' MUHAMMAD FARRUKH IRFAN KHAN, J.---The petitioners through this civil revision under section 115, C.P.C. Impugns the judgment and decree dated 3-3-2004 passed by the learned Addl. District Judge, Okara whereby the said, court while accepting the appeal of respondents against the judgment and decree cf the learned trial court dated 10-9-2001, decreed their suit for declaration against the petitioners.
2. Facts of the case in brief are that one Mst. Faizi predecessor in interest of the respondents (hereinafter shall be referred to as plaintiff) filed a suit for declaration against the petitioners alleging therein that one Nazar son of Badro was owner of landed property fully described in para. No,1 of the plaint, who died issueless. Lashkar father of plaintiff and defendant No,8 Mst. Fatima (hereinafter shall be referred as sister of plaintiff) also expired after the demise of Nazar.
Respondent No,1 through impugned Mutation No,1292 dated 17-8-1993 illegally and unlawfully transferred the entire property of Nazar in favour of defendant No,1 Mst. Lalan his real mother (herein after shall be referred to as defendants) while depriving the plaintiff and her sister. It was averred in the plaint that defendants are only entitled to inherit 1/3rd out of the estate of Nazar, whereas, rest of 2/3rd share is required to be devolved amongst the plaintiff and her sister.
Defendants were asked time and again to accede the legal share of the plaintiff and her sister and transfer the same in their names, who refused to do so.
3. The defendants contested the suit by filing written statement raising certain preliminary as well as factual objections. In para No,3 of the written statement they not only denied the relationship of the plaintiff with Lashkar but also stated that Lashakar had died prior to the demise of Nazar as such the impugned mutation was sanctioned correctly in favour of the defendants. Out of the divergent pleadings of the parties, learned trial court framed necessary issues. Both the parties adduced evidence in respect of their respective claims and the learned trial court after hearing the arguments proceeded to dismiss the suit of the plaintiff vide judgment and decree dated 10-9- 2001.
4. Being aggrieved plaintiff filed appeal before the learned lower appellate court, who vide impugned judgment and decree dated 3-3-2004 accepted the same and decreed her suit. Hence, this revision petition.
5. Learned counsel for the petitioners submits that the learned lower appellate court erred in law while passing impugned judgment and decree; that the judgment and decree of the learned lower appellate court is based on surmises and conjectures and result of misreading and non-reading of the evidence; that plaintiff herself while appearing in the witness box as P.W.1 during her cross- examination admitted that at the time of transfer of property in the name of Nazar, Lashkar had died; that in the presence of this admission under the law the plaintiff and her sister were not entitled to inherit the estate of deceased Nazar; that plaintiff and her sister were neither the sharer nor residuary of the deceased Nazar as such while sanctioning the impugned mutation respondent No,1 has not committed any illegality or irregularity; that the learned lower appellate court has not appreciated the evidence in its true perspective and the conclusion drawn therefrom is unwarranted under the law; that the learned trial court after due appreciation of the evidence dismissed the suit of plaintiff which has illegally been decreed by the learned lower appellate court through the impugned judgment and decree.
6. Conversely, learned counsel for the respondents submits that Nazar died issueless; that Lashkar predecessor in interest of the respondents was paternal uncle of deceased Nazar; that petitioners were only entitled to inherit 1/3rd out of the estate of deceased Nazar and rest of his share was to be devolved amongst respondent and her sister; that the learned lower appellate court has passed a well reasoned judgment which needs noninterference by this Court in its revisional jurisdiction.
