2025 C L C 577
[Balochistan]
Before Sardar Ahmed Haleemi, J
SAFINA and another --- Petitioners
Versus
JAWAHIR BEGUM and 6 others ---Respondents
Civil Revision No. 439 of 2022, decided on 10th October, 2024.
Islamic Law ---
----Inheritance--- Share in the legacy of deceased brother who left behind a daughter and wife
(petitioners) ---Scope ---Predecessor -in-interest of the respondents being the surviving legal
heir of his deceased brother instituted the suit against the petitioners, who on the basis of a
false and fabricated Sharai fatwa got mutated the properties left by the deceased in their names and further sold out a portion to third person (respondent No.6) by depriving respondents of their right of inheritance ---Suit was dismissed by the Trial Court, however,
the Appellate Court accepted the appeal of the respondents and decreed the suit ---Contention
of the petitioners was that they being legal and lawful heirs of deceased were the only ones entitled to the legacy of the deceased and predecessor of respondents being distant kindred
was not entitled to legacy of his deceased brother ---Validity ---According to D.F. Mullah's
principle of Mohammadan Law under Para -63, the wife and daughter (petitioners) were
"sharers" and were entitled to "one- eighth share" and "one -half" of inheritance, respectively--
-Brother of the deceased i.e. predecessor of respondents came within the category of
residuaries, which was in Para- 65 of D.F. Mullah's principle of Mohammadan Law ---After
payment of the deceased's funeral expenses, and debt (if any), the petitioners being widow and daughter of the deceased were sharers and were entitled as per their respective shares, while predecessor of respondents being brother came within the category of residuaries, thus was entitled to a share in the legacy of his deceased brother ---Petitioners had sold out a piece
of land from the rest of the property through a sale deed in favour of another respondent, which was also not disputed by the parties ---As the share of predecessor of respondents
would not be affected, thus, the Appellate Court's findings to the extent of cancellation of registered sale deed were held to be legally incorrect, however, the findings of the Appellate Court to the extent of determination of shares of the parties were held to be correct ---Civil
revision was dismissed, in circumstances.
Sohail Ahmed Rajput for Petitioners.
Muhammad Sharif for Respondents Nos. 1 to 5.
Javed Iqbal Kasi for Respondent No. 6.
Shahid Baloch, Additional Advocate General for Respondents Nos. 7 and 8.
Date of hearing: 25th July, 2024.
JUDGMENT
SARDAR AHMED HALEEMI, J. ---This Civil Revision Petition is directed against
the judgment and decree dated 10th June, 2022 (hereinafter "the impugned judgment and decree") passed by learned Additional District Judge- IV/Model Civil Appellate Court, Quetta
("hereinafter the appellate Court"), whereby, Civil Appeal No. 32 of 2021 filed by respondent Nos.1 to 5 was allowed, consequently, the judgment and decree dated 30- 03-2021
passed by the learned Civil Judge -VI, Quetta was set aside and the suit filed by respondents
Nos. 1 to 5 was decreed.
2. Succinct facts leading for filing of instant case are that initially Muhammad Aslam
(predecessor -in-interest of respondents Nos.1 to 5) filed Civil Suit No.43- A/2019 against
petitioners and respondents Nos.6 to 8 for Declaration, Partition, Possession, Cancellation of
Mutation Entry and Registration No.780, Mandatory, Permanent Injunction and Consequential Relief averring therein that his brother Muhammad Afzal (predecessor -in-
interest of petitioners), in his lifetime was recorded owner of a house situated in Karkhan
Gali, Stewart Road, near Bloom Star Hotel, Quetta, bearing Khasra No.806/96, measuring
2931, sq.ft and Khasra No.96/1, measuring 1455 sq.ft (total 4386) falling in Ward No- II,
Tappa Urban -III, Tehsil City and District Quetta having Khewat No.198, Khatooni
No.215(min) vide Mutation N.1008 as well as owner of a car; since late Muhammad Afzal
was not having any son, as such, the predecessor -in-interest of respondent Nos.1 to 5 was his
only surviving legal heir; that the petitioners on the basis of false and fabricated sharai fatwa, got mutated the properties left by the deceased and further sold out a portion to respondent No.6 against sale agreement duly registered at Serial No.780 dated 30.08.2018, by depriving respondents Nos.1 to 5 from their right of inheritance, hence the suit.
3. Petitioners filed a joint contesting written statement and raised certain legal and
factual grounds.
