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Case Judgement [Link]
2005 M L D 1
[Lahore]
Before Syed Zahid Hussain, J
Haji MUHAMMAD HANIF --- Petitioner
Versus
MUHAMMAD IBRAHIM and others---Respondents
C. R. No. 905 of 1995, heard on 21st September, 2004.
(a) Muslim Family Laws Ordinance (VIII of 1961)---
----S.4---Specific Relief Act (I of 1877), S.42---Succession---Sons and daughters of predeceased son and
daughter---Widow of predeceased son--Suit for declaration that share in inheritance given to widow of
predeceased son was illegal---Such suit was concurrently dismissed--Validity---Express and unambiguous
phraseology and language of the provisions of Muslim Family Laws Ordinance, 1961 leave no obscurity or
doubt that the "children of son or daughter" are only entitled to inherit and receive share which expression
does not include the widow "of such son" ---Inaction of a party or limitation does not affect the right or
interest---Mutation had to record the shares---Entry contrary to law could not operate as estoppel ---Mere
passage of time does not extinguish the right.
(b) Islamic Law---
---- Inheritance---Estoppel---Under Islamic Law of Inheritance as soon as owner dies succession to his
property opens---Due share of inheritance vests in the heirs---Any entry in mutation contrary to law did not
operate as estoppel.
Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1 quoted.
(c) Limitation Act (IX of 1908)---
----S.3---Specific Relief Act (I of 1877), S.42---Islamic Law--Inheritance---Bar of limitation---Widow was
incorrectly recorded and given a share---Appellate Court was misdirected in holding the view that the suit
was time-barred.
(d) Civil Procedure Code (V of 1908)---
----S.115---Concurrent findings---View taken by the Courts below was patently illegal and contrary to
established facts---Such findings though concurrent would lose their sanctity and were liable to be reversed.
Allah Wasaya Malik for Petitioner.
Ch. Muhammad Imtiaz Bajwa for Respondents.
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Case Judgement [Link]
Date of hearing: 21st September, 2004.
JUDGMENT
Haji Muhammad Hanif, the petitioner herein, had instituted a declaratory suit for possession and
consequential relief qua Mutation No. 1241 dated 28-6-1966 and Mutation No.21 dated 26-3-1983 which suit
was dismissed by the trial Court on 19-7-1994 and appeal thereagainst was dismissed by the learned
Additional District Judge, Sheikhupura on 27-3-1995. This is revision petition by him.
2. The learned counsel for the parties have been heard. The crucial point involved is whether the petitioner
alone (a son of Muhammad Shafi) was entitled to inherit from his grandfather namely Mehr Din or the widow
of Muhammad Shafi namely Mst. Hassan was also entitled to any share. According to the learned counsel
.for the petitioner section 4 of the Muslim Family Laws Ordinance, 1961 the petitioner being the son of
Muhammad Shafi deceased was entitled to receive share and not any other including the widow of the
deceased Muhammad Shafi. The learned counsel for the respondents has endeavoured to support the
judgments of the Courts below, whereby the petitioner/plaintiff was non-suited by them. It is contended that
the suit was time-barred and the petitioner was estopped to lay any claim or file a suit due to his conduct.
3. The undisputed position is that Mehr Din deceased the grandfather of the petitioner had three sons namely
Jalal Din, Muhammad Shafi and Muhammad Ibahim. He had two daughters namely Mst. Muhammad Bibi
and Mst. Fatima. Muhammad Shafi had died in the life time of his father leaving behind the petitioner (son)
and Mst. Hassan (widow). Mst. Hassan is stated to have married Muhammad Ibrahim later on and had
children from that marriage as well: The successors of Jalal Din and Muhammad Ibrahim are respondents
herein. After the death of Mehr Din inheritance Mutation No. 1241 came to be sanctioned on 28-6-1966
wherein Mst. Hassan widow of Muhammad Shafi was also given 1/8th share (Exh.P.5). She thus got land
measuring 5 Kanals, 10 Marlas. Out of that land she alienated land measuring 2 Kanals in favour of the
petitioner, (her son from Muhammad Shafi deceased) and 3 Kanals, 10 Marlas to Muhammad Idrees,
Muhammad Naseer and Rashid Ahmad, her sons from Muhammad Ibrahim. This was vide Mutation No.21
dated 26-3-1983 (Exh.P.6). The controversy about the validity and legality of these mutations was sought to
be covered through Issue No.6, which though not adequately worded, reflected the `sum and substance of the
controversy.
