Yateem poote or pootion ka dada ki jaidad main Hisa
 |
| Property share |
tafseel se neeche wali video main bhi bataya gia hai iss topic ko
Muslim family laws Ordinance 1961
4. Succession.– 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 stirpes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.Bache hissa le sakte hain magar section 4 clear karta hai ke bewa susar ki jaidad main hissa nahi le sakti( 2005 MLD 1) (2007- SCMR 387 )
constitution of Pakistan 1973section 203
section 203 aain pakistan ka batata hai k agar koi qanoon islam k mutabiq na hu ga
court us ka az khud notice le sakti hai ya kisi ki petition per law ko suspend kar sakti hai or legislation ka hukam de sakti hai lehaza supreme court ne stay kia hoa hai mamla .
judgments in favour
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Qazi Faez Isa
Mr. Justice Yahya Afridi
Civil Petition Nos. 3041 and 3061 of 2018
(Against the judgment dated 07.05.2018 of the Islamabad
High Court, Islamabad passed in C.R. Nos. 117 and 147 of
2017)
Syed Kausar Ali Shah.
(in CP. 3041/18)
Taqi Developers (Pvt.) Limited through its
(in CP. 3061/18)
Chief Executive Officer and another.
…
Petitioners
Versus
Syed Farhat Hussain Shah and others.
(in both cases)
…
Respondents
For the Petitioner:
Agha Muhammad Ali, ASC.
(In both cases)
Ch. Akhtar Ali, AOR.
For Respondent No.2:
Mr. Ghulam Nabi, ASC.
(In both cases)
Syed Nayab Hassan Gardezi, ASC.
Syed Rifaqat Hussain Shah, AOR.
For other Respondents:
Nemo. (in both cases).
Date of Hearing:
18.04.2022.
ORDER
Qazi Faez Isa, J. Jalal Shah died in the year 1963 leaving behind 114
kanals and 14 marlas of land. He was survived by two sons, namely,
Mushtaq Ali Shah and Said Ali Shah, in whose favour inheritance
mutation number 71 was approved on 3 December 1965 showing them as
the only heirs of Jalal Shah and thus joint owners of his estate. Jalal
Shah also had a daughter, Mst. Ghulam Fatima, but she had predeceased
him on 3 August 1960. Mst. Ghulam Fatima left behind three daughters,
namely, Ummat-ul-Aziz, Akhtar Bibi and Safdar Bibi. Ummat-ul-Aziz
invoked section 4 of the Muslim Family Laws Ordinance, 1961, to claim
her share in the estate of Jalal Shah. The said section is reproduced
hereunder:
‘4. Succession. In the event of the death of any son or
daughter of the propositus before opening of succession, the
children of such son or daughter, if any, living at the time
succession opens, shall per stripes receive a share equivalent
Civil Petition No. 3041 of 2018 etc.
2
to the share which such son or daughter, as the case may
be, would have received if alive.’
By relying on the aforesaid provision, Ummat-ul-Aziz successfully
submitted an application to the revenue authorities on 9 February 2008
for the correction of inheritance mutation number 71, but such correction
was disallowed in an appeal preferred before the concerned revenue
authority. Therefore, on 2 February 2012 she filed a suit seeking
cancellation of inheritance mutation number 71 and a declaration that
she was entitled to her share in Jalal Shah’s estate. Ummat-ul-Aziz died
on 7 July 2013 and her legal heirs, that is, her husband and son, sought
to withdraw the suit filed by her subject to being granted permission to file
a fresh suit. Permission was granted, and they filed another suit on 2
June 2014, which was decreed. Appeal against the same was dismissed,
and so too the civil revision. It is these three concurrent judgments which
have been assailed herein.
2.
Mushtaq Ali Shah, son of Jalal Shah, died in the year 1989 and
inheritance mutation was made in favour of his legal heirs who sold their
share in the land, which had been mutated in their favour, to Misbah-ulHassan, a third party. The other son of Jalal Shah, namely, Said Ali Shah,
died in the year 1992 and inheritance mutation was made in favour of his
legal heirs, who sold their share in the land inherited by them, measuring
46 kanals and 6 marlas, to Syed Kausar Ali Shah, a co-legal heir of Said
Ali Shah. Syed Kausar Ali Shah then sold the said 46 kanals and 6 marlas
of land together with the land he had inherited, total measuring 52 kanals
and 9½ marlas (‘the said Land’), to Taqi Developers (Pvt) Limited1 through
four sale mutations, respectively bearing numbers 1632, 1633, 1636 and
1643, all of which were sanctioned on 15 November 2007.
3.
The contentions of the learned Agha Muhammad Ali Khan,
representing the petitioners, were recorded in orders dated 9 November
2021 and 2 December 2021. When the learned Mr. Ghulam Nabi,
representing the contesting respondents, entered appearance he was told
to come prepared on the points noted in the said orders.