4. Out of the divergent pleadings, the trial Court framed the following issues:
i) Whether the plaintiffs are co -sharers in the properties left by Muhammad Afzal (late)?
ii) Whether the plaintiffs are entitled to receive (09) shares of their late father from a total (24) shares in the properties of Muhammad Afzal (late)?
iii) Whether the defendants Nos. 1 and 2 have fraudulently mutated house bearing Khasra No.806/96, measuring 2931 sq.ft and Khasra No.96/1, measuring 1455 sq.ft (total
4386 sq.ft) falling in Ward- II, Tappa Urban- III, Tehsil City and District Quetta
having Khewat No. 198 and Khatooni No. 215 (min) vide Mutation No.1008 in their names, therefore, liable to be cancelled?
iv) Whether the plaintiffs are entitled for the relief, they have claimed for?
v) Relief.
5. After framing of issues, the predecessor of respondents Nos. 1 to 5 produced one
witness and lastly recorded his statement on oath through an attorney namely Safdar Sultan.
6. In rebuttal, petitioners and respondent No.6 recorded their statements on oath.
7. The trial Court after hearing the arguments advanced by learned counsel for the
respective parties, dismissed the suit filed by predecessor -in-interest of respondents Nos.1 to
5 vide judgment and decree dated 30th March, 2021.
8. Respondents Nos. 1 to 5 being legal heirs of the late Muhammad Aslam Khan,
assailed the judgment and decree in Civil Appeal No.32 of 2021 before the appellate Court, which was allowed vide impugned judgment and decree dated 10th June, 2022, consequently, suit filed by predecessor -in-interest of respondents Nos.1 to 5 was decreed, hence, instant
Civil Revision Petition.
9. Learned counsel for petitioners contended that the appellate Court while rendering the
impugned judgment and decree had not taken into consideration the basic principle of Islamic Law of Inheritance; petitioners being legal and lawful heirs of deceased Muhammad Afzal are only entitled in the legacy of the deceased, whereas, respondents Nos.1 to 5 being distant kindred are not entitled in the legacy; there exist several illegalities and irregularities in the impugned judgment and decree passed by the appellate Court, warranting interference of this Court in revisional jurisdiction.
10. Conversely, learned counsel for respondents Nos.1 to 5, assisted by learned counsel
for respondent No.6 and learned Additional Advocate General, controverted the arguments advanced by learned counsel for the petitioners and maintained that predecessor -in-interest
of respondents Nos.1 to 5 (Muhammad Aslam) was duly entitled in the legacy of his deceased brother late Muhammad Afzal, as he had no male legal survivor except his brother descendent of the father of the deceased was a living residuary and was duly entitled to 37% share in the legacy; learned counsel for respondents Nos.1 to 5 supported the impugned
judgment and decree passed by the learned Appellate Court, which even otherwise was
immune from any illegality, irregularity, misreading and non- reading of evidence.
11. I have heard valuable arguments advanced by learned counsel for the parties and
perused the record with their able assistance.
12. As per record, the late Muhammad Afzal (deceased) left behind a widow and daughter
(petitioners Nos.1 and 2) and has no son. The deceased parents had already died and had one brother Muhammad Aslam (predecessor of respondents Nos. 1 to 5), who was alive at the time of the death of deceased. This fact is not disputed between the parties. Late Muhammad Afzal owned a house vide mutation No.1008, having Khewat No.198, Khatooni No.215(min), Khasra No.806/96, measuring 2931 sq.ft and Khasra No.96/1, 1455 sq.ft, thus the total land is measuring 4386 sq.ft situated in Ward No.11, Tappa Urban- III, Tehsil City
District, Quetta (hereinafter - referred "the suit property").
13. In the present case, the pivotal question is whether late Muhammad Aslam
(predecessor of respondents Nos. 1 to 5) being a brother is entitled for share in the immovable property left by late deceased, who had no male legal survivor except him, if yes,
then what would be the quantum of his share. In this context, In the Holy Quran, in Surah-
An-Nisa, the Almighty Allah has determined the shares of every sharer in the legacy of the
deceased in Verse Nos.4:11 and 4:12, which reads as follows:
Sura An -Nisa(4:11)
Allah chargeth you concerning (the provisions for) your children: to the male the
equivalent of the portion of two females, and if there be women more than two, then
theirs is two -thirds of the inheritance, and if there be one (only), then the half And to
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; and if he had brethren, then to his mother appertaineth the sixth, after any legacy he may have bequeathed, or debt (hath been paid). Your parents or 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.
