Can grandchildren inherit from grandparents in Pakistan? Daughter's share after the death of daughter

Inheritance law

Limitation not tun in inheritance cases.

Limitation has no meaning in inheritance cases.

In the following case law, Fateh Muhammad died in 1937 and at the time of his death, Fateh Muhammad had four daughters and a widow, but the mutation was in the name of the widow, and after in 1983that one daughter also included in mutation but deprived three daughter. Death of Fateh Muhammad. At the time of Fatah Muhammad's death, three daughters were shown dead.

Descendants of one of the daughters who did not get a share filed an application challenging the death in the Revue Department in 2013 and applied to the District Collector from where the heirs were advised to file a case in the Civil Court and the heirs of the deprived daughters. filed a claim in the civil court which was awarded in favor of the heirs. After which this degree was challenged in the High Court after the District Court and it was upheld. Fateh Muhammad died in 1937 and after so long the case is time barred. But the High Court referred to Surah Nisa and many other case laws

لیمیٹیشن واراثت کے کیسس میں کوئی معنی نہیں رکھتی۔

مندرجہ ذیل کیس لا میں فتح محمد فوت ھوتا ھے 1937 میں اور وفات کے وقت فتح محمد کی چار بیٹیاں اور بیوہ موجود تھی مگر وارثت کا انتقال پہلے بیوہ کے نام ہوا اور اس کے بعد انتقال ایک بیٹی کو زندہ شو کیا گیا فتح محمد کی وفات کے وقت اور تین بیٹیوں کو مردہ شو کیا فتح محمد کی وفات کے وقت اور تین بیٹیوں کو حق سے محروم کر دیا۔

جن بیٹیوں کو حصہ نہیں ملا تھا ان میں سے ایک کی اولاد نے درخواست دے کر رینیو ڈیپارٹمنٹ میں انتقال کو چیلنج کیا 2013 کو اور ڈسٹرکٹ کلیکٹر کو درخواست دی جہاں سے وارثان کو سول کورٹ نے کیس کرنے کے مشورہ دیا گیا اور محروم بیٹیوں کے وارثان نے سول کورٹ میں دعوای دائر کیا جو وارثان کے حق میں ڈگری ہو گیا۔ جس کے بعد اس ڈگری کو ڈسٹرکٹ کورٹ کے بعد ھائی کورٹ میں بھی چیلنج کیا گیا اور یہ پلی لی گئی کے فتح محمد 1937 میں فوت ھو گیا تھا اور اتنی دیر بعد کیس ٹائیم بارڈ ھے۔ مگر ھائی کورٹ نے سورہ نساء کا حوالا دیا اور بہت سے دوسرے کیس لاز کو ڈسکس کیا اور اپیل خارج کر د ی۔

Case laws on inheritance

Mst. Zaitoon Begum v. Nazar Hussain and

another (2014 SCMR 1469

Stereo. H C J D A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

JUDGMENT

C.R.No.60420/2021

Gulzar Ahmad (deceased)

through his legal heirs

VS.

Rab Nawaz etc.

Ch. Muhammad Iqbal, J:- Through this single

judgment I intend to decide the titled Civil Revision

[No.60420/2021] as well as Civil Revision No.58628/2021 as

both these cases have arisen out of the same judgments &

decrees.

Through these civil revisions the petitioners have

challenged the validity of the judgment & decree dated

26.03.2019 passed by the learned Civil Judge, Khushab who

decreed the suit for declaration filed by the respondents No.1 to 6

and also assailed the judgment & decree dated 25.06.2021 passed

by the learned Additional District Judge, Khushab who dismissed

the appeal of the petitioners.