1 The petitioner No. 1 in CPLA No. 3061/2018 and proforma respondent No. 7 in CPLA No. 3041/2018.
Civil Petition No. 3041 of 2018 etc.
3
4.
The learned Agha Muhammad Ali Khan also represents Syed Kausar
Ali Shah, and states that Syed Kausar Ali Khan had sold the said Land to
Taqi Developers (Pvt) Limited through four sale mutations, bearing
numbers 1632, 1633, 1636 and 1643, attested on 15 November 2007, and
that no objection with regard thereto or the said sale was raised. He states
that the cause of action, if any, which may have arisen to the daughters of
Mst. Ghulam Fatima, arose in the year 1963, on the death of their
grandfather, Jalal Shah, but Mst. Ghulam Fatima’s daughter did not
assert their purported rights. And, this was done after forty-five years of
the death of Jalal Shah by only one granddaughter, namely, Ummat-ulAziz. The learned counsel further submits that Ummat-ul-Aziz’s husband,
namely, Syed Intikhab Hussain (PW1), testified that his wife had
demanded her share in the estate of Jalal Shah from her brothers in the
year 1992. Therefore, the cause of action as per her own showing arose in
1992, and the prescribed period of limitation would commence from then.
That for cancellation of a mutation, Article 91 of the First Schedule of the
Limitation Act, 1908 (‘the Act’) prescribes a limitation period of three
years from date of knowledge. With regard to a declaration concerning
ownership, Article 120 of the Act prescribes a limitation period of six years
from date of knowledge. However, Ummat-ul-Aziz agitated her right to
ownership for the first time when she filed the said application in 2008,
sixteen years after first asserting her rights in 1992. Thereafter, she filed a
suit on 2 February 2012, after twenty years. He submits that the
withdrawal of the suit and the filing of a fresh one on 2 January 2014
would not extend the limitation period, because of the prescription in
Order XXIII Rule 2 of the Code of Civil Procedure, 1908 (‘the Code’) that,
‘In any fresh suit instituted on permission granted under the last preceding
rule, the plaintiff shall be bound by the law of limitation in the same manner
as if the first suit had not been instituted.’ Therefore, the suits, both the
first and the second one, were hopelessly time-barred, submits learned
counsel. To rebut the contention of the learned Mr. Ghulam Nabi that
Ummat-ul-Aziz was a sole helpless lady, the learned Mr. Khan states that
she was married as far back as 1974 to Syed Farhat Hussain Shah and
also had a son, namely, Syed Intikhab Hussain Shah. Therefore, the
contention of her helplessness is contrary to the record. Reliance was
Civil Petition No. 3041 of 2018 etc.
4
placed upon the judgment of this court in the case of Noor Din v Additional
District Judge2 to contend that the Act is applicable, and to the judgments
in the cases of Grana v Sahib Kamala Bibi3 and Intelligence Bureau
Employees Cooperative Housing Society v Shabbir Hussain4 for the
proposition that unchallenged and longstanding property record entries
should not be disturbed.
5.
The learned Mr. Khan also submits that the property record
revealed a number of inheritance and sale mutations with regard to Jalal
Shah’s estate prior to Taqi Developers (Pvt) Limited buying the said Land
in 2007. Taqi Developers (Pvt) Limited, a corporate entity, and a third
party, had bought the said Land without suspecting that there was any
other interest in the said Land, or that the property record had any defect
therein; the said Land was bought from the person shown to be its owner.
Reliance is also placed on section 41 of the Transfer of the Property Act,
1882 to contend that the sale of the said Land was by its ostensible
owner, who transferred it for valuable consideration, and the buyer had
acted in good faith and had taken reasonable care to ascertain that the
transferor had the power to transfer the said Land; for this proposition he
also referred to the decisions in the case of Grana and Intelligence Bureau
Employees (above).
6.
The learned Mr. Khan further submits that Taqi Developers (Pvt)
Limited had bought the said Land on which it developed a housing
scheme by the name of ‘Fatima Valley Housing Scheme’ (‘the Scheme’),
which was duly approved by the Capital Development Authority, and that
444 plots in the Scheme had already been allotted. In this regard the
learned counsel referred to the testimony of Syed Javed Shah (DW-2),
representing Taqi Developers (Pvt) Limited, and states that no crossexamination on this part of the testimony of the said witnesses was
conducted, which meant that the plaintiffs admitted this fact. The learned
counsel has also pleaded acquiescence on the part of Ummat-ul-Aziz
stating that valuable third party rights were being created in the said Land
2
2014 SCMR 513.
3
PLD 2014 Supreme Court 167.
4 Civil Appeal Nos. 1079 and 1080 of 2015, decided on 18 March 2022; approved for reporting but as yet
Civil Petition No. 3041 of 2018 etc.
