PLJ 2025 Quetta 13
Present : SARDAR AHMAD HALEEMI , J.
MUHAMMAD ISMAIL and 3 others --Petitioners
versus
CANTONMENT EXECUTIVE OFFICE, QUETTA CANTT and others --Respondents
C.R. No. 14 of 2023, decided on 31.5.2023.
Civil Procedure Code, 1908 (V of 1908) --
----O.VII R. 11-- Specific Relief Act, (I of 1877), Ss. 42 & 54--Rejection of suit --Concurrent
findings --Deceased was belongs to shia sect --Deceased was issueless --Both parties filed
succession certificates --Succession certificate filed by respondent was allowed --Respondent was
also obtained letter of administration --Question of whether petitioners being cousins of deceased
have entitlement in state of deceased Faqir Hussain --Doctrine of return --Both parties filed
separate succession certificates which were contested by both parties --Succession certificate filed
by Respondent No. 1, was allowed while petitioners’ succession certificate was dismissed--
Respondent No. 1 also obtained letter of administration from concerned Court --According to
settled principles of Shia law, first class excluded second one and second class excluded third
one--Under Shia law of inheritance, Respondent No. 4 being nephew of deceased succeeds one -
half of sharer, and remaining half will also revert to him under law of Doctrine of Return, while
petitioners were maternal cousins of deceased fall in third class of heirs in Shia law of
inheritance and were not entitled in inheritance of deceased --Courts below had concurrently
recorded their findings of facts and law, which High Court found as perfectly in accordance with available evidence of parties --Civil revision dismissed.
[Pp. 15 & 18] A, B, C & D
2022 SCMR 1054 ref.
Mr. Abdul Razzaq Sher , Advocate for Petitioners.
Mr. Shaukat Kakar , Advocate for Respondent No. 1.
Mian Badar -e-Munir , Advocate for Respondent No. 4.
Mr. Abdul Tahir Kakar , State Counsel for Official Respondent.
Date of hearing: 12.5.2023.
J
UDGMENT
This Civil Revision Petition is directed against the judgment and decree dated 30.07.2022
(hereinafter “the impugned judgment and decree”) passed by learned Civil Judge -III, Quetta
(hereinafter “the trial Court”) whereby, the application under Order VII Rule 11 CPC was
allowed and the plaint of the petitioner was rejected under Order VII Rule 11 of Code of Civil
Procedure 1908 (CPC) and upheld by learned Additional District Judge -IX, Quetta (hereinafter
“the appellate Court”) vide order and decree dated 27- 09-2022 (hereinafter “the impugned
order and decree”) .
2. Brief facts, of the case, are that plaintiffs (petitioners) filed a suit against defendants (respondents) for Declaration of Shares and Injunction with the averments that petitioners were
cousins and Respondent No. 1 was step nephew of Faqeer Hussain (deceased) , who died on 19th
May 2020; Respondent No. 1 obtained a succession certificate as well as letter of administration
in respect of different banks amount and immovable property of the deceased; the petitioners
being co- inheritors were deprived of their legal shares and rights, hence, the suit.
3. In rebuttal, Respondent No. 1 appeared and filed an application under Order VII Rule 11 CPC
for rejection of plaint, which was contested by the petitioners by filing rejoinder. The trial Court
after hearing the arguments of learned counsel for the parties, allowed the application and
rejected the plaint of the petitioners vide impugned judgment and decree dated 30- 07-2022.
4. The petitioners feeling disgruntled, assailed the impugned judgment and decree by filing Civil Appeal No. 44 of 2022, which was also dismissed vide impugned order and decree dated 27 -09-
2022, hence this Civil Revision Petition.
5. The learned counsel for the petitioners contended that they are entitled to the assets left by the
deceased; the trial Court without providing the opportunity of evidence allowed the application
under Order VII Rule 11 CPC, which is contrary to law; the Courts below have misinterpreted
the Shia law of inheritance and lastly prayed for the remand of the case.