7. I have heard the arguments advanced by the learned counsel for the parties and gone through the record.
8. Respondents claimed to be sharers out of the estate of deceased Nazar who died issueless.
Relationship - of the respondents with the said Nazar is stated to be that their predecessor in interest namely Laskhar son of Badro was the paternal uncle of Nazar. Mst. Faizi the plaintiff while appearing in the witness box as P.W.1 admitted that the suit property was allotted in the name of Nazar after creation of Pakistan and at that time Lashkar was not alive. Furthermore, Exh.P4 is a copy of order passed by Assistant Collector, Lodhran wherein he observed that Lashkar along with his four sons was murdered by the non-Muslims during the disturbances in 1947. In the presence of admission on the part of P.W.I and Exh.P1 it has been established on the record that the predecessor in interest of the respondents was not alive at the time of death of Nazar. It is evident from the record that at the time of demise of Nazar his mother was alive. According to Section 61 of the Principles of Mohomedan Law by. D.F. Mullah there are three classes of heirs namely (1) sharers, (2)
Residuaries, (3) Distant Kindred:-- (1)"Sharers" are those who are entitled to a prescribed share of the inheritance: (2)"Residuaries" are those who take no prescribed share, but succeed to the "residue" after the claim of the sharers are satisfied; (3)"Distant Kindred" are all those relations by blood who are neither Sharers nor Residuires.
9. In the present case, mother of deceased Nazar falls in first category of heirs i,e, sharer. Table of Sharers in Sunni Law, as mentioned in Mohomedan Law ibid, given at page 48-A of the book explains the share of 'mother' at Sr.No,5. It provides that 'mother' being sharer is entitled to 1/6 share out of the property of deceased if there is no child etc.; otherwise, she will get 1/3rd of the property.
As discussed supra the predecessor in interest of the respondents had expired prior to death of Nazar as such the respondents neither fall within the definition of sharer nor in residuary, therefore, in the absence of any other sharer or residuary mother is entitled to get 1/3rd out of the estate of deceased as sharer.
10. The learned lower appellate court while awarding decree in favour of the respondents observed that " In both cases whether Lashkar died before death of Nazar or after the death of Nazar, plaintiff is entitled to the share in the inheritance of Nazar. Only difference would be that in first instance plaintiff would be entitled to the share in the legacy of Nazar as residuary while in the second instance she will be entitled to inheritance as distant kinder." This observation in my considered view is illegal, perverse and in contravention of section 66 of Principles of Mahommedan Law by D.F.
Mulla which provides as under:- "66. Return (Radd): If there is a residue left after satisfying the claims of Sharers, but 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."
In the light of aforesaid para of Principles of Mahommedan Law in my considered view in the presence of a sharer the property cannot be devolved upon distant kindred and the same shall return to the sharer under the principle of Return (radd). In this regard, I am fortified with the judgment reported as Abdul Khaliq v. Fazalur Rehman (PLD 2004 Supreme Court 768) wherein it has been laid down has under:-- "It is a decided fact that if a sharer or a residuary exists, the distant kindred are completely ousted from the inheritance. In the instant case Mst. Roshnai, the donor was the real sister of Abdul Ghafoor who died issueless. She would, therefore, inherit 1 /2 share in the property of her brother Abdul Ghafoor as sharer and as of her own right. As the sharer is in existence and as in the presence of sharer no distant kindred is entitled to inherit, the entire residue under para-66 of the text aforesaid and under the Principle of Return (radd.), would revert to the sharer. (emphasis supplied)
' In a case reported as Sarwar Bibi v. Anwari Bibi (2004 M LD 1136), almost in a similar proposition where in the presence of the sharer, the distant kindred was claiming inheritance while there was no residuary and this Court observed as under:-- "The Principle of Mahomedan Law as contained in para.66 above is clear, concise and unambiguous. If there is no 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 a residue left after satisfaction of claim of the sharers 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, if there are no residuaries."
8. In the light of the aforesaid discussion, it is clear that when the deceased is survived by his mother, she will take 1/3rd of her share in her capacity as sharer, while for the remaining 2/3rd as there is no residuary, the principle of Return (Radd) will come into operation and the said property will again revert to the mother to the exclusion of distant kindred. The learned trial court after due appreciation of the evidence passed a well reasoned judgment which has illegally been set aside by the learned lower appellate court which suffered from material illegality and irregularity.
9. Resultantly, this civil revision is allowed as a consequence whereof impugned judgment and decree of the learned lower appellate court dated 3-3-2004 is set aside and the judgment and decree of the learned trial court 10-9-2001 is restored.