5
and she let this happen. It is probably for this reason that the plaint had
no clause referring to when the cause of action had accrued. Further
submits that limitation is a mixed question of law and fact and that,
admittedly, the suits filed by Ummat-ul-Aziz and then her legal heirs were
time-barred. A plaintiff has to assert knowledge to save the suit from the
bar of limitation and to have pleaded the ground, as envisaged by Order
VII Rule 6 of the Code, but the said plaintiffs did not do so. It is submitted
that although issue No. 4 was cast on the point of limitation, it was
cursorily dealt with by the learned Judges and by disregarding the
applicable provisions of the Act. Moreover, the contesting defendants’
defence and the accrual of third party rights were not appreciated, and the
case was decided on the assumption that it was a simple one regarding a
denied inheritance.
7.
On the other hand the learned Mr. Ghulam Nabi, representing the
contesting respondents, states that three well reasoned concurrent
judgments which accord with the law should be sustained and the instant
petitions be dismissed. He further states that Ummat-ul-Aziz had
submitted an application on 9 February 2008 to the District Collector
(Exhibit P.11) stating therein that she was entitled to a share in the estate
of her grandfather (Jalal Shah) in view of section 4 of the Muslim Family
Ordinance, 1960, and had sought the inheritance mutation No. 71 to be
corrected, as it was made in disregard of the said provision of law. Her
application was allowed vide order dated 21 January 2011, which Syed
Kausar Ali Shah5 assailed in an appeal preferred by him, which was
allowed vide order dated 19 December 2011, necessitating the filing of the
suit by her on 2 February 2012. However, the suit on account of some
formal defects had to be withdrawn and a fresh one filed, after obtaining
requisite permission from the court. With regard to the petitioners plea
that the suit was time-barred, the learned counsel submits that in respect
of rights to property on account of inheritance there can be no limitation.
He refers to the case of Munir Ahmed v Rawalpindi Medical College6 to
submit that no limitation runs against a void order. The decision in the
5
Petitioner in Civil Petition No. 3041 of 2018 and respondent No. 3 in Civil Petition No. 3061 of 2018.
6
2019 SCMR 64
Civil Petition No. 3041 of 2018 etc.
6
case of Farhan Aslam v Nuzba Shaheen7 and Ghulam Qasim v Razia
Begum8 are cited to submit that property, as per Islamic law, devolves
immediately upon the death of the predecessor-in-interest, and the latter
case for the proposition that possession by an heir is considered to be
constructive possession on behalf of all heirs. And with regard to the
defence of section 41 of the Transfer of Property Act, 1882 the decisions in
the cases of Muhammad Shamim v Nisar Fatima9 and Ghulam Rasool v
Noor Muhammad10 are relied upon.
8.
We have heard the learned counsel for the parties and with their
able assistance examined the documents on record and the cited
precedents. The first challenge made to the inheritance mutation number
71 was when Ummat-ul-Aziz asserted her rights to the estate of Jalal
Shah by submitting an application for the correction of the said
mutation’s on 9 February 2008, which was forty-five years, after Jalal
Shah’s death. It would be appropriate to reproduce the following extract
from the order dated 19 December 2011 passed in appeal, which
disallowed this challenge:
‘6.
I have heard the arguments of learned counsels for
both the parties at length and perused the record carefully.
The plea of the appellants that “Revenue Courts cannot
alter/rectify the entries in question being long standing” is
justified and valid. It is settled principle of law that long
standing entries cannot be altered through summary
manner of mutation proceedings. The review/cancellation of
subject mutation is a complicated question of law and fact
which involves the rights of multiple parties and the court
cannot grant relief in the said case without injuring the
rights of 3rd parties involved.’
Ummat-ul-Aziz did not assail the above order and instead filed a suit on 2
February 2012.
9.
The suit filed by Ummat-ul-Aziz, on the oral request of her counsel,
without notice to the defendants, was unilaterally withdrawn and the
learned Judge, vide order dated 9 December 2013, accorded permission to
file a fresh suit after noting the contention of the plaintiff’s counsel that
7
2021 SCMR 179.
8
PLD 2021 Supreme Court 812.
9
2010 SCMR 18.
10 2017 SCMR
Civil Petition No. 3041 of 2018 etc.
7
there were some formal defects therein, but these defects were not
mentioned. However, since permission was granted, and as subsequently
a fresh suit was filed on 2 January 2014, we need not concern ourselves
with the mode and manner of the withdrawal of the suit and the accord of
permission to file a fresh suit. The sisters of Ummat-ul-Aziz had the very
same interest in the said Land but only one sister, namely, Safdar Bibi,
was arrayed as defendant No. 2 and the other sister, namely, Akhtar Bibi,
was not made a party. Safdar Bibi did not contest the suit, nor did she file
a written statement either supporting the plaintiff/s or opposing their
claim; she also did not come forward to testify nor was called as a witness.
However, this aspect of the case and some of the contentions of the
learned Mr. Khan are not being dilated upon as they are not necessary for
this decision, and we are restricting our decision on the following aspect of
this case.
10.
