MUHAMMAD SAIR ALI, J.--- On death of Ali Muhammad son of Munshi . In July, 1998, mutation of inheritance bearing No. 656 in the name of his daughter, Mst. Anwari respondent No. 1 was sanctioned on 29.9.98. The petitioner i.e., Mst. Sarwari Bibi, claiming a share of herself and for her sister Mst. Kalsoom Bibi, as, distant kindred being daughters of Muhammad Yousaf i.e., the brother of deceased, challenged the inheritance mutation in appeal before the learned Assistant Commissioner Gojra. This appeal was dismissed on 17.11.98. Petitioner filed a revision petition there against. This revision was accepted by the learned Additional Commissioner (Revenue), Faisalabad through order dated 30.9.99 holding that petitioner Mst. Sarwari Bibi and her sister Mst.
Kalsoom were entitled to take the residue one half share from the estate after satisfaction of one half share of respondent No. 1 as daughter of the deceased, and that the Principle Return or Radd could not be invoked by respondent No. 1 as sharer in presence of the distant kind reds who became entitled to the residue. This order was challenged by respondent No. 1 through ROR No. 211/99 before the Board of Revenue, Punjab, Lahore. The learned Member, Board of Revenue on 21.7.2001 set aside the impugned order dated 30.9.99 of Additional Commissioner by holding that distant kindred would only be entitled to inherit in absence of residuaries or sharers whereof respondent No. 1 was validly granted one half share as a sharer and the residue on half on the Principle of Return through mutation No. 565 dated 29.9.98. Hence the present Constitutional petition by the petitioner.
2. The learned counsel for the petitioner referred to para-66 of Mohammedan Law and Judgment in the case of Nawab Din and four others Vs. Gewni (1990 M LD 725) to contend that after exhausting the share of the sharers, the remainder would not revert to the sharers in presence of the distant kind reds even if there no residuaries. And a such the petitioner etc. As distant kindred were entitled to the residue one half.
3. In contrary arguments, the learned counsel for respondent No. 1 referred to para-67 of Mulla's Mohammedan Law and the judgment of the Honourable Supreme Court of Pakistan in the case of Ibrahim and four others Vs. Rehmat Ali and six others (PLD 2002 S.C. 471) to contend .That distant kindred would not inherit at all if a deceased was survived by either the sharers of the residuaries and thus the residue in this case would also revert to the sharer respondent No. 1.
4. I have the learned counsel for the parties. All the facts are admitted in the present case. All Muhammad died leaving behind one daughter respondent No. 1 and his late brother's daughters i.e., the petitioner and Mst. Kalsoom. Inheritance mutation No. 565 was sanctioned in favour of respondent No. 1 on 29.9.98 wherein one half share out of the estate of the deceased was allocated to respondent No. 1 as sharer and the remaining one half was granted to her on Return of the residue in absence of any residuaries. The petitioner as distant kindred claimed the residue one half after satisfaction of the share of respondent No. 1 as the sharer. The legal question thus arises for determination, is as to whether in absence of residuaries should the one half share of estate of deceased All Muhammad return to his daughter Mst. Anwari (respondent No. 1) or should the remainder travel to the distant kindred, i.e. The petitioner and her sister being the daughters of late brother of the deceased.
5. Para-66 of Mulla's Mohammedan Law reads as under:- "If there is a residue left after satisfying the claims of sharers, by there is no Residuary, the residue reverts to the Sharers in proportion to their shares. This right of reverter is technically called "Return" or Radd.
Exception: Neither the husband nor the wife is entitled to the Return so long as there is any other heir, whether he be a sharer of a Distant Kinsman. But if there be no other heir, the residue will go to the husband or the wife, as the case may be, by Return.
In the present case there were no residuaries where for respondent No. 1 was held entitled by the Board of Revenue to one half as sharer and the residue one half on the right of reverter, i.e. "Return".
6. Para-67 of Mulla's Mohammedan Law record the rule that it is only in absence of the sharers or the residuaries that the inheritance can be divided amongst the distant kindred.
7. The Honourable Supreme Court of Pakistan in the case of Ibrahim and four others Vs. Rehmat Ali and six others (PLD 2002 SC 741) interpreted the law by holding that "Distant kindred will get nothing so long the sharers and residuaries are there." Close examination of Para-66 of Mulla's Mohammedan Law further clarifies the position by stating that after satisfaction of the claims of the sharers, if there is no residuary, the residue reverts to the sharers in proportion to their sharers.
So under this principle of Reverter/Return/Radd, residue reverts to the sharers in .Absence of the residuaries. It means that in presence of the residuaries, sharers will only get their specified shares and will not be entitled to the residue upon return. The residue will go to the residuaries after satisfaction of the claims of the sharers.
8. The Principle of Mohammedan Law as contained in Para-66 above is clear, concise and unambiguous. If there is residuary, the residue shall revert to the sharers in proportion to their shares. Had the distant kindred been entitled to the residue, the rule would have been that if there is no residue left after satisfaction of claim of the shares but there is no Residuary or the distant kindred, the residue reverts to the sharers in proportion to their shares. Absence of the category of distant kindred as legal heirs from the rule in para-66 means that residue will at maximum devolve upon the residuaries but cannot be given to the distant kindred and shall instead revert to the sharers, there are no residuaries.
9. Para-67 of Mulla's Mohammedan Law records the general and applicable rule of Shariah that if there are no sharers or residuaries, the inheritance, will devolve upon the distant kindred. The distant kindred as such get a right to inherit only when there are no sharers or residuaries, whose presence totally ousts the distant kindred from inheritance of a deceased. The Honourable Supreme Court of Pakistan also incorporated the same rule qua the right of distant kindred in the above referred case of Ibrahim etc. Vs. Rehmat Ali etc. (PLD 2002 SC 741) that "Distant kindred will get nothing so long the sharers and residuaries are there". I would state with utmost respect that case of Nawab Din (1990 M LD 725) was decided in the perspective of a widow's right to inherit the residue on return and as such does not lay down law in general on the principle of Return. This case cannot thus be applied to the facts of the case in hand.
10. For the above reasons, it is declared 'that respondent No. 1 under Hanif Law of Inheritance was entitled to inherit from the estate of her deceased father one half share as the sharer and the remaining one half share as the residue in absence of the residuaries. Further that the petitioner and her sister as the distant kind reds were not entitled to claim a share in presence of the sharer, i.e. Respondent No. 1 (the only daughter of deceased. The inheritance mutation No. 565 sanctioned on 29.9.98 was therefore validly and appropriately sanctioned in favour of respondent No. 1 and the learned Member, Board of Revenue passed the impugned order dated 21.7.2001 in proper and lawful exercise of jurisdiction.
11. This petition is thus dismissed with no order as to costs.