' MAULVI ANWARUL HAQ, J.---A suit filed by Mst. Aleema Inam deceased (represented by respondents Nos.2 to 5) against the petitioners as also the remaining respondents, except respondent No.1 for partition and administration on 20-7-1997, after a long drawn contest was decided and a preliminary decree was passed on 5-1-2005 by the learned trial Court. Thereafter, proceedings were taken and a final decree was passed on 25-4-2005. On 14-10-2005 the respondent No.1 filed an application under section 12(2), C.P.C. She claimed to be an LR of Mst.
Sharif Begum being the daughter of her brother Muhammad Hameed Khan, This application was contested. The learned trial Court proceeded to allow the said application and to set aside the final as well as the preliminary decrees vide order dated 11-12-2006.
2. Learned counsel for the petitioners contends that it was in the application itself that Muhammad Hameed Khan had two sons i.e. The brothers of the respondent No.1 and as such she could not have inherited the estate of Sharif Begurn in the presence of her brothers and thus had no locus standi to file the application. Most of the counsel appearing on the other side support the petitioners. Learned counsel appearing for respondent No.1 is seeking adjournment which I am not inclined to grant. Mr. Ijaz Feroze, Advocate, has argued that a misstatement was made before this Court at the time of admission of the civil revision that the brothers of the respondent No.1 are already on record as parties.. According to him, this is not correct and refers to the memo. Of the parties in these proceedings. However, even he is not in a position to support the impugned order.
3. I have gone through the copies of the -records. I find that in para-3 of the application filed by respondent No.1 which is supported by the affidavit of Saleem Ahmad Khan, her husband and attorney, it, has been categorically stated that Muhammad Hameed Khan the father of the respondent No.1 and brothers of Mst. Sharif Begum was survived by two sons, namely, Waheed Ahmad Khan and Naveed Ahmad Khan and two daughters, namely, Mst. Jameela Begum and the respondent No.1 lady. The. Said Jameela Begum was stated to have died earlier. The learned trial Court itself has observed in the impugned order that Muhammad Hameed Khan has pre- deceased Sharif Begum.
' Thereafter, he has proceeded to hold that the respondent No.1 is entitled to inherit the estate of Sharif Begum as a residuary. The said finding is not only against the express provisions of the Holy Quran governing the succession to the estate of said lady but is also violative of all available texts on the subject. The learned trial Court has itself, referred to the book of Muhammadan Law.
' Presumably, reference is to the book authored by D.F. Mulla and after quoting the definitions of sharers, residuaries and distant kindred and reproducing the section dealing with residuaries and I further assume that he must have examined the table referred to in the said section 65 proceeded to hold that the respondent No.1 who is the brother's daughters of Sharif Begum is a residuary. The impugned order is not only illegal and without lawful authority but is perverse.
4. Mr. Ijaz Feroze then points out that R.F.A. No.174 of 2005 and Civil Revision No.708 of 2007 are already pending against the main decree and the decision herein will prejudice the respondents. I do not find any force in the said contention. 'This judgment only deals with the order passed by the learned trial Court under section 12(2), C.P.C. Otherwise the validity of the judgment and decree is to be adjudged, of course, in the course of the said proceedings.
5. The civil revision accordingly is allowed and the impugned order is set aside. No order as to costs.