In our opinion there is a clear distinction between (a) cases in which
an heir alleges that his/her rights to inheritance have been disregarded
and his/her share not mentioned in the inheritance mutation, and (b)
those cases in which such an heir sits idly by, does not challenge
mutation entries of long standing, or acquiesces, and only comes forward
when third party rights in the subject land have been created. To succeed
in respect of the latter (b) category cases an heir must demonstrate that
he/she was not aware of having been deprived, give cogent reasons for not
challenging the property record of long standing, and show complicity
between the buyer and the seller (the ostensible owner) or that the buyer
knew of such heir’s interest yet proceeded to acquire the land. If these two
categories are kept in mind, then the judgments of this court, respectively
relied by both sides, which are apparently at variance, become
reconcilable.
11.
The three courts, whose judgments are challenged, did not pay heed
to the interest in the said Land created in a third party, that is, Taqi
Developers (Pvt) Limited. And, also disregarded the fact that third party
interest was created before objecting to the inheritance mutation number
71. The significance of the fact that Taqi Developers (Pvt) Limited had
created further interest in the said Land by earmarking plots in the
Civil Petition No. 3041 of 2018 etc.
8
Scheme and allotting as many as 444 plots was also not considered.
Despite the fact that it would be the allottees of these 444 plots who would
suffer the consequences, and do so for something for which they were not
responsible. In our opinion once the interest of the said 444 came to light
they should have been arrayed as defendants in the suit by the plaintiffs,
and if the plaintiffs failed to amend the plaint it was incumbent upon the
learned Judge of the Trial Court to do so. It would be legally indefensible if
we permit these 444 allottees to be deprived of their valuable property
rights without them being heard by the Trial and/or Appellate Courts, the
courts of fact, and by the High Court and then by this Court.
12.
In the case of Grana (above) this Court considered the conduct of
the plaintiff and whether the plaintiff had acquiesced, and held as under:
‘It merges from the afore discussed case-law that the law of
limitation is not entirely to be ignored or brushed aside
whenever property is claimed on the basis of inheritance.
The conduct of such claimant may become relevant and
material when the bar of time limitation is pleaded by the
adversary. A defendant may show that the plaintiff by her or
his acts, overt or implicit, had demonstrated acquiescence in
the defendant’s title to the suit properly thereby allowing him
to deal with it as exclusive owner, for instance regularly and
openly disposing of parts of the property or developing it at
his own expense over a period of time within the knowledge
of the plaintiff. When in such circumstances the
defendant/heirs transfers the property for valuable
consideration the transferee is entitled to believe that the
transferor had a valid title to transfer.’11
The aforesaid principle was more recently upheld and further
articulated in the Intelligence Bureau Employees case. In the case of the
Intelligence Bureau Employees a housing scheme was also developed and
plots allotted. It would be appropriate to reproduce the following extract
from that case:
‘The respondent No. 1 has also not explained as to how and
why he failed to notice the delivery of physical possession of
the lands to the appellant society and as to how he lost sight
of the appellant society converting the status of the lands
from agricultural to residential/commercial, and its
development into a housing society with necessary
Civil Petition No. 3041 of 2018 etc.
9
infrastructure and amenities, and then of allotting the plots
so created to its members, who raised construction
thereon.’12
13.
The learned Judges of the subordinate courts and the learned single
Judge of the Islamabad High Court disregarded the abovementioned
judgments of this Court, the principle of acquiescence, and the fact of
third party interest having been created in the said Land, and that further
third parties had acquired proprietary rights in the said Land. And, that
such interest was acquired in land which was shown in the record of
rights of long standing, which remained unchallenged. The learned Judges
also ignored the fact that Ummat-ul-Aziz took no action for forty-five
years, and that she submitted her application to the revenue authorities
only after the creation of the third party interest in the said Land. The
plaintiffs, having stood idly by allowed third party interest to be created in
the said Land, and could then not complain and claim the said Land.
14.
Therefore, for the afore stated reasons, we convert these petitions
into appeals and allow them by setting-aside all three impugned
judgments. Consequently, the suit filed by the Ummat-ul-Aziz is
dismissed. However, if there is any land left in the estate of Jalal Shah,
wherein third party interest has not been created then Mst. Ghulam
Fatima’s daughters, or their respective heirs, as the case may be, may
claim their rights thereto in terms of section 4 of the Muslim Family Laws
Ordinance, 1960. There shall be no order as to costs since three
concurrent judgments have been set aside.
Judge
Judge
Islamabad
18.04.2022
(M. Tauseef)
Approved for Reporting
12 Civil Appeal Nos. 1079 and 1080 of 2015, decided on 18 March 2022, paragraph 11; app
PLJ 2009 Peshawar
[D.I. Khan Bench]
Present: Muhammad Alam Khan, J.
BAHADAR SHER and another--Petitioners
versus
FARHAD RASOOL and 3 others--Respondents
C.R. No. 42 of 2004, decided on 13.10.2008.