Brief facts of the case are that the respondents No.1 to 6/

plaintiffs filed a suit for declaration against the petitioners and

respondents No.7 to 17/defendants and contended that Fateh C.R.No.60420/2021

Khan was the original owner of the suit land measuring 277

Kanal 19 Marla comprising Khewat No.66, 67 situated in Moza

Ballowal Tehsil & District Khushab. Said Fateh Khan passed

away in 1937 leaving behind Mst. Fazlan (widow), Roshna,

Jhallan, Sahibzadi and Bivi (daughters) as his legal heirs and his

inheritance mutation No.145 dated 24.05.1937 was incorporated

in favour of Mst. Fazlan (widow) as limited owner. Thereafter,

Muslims Shariat Application Act was promulgated and

succession of Fateh Khan was re-opened and mutation No.335

dated 08.04.1969 was incorporated in favour of Mst. Fazlan

(widow) and Mst. Sahibzadi (daughter), Ghulam Jillani and

Munawar Khan (nephews). The respondents/plaintiffs contended

that at the time of death, Fateh Khan had four daughters and one

widow but while incorporating mutation No.335, three daughters

namely Roshna, Jallan and Bivi were deprived from the

inheritance. Mst. Bivi passed away in 1961 and her husband/Sher

Muhammad (respondent No.6) challenged the validity of

mutation No.335 before the Collector Joharabad, who vide order

dated 28.07.1969 remanded the matter for correction of said

mutation after incorporation of all legal heirs of Fateh Khan

deceased. In the post remand proceedings mutation No.14 dated

30.01.1982 was incorporated but in the said mutation, names of

other three daughters of Fateh Khan namely Roshnai, Jallan and

Mst. Bivi were again not incorporated as per Shariah. The

respondents/plaintiffs filed application for correction of the

revenue entries before the District Collector Khushab who vide

order dated 11.11.2013 advised the respondents/plaintiffs to

approach Civil Court for redressal of their grievance. Hence, the

suit was filed.

The petitioners/defendants filed contesting written

statement whereas the other defendants were proceeded against

C.R.No.60420/2021

ex-parte. Out of the divergent pleadings of the parties, the trial

Court framed following issues:-

1. Whether the Fateh Khan s/o Wali Muhammad was

succeeded by Fazlan as wife, Roshana, Jalan, Sahab

Zadi and Bevi as daughters? OPP

2. Whether plaintiff/predecessor plaintiffs are entitled to

succeed inheritance of Fateh Khan s / o Wali

Muhammad? OPP

3. Whether mutation No.335 dated 08.01.1961 and

subsequent mutation No.14 dated 30.01.1982 were

sanctioned fraudulently by depriving all the legal heirs

of Fateh Khan including Bevi and Jalan and above said

mutations are liable to be set aside qua rights plaintiffs?

OPP

4. Whether plaintiffs are entitled to get decree of

declaration as prayed for? OPP

5. Whether Sahab Zadi was the only daughter of Fateh

Khan out of his wedlock with Fazlan? OPD

6. Whether predecessor of plaintiffs were not legal heirs of

Fateh Khan? OPD

7. Whether plaintiffs were estopped by their own words

and conduct to file this suit? OPD

8. Whether this court lacks jurisdiction to entertain this suit

as mutation was sanctioned during consolidation

proceedings? OPD

9. Whether impugned mutations were sanctioned in

accordance with law? OPD

10.Whether this suit is liable to be dismissed with cost?

OPD

11.

Relief.

And recorded pro and contra evidence of the parties and finally

decreed the suit vide judgment & decree dated 26.03.2019. Being

aggrieved, the petitioners filed appeal which was dismissed by

the appellate Court vide judgment & decree dated 25.06.2021.

Hence, these civil revisions.

I have heard learned counsels for the parties and have

gone through the record.

To prove the assertions made in the plaint and to dislodge

the onus of issues No.1 to 4, respondent/Rab Nawaz appeared as

P.W.1 and deposed that the suit property was owned by Fateh

C.R.No.60420/2021

Khan s/o Wali; that Fateh Khan passed away in the year 1937

leaving behind a widow Fazlan as well as four daughters namely

Roshnai, Jallan, Bivi and Sahibzadi; that after the death of Fateh

Khan, mutation of inheritance No.145 dated 24.05.1937 was

entered in favour of Fazlan as limited owner; that after

promulgation of Shariat Act, the limited ownership was abolished

upon which revenue officials incorporated mutation No.335

whereby Fazlan (widow) got 1/8 share and Sahibzadi (daughter)

got 1/2 share whereas the names of other three daughters were

omitted at the time of recording of said inheritance mutation; that

the daughters were alive at the time of death of Fateh Khan; that

husband of Mst. Bivi namely Sher Muhammad filed an

application against mutation No.335; that Mst. Bivi died in 1961;

