This single judgment in C.R. No, 42/2004 will also dispose of the connected C.R. No, 43/2004 titled Bahadur Sher. Vs. Farhad Rasool and others as both the revision petitions involve a common question of law and facts.
2. Briefly narrated the facts are that vide Suit No, 138/1 instituted on 22.7.1996 Farhad Rasool and others, heirs of Malik Sherzad Khan, had prayed for partition against Bahadur Sher and others, heirs of Sherzad Khan, residents of Ghoriwala, Tehsil and District Bannu. The suit for partition was with respect to the shari share of the plaintiffs, the details of which have been given in the head notes of the plaint. It was averred in the plaint that according to the numberation of 1993-94 the suit property comprising of shops, Hujra and houses was the ownership of predecessor-in-interest of the parties whose inheritance devolved on Bahadur Sher son, Mst. Asma Pan daughter of Sherzad Khan defendants vide Mutation No, 2512 attested on 22.11.1987 Ex.P.W.5/1 and thus, they became the joint owners of the suit property with the exclusion of Farhad Rasool etc plaintiffs in suit No, 138/1 being grandson and daughter of Sherzad which pertained to agricultural land. They prayed for the separation of 2/5 share by way of partition. The defendants were summoned who contested the suit and out of the pleadings of the parties, eight issues were framed. The main contention of the defendants was that the predecessor-in-interest of the plaintiffs died prior to his father and they being the offspring of a pre-deceased son, were not entitled to the inheritance under the Muslims Law. On this particular aspect, additional issue has been framed by the learned trial Court.
3. As against this, Bahadur Sher and. others filed a cross suit Bearing No, 238/1 in which they sought for declaration regarding the same property to the effect that the father of Farhad Rasool etc defendants namely Falaksher Khan died prior to the death of Sherzad Khan and thus, under the Mohammedan Law of inheritance, Farhad Rasool etc are not entitled to their share in the inheritance of Sherzad Khan. It was prayed that the plaintiffs Bahadur Sher etc be declared as the sole owners of the suit property and the adverse entries in the names of the offspring of Falaksher namely Farhad Rasool be deleted and the same be corrected. It was also submitted that the father of the plaintiff Bahadur Sher and grand father of Farhad Rasool etc namely Sherzad Khan had transferred the agricultural land to Bahadur Sher etc plaintiffs vide Mutation No, 20486 dated 29.12.1982, and thus the grand sons had no right in the inheritance of Sherzad Khan deceased.
Defendants were summoned who submitted their detailed written statement and it was averred that although their father died prior to the death of Sherzad Khan but by then Section 4 of the Muslims Family Laws Ordinance, 1961 was in force which remains still intact and thus, they were entitled to the inheritance of their grandfather. The learned trial Court framed eight issues including the relief and with respect to the entitlement of the plaintiffs, Issue No, 6 was framed. The parties produced their respective evidence as they wished to adduce and the learned trial Court, vide judgment and decree in Suit No, 138/1 of the year 1996 decided on 12.11.2002, granted a preliminary decree in favour of Farhad Rasool and others and the cross suit filed by Bahadur Sher and others challenging the entitlement of Farhad Rasool and others as sons of pre-deceased son of Sherzad Khan, was dismissed on 10.4.2002.
4. Bahadur Sher and others filed two separate appeals, one against the dismissal of their declaratory suit which was registered as Civil Appeal N.27/13 of 2002 and the other Civil Appeal No, 10/15 of the year 2002 which came for hearing before the learned District Judge, Bannu who, vide judgment and decree dated 30.10.2003, dismissed the appeals and maintained the judgments and decrees of the learned trial Court.
5. The only question agitated by the learned counsel for the petitioners Bahadur Sher etc was that the suit property originally belonged to Sherzad Khan deceased who had got two sons Falaksher and Bahadur Sher and a daughter Mst. Pari 'Linda. It was averred that Falsksher, the predecessor- in-interest of Farhad Rasool etc plaintiffs in Suit No, 138/1, died prior to the death of Sherzad Khan and thus, being the offspring of a pre-deceased son were not entitled to inheritance under the Muslims Law. It is pertinent to note that Sherzad Khan, by way of abundant caution, transferred some agricultural land in favour of Farhad Rasool etc grandsons vide sale Mutation No, 2517 attested on 22.11.1987 which is Ex.P.W.5/2 in Suit No, 238/1 of 1996 titled Bahadur Sher Vs. Farhad Rasool. The only contention raised by the learned counsel for the petitioners is that Section 4 of the Muslims Family Laws Ordinance, 1961 has been declared as unislamic and thus, Farhad Rasool etc were not entitled to the inheritance of Sherzad Khan deceased being the offspring of a pre- deceased son. There is yet another mutation Bearing No, 20017 attested on 27.5.1981 Ex.P.W.2/5 at page-121 of civil Suit No, 238/1 which pertains to the agricultural land and Sherzad Khan deceased, during his life time, has transferred by way of gift some of the agricultural land in favour of Farhad Rasool and others, his grand sons. The controversy in the present, case now relates to the property consisting of shops, Hujra and houses.
6. As against this, the learned counsel for the respondents Fahad Rasool etc submitted that although Section 4 of the Muslim Family Laws Ordinance has been declared as unislamic by the Federal Shariat Court but that is impugned in appeal before the Shariat Appellate Bench of the Supreme Court of Pakistan and once an appeal is filed, then, the operation of the same automatically stands suspended under Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973.
7. I have heard the arguments of learned counsel for the parties and scanned the record with their assistance.
8. This is an admitted fact that Farhad Rasool etc plaintiffs are the sons and daughters of Falaksher Khan who died prior to the death of his father Sherzad Khan, who died in the year 1987 and the inheritance Mutation No, 2512 was attested on 22.11.1987. Perusal of pedigree table on this mutation, copy Ex.P.W.5/1 in Suit No, 238/1 of 1996 titled Bahadur Sher Vs. Farhad Rasool etc decided on 10.4.2000 would show that the deceased Sherzad Khan was survived by Bahadur Sher son, Mst.
Asma Pali daughter and Falaksher Khan son who has been shown as pre-deceased survived by Farhad Rasool, Muhammad Ali Khan sons and Shamim, Tasleem Bibi daughters. By then the Muslim Family Laws Ordinance, 1961 was intact and Farhad Rasool etc were entitled to the inheritance of their grand father Sherzad Khan. So they cannot be excluded by any stretch of imagination from the inheritance of their grand father. So, the subsequent declaration by the Federal Shariat Court declaring Section 4 of the Ordinance ibid has got no relevancy to the facts of the present case as it is the death of the pre-positus which will determine the succession.
9. Even if it is presumed that by then Section 4 of the Ordinance ibid had been declared by Federal Shariat Court to be unislamic, the same is subjudice in appeal before the Apex Court (Shariat Appellate Bench of the Supreme Court of Pakistan), the operation of which stands suspended under Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973 as held in the dicta handed down in the cases of Mst. Samia Naz and others. Vs. Sheikh Pervaiz Afzal and others (2002 SCM R 164), Mst. Bhaggay Bibi and others. Vs. Mst. Razia Bibi and others (2005 SCM R 1595), Muhammad Sharif through legal heirs and 5 others Vs. Nawab Ali and 2 others (2002 CLC 285 Lahore) and Muhammad Khan and others Vs. Muhammad Ishaq and others (2005 CLC 1240 Peshawar).
10. In view of the facts and circumstances of the case narrated above, there is no force in these revision petitions which are dismissed with no order as to costs.