Muslims Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 4--Civil Procedure Code, (V of 1908), S. 115--Suit for partition of respondents/plaintiffs--Decreed of--Assailed--Inheritance--Predecessor-in-interest of plaintiffs died prior to his father and they being offspring of a pre-deceased son, where not entitled to inheritance under Muslims Law--Contention of--By time when predecessor-in-interest was died Muslim Family Laws Ordinance, 1961 was intact and plaintiffs were entitled to inheritance of their grand-father--So they cannot be excluded by any stretch of imagination from inheritance of their grand-father--Subsequent declaration by Federal Shariat Court declaring S. 4 of Ordinance 1961 has got no relevancy to facts of case as it is death of pre-positus which will determine succession--Petition dismissed. [P. 148] A
Muslims Family Laws Ordinance, 1961 (VIII of 1961)--
----S. 4--Constitution of Pakistan Federal Shariat Court
yeh reader aik case law hai ju peshawar high court nai decid kia jis main high court ne revision petition dismiss kr di petitoners ne moqaf apnaia tha k in ka walid pehle foot hoa tha iss liye in ka hisa nahi banta .
Finding of Court
9. Even if it is presumed that by then Section 4 of the Ordinance ibid had been declared by Federal Shariat Court to be unislamic, the same is subjudice in appeal before the Apex Court (Shariat Appellate Bench of the Supreme Court of Pakistan), the operation of which stands suspended under Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973 as held in the dicta handed down in the cases of Mst. Samia Naz and others. Vs. Sheikh Pervaiz Afzal and others (2002 SCMR 164), Mst. Bhaggay Bibi and others. Vs. Mst. Razia Bibi and others (2005 SCMR 1595), Muhammad Sharif through legal heirs and 5 others Vs. Nawab Ali and 2 others (2002 CLC 285 Lahore) and Muhammad Khan and others Vs. Muhammad Ishaq and others (2005 CLC 1240 Peshawar).
10. In view of the facts and circumstances of the case narrated above, there is no force in these revision petitions which are dismissed with no order as to costs.
(Sh.A.S.) Revision dismissed.
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Neeche di gai judgement of Supreme Court ki grand children of decease ke bare main hai.
Supreme court ki iss Judgement main clear kia gia hai ke agar poote ya pootia marne wale ki wafat se pehle foat hu jain or mojod na hun tu parpote section 4 Muslim family ordinance ke tehat pardada ki jaidad se hissa nahi le sakte
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE UMAR ATA BANDIAL, HCJ
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED
Civil Petition No.3011 of 2021
(On appeal against the judgment
19.02.2021 passed by the Islamabad
High Court, Islamabad in RFA No.
281/2020)
Hassan Aziz and others
… Petitioners
vs
Meraj ud Din and others
… Respondents
For the Petitioners
:
Mr. Mir Afzal Malik, ASC
For Respondent No.13
:
Mr. Zulfiqar Abbas Naqvi, ASC
Date of Hearing
:
08.02.2022
ORDER
Munib Akhtar, J.: The petitioners seek leave to appeal against a
judgment of the Islamabad High Court dated 19.02.2021, reported
as Hassan Aziz and others v Meraj-ud-Din and others 2021 CLC
1821. At the conclusion of the hearing it was announced that the
leave petition stood dismissed. The following are our reasons for
this decision.
2.
The question of law raised for the consideration of the Court
is as follows: are great grandchildren within the meaning of
“children” for the purposes of s. 4 of the Muslim Family Laws
Ordinance, 1961 (“Ordinance”)? The said section is as follows:
“4. Succession.– 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 stirpes receive a share
equivalent to the share which such son or daughter, as the
case may be, would have received if alive
3011/2021
2
As noted in the impugned judgment s. 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, etc.)). 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 s. 4 of the Ordinance is to be regarded as
being in the field but the provision must be interpreted and applied
on its own footing, purely as a matter of statutory interpretation.
3.
The facts out of which the question of law arises may now be
stated. One Mrs. Tameez un Nisa (“propositus”) was the owner of a
residential house in Islamabad (“property”). She died on
19.06.2015. She had several children of whom two sons
predeceased her. One of those sons was Nawab ud Din, who
passed away on 09.04.1992. One of the children of Nawab ud Din
was Aziz ur Rehman, and the present leave petitioners are his
children. Thus, Aziz ur Rehman was the grandson of the
propositus and the leave petitioners are her great grandchildren.
Now, Aziz ur Rehman himself passed away on 07.12.2005, i.e.,
before the propositus. The leave petitioners claim a share
(proportionately) in the property on the basis of s. 4 of the
Ordinance. They filed suit in the civil courts of Islamabad on such
basis, which was dismissed. The appeal preferred to the learned
High Court met with the same fate in terms of the impugned
judgment. It was held that s. 4 did not apply to great
grandchildren. That was the only point taken before the High
Court and was, likewise, the only ground agitated before us.
