Mst. FAZEELAT JAN and others vs SIKANDAR through his Legal Heirs and others

SARDAR MUHAMMAD RAZA, J.---Mst. Fazeelat Jan widow of Gulab and her two daughters Mst. Bibi Sultan and Mst. Khurshid have filed this petition for leave to appeal against the judgment dated 4- 10-2002 of a learned Division Bench of Peshawar High Court, Circuit Bench, Abbottabad whereby its previous judgment in Civil Revision No,140 of 1997 decided on 9-3-2001 was reviewed and Sikandar respondent was granted a decree to the extent of 18/48 share in the inheritance of his grandfather Muhammad Alam.

2. Admittedly, the property in dispute belonged to one Muhammad Alam who died leaving behind a widow. Hayat Noor, a daughter Sufaid Jan, a nephew named Gulab and a grandson named Sikandar whose father Ghulam Jan had predeceased his own father Muhammad Alam.

Inheritance Mutation No,399 was attested on 2-5-1950, wherein Sikandar was excluded from inheritance and hence he filed a civil suit claiming 9/24 share in the property of his grandfather Muhammad Alam.

3. The trial Court non-suited Sikandar Khan but the First Appellate Court granted him the decree, which was set aside by the High Court, through the judgment dated 9-3-2001, which was reviewed through the impugned ordered hence this petition.

4. The trial Court was wrong in holding that the grandson, under the traditional Muslim Law of Inheritance was excluded from the inheritance of his grandfather due to the absence of his own father. Section 4 of the Muslim Family Laws Ordinance, 1961, clearly entitles the grandson for receiving the share which his father would have inherited, had he been alive. No doubt, the theory of Mahjub-ul-Irs has been revived by the Federal Shariat Court and section 4 of Muslim Family Laws Ordinance has been declared as repugnant to the Islamic Sharia yet such verdict has been challenged before the Supreme Court of Pakistan and thereby the operation of the verdict stands suspended automatically till the disposal of the appeal as provided, under Article 203D of the Constitution of the Islamic Republic of Pakistan, 1973. The grandson, therefore, can inherit the share of his predeceased father from his grandfather.

5. The claim under section 4 of Muslim Family Laws Ordinance, 1961, being besides the point for the time being, the grandson Sikandar, in the prevailing succession that existed at the time of opening of succession, independent of his father, was entitled to 18/48 share in the inheritance of his grandfather in his capacity as residuary. The table of residuaries is indicative of the fact that the grandson, as such, is placed at a higher degree than a brother's son. In these substances, Sikandar is entitled to 18/48 or 9/24 or 3/8 share in the inheritance of his grandfather being a residuary in his own right and also under section 4 of the Muslim Family Laws Ordinance, 1961. The earlier judgment dated 9-3-2001 of the High Court was, therefore, rightly reviewed through the impugned order darted 4-10-2002.

6. There being no force in the petition, it is hereby dismissed and leave refused.