Sura An -Nisa (4:12)
And unto you belongeth a half of that which your wives leave, if they have no child; but if they have a child then unto you the fourth of that which they leave, after any legacy they may have bequeathed, or debt (they may have contracted, hath been paid). And unto them belongeth the fourth of that which ye leave if ye have no child, but if ye have a child then the eighth of that which ye leave, after any legacy ye may have bequeathed, or debt (ye may have contracted, hath been paid). And if a man or a woman have a distant heir (having left neither parent nor child), and he (or she) have a brother or sister (only on the mother's side then to each of them twain the brother and the sister) the sixth, and if they be more than two, then they shall be sharers in the third, after any legacy that may have been bequeathed or debt (contracted) not injuring (the heirs by willing away more than a third of the heritage) hath been paid. A commandment from Allah. Allah is Knower, Indulgent.
14. Admittedly, the parties belong to the Hanafi School of Thought, and under
Mohammadan Law of inheritance, it is manifest that the heirs are primarily divided into three classes namely (i) Sharers, (ii) Residuaries, and (iii) Distant Kindred. In this connection, para 61 of Chapter VII of D.F. Mullah's principle of Mohammadan Law, the "Sharers' are those, who are entitled to prescribed shares of inheritance; residuaries are those, who take no prescribed share, but succeed to the "residue" and Distant Kindr ed are all those relations by
blood, who are neither sharers nor residuaries. Further, the record depicts that the parties have placed the Sharia Fatwa dated 10 -01-2019 issued by Mufti Gul Hassan, wherein the
share of late Muhammad Afzal(deceased) has been distributed in the following manner:
Total share: 24 shares
Safina Bibi (widow) 3 shares
Ruqia Bibi (daughter) 12 shares
Muhammad Aslam (brother) 09 shares
15. According to D.F. Mullah's principle of Mohammadan Law under para 63, the wife
and daughter are a "Sharer" and are entitled to "one -eighth share" and "one -half" of
inheritance respectively. For convenience, para 63 is reproduced as under:
"63. Sharers. After payment of funeral expenses, debts, and legacies, the first step in
the distribution of the estate, of a deceased Mohammadan is to ascertain which of the surviving relations belong to the class of sharers, and which again of these are entitled to a share of inheritance, and, after this is done, to proceed to assign their respective shares to such of the sharers as are, under the circumstances of the case, entitled to succeed to a share. The first column in the accompanying table contains a list of sharers; the second column specifies the normal share of each sharer; the third column specifies the conditions which determine the right of each sharer to a share, and the fourth column sets out the shares as varied by special circumstances.
16. Likewise, the brother of deceased i -e predecessor of respondents Nos. 1 to 5 comes
within the category of residuaries, which is defined in para 65 D.F. Mullah's principle of Mohammadan Law, which read as follows:
"65. Residuaries: If there are no sharers, or if there are sharers, but there is a residue
left after satisfying their claims, the whole inheritance or the residue, as the case may
be, devolves upon residuaries in the order set forth in the annexed table."
17. In view of the above, it is concluded that after payment of the deceased funeral
expenses, and debt (if any), the petitioners Nos. 1 and 2 being widow and daughter of the late
Muhammad Afzal are sharers and are entitled as per their respective shares, while
predecessor of respondents Nos.1 to 5 being brother come within the category of residuaries, thus entitled to a share in the legacy of his brother late Muhammad Afzal.
18. Apart from that, it has also come on record that the petitioners had sold out a piece of
land measuring 1455 sq.ft. from the rest of the property through a sale deed duly registered by Sub- Registrar, Quetta at Serial No.780, Book No. 1, Volume No.537, pages 236 to 237
dated 30 -08-2018 in favour of respondent No.6, which is also not disputed by the parties, as
the share of predeceased of respondents Nos. 1 to 5 would not be affected, therefore, the appellate Court's findings to the extent of cancellation of registered sale deed are legally not correct.
19. A perusal of findings of the appellate Court to the extent of determination of shares of
the parties are correct, which are immune from interference.
For the above reasons, the Civil Revision Petition No.439 of 2022 being devoid of
merit is dismissed. However, the cancellation of registered sale deed dated 17 -08-2018
executed between the petitioners and respondent No.6 remains intact. The parties are left to bear their own costs.
SA/107/Bal Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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