(Quite how the dispute actually arose need not be set out in detail
C.P.3011/2021
3
the above narration of the facts suffices for present purposes. We
may note that the contesting party was respondent No. 13.)
4.
Before us learned counsel for the leave petitioners essentially
urged the same grounds for the applicability of s. 4 as had been
agitated before the learned High Court. Great emphasis was placed
on the phrase “per stirpes” appearing in the section. It was
submitted that this phrase had a technical meaning in law and
had been used as such in s. 4. More precisely, learned counsel
submitted that when the succession opened, the children of any
predeceased son or daughter formed, as it were, a compact “unit”,
each member of which was (proportionately) entitled to the
succession. If perchance any of the members of this “unit” (who
would of course be a grandchild of the deceased) predeceased the
latter, then his (or her) children (i.e., the great grandchildren)
would form part thereof, i.e., take the place of their deceased
predecessor and be entitled to share in the succession. It was
submitted that the intention and spirit behind s. 4 pointed
towards, and was conducive to, such an interpretation and the
section ought therefore to be applied accordingly. On such basis it
was contended that the leave petitioners were the legal heirs of the
propositus and entitled to a share in the property. It was prayed
that the impugned judgment be set aside. Learned counsel for the
respondent No. 13 on the other hand supported the decision and
submitted that it had correctly stated the law and applied it
properly to the facts and circumstances of the dispute.
5.
We have considered the submission made by learned counsel
for the leave petitioners. It was attended to in great detail in the
impugned judgment. In particular, the phrase “per stirpes” was
carefully examined in the light of various judgments including
Zainab v Kamal Khan alias Kamla PLD 1990 SC 1051. In the end
the contention put forward by the leave petitioners (who were of
course the appellants) was found wanting and the appeal stood
dismissed.
6.
We would like to commend the learned Single Judge of the
High Court for the valuable discourse that is to be found in the
impugned judgment. However, in our view there is an alternative
C.P.3011/2021
4
basis on which the question can be decided, and one which avoids
touching ground reserved by the Constitution for the FSC and the
Shariat Appellate Bench of this Court. Now, it is a fundamental
principle of the law of Muslim inheritance that the legal heirs of a
person are only determined at the moment of death and not before.
This rule is clearly reflected in s. 4 by use of the words “opening of
succession”. 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: s. 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 away. Yet, any spouse is excluded
from the applicability of s. 4. It is also to be kept in mind that some
of the rules of Muslim inheritance can apply across generations,
which is encapsulated in the phrases “how high so ever” and “how
low so ever” used in the standard treatises. Any possibility of s. 4
having such an effect (which, in essence, is the case pleaded by the
leave petitioners) is carefully excluded by use of the words
emphasized above, i.e., “living at the time the succession opens”.
Read as a whole, the purpose and intent behind s. 4 is clear. The
exception created by it is limited and circumscribed. It applies only
to those grandchildren as are living at the time of the death of the
propositus. An extended meaning cannot be given to the section in
terms as urged by learned counsel for the leave petitioners. They,
C.P.3011/2021
5
being the great grandchildren, did not have any share in the
property left behind by the propositus on the basis of s. 4. Both the
learned trial court and the learned High Court were therefore
correct in dismissing their claim.
7.
For the foregoing reasons this leave petition failed and stood
dismissed at the conclusion of the hearing.
Chief Justice
Judge
Judge
Islamabad, the
8th February, 2022
Nisar/*
Approved for reporting
Kia dada ke propty pota bech skta he
ReplyDeleteBlkl nahi
DeleteSir agr Walid dada say phehlay fout ho Jaye or dDa baad mein fout ho or wirasat mein hamein hisa nai Mila to Kia ab hisa mil sakta hai
ReplyDeleteSir agr Walid dada say phehlay fout ho Jaye or dDa baad mein fout ho or wirasat mein hamein hisa nai Mila to Kia ab hisa mil sakta hai
DeleteG mil sakta hai. warasat k case main koi time limit nahi hoti.
DeleteCase jama kardi tho kitna time lagi ga .
Deleteyeh confirm nahi hai depend karta hai ke aap kitna time lagate hain .jaldi bhi hu sakta dair bhi lag sakti
DeleteSir mere walid walda dono foot hoge hain ham ten bhai hai eik he bondre main rahte hain hamare 5 sester hain 4 ke shadi hoge hai eik sister ke shadi nahi howe hai hamre bade bhai ghar shadi shuda ko nahi de raha hai nahi batwara kar ta hai orapne bete ke leye ghar bana leya hai apne ghar ke elawa pls jawab de ham keya kare
ReplyDeleteTaqseem e jaidad ka dawa karain or iss k sath declaration ka in civil court main or sari jaidad per stay le lain.sab se pehle documents pore kar lain jiss main death certificates waldain k FRC family registration certificat waghira us k baad ju bhain bhai aap k sath milte hain un ko sath mila kar dawa karain. Inshallah mil jaye ga sab ka hissa
DeleteHi sir mera papa ki death ho gai he or dada zinda hein lekin baba ki sister's ka plane he k hamein hamara hissa de k nikal diya jaye ga is surat mein hamara haq he ghar pr ya baba ki sister's ka
ReplyDeleteAbhi dada zinada hai abhi kisi ka haq us ki jaidad main nahi paida hoa. warasat after death milti hai. so abhi dada ki khidmat karo or us ke marne ke baad ju us ke name par hu ga wo warson main taqseem hu ga
DeleteGhar mein phupho ka hissa nhi hota jahan tak mera ilm he zameen mein hota ghar beta ka hota or beta na ho to poton ka but I'm not sure
ReplyDeleteDada ki jaidad main chachao ka phophion ka hisa hota hai chahe ghar hu ya zarai zameen.
