2006 Y L R 889
[Lahore]
Before Umar Ata Bandial, J
MUHAMMAD YOUSAF and others---Petitioners
Versus
Mst. BILQEES BEGUM and others---Respondents
Civil Revision No.923 of 2005, decided on 13th September, 2005.
Muslim Family Laws Ordinance (VIII of 1961)---
----S. 4---Succession---Daughter of pre-deceased son of propositus---Entitlement to inherit- - -
Question was whether being the sole daughter of predeceased son of propositus she was entitled
to inherit full property of her father---Grandchild was not entitled to more than what could be
inherited by him/her from the parents according to Islamic Law---Findings of .Courts below that
plaintiff was entitled to inherit full property of her father were not in consonance of law by the
Supreme Court---Plaintiff was entitled to only half of share under Islamic Law of Inheritance- -
-impugned decree was accordingly.
Mst. Zainab v. Kamal Khan alias Kamala PLD 1990 SC 1051 ref.
Rao Munawar Hussain for Petitioners.
Rana Muhammad Anwar for Respondent No.1.
ORDER
UMAR ATA BANDIAL, J.---This petition challenges concurrent findings of the learned
lower appellate Court that affirmed the decree of the learned trial Court declaring the
respondent .No.1, Mst. Bilqees Begum to be heir in the estate of Niamat Ali deceased who was
predeceased by his son Muhammad Shafi, father of the respondent No.1. The central point
raised by the learned counsel for the petitioners is that the respondent No.1 has by the
impugned judgment been granted the entire share of her father, Muhammad Shafi in the estate
of Niamat Ali; whereas under rule expressed in section 4 of the Muslim Family Laws
Ordinance, 1961, she is entitled to inherit only half share of her father. In the facts of the case,
the respondent No. 1 has been granted 2/7 share in the inheritance of Niamat All deceased
whereas she Was entitled 1/7 of share in such inheritance. The legal proposition urged by him
relies upon a judgment of the Honourable Supreme Court in the case of Mst. Zainab v. Kamal
Khan alias Kamala (PLD 1990 SC 1051) which observes as follows:--
"The succession in the present case opened on the death of Sufaid Khan in 1973. Rajoo,
if alive, would have inherited the entire property of his father. Notionally, it would be
presumed that Rajoo after inheriting the estate of his father, had died. Accordingly, the
succession would re-open and all the legal heirs of the deceased would get their shares
in accordance with the Muslim Law of Inheritance. The contention that the appella nt
would inherit the entire share of her father being the sole surviving child, is against the
principle of Muslim Law of Inheritance. She would get what-ever she would be entitled
to get on the death of her father. The principle of Muslim Law of Inheritance was that
the near in degree would exclude the remotest. Before the introduction of section 4, the
children of predeceased son were deprived of any share. The intention of section 4 is
to safe-guard the interest of the children of predeceased son and not to deprive the other
heirs of the propositus of their due. Thus, section 4 cannot be interpreted is a way so as
to exclude the other legal heirs of the deceased Sufaid Khan."
2. The principle laid down above is to the effect that a grandchild shall inherit in the estate of
his/her grandfather according to his/her share under Muslim Laws in the entitlement that
his/her predeceased father would have in the estate of his/her grandfather. As such the find ing
in this case that the respondent No.1 has inherited the full share of her father, Muhammad
Shafi, is contrary to the principle enunciated by the Honourable Supreme Court. She is entitled
to only half' of the said share under the Muslim Law of Inheritance and that comes to 1/7 of
the estate of Niamat Ali. Accordingly the concurrent findings given by the learned Courts
below are modified to the extent that rather than inheriting 2/7 share in the estate of Niamat
Ali deceased, the respondent No.1 is entitled to the extent of 1/7 share in that estate. The decree
is modified . accordingly.
3. Learned counsel for the respondent No.1 has sought an observation with regard to the 1/7
share that now is available for the benefit of other heirs of Muhammad Shafi deceased. That
aspect of the matter is beyond the purview of the controversy before this Court. Suffice it to
say that any right under law may be enforced through remedies available from the compete nt
Court of law. The civil revision is disposed of in the above terms. No order as to cost.
F.M./M-1369/L Order accordingly.