that the death certificate was produced before the District

Collector who remanded the matter with the direction that if at

the time of death of Fateh Khan, Mst. Bivi, Jallan and Roshnai

were alive, their respective shares may be given to them; that in

remand the Revenue Officer did not send any notice to the

plaintiffs nor summoned them; that Sher Muhammad filed an

application for compliance of remand order upon which it

revealed that a fresh mutation No.14 was incorporated in 1982 in

the revenue record; that they filed an application for correction of

the said mutation; that Ghulam Farooq defendant got recorded his

statement that if the plaintiffs are entitled for share as per Shariah,

they would have no objection on correction of mutations; that the

District Collector observed that the matter is complicated one as

such the plaintiffs should approach Civil Court. Sher Muhammad

(P.W.2)

also

fully supported the stance of

the

respondents/plaintiffs. Despite lengthy cross examination, the

witnesses remained firm on their stance.

Conversely, the petitioners/defendants produced sole

witness namely, Ghulam Farooq (D.W.1) who deposed that:

Admittedly, Fateh Khan, owner of the suit land, died in

1937 leaving behind one widow (Mst. Fazlan) and four daughters

(Mst. Roshna, Jallan, Bivi and Sahibzadi) as his legal heirs but

his inheritance mutation was entered in favour of his widow as

limited owner. After promulgation of West Pakistan Muslim

Personal Law (Shariat) Application Act, 1948 the inheritance

mutation of Fateh Khan was reviewed but again his three

daughters i.e. Mst. Roshna, Jallan and Bivi were excluded from

C.R.No.60420/2021

his inheritance. The relationship of respondents/plaintiffs with

Fateh Khan as daughter as well as depriving them from the

legacy of their deceased predecessor are admitted by the

respondents/defendants, thus admitted facts need not to be

proved. Reliance is placed on the cases of Mst. Nur Jehan Begum

through LRs v. Syed Mujtaba Ali Naqvi (1991 SCMR 2300) and

Mst. Rehmat and others Vs. Mst. Zubaida Begum and others

(2021 SCMR 1534).

Admittedly, deceased Fateh Muhammad Khan as well as

the parties to lis are Muslims by faith and followers of Quran and

Sunnah. Even as per Article 227 of the Constitution of the

Islamic Republic of Pakistan, 1973, the principles of Quran and

Sunnah are admitted as supreme law of this country and all

provisions, rules, regulations are to be legislated and framed

within the precincts of Islamic principles. For reference, Article

227 of the Constitution of Islamic Republic of Pakistan, 1973 is

reproduced as under:-

227. Provisions relating to the Holy Quran and Sunnah.-

(1) All existing laws shall be brought in conformity with the

Injunctions of Islam as laid down in the Holy Quran and

Sunnah, in this Part referred to as the Injunctions of Islam,

and no law shall be enacted which is repugnant to such

injunctions.

Explanation.-In the application of this clause to the

personal law of any Muslim sect, the expression “Quran

and Sunnah” shall mean the Quran and Sunnah as

interpreted by that sect.

(2) Effect shall be given to the provisions of clause (1) only

in the manner provided in this Part.

(3) Nothing in this Part shall affect the personal laws of

non-Muslim citizens or their status as citizens.

As the predecessor-in-interest of the parties of the lis as well as

the parties themselves are Muslims and principles of Quran and

Sunnah are mandatorily and manifestly applicable upon them as

well. The shares of each and every Muslim inheritor have

C.R.No.60420/2021

conclusively been prescribed in Holy Quran. Allah Almighty has

ordained the Muslims to decide their disputes as per the

principles of the Holy Quran as described in following verses:

The rights or shares of each and every Muslim heirs in the estate

of his/her deceased propositus is absolutely, conclusively and

finally described/determined in the Holy Quran, which shares are

definite in nature. In this regard, it is expedient to take guidance

from the Holy Quran, particularly from Surah tul Nisa Ayat

Nos.7 to 11 (English translation whereof by Marmaduke

Pickthall and Urdu translation by Molana Fateh Muhammad

Jalandari) are reproduced as under:-

7. Unto the men (of a family) belongeth a share of that which

parents and near kindred leave, and unto the women a share of

that which parents and near kindred leave, whether it be little

or much. A legal share.

8. And when kinsfolk and orphans and the needy are present at

the division (of the heritage), bestow on them therefrom and

speak kindly unto them.

9. And let those fear (in their behaviour toward orphans) who

if they left behind them weak offspring would be afraid for

them. So let them mind their duty to Allah, and speak justly.

