Great grand children are not eligible to get share in grate grand father property under section 4 muslim family ordinance 1961

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

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.

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.”

C.P.3011/2021

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.

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

the above narration of the facts suffices for present purposes. We

may note that the contesting party was respondent No. 13.)

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.

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.

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

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

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.

For the foregoing reasons this leave petition failed and stood

dismissed at the conclusion of the hearing.

Chief Justice

Judge

Jud

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.