DeleteMeri 4 betian hain aur Mera husband ki death mery suser sa pehlay hoe lakin suser ki death ka bad mary in laws meri batiuon ko property main half hissa da Raha Hain Kya meri batiuon ka hissa braver ka nahi
ReplyDeletePlease reply
DeleteSalam G aap ki betion ka hisa wo mile ga ju un ke bap ka hai property main or us ke baad agar aap ke husband ki koi nareena oolad na thi tu phir betion ka hisa 2/3 hai baqi woh wapis jai ga 1/3 hisa wapis jai ga beta na hone ke soorat main magar aap ka hisa bhi 1/8 hai or aap ko property through court taqseem karni chahye
DeleteSir mere Walid ka ghr un ki ami ke naam pe hy mere Walid onteqal kr chuke hai Walid ke ek aur bhai hai dono sath hie ground floor me rehte the mere Walid ami ne apne paison se upar ghr ban waya hy h dow bhai hay ek behan chacha ka ek beta hy
ReplyDeleteChacha upar ghr ban Wana chahate hy jb ke ham ne ban waya hay ham dow bhai hay un ka ek beta hay main nhin chahata woh ban waye mera chota bhai ban waye yah min ham dono me se koi bhi ho par chacha ko nhin ban wanay dena chahata hun ap bataen law kya kehta hain sir
Ju makan aap ki ami ke nam hai us main aap ke abaa ka or chacha ko barabar hissa mile ga. so aap dono barabar k hisa dar hain.
DeleteSir aslam u alaikum
ReplyDeleteSir m ny ye pochna ta mere walad shb ka intaqal ho gya hbmere dadha abu zinda h Allah of lambhi umer da kia hmra hissa bnta h aony dadha ki property sy wo khaty h jo foat ho gya un ka hissa nhi bnta or agr bnta h tu hm kasy la apna hissa
dada ki jaidad main yateem poton ka hissa banta hai iss ke bare main qanoon bhi wazia hai or case law neeche wale link ko adress bar main copy paste kar ke article with referance parh lain
ReplyDeletehttps://legalhelp1.blogspot.com/search?q=dada+ki+jaidad+main
Aslmoalikum ager beta pehly foot ho gia ho or us ki oulad e nareena na ho sirf betiyan ho to un ka kitna share ho ga?
ReplyDeleteApne bap ke hissa main se betion ko 2/3 hissa mile ga.
DeleteBaap k samnay beti ka inteqal hogaya aur baat apni nawasi nawasay ko jayedad k liye kehtay rahay k wasiat bana kar dedo main betoon aur beti ki aulad ko brabar taqseem kardon lekin isi duran baap ka inteqal hogaya ab nawasiyon aur nawasay ko hissam milay ga. wirasat ki taqseem ki gawah unki wife yani nani zinda hain aur wo bazid hain k nawasiyon aur nawasay ko hissa do lekin unka aik beta kehta hy k beti k marnay k baad hissa khatam. Please aap batain k kiya qanoni hesiyat hy.
ReplyDeleteShukriya Note 2 betay aur aik beti thi jiska inteqal hochuka hy.
pehle foat hu gai beti tu bhi us ki olad ko hisa mile ga, case kar k hissa le sakte hain
DeleteSir plz ye bta den mere Baba ki death ho chuki h or uske baaad Bhai ki death ho gai ab wrasat kese hogi ab ak Bhai h or potta h kea wirast me fot Howe Bhai Ka hisa bnta h
ReplyDeletePlz bta den confirmed
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteAssalamualaikum mre dada ki ek ghr h or mre abou ki wafat dada ki wafat SE phely hi hogya tha us k bd dada ki wafat hogai.mre dada k do Bache the ek beta or Beti .Beti mtlb MRI phuphi zinda h or mre abou k ek beita h or 3 pitaya.mtlb dada ki warasat me pote Beti or potiyo ka kitna kitna hisa hoga..Dadi bh wafat pa chuki h
ReplyDeletewa salam dada ki jaidad main aap ke abu ka hissa double hai aap ke phoopo se teen hiso main se du aap bhain bhaio ke or aik phoopo ka .