10. Lo! Those who devour the wealth of orphans wrongfully,

they do but swallow fire into their bellies. And they will be

exposed to burning flame.

11. Allah commands you concerning (the provision for) your

children; to the male the equivalent of the portion of two

females, and if there be only women more than two, then theirs

is two-thirds of the inheritance, and if there be one (only) then

for her is the half. And to each of his parents a sixth of the

inheritance, if he have a son; and if he have no son and his

parents are his heirs, then to his mother appertaineth the

third; but if he have brethren, then to his mother appertaineth

the sixth, after any legacy he may have bequeathed, or debt

(hath been paid). Your parents and your children: Ye know not

which of them is nearer unto you in usefulness. It is an

injunction from Allah. Lo! Allah is knower, Wise.

C.R.No.60420/2021

Further in Surah tul Nisa, Ayat No.33 as well as 176, it has been

ordered as under:-

Further in the most authenticated book of Hadith (Sahi Bukhari

Sharif Vol.III, relevant at Page No.606 Chapter No.922) the

shares of the legal heirs of a deceased have also been described as

under:-

C.R.No.60420/2021

Moreover, according to Section 2 of the Muslim Personal Shariat

Application Act, 1937, the Shariat Laws were made applicable

where the parties are/were Muslims. Section 2 of the Act ibid is

reproduced as under:

2.Application of Personal Law to Muslim.-

Notwithstanding any custom or usage to the contrary, in

all questions (save questions relating to special property

of females, including personal property inherited or

obtained under contract or gift or any other provision of

Personal Law, marriage, dissolution of marriage,

including talaq, ila, zihar, lian, khula and mubarat

maintenance, dower, guardianship, gifts, trusts and trust

properties, and wakfs other than charities and charitable

institutions and charitable and religious endowments the

rule of decisions in cases where the parties are Muslims

shall be the Muslim Personal Law (Shariat)

Section of 3 of the West Pakistan Muslim Personal Law (Shariat)

Application Act, 1948 in this regard is also reproduced as under:

“3. In respect of immovable property held by a Muslim

female as a limited owner under the Customary Law,

succession shall be deemed to open out on the termination of

her limited interest to all persons who would have been

entitled to inherit the property at the time of the death of the

last full owner had the Muslim Personal Law (Shariat) been

applicable at the time of such death, and in the event of the

death of any such person before the termination of the limited

interest mentioned above, succession shall devolve on his heirs

and successors existing at the time of the termination of the

limited interest of the female as if the aforesaid such person

had died at the termination of the limited interest of the female

and had been governed by the Muslim Personal Law (Shariat);

Provided that the share, which the female limited

owner would have inherited had the Muslim Personal Law

(Shariat) been applicable at the time of the death of the last 41

owner, shall devolve on her if she loses her limited interest in

the property on account of her marriage or re-marriage and

on her heirs under the Muslim Personal Law (Shariat) if her

limited interest terminates because of death.”

The West Pakistan Muslim Personal Law (Shariat) Act, 1962 was

also promulgated in this regard, Section 2 whereof is reproduced

as under:

2. Application of the Muslim Personal Law.—

Notwithstanding any custom or usage, in all questions

C.R.No.60420/2021

regarding succession (whether testate or intestate), special

property of females, betrothal, marriage, divorce, dower,

adoption, guardianship, minority, legitimacy or bastardy,

family relations, wills, legacies, gifts, religious usages or

institutions, including waqfs, trusts and trust properties, the

rule of decision, subject to the provisions of any enactment for

the time being in force, shall be the Muslim Personal Law

(Shariat) in case where the parties are Muslims.”

Reliance in this regard is placed on cases titled as The Federation

of Pakistan through Secretary, Law & Parliamentary Affairs,

Islamabad vs. Muhammad Ishaq and another (PLD 1983 SC

273), Abdul Ghafoor and others Vs. Muhammad Shafi and others

(PLD 1985 SC 407), Mst. Fazal Jan Vs. Roshan Din and others

(PLD 1990 SC 661), Ismail and another Vs. Ghulam Qadir and

others (1990 SCMR 1667), Sardar Vs. Mst. Nehmat Bi and 8

others (1992 SCMR 82), Muhammad Yousaf through Legal

Heirs and 2others Vs. Mst. Karam Khatoon through Legal Heirs

and 2 others (2003 SCMR 1535), Ghulam Haider and others Vs.