6. Learned counsel for Respondent No. 4 assisted by learned State counsel contended that impugned judgment/order and decrees passed by the Courts below are well reasoned and
immune from any illegality or irregularity warranting interference of this Court in revisional
jurisdiction.
7. I have heard learned counsel for the parties and perused the available record with their able
assistance.
8. Perusal of record reveals that late Faqeer Hussain died issueless on 19th May 2020, who
belonged to Shia sect and left behind movable and immovable properties. The petitioners are the
cousins, while Respondent No. 4 is the nephew of Faqeer Hussain. After the death of the
deceased, both parties filed separate succession certificates No. 23 and 24 of 2020 before the
learned Civil Judge -V, Quetta, which were contested by both parties and produced their
respective evidence. At the conclusion of the summary trial, the learned Civil Judge -V Quetta
allowed the succession certificate filed by Respondent No. 1, while the petitioners’ succession
certificate was dismissed vide common judgment dated 14.05.2022. Further, Respondent No. 1
also obtained letter of administration from the concerned Court.
9. The moot question before this Court is whether the petitioners being cousins of the deceased
have entitlement in the estate of Faqeer Hussain. Admittedly, the deceased and parties are followers of Shia sect and in the instant matter, the issue of inheritance is governed by Shia law of inheritance. In order to understand this issue, Dinshah Fardunji Mulla (D.F Mulla) explained the classes of heirs in the Shia law of inheritance in the Muhamadan Law. The relevant para 88 and table of sharer is reproduced as under:
88. Three classes of heirs by consanguinity. (1) Heirs by consanguinity are divided into three classes, and each class is subdivided into two sections. These classes are respectively composed as follows: -
I i) Parents;
ii) Children and other lineal descendants h.I.s
II. i) Grandparents h.h.s (true as well as false);
ii) Brothers and sisters and their descendants h.I.s.
III. i) Paternal and
ii) maternal, uncles and aunts, of the deceased and of his parent and grandparent h.h.s and
their descendants h.I.s
2) Of these three class of heirs, the first exclude the second from inheritance, and the second excludes the third. But the heirs of the two Sections of each class succeed together, the nearer degree in each section excluding the more remote in that section (Baillie, II, 276, 280, 285).
90. Table of shares --Shia Law --(1). For the purpose of determining the share of heirs, the
Shia divide heirs into two classes, namely, Shares and Residuaries. There is no separate
class of heirs corresponding to the “Distant kindred” of Sunni law.
(2) The sharers are nine in number. The table annexed gives a list of sharers together with
the shares assigned to them in Shia law.
(3) The dependents h.I.s. of Sharers are also Sharers.
TABLE OF SHARERS SHIA LAW {Section 90}
(Bailie, II, 271- 276,381.)
Sharers Normal Share Conditions
under which
the shares is
inherited Share as varied
by Special
circumstances Of
one Of two or
more
collectively
1. Husband 1/4 Where there is
a lineal
descendent 1/2 when no such
descendent
2. Wife 1/8 1/8 When there is a lineal
descendent 1/4 when no such
descendent
3. Father 1/6 When there is a
lineal
descendent {if there be no
lineal descendant,
father inherits as a
residuary}
4. Mother 1/6 a) When there
is a lineal
descendent
b) when there are two or more
full or
consanguine
brothers, or one
such brother
and two such
sisters, or four such sisters,
with the father
1/3 in other cases.
5. Daughter 1/2 2/3 When no son {with the son she
takes as a residuary}
6. Uterine brother 1/6 1/3 When no parent, or lineal descendant {see
s 88}
7. Or sister
8. Full sister 1/2 2/3 When no
parent, or lineal
descendant, or
full brother or
father’s father
{see ss. 88} {The full sister takes as a
residuary, with the
full brother and
also with the
father’s father see
s.101.