DeleteSir mery parents ki mery bachpan mein divorce ho gai thi mein apni maa k Sath rhti thi ab mein apny bap se apny hisay jaidad mein se ly skti ho ya ni after24 years????
DeleteSir mery parents ki mery bachpan mein divorce ho gai thi mein apni maa k Sath rhti thi ab mein apny bap se jaidad mein hisa ly skti ho ya ni after24 years??? Or agr bap ki jaidad us ke bray Bhai ny dhokay se ly li ho tu Kiya kry..ya kh kr k tumhri konsa Koi alad ha
ReplyDeleteG aap apne walid ki wafat ke baad un ki property main se apna share le sakti hain. or agar un ka hissa kisi ne dhoke se apnen nam karwa lia hai tu wo documents or mutation ki cancelation ka dawa karna pare ga
DeleteThis comment has been removed by the author.
ReplyDeleteagtar dada ne apni zindgi main de di hai chaha ko or taya ko or ne ke nam kar di hai tu aap case nahi kar sakte malik zinda hai tu wo kisi ke nam bhi kar sakta hai.
DeleteThis comment has been removed by the author.
ReplyDeleteHelo sir : mery dada abu ke 2 bety hn or 4 betea or mery father jo ke un ka mind upset hn mtlb mantel condition hn or mery cahcha uk hoty hn uno ne hamy bachpn sy e gar sy nikal dea ham apni nao ke gar regty thy choty thy ab ham bary howy ham ne apna hisa mangaaa uno ne kaha jo hisy dar hn matlb ke mery papa wo un ke sath e rehty hn or meri choti phupo jin ke shade hoe hn un ko be dado ne apny gar me e rakha hn ab jb ke hamy zarorat hn apny hisy ke mang rhy hn un sy par wo hamy ni dyty kehty hn ke waris hamary pass hn jis ka hisa hn lykn wo bechry mantel patient hn ab sir batay ham kia kryy lazmi batana sir
ReplyDeletesab se pehle apne walid sab ko declare karwana hu ga ko wo unsound mind yani ke paagal hain iss ke liye attorney general ke office se form or detail mil jaye gi iss main kafi documents chahye hote hain.us ke baad board un ko paagal declare kar de tu aap apne walid sab ki guardian ship le sakte hain court se or phir court un ki property ka guardian bhi banai gi tu olad le sakti hai guardian ship. phir aap ko mile gi property
DeleteMery Walid ko jo dadi ka hissa Mila Tha Mera koi bhai ni hi to main wo Kitna hissa ly sakti hoon parents fout ho gay hain.
ReplyDeleteAgar aap akloti beti hain tu aap ka hissa apne walid ki property main aadha hai. or agar or bhi bhainain hain tu walid ki property main se aap ka hissa 2/3 hai.
DeleteSalam ! Mery dada ki jaidad hy Mera Abu ko intikal hoye 12 Sal hogye karachi me ghar dada ka hy or KPK me bhi ghar jaidad dada ki hy or hamary Chacha na hamy yaha Karachi me hissa dery hy na KPK me waha kehty hy hissa degy pr apny mutabik wo b kam or bechny ni degy plz koi KPK me lawyer ya koi aysa ho hamy btaye ham boht parishan hy
ReplyDeleteHam 6 behny 2 Bhai hy hamy jaidad me kuch ni dia Hala k kisi Chacha k naam ni hy pr wo yaha Karachi or KPK me jaidad py kabza kr k bethy hy
ReplyDeleteJinab AAP ko poora hisa mile ga istaqrar e Haq ka dawa karain waris declare karwain or us k baad agla taqseem ka dawa hu ga
Deleteagar dadi k naam jaedada ho aur us k 2 betsy us k hayat m foot hogay ab 2 betayyan zonda hay kia grand son ko hissa milay ga kitna aur kesay
DeleteGrand son ko Apne bap ka hissa mile ga.beta ju ma bap ki Zindagi main foat hu jata us ki olad hisa leti hai
DeleteHumy help jaiy? Sir meri ami apne ma baab ki jaidad apna haq mang rae h leki meri ami ka bhae haq nhin deraha aik bhae 8 behany h meri ami k lekin bohot zalim h meri ami ka bhae or meri ami k maa baap ki death ho chuki hy? Sir meri ami apne maa baap ki jaidat se kese apna haq ly reply zarpoe karey
ReplyDeleteAoa g sab se pehle wo death certificat banwain waldain ka or property ke documents ki copies hasil karain. yeh cheezain lene ke baad wo court main istaqrar e haq ka dawa file karian or tamam warso ko party banin or ju bhainain lena chahti hain un ko mudai bana lain or ju ap ke sath nahi hain un ko muda ele bunana hai. court sare warso ko declare kar de gi. us ke baad aap dawa taqseem file karain court sab main jaidad taqseem kar de gi. iss ke ilawa aap khatoom muhtasib main bhi application de sakti hain. for more information call or whatsapp 03244010279
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