favour of defendant?

(5)Whether the plaintiffs are in possession of property in dispute?

(6)Relief.

5. After recording evidence, wished to be adduced by the parties and affording due chance and opportunity of being heard to them, learned Civil Judge, adjudged the matter and resolved the controversy reduced into Issues Nos. 3 and 4 in favour of petitioner/defendant. However, Issues Nos. l, 2 and 5 were found and determined in favour of respondents/plaintiffs.

6. In were of findings on Issue No.4, suit was ultimately dismissed vide judgment and decree passed on 10-1-1983.

7. Appeal was accepted with the observations that respondents/plaintiffs were wrongly deprived and excluded from inheritance. Resultantly, judgment and decree of learned trial Court were set aside and the suit was decreed on 4-7-1983.

8. Feeling aggrieved and dissatisfied, the petitioner/defendant, has resorted to instant "revision petition".

9. With reference to Zainul Hassan Mian and others v. Mst. Khuward Naka and others 1998 M LD 1857, learned counsel, representing the petitioner/defendant has endeavoured to argue that in term of section 4 of Muslim Family Laws Ordinance, even a female child of pre-deceased father is entitled to inherit his entire share, which, he would have inherited, if alive.

10. Without commenting upon and interpreting provisions of section 4 of Muslim Family Laws Ordinance, learned counsel for respondents/ plaintiffs, has impressed that children of pre- deceased son or daughter of '4 , pre-positus are entitled only to their shares, which cannot be increased) any, way.

11. Proposition stands at rest by following illuminating observations made in Mst. Zainab v. Kamal Khan alias Kamala PLD 1990 SC 1051:-- "It means that the distribution has to be made to a group of share--holders : taking the share of their descendants. On the opening of succession each group of children of the deceased sons/daughters would inherit the share of their father/mother and each individual would not get the share in his/her individual capacity. Section 4 has been added to cater. The needs of grand- children and to remove their sufferings, but, it cannot be interpreted so as to decrease the share of the other descendants. According to section 4, share from the deceased grandfather's property has been bestowed upon the children of his pre--deceased son. But, this does not mean that the other heirs of the deceased would be excluded from their share of inheritance. Under section 2 of the Muslim Personal Law (Shariat) Application Act, 1962, the rule of decision shall be the Muslim Personal Law (Shariat) (in cases where parties are Muslim). In. Spite of the non-obstante clause section 4 is to be interpreted in the light of section 2 of the Act, 1962. Both, thus, can stand together.

The succession in the present case opened on the death of Sufaid Khan in 1973. Rajoo, if alive, would have inherited the entire property of his father. Notionally, it would be presumed that Rajoo after inheriting the estate of his father, had died. Accordingly, the succession would reopen and all the legal heirs of the deceased would get their shares in accordance with the Muslim Law of Inheritance. The contention that the appellant would inherit the entire share of her father being the sole surviving child, is against the principle of Muslim Law of Inheritance. She would get whatever she would be entitled to get on the death of her father. The principle of Muslim Law of inheritance was that the near in degree would exclude the remnotest. Before the introduction of section 4, the children of predeceased son were deprived of any share. The intention of section 4 is to safeguard the interest of the children of pre-deceased son and not to deprive the other heirs of the prepositus of their due. Thus, section 4 cannot be interpreted in a way so as to exclude the other legal heirs of the deceased Sufaid Khan.

Section 4 could not, therefore, be construed against the interest of the other heirs of the deceased, who, were entitled to share the inheritance in accordance with the principles of Muslim Law Inheritance.

As such, grand-child is not entitled to more share than what could be inherited from the parents according to Islamic Law."

12. As such claim of petitioner/defendant is palpably fallacious and respondents/plaintiffs were rightly held to be entitled to inherit the property of Mst. Ummat Bibi, as her legal and lawful heirs.

13. Be that as it may, section 115, Civil Procedure Code, applies to cases, I involving illegal assumption, non-exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which, do not, in any way, affect the jurisdiction of the Court, no matter, however, erroneous; wrong or perverse, the decision might be either on a question of fact or law, unless the B decision involves a matter of jurisdiction. As erroneous conclusion of law or fact is liable to be corrected in appeal, but revision will not be competent on such a ground, unless in arriving at such conclusion an error of law, has been committed.

1.4. Neither any such aspect has been put forth or highlighted nor is seemingly available so as to attract or entail provisions of section 115, C.P.C., which thus, can neither come into play or pressed into service. Judgment and decree sought to be impeached and set at naught, are accordingly unexceptionable as the same neither appear to suffer from any infirmity nor perversity or arbitrariness. By no stretch of imagination, it can be taken to be fanciful.

15. Viewed from any angle, revision petition merits dismissal and is hereby dismissed. However, I refrain from making any order as to costs in face of legal complexities involved in the matter.