' This revision petition is directed against the concurrent judgments and decrees of the learned two Courts whereby the suit filed by respondents Nos.1 to 6 and 10 to 14 has been decreed but was dismissed to the extent of plaintiff-respondent No,7. The dispute in this case relates to inheritance of one Haji Ahmad son of Alam Noor who died unmarried somewhere in 1984. Mutation of Inheritance No,7379 was attested on 27-11-1994, in favour of petitioners Nos.1 to 5 (sons and daughters of Mst. Sabhai from her second marriage with Alam Sher, real brother of Alam Noor), Mst.
Fateh Khatoon, real sister (petitioner No,6) and Mst. Sabhai, the mother (petitioner No,7). The case of the plaintiffs-respondents Nos.1 to 7 and 10 to 14 was that Afzal Khatoon (respondent No,7) was the widow of the deceased, respondents Nos.1 to 6 were the sons of Sultan and respondents Nos.10 to 14 were the sons of Alam Khan the two other real uncles of the deceased. Respondents Nos.8 and 9 were "he co-defendants in the suit alongwith the petitioners. The plaintiffs-respondents claimed to be also entitled to inherit the estate of the deceased. The suit was contested. Necessary issues were framed and, it was tried.
2. The learned trial Court found that marriage of Afzal Khatoon (respondent No,7) with the deceased was not established but the other plaintiffs, as sons and grandsons of two real uncles of the deceased, were also entitled to inherit the estate of the deceased. Accordingly, their suit was decreed on 14-11-1987. The petitioners filed an appeal which was dismissed vide judgment and decree dated 19-12-1988. They sought review of the appellate judgment and decree but their review application was dismissed vide order dated 17-6-1991. The judgments and decrees of the learned two Courts have been assailed in this revision petition which was filed on 15-9-1991.
3. The following facts are not disputed. Mst. Sabhai was first married to the father of the deceased namely, Alam Noor. On .His death she married Alam Sher (real brother of Alam Noor) and petitioners Nos.1 to 5 were born from this wedlock. Mst. Fateh Khatoon was the real sister while Mst.
Sabhai was the mother of the deceased. It may be noted that Mst. Afzal Khatoon, who claimed to be widow of Haji Ahmad, has not assailed the impugned judgments and decrees.
4. The learned counsel for the petitioners relied on the table of sharers as given in the Muhammadan Law by D.F. Mulla to contend that the mother and sister of the deceased and petitioners Nos.1 to 5 as uterine brothers and sisters of the deceased were sharers while respondents Nos.1 to 6 and Alam Khan, the predecessor-in-interest of respondents Nos.10 to 14 as the uncle's sons of the deceased, were the residuaries. According to him since nothing was left after satisfying the claim of the sharers, respondents Nos.1 to 6 and 10 to 14 were not entitled to inherit the estate of the deceased. He maintains that the judgments and decrees of the learned two Courts proceed on misapplication of law.
5. On the other hand, the learned counsel for the respondents submits that this revision petition has been filed with undue delay and, therefore, suffers from laches. He tried to defend the impugned judgments and decrees by saying that the matter stands concluded by a finding of fact of the learned two Courts.
6. The submissions made by the learned counsel for the parties have \been considered. Mst.
Sabhai, the mother, as sharer, was entitled to 1/6th share, Mst. Fateh Khatoon as real sister was entitled to 1/2 while petitioners Nos.1 to 5, as uterine brothers and sisters, were collectively entitled to 1/3 as sharers. Therefore, the entire estate of Haji Ahmad devolved on the sister, mother and the uterine brothers and sisters i,e,, the petitioners not leaving any residue to be inherited by the plaintiffs as uncle's sons and grandsons of the uncle of the deceased.
7. I am mindful that petitioners Nos.1, to 3 were also uncles sons of the deceased and in that capacity were residuaries but since petitioners Nos.1 to 3 and their sisters i,e,, petitioners Nos.4 and 5 were sharers also, they were entitled to inherit as sharers because the claim of the sharers is to be satisfied first. It may also be noted that a full sister inherits as a residuary only in the presence of the full brother but since the deceased did not leave to full brother, the sister of the deceased was also entitled to inherit as a sharer. Therefore, the findings of the two Courts that respondents Nos.1 to 6 and 10 to 14 were also entitled to inherit the estate of the deceased is not in accordance with the personal law of the parties.
8. The objection of the learned counsel that this revision petition has been filed with !Aches, has no merit in the facts and circumstances of the case. The petitioners had sought review of the appellate judgment and decree and after its dismissal on 17-6-1991, this revision petition was filed on 15-9-1991. Thus, delay in approaching this Court stands adequately explained.
9. Resultantly, this revision petition is allowed, the judgments and decrees impugned in this petition are set aside and the suit filed by the respondents is dismissed. No order as to costs.