Murad through Legal Representatives and others (PLD 2012 SC

501), Fayyaz Hussain and others Vs. Haji Jan Muhammad and

others (2018 SCMR 698), Ghulam Qasim and others Vs. Mst.

Razia Begum and others (PLD 2021 SC 812), Abdul Khaliq

(deceased) through LRs. Vs. Fazalur Rehman and others (2022

SCMR 1665) and Manzoor Hussain (deceased) through Legal

Heirs and others Vs. Muhammad Rafique and others (2020 CLC

400).

As regard the objection of the petitioners/defendants that

the suit is time barred. Admittedly, the moment Fateh Khan

closed his eyes, all his legal heirs according to the principles of

Quran and Shariah became absolute owner to the extent of their

respective shares in estate of the deceased and without resorting

to the legal course of independent transaction, the said ownership

cannot be taken away by means of any unauthorized entry in the

revenue record and if any entry is made in clandestine manner

C.R.No.60420/2021

with collusiveness of the revenue staff, such entry is devoid of

any legality and creating any valid right. The main object of

registration and sanctioning of mutation of inheritance is mere

formality to update the official record whereas all legal heirs of a

deceased become absolute owners of the property to the extent of

their respective share until and unless they themselves voluntarily

and legally further alienate their said share/right and the said legal

heirs by operation of law become joint owners in the estate

having constructive possession over their share and no limitation

runs against the inheritance matters as well as against any

patently void order entry. Reliance is placed on a latest judgment

cited as Ghulam Qasim and others Vs. Mst. Razia Begum and

others (PLD 2021 SC 812) wherein the Supreme Court of

Pakistan has held as under:

“4. Immediately on the death of a person, his/her legal

heirs become owner of his estate under Muslim law. In the

case of Ghulam Ali v. Mst. Ghulam Sarwar Naqvi it was

held that:

The main points of the controversy in this behalf

get resolved on the touchstone of Islamic law of

inheritance. As soon as an owner dies, succession

to his property opens. There is no State

intervention or clergy’s intervention needed for

the passing of the title immediately, to the heirs.

Thus, it is obvious that a Muslim’s estate legally

and juridically vests immediately on his death in

his or her heirs and their rights respectively come

into separate existence forthwith. The theory of

representation of the estate by an intermediary is

unknown to Islamic Law of inheritance as

compared to other systems. Thus there being no

vesting of the estate of the deceased for an

interregnum in any one like an executor or

administrator, it devolves on the heirs

automatically, and immediately in definite shares

and fraction.

The above-noted principle has been continuously affirmed,

including in the cases of Mst. Reshman Bibi v Amir, Mirza

Abid Baig v Zahid Sabir, and Farhan Aslam v Mst. Nuzba

Shaheen.

C.R.No.60420/2021

Another reliance is placed on the cases titled as Ghulam Ali and 2

others Vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), Khan

Muhammad through L.Rs. and others Vs. Mst.Khatoon Bibi and

others (2017 SCMR 1476) and Bashir Ahmad Anjum Vs.

Muhammad Raffique and others (2021 SCMR 772). Thus, the

argument of learned counsel for the petitioners/defendants is

hereby repelled.

10.

Learned counsel for the petitioners has not pointed out any

illegality or material irregularity, mis-reading and non-reading of

evidence in the impugned judgments and decrees passed by the

learned Courts below and has also not identified any

jurisdictional defect. The concurrent findings of fact are against

the petitioners which do not call for any interference by this

Court in exercise of its revisional jurisdiction in absence of any

illegality or any other error of jurisdiction. Reliance is placed on

the case titled as Mst. Zaitoon Begum v. Nazar Hussain and

another (2014 SCMR 1469).

11.

In view of above, both these civil revisions being devoid

of any merit are dismissed. No order as to costs.

(Ch. Muhammad Iqbal)

Judge

Approved for reporting.

Judge

For more information call us 0092-324-4010279 Whatsapp Dear readers if u like this post plz comments and follow us. Thanks for reading .as you know our goal is to aware people of their rights and how can get their rights. we will answer every question, so we need your help to achieve our goal. plz tell people about this blog and subscribe to our youtube channel and follow us at the end of this post.