Conflicting Judgments on Section 4 MFLO

PLJ 1990 SC 204 [Appellate Jurisdiction] Present: abdul shakurul salam and rustam s. sidhwa, JJ FARID-Petilioner versus Mst. MANZOORAN and others-Respondents Civil-Petition for Leave to Appeal Nos. 772 and 773 of 1989, decided on 31.1.1990. [On appeal from judgment and order dated 5.2.1989, passed by Lahore High Court, Multan Bench, in C.R. Nos. 461-D and 462-D of 1986]. Muslim Family Laws Ordinance, 1961 (WP Ord. VIII of 1961)-- —S.4~Daughter of predeceased daughter-Share in inheritance of- Determination of—Contention that if mother of respondent No. 1 be taken as alive at time of opening of inheritance of her grandmother, she would inherit estate to extent of 1/3 but from her mother she would get one half of 1/3 i.e. l/6th and not whole of share of her mother-Held: There being conflict of decision of Lahore High Court and Peshawar High Court on interpretation of Section 4, leave is granted for authoritative decision. [Pp.205&206]A&B PLD 1983 Lahore 546 and PLD 1975 Peshawar 252 ref. Raja Muhammad Younis, Advocate, Supreme Court and S. Inayat Hussain, AOR for Petitioner (in both petitions). Ch. M. Ashraf, Advocate, Supreme Court and Mr. MA. Qureshi, AOR for respondents (in both petitions). Date of hearing : 31.1.1990. order Abdul Shakurul Salam, J.--This order will dispose of Civil Petitions for Leave to Appeal Nos.772 of 1989 and 773 of 1989. 2. Office has pointed out that the petitions are barred by four days. 3. Learned counsel for the petitioner states that from the date of delivery of the copy, the petition is very much in time. Otherwise also delay of four days, in the circumstances of the case, is condonable being unintentional. 4. On merits, the learned counsel submits that the suit of respondent No.l was rightly decreed to the extent of l/6th share in estate of her grand-mother, the mother having pre-deceased. This was in accordance with the judgment of the Lahore High Court reported in PLD 1983 Lahore 546. However, on her appeal, the judgment on the point was reversed by the appellate Court and she was granted a decree to the extent of l/3rd share. Same has been upheld by the High Court. Learned counsel submitted that the judgments of the two Courts below are in line with the judgment of the learned Peshawar High Court reported as PLD 1975 Peshawar 252. The Courts should have followed the Lahore High Court judgment. 5. For facility of understanding a small pedigree table may be stated as under: Mst. Daulan Lalan Farid Petitioner Manzooran (Respdt. No.l) It is common ground that Mst. Lalan mother of Mst. Manzooran, respondent No.l, died in the life time of her grand-mother Mst. Dauian. Inheritance opened on the demise of Mst. Daulan. Case of the petitioner is that even if by fiction of law as enacted in section 4 of the Muslim Family Laws Ordinance, 1961 at the lime of opening of the inheritance of Mst. Daulan her pre-deceased daughter Mst. Lalan be taken as living, Mst. Lalan would inherit the estate of Mst. Daulan to the extent of 1/3; 2/3rd would go to Farid. But from Mst. Lalan, her daughter Mst. Manzooran, respondent No.l, will get one half of l/3rd i.e. l/6th. Not the whole of the share of Mst.Lalan. Rest of the 1/2 of the estate of Mst. Lalan would go to the reversionaries amongst whom is the petitioner. This is in accordance with the judgment of the Lahore High Court. However, according to the judgment of the Peshawar High Court, Mst. Manzooran gets whole of the estate of Msl. Lalan and since the latter was to inherit l/3rd, the whole of it has to go to Mst. Manzooran 7. Since there is a conflict of decision of the two High Courts on the interpretation of the relevant section, i.e., 4 of Muslim Family Laws Ordinance, 1961, leave is granted for an authoritative decision, subject to the determination of question of limitation at the final hearing. Security Rs. 2000/-. The appeals shall g be processed on present record subject to the parties filing additional documents if so advised. The appeals shall be fixed before the year is out. Stay is declined to the extent of l/6th share of the respondent not disputed by the petitioners, but for the next l/6th, interim relief is granted to the petitioner subject to his furnishing .full and sufficient security for mesne profits to the satisfaction of the trial Court. (MBC) Leave granted.