' DR. ALLAH BAKHSH MALIK (MEMBER JUDICIAL-VII).-This Revision Petition bearing No, ROR 1583 of 2011 assails the orders of learned Additional Commissioner Revenue Rawalpindi dated August 29, 2011.
2. Brief facts of the case are that, Mst. Saira Yousaf daughter of Muhammad Yousaf (son of Mehr Khan) and Mst. Noor Bharri widow of Mehr Khan, Caste Awan resident of Village Kot Shams, Tehsil Talagang District Chakwal, challenged the orders of the learned Additional Commissioner and Deputy District Officer (Revenue) dated 29-8-2011 and 14-3-2011 respectively. It has been contended that both the impugned orders are the consequence the failure to properly interpret the existing law of the land on the subject. The instant case involves arcane technical aspects of law of the appellants further contended that the inheritance Mutation bearing No,1823 dated 24-12-2010 was correctly sanctioned and incorporated into the Revenue Record. In the said Mutation, petitioner No,2 Mst. Noor Bharri as widow was given 1/8 share and petitioner No,1 Mst, Saira Yousaf, as the sole issue of the predeceased widow of Mehr Khan propositus, was given the whole share (7/8) of her deceased father, Muhammad Yousaf, in accordance with section 4 of The Muslim Family Laws Ordinance (VIII of 1961). Subsequently, the brother,of the deceased, Mr. Sher Muhammad son of Mian Nazir, Caste Awan, challenged the said Mutation before Deputy District Officer (Revenue) Talangang. Learned Deputy District Officer (Revenue) declared the Mutation, null and void and directed Halqa Revenue Officer to decide the Mutation afresh according to section 4 of the Muslim Family Laws Ordinance (VIII of 1961). The orders of learned Deputy District Officer (Revenue) Talangang Chakwal dated 14-3-2012 were assailed before the learned Additional Commissioner (Revenue) through an Appeal bearing No,40 of 2011. Learned Additional Commissioner in his orders observed that the deceased late Mehr Khan died leaving behind appellant No,1 and appellant No,2 and the respondent among others. According to the decision, widow was entitled to 1/8 share and appellant No,2 was entitled to 1/2 share of the property which her pre-deceased father would have inherited, had he been alive. The remaining share, was to be reverted to other relatives entitled under the law. The lower court rejected the claim of appellant that she was entitled to full share of her father according to section 4 of the Muslim Family Laws Ordinance 1961, as elucidated in PLD 1983 Lah. 546 and 1999 CLC 1216. It has been held by the lower court that the Mutation was sanctioned against the provisions of relevant law, therefore, the claim of the appellants lacks legal cover and the impugned order dated 14-3-2011 passed by the Deputy District Officer (Revenue)/Collector, Talangang was upheld.
3. Learned counsel for appellants and learned counsel for respondent have vehemently argued the subject-matter. The learned counsel for appellants, once again reiterated the grounds earlier raised before the learned subordinate courts. It was contended that inheritance Mutation of deceased late Mehr Khan was correctly sanctioned in favour of appellant No,1 and appellant No,2 since late Muhammad Yousaf, father of appellant No,2, died during the lifetime of his father late Mehr Khan, now deceased and was entitled to full share of his deceased father, which he would have inherited and there was no legal flaw in inheritance Mutation sanctioned in this respect
4. The learned counsel for respondent, however, challenged the contention raised by the learned counsel for the appellants and stated that the appellant No,1 being the grand-daughter of deceased late Mehr Khan was entitled to only 1/2 share of the property inherited by her father, predeceased son, whereas in the mutation, she was given 7/8 share against the law. In 1999 CLC 1216 and PLD 1983 Lahore 546, it was held that grandchildren of predeceased parents are not entitled to greater benefit than would have been accrued, if parents were alive. The starting point is that notionally off-spring of propositus deemed to be alive for purpose of succession, at time of death of propositus. Succession of grandchild has to be calculated notionally, as if parent of grandchild, after death of original propositus and the impugned inheritance Mutation No,1823 was sanctioned against the law and carried no legal value. It was argued that the DDO (Rev.), Talagang passed a lawful order which carried no irregularity or procedural infirmity.
5. Section 4 of the Muslim Family Laws Ordinance (VIII of 1961) ordains that, "Succession: In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive". The contentions issue under anvil before this Court, is to see and adjudicate whether the appellant Mst. Saira Yousaf daughter of late Muhammad Yousaf son of late Mehr Khan and Mst. Noor Bharri widow are entitled to 1/2 of the property of her father or 7/8 and 1/8 shares of the said property respectively. The appellants are happy with the initial inheritance Mutation No,1823 dated 24-12-2010 later reversed by learned Deputy District Officer (Revenue) and Additional Commissioner (Revenue).
6. For my guidance and understanding to reach a fair and just decision, I have gone through the esteemed Judgments of. The Federal Shariat Court), 2009 CLC 1273, Lahore (Qutab-ud-Din v. Mst.
Zubaida Khatoon) 2007 CLC 1787, Peshawar (Allah Dewaya v. Muhammad Hussain), 2007 MLD 1978, Karachi (Muhammad Rauf v. Siddique Ali) 2006 MLD 1138, Lahore (Rashida Bibi v. Maqbool Begum) and 2005 CLC 1240, Peshawar (Muhammad Khan v. Muhammad Ishaque). I have also gone through the case-law cited in the venerable judgments of the Federal Shariat Court, PLD 2003 SC 475 (Fazeelat Jan v. Sikandar), 2005 SCMR (Bashir Ahmed and others v. Atta Muhammad Khan and others), 2005 SCMR 1534 (Mst. Kaneezan Bibi v. Muhammad Ibrahim), 2010 CLC 610, Peshawar (Rehman Ghani v. Shehzad Khan), 2005 MLD 1, Lahore (Haji Muhammad Hanif v. Muhammad Ibrahim) and 2002 YLR 3245, Lahore (Ghulam Haider v. Mst. Nizam. Khatoon). In the instant case- law I have also consulted and benefitted from PLD 2000 Federal Shariat Court 1 (Allah Rakha and others v. Federation of Pakistan), 1993 SCMR 1718, (Zaheer ud Din v. The State), 2005 SCMR 1537 (M.A.
Hameed Faizi v. The State), 2010 CLC 610 (Rehman Ghani v. Shahzad Khan) and 2010 CLC 613 (Mian Imran Masood v. Haji Nasir Mehmood).
7. After going through the provisions of the substantive law on the subject and venerable judgment of the superior Courts, I am of the considered opinion that Mst. Saira Yousaf daughter of late Muhammad Yousaf son of late Mehr Khan is entitled to the share equivalent to the one which her father would have received, if alive, at the time of opening of the succession. In my view she is entitled to 1/2 share of the property which her pre-deceased father would have inherited, if he had been alive. The widow Mst. Noor Bharri is entitled to 1/8 share and the rest shall go to the others according to the law of inheritance. The Revision Petition is dismissed and the decision of the learned Additional Commissioner (Revenue) is upheld. Tehsildar Talangang, is directed to incorporate the instant decision in the Revenue Record as per law. No order to the costs and the Case File shall be consigned to the Record Room after completion of all codal formalities.