Mst. SAMIA NAZ and others vs Sheikh PERVAIZ AFZAL and others

' MUNIR A. SHEIKH, J.---By this common judgment, we propose to decide Civil Petitions Nos.820-L and 966-L of 1999 as both, have arisen from a consolidated judgment dated 26-3-1999 of the Lahore High Court through which second appeals filed by the petitioners against the judgments and decrees of both the Courts below have been dismissed.

2. The only question requires determination in these cases before the Courts below was and also before this Court is whether by virtue of document of gift Exh. D.1 made by Sheikh Mehr Ali, deceased predecessor-in-interest of the parties in favour of his second wife Mst. Amir Begum, the mother of petitioners in C.P. 820-L of 1999, he intended to gift the usufruct of the house mentioned therein in favour of his said wife or corpus thereof. All the Courts below including the High Court after elaborately considering the said document came to the conclusion that it was only usufruct of the said house which was gifted to Mst. Amir Begum and not corpus.

3. We have heard learned counsel for the petitioner in Civil Petition No,820-L of 1999 who argued that the said document if considered as a whole shows that the donor had gifted the corpus of the property and not merely usufruct. He in this regard placed reliance on the judgments reported as Abdul Hameed and 23 others v. Muhammad Mohiyuddin Siddique Raja and 3 others (PLD 1997 SC 730) and Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others (PLD 1991 SC 466).

4. We have examined the rule of interpretation laid down in the said two reported judgments and compared the same with the interpretation of the document made by all the Courts below in this case and examined the document ourselves in order to determine whether the Courts below were right in holding that merely usufruct of the house was gifted to Mst. Amir Begum.

5. In the opening part of the document, the donor had made it unambiguously clear that he was gifting the usufruct of the property in order to provide maintenance to his wife. In the latter part of the document, it was made clear that in case his said wife dies after his death, the property would be inherited by his all the heirs from the first and the second wife and the heirs of the said heirs. It was also made clear that no transfer could be made of the corpus of the property by Mst. Amir Begum to any one other than the said all the heirs of the donor from Mst. Amir Begum and the first wife. We are satisfied that the Courts below did not commit any illegality in arriving at the conclusion that in the said house like other properties of Mehr Ali, deceased, Mst. Amir Begum would inherit 1/8 share as widow which has been given to her.

6. In C.P. 966-L of 1999, the petitioners have challenged the findings of the Courts below as regards grant of inheritance to respondents who are heirs of Sheikh Muhammad Afzal, pre-deceased son of Sheikh Mehr Ali under the Muslim Family Laws Ordinance, 1961. Sheikh Mehr Ali admittedly died on 29-4-1962. Mr. Muhammad Shahzad Shaukat, learned counsel for the petitioners in the said petition submitted that the provisions of Muslim Family Laws Ordinance, 1961 by which right was conferred on the heirs of pre-deceased son daughter of the last owner to inherit the share which their father would have inherited had he been alive, as repugnant to the Injunctions of Islam by the Federal Shariat Court which has been upheld by the Shariat Appellate Bench of this Court. He stated that in the judgment itself, 31-3-2000 was fixed as the date with effect from which the said provisions of law would cease to have effect as law. Sheikh Mehr Ali having died long before the said date i.e, on 29-4-1962, therefore, Muslim Family Laws Ordinance as it then existed has been rightly applied declaration by the Federal Shariat Court and the Shariat Appellate Bench of this Court as to repugnancy did not affect the right of the respondents to inherit the share of Sheikh Muhammad Afzal, their father/pre-deceased son of Sheikh Mehr Ali.

7. The findings recorded by the Courts below in these cases do not suffer from any illegality, therefore, both the petitions have no merits which are accordingly dismissed and leave to appeal refused.