9. Consanguine
sister 1/2 2/3 When no parent, or lineal descendant, or
full brother or
sister, or
consanguine
brother or
father’s father
{see ss. 88,101}
{The consanguine sister takes as a residuary with the
consanguine
brother and also
with the father’s
father see s.101}
In the aforementioned sections, the heirs under Shia law have been split into two sects.
(1) Heirs by consanguinity ﻧﺴﺒﺘﯽ ورﺛﺎ
(2) Heirs by marriage ﻧﮑﺎﺣﯽ ورﺛﺎ
The first set of heirs are further branched off into three classes and each class is further
subdivided into two sections. The first class of heirs comprises
--section (i) parent and section (ii) children and other lineal descendants. The second
class of heirs comprises -- section (i) grandparents and section (ii) brother and sisters
and their descendants. Inasmuch as the third class of heirs are concerned, it enfolds section (i) paternal and (ii) maternal uncles and aunts of the deceased and of his parents and grandparents and their descendants. The first class excludes the second class from
inheritance and the second class excludes the third class from inheritance. However, the
heirs of the two Sections of each class succeed together and the nearer degree in each
section exclude the more remote in that section (See paragraph 88 of Principles of Muhammadan Law by Sir Dinshah Fardunji Mulla).
10. According to settled principles of Shia law, the first class excluded the second one and the
second class excluded the third one. In the present case, Faqeer Hussian had one sister namely
Khiraj Begum (consanguine sister) as such Respondent No. 4, being a descendent of the deceased falls in the second class of heirs, whereas, the petitioners are the descendent of the aunt of the deceased Faqeer Hussain (sister of deceased Faqeer Hussain’s mother), thus, they fall
within the third class of heirs.
11. In view of above, it is concluded that under the Shia law of inheritance, Respondent No. 4
being nephew of deceased succeeds one -half of the sharer, and the remaining half will also revert
to him under the law of Doctrine of Return , while petitioners are the maternal cousins of the
deceased fall in the third class of heirs in Shia law of inheritance and are not entitled in the inheritance of the deceased Faqeer Hussain.
12. Moreover, the parties had already produced exhaustive evidence in the succession
applications filed before the learned Civil Judge -V, Quetta and after considering the entire
evidence as well as relevant law, has rightly decided this controversy under the Shia law of
inheritance.
13. In view of the aforementioned discussion, it has been concluded that the Courts below have concurrently recorded their findings of facts and law, which this Court found as perfectly in
accordance with the available evidence of the parties and thus the same neither suffer from any misreading or non- reading of evidence nor the same suffer from any illegalities or material
irregularities, so as to warrant the interference of this Court in revisional jurisdiction under Section 115, C.P.C. The scope, extent, and domain of revisional jurisdiction of this Court has
elaborately been dilated upon by the Hon’ble Apex Court in the judgment reported in Nisar Ali
vs. Muhammad Asghar , 2022 SCMR 1054, wherein it was held as under:
“It is well settled exposition of law that Section 115, C.P.C empowers and mete out the
High Court to satisfy and reassure itself that the order of the subordinate Court is within its jurisdiction; the case is one in which the Court ought to exercise jurisdiction and in exercising jurisdiction, the Court has not acted illegally or in breach of some provision of law or with material irregularity or by committing some error of procedure in the course of the trial which affected the ultimate decision. If the High Court is satisfied that aforesaid principles have not been unheeded or disregarded by the Courts below, it has no power to interfere in the conclusion of the subordinate Court upon questions of fact or law. The scope of revisional jurisdiction is limited to the extent of misreading or non-reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or if the conclusion drawn therein is perverse or conflicting to the law. Furthermore, the High Court has very limited jurisdiction to interfere in the concurrent conclusions arrived at by the Courts below while exercising power under Section 115, C.P.C.”
For the above reasons, the Civil Revision Petition No. 14 of 2023 is dismissed.
(Y.A.) Civil revision dismissedThis 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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