4. The above stated position of the inter se relationship of the parties is not in dispute. It is also not in dispute
that the petitioner was son of Muhammad Shafi deceased and Mst. Hassan was his widow, who had married
later on with Muhammad Ibrahim. Section 4 of the Muslim Family Law Ordinance, 1961, which deals with
the succession in suchlike matters reads as under:--
"5.4 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 succession
opens, shall per stripes receive a share equivalent to the share which such son or daughter as the case
may be, would have received if alive." (Underlined by me due to its relevance).
This section relates to and deals with the right of inheritance of the issues of the predeceased son and
daughter. It provides that if a person dies and leaves behind issues of such of his sons or daughters who were
dead in his life time, the issues of the deceased sons and daughters will be entitled to inherit the shares that
their father or the mother would have inherited had they been alive at the -time of death of that person. The
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Case Judgement [Link]
object and `rationale behind this provision is to ameliorate the distress of those unfortunate children whose
father and mother are snatched away by death in the life time of their grandfather. Such orphan grandchildren
are sought to compensated in such a way by giving the share in inheritance to which their father or the mother
would have been entitled. The express and unambiguous phraseology and language of the provisions of law
leaves no obscurity or doubt that the "children of such son" are only entitled to inherit and receive share
which expression does not possibly within its ambit include the widow "of such son". Thus only the
petitioner as son of Muhammad Shafi was entitled to receive the share. The learned trial Court though had
found the suit within limitation as Issue No.2 was decided against the respondents-defendants, yet he
proceeded to uphold the mutations inferring some understanding between the parties and non-challenge of
Mutation No.20 dated 26-3-1983 by which Mst. Hasan had transferred 2 Kanals of land to the petitioner. In
this way, the conduct of the petitioner prevailed upon the Court to non-suit him. In the appeal the learned
Additional District Judge appeared to have accepted the legal position as per section 4 of the Muslim Family
Laws Ordinance, 1961, observing that "In this respect I would like to maintain here that bare perusal of the
law leads me to favour the arguments of the learned counsel for the appellant but the facts involved in this
case are totally different, so on the basis of the said law the matter cannot be resolved unless the factual
position is discussed in this judgment". The learned Appellate Court was also swayed by the circumstances
such as inaction on the part of the petitioner and his conduct in the matter. He even proceeded to reverse the
findings of the trial Court on the question of limitation although there were no cross objections nor such
findings had been assailed by the respondents. It may be observed that under the Islamic Law of Inheritance
as soon as an owner dies succession to his property opens. In Ghulam Ali v. Ghulam Sarwar Naqvi (PLD
1990 SC 1), it was observed that". 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 legal position is thus quite clear that the moment Mehr Din (the grandfather of the petitioner)
expired, due share of inheritance vested in the petitioner and he became owner of the same. It was not
dependent upon any entry in the mutation which was meant only to incorporate a factum. But if the entry
therein was contrary to the law and the share to which the petitioner was entitled it could not operate as
estoppel qua him to claim his rightful share. Section 4 of the Ordinance entitled the petitioner alone to inherit
as son of Muhammad Shafi deceased and not Mst. Hassan as widow of Muhammad Shafi. The mutation to
the extent was not consistent with late and was illegal.
5. Suffice it to mention here that in matters of inheritance, neither the limitation nor the conduct of the
petitioner could estop him from claiming his legal share. Mere passage of time does not extinguish the right.
There was no cogent and convincing evidence as to any Compromise or family settlement by which the
petitioner could be dubbed to have relinquished or abandoned his claim. Indeed the petitioner who had
appeared as P. W.3 categorically controverted and denied any such suggestion. Ibrahim while appearing as P.
W. 1, had admitted that Mst. Hassan Bibi had incorrectly been shown as widow of Mehr Din. It was clarified
by him that she was widow of Muhammad Shafi. The approach of the learned Appellate Court thus was
wholly misdirected and contrary to law in holding the view that the suit was time-barred. He was not justified
to reverse the findings of the learned trial Court qua Issue No.2 i.e. limitation.
In such view of the matter when the view taken by the Courts below is patently illegal and contrary to
established facts, the findings of the Courts below though concurrent loose their sanctity and are liable to be
reversed. As a result, by accepting the revision petition and setting aside the judgment of the Courts below,
the petitioner is held to be entitled to the decree prayed for by him. No order as to costs.
M.I./M-702/L Revision accepted.
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Case Judgement [Link]
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