1. NASIM HASAN SHAH, J.--This petition is directed against the judgment dated 28-5-1975 passed by a learned Single Judge of the Lahore High Court in R. S. A. No. 91 of 1963.
2. To appreciate the questions arising for decision a reference to the predigree-table of the parties will be helpful which is reproduced below Gulab Din Allah Din Imam Din Mohammad Din Vendor (Defdt. No. 2)Mst. Rehmat Bibi Pre emptor Mohd. Sadiq Fazal Karim(Plaintiff)
3. Vendee (Defdt. No. 1)
4. The father of Fazal Karim, vendee/defendant No. 1 Allah Din died during the lifetime of his father Gulab Din. Some years thereafter Imam Din, the brother of Allah Din stated in the registered sale- deed dated 11-5-1978 that his share in the house was 1/3rd and sold his said share to Fazal Karim.
5. Mst. Rehmat Bibi instituted a suit on 30-5-1958 to pre-empt the sale on the ground that she was a co-sharer in the property having inherited it from his father Mohammad Din who had succeeded Gulab Din in due course while Fazal Karim had no such status. The claim of Mst. Rehmat Bibi was bawd on the ground that under the Islamic Law, the house was inherited by Imam Din and Mohammad Din in equal shares to the exclusion of Fazal Karim on the basis of the doctrine that the nearer excludes the more remote. Accordingly, Mst. Rehmat Bibi inherited on the death of her father 1/2 of 1/2=1/4 share belonging to her father.
6. Fazal Karim in defence of the suit raised several pleas, inter alia that the custom of pre-emption did not exist in the locality where the suit property is situated and that he was also a co-sharer.
7. Taking the second plea first it is an admitted fact that Fazal Karim after the death of his grandfather continued to reside in the house alongwith his uncles and is still in possession of it.
8. According to the entries in the Assessment Register of the Excise & Taxation Department he is one of the owners of the house. Fazal Karim 's case is firstly that under the law under which it is sought to exclude him from inheritance is against the true Islamic Law as ordained in the Holy Qur'an and that section 4 of the Muslim Family Laws Ordinance, 1961 recognizing the right of a son or a daughter of a predeceased son or daughter to inherit the property of the propositus along with his any son or daughter as the case may be, is in accordance with the true Islamic Law.
9. Even otherwise, Fazal Karim and his brother were the co-sharers in the house as heirs of their grandfather which was evident from the fact that Imam Din claimed only 1/3rd share in the house while Mst, Rehmat Bibi claimed 1/4th. Thus, in all, both of them claimed 7/12th share. The remaining 5/12th share was never claimed by any one except Fazal Karim. His claim was accepted and recognized by Imam Din long before the litigation commenced in this case Ch. Aziz Ahmad, counsel for the petitioner, has further argued that even for the sake of argument it is conceded that Fazal Karim and his brother did not inherit any share in the house on the death of their grandfather, nevertheless it must be presumed that they acquired the share either under the will of their grandfather or their uncles gave them the share in the house in pursuance of the following verses of the Holy Qur'an: "And, when relatives and the orphans and the needy are present at the division, give them out of it and speak to them kind words. And let those fear who, should they leave behind them weakly offspring, would fear on their account; so let them observe their duty to Allah and let them speak right words. Those, who swa llow the property of the orphans unjustly, they swallow only fire into their bellies. And they will burn in blazing fire."
10. (Holy Qur'an, Surah Al-Nissa-1, Verses 8 to 10).
11. "It is prescribed for you, when death approaches one of you, if he leaves behind wealth for parents and near relatives, to make a bequest in a kindly manner; it is incumbent upon the dutiful." (Holy Qur'an: Surrah Al --Bakarah, Verse 180).
12. "But if one fears a wrong or a sinful course on the part of the testator, --and effects an agreement between the parties, there is no blame on him. Surely Allah is Forgiving, Merciful." (Holy Qur'an: Surrah Al-Bakarah, Verse 182).
13. Learned counsel further argues that it is clear from the verses quoted above that a person is expected and enjoined to make a bequest in favour of deserving relatives and the heirs are required to share the inheritance with the kinsfolk who deserve it. But supposing the deceased left no will or neglected to provide for those for whom he should have done and the heirs through callousness, cupidity or greed fail to share the inheritance with those relatives who deserve it. In such a situation it must be presumed that a mandatory bequest has been made in his favour. The following quotation has been cited before us from the book on Islamic Jurisprudence written by Mohammad Abu Zahra, Professor of Islamic Law at the University of Cairo: "If a person has poor relatives who are not heirs of his, Islamic Law makes it mandatory for such a person to use his option to bequest them some of his property. Islamic Law holds that this is a religious obligation and that like all such obligations it should be performed by free choice. The necessity of this religious obligation is mentioned in the Qur'an, which also indicates that the Courts may intervene to rectify anything contrary to religion, in the event that unjust bequests have been made, while others which are necessary, have been neglected. Some of the Ulema interpret this to mean that if a bequest has been made to an outsider while there are relatives, who are more deserving of the bequest, the Qadi may transfer the bequest from the outsider to the former poor and infirm persons. Ibn Haza of the Zahiri School goes so far as to say that if a person has left no bequests and has infirm relatives who are not heirs, the Qadi may take something from the estate after such person's death and give it to those of his poor relatives who need it most. This would be a bequest by supererogation for he had neglected something which' was an obligation, thereby causing an injustice to someone who had a claim on him; the Qadi would then have acted in his stead to remove the injustice from the injured party. Whatever is given out in this way, is given as a bequest, not as an inheritance. Therefore, the mandatory amount must not exceed the one-third. If there are other bequests and the one-third is inadequate to cover both these and the mandatory bequest, the mandatory bequest, is executed first and the remainder belongs to the recipients of optional bequests."
14. (Islamic Law in Theory & Practice by Aziz Ahmad, pp. 495-496).
15. On the point that the custom of pre-emption does not exist in the locality, it is submitted that Sialkot City is divided into recognised Sub-- Divisions. It is clear from Exhs. D. 2/1, D. 2/3, D. 2/4, D- 2/5, D. 2/6, D. 2/7 and Exh. D. 7, which are on the record of the trial Court and have been mentioned in the judgments of the lower Courts.
16. From this, it follows that it was necessary for the pre-emptor to prove that Custom of pre-emption prevailed in the Sub-Division of Mohallah Churrigaran, before the 1st of March, 1913 when the Punjab Pre-emption Act (I of 1913) came into force. The pre-emptor relied upon two judgments Exhs. P./3 and P. 2/6, which were decided on the basis of compromise of the parties. The learned District Judge and the learned Judge in Chambers 4 of the Lahore High Court also relied upon the three judgments in other Sub-Divisions of the City. It is argued that the evidence placed on the record by the plaintiff is not at all sufficient to prove the Custom of pre---emption in the Sub-Division in which the house is situated. Reliance is also placed on AIR 1947 Lah. 265, I L R 2 Lah. 136 and I L R 4 Lah. 176.
17. We consider that these submissions require further examination. Leave is, accordingly, granted.
18. Security in the sum of Rs. 2,000