MUZAMIL AKHTAR SHABIR, J.---Through this Civil Revision, the petitioner Ohulam Hassan, who was defendant No,1 in suit for declaration has challenged the Judgment and decree dated 28.03.2000 passed by Addl. District Judge-I, Layyah, and 01.07.1992 passed by Civil Judge Class-Ill, Layyah, whereby the suit filed by Mst. Wasso Mai (deceased)/ respondent No, 1 was decreed and she was held entitled to 1/3rd share of inheritance in the property of Allah Bakhsh (deceased).
2. Brief facts of the case are that respondent No,1, Mst. Wasso Mai, filed a declaratory suit with thecontention that she is entitled to get her share in the property of her nephew Allah Bakhsh (deceased) through inheritance being his paternal aunt and prayed that the mutation of inheritance in favour of Ghulam Hassan (petitioner) and Mst. Bhako (respondent No,2), mother of Allah Bakhsh (deceased) through mutation No,22 dated 26.12.1985 and mutation No, 47 dated 18.09.1991 be set-aside and she be declared as owner of property in preference to the petitioner.
The said suit was contested by the petitioner, who defended the transfer of property in his name through the afore-referred mutation No, 47 entered in the revenue record. The learned trial court decreed the suit filed by the respondent No, 1 with the result that Mst. Bhako/ respondent No,2, mother of Allah Bakhsh (deceased) was held entitled to 1/3rd share of his property through inheritance and the remaining 2/3rd property was ordered to be distributed in half share each between Ghulam Hassan/petitioner and Wasso Mai/ respondent No,1 as 1/3rd share of the property each. On appeal filed by the petitioner, the findings of the trial court were upheld and his appeal was dismissed vide judgment and decree dated 28.03.2000. Both the afore-referred judgments and decrees are under challenge through this Civil Revision.
3. The counsel for the petitioner has argued that after giving 1/3rd share to Met. Bhako (mother) as sharer, the remaining property had to be transferred to the petitioner as residuary and the paternal Aunt Mst. Wasso Mai being distant kindred was to be excluded from the inheritance. Both the courts below have treated the petitioner as well as Mst. Wasso Mai as distant kindred while dividing the property between them in equal shares to the extent of 1/3rd share each, which is based on misinterpretation of the provisions of Muhammad Law and is liable to be set aside.
4. The counsel for respondents Nos, 1(i) and 3 to 6, on the other hand, has supported the judgments and decrees passed by the courts below.
5. Heard. Record perused.
6. It has been noticed that vide order dated 23.11.2015, respondents Nos, 1 and 3 to 6 had been proceeded against ex-parte, which order is still in the field, however as their learned counsel has entered appearance to argue the matter, he has been heard in detail. The respondent No, 2 was proceeded against ex parte vide order dated 04.07.2000 and no one has appeared on her behalf to argue the matter.
The present case relates to the inheritance of property of Allah Bakhsh (deceased), who was owner of land in Chak No, 393/TDA, Tehsil and District Layyah. At the time of his death he was unmarried and issueless. He left behind Mst. Bhako Mai (Mother), Met. Wasso Mai (paternal aunt) and Ghulam Hassan (paternal grandson of Nehal, who was paternal great grandfather of the Allah Bakhsh).The pedigree table has been produced in evidence as EA, P2 which is also reproduced below:- Ahmad Hamand Nehal Jamal Kala Ghulam Hassan (Petitioner)Wasso (paternal aunt)Wahid Bakhsh Bhako (mother) Allah Bakhsh (deceased/original owner)
8. The afore-referred relationship between the parties has not been denied. Mst. Bhako/respondent 'No,2 is the mother of Allah Bakhsh (deceased), whereas Wasso Mai (deceased) is his paternal aunt. Ghulam Hassan is the grand-son of Nehal, who was great grand-father of Allah Bakhsh (deceased). Nehal had two sons namely Kala and Jamal. Allah Bakhsh (deceased) is son of Wahid Bakhsh, who was son of Kala, whereas Ghulam Hassan is son of Jamal. The property of Allah Bakhsh (deceased) in Chak No, 393/TDA, Tehsil and District Layyah was earlier transferred vide Mutation No, 22 dated 26.12.1985 in favour of his mother. The petitioner thereafter got the said mutation corrected vide mutation No, 47 dated 18.09.1991 and Mst. Shako was held entitled to 1/3rd portion as sharer, whereas remaining 2/3rd was transferred to the Ghulam Hassan (petitioner).
Subsequently the paternal aunt Mst. Wasso filed a suit seeking declaration that she being nearer in degree than Ghulam Hassan/petitioner was entitled to share of inheritance in the property of Allah Bakhsh (Deceased) in preference to Ghulam Hassan/petitioner, who was distant kindred.
9. The learned trial court framed issue No,1 which is as follows:-- "Whether the mutation No,22 dated 26.12.1985 and resultant mutation No, 47 dated 18.09.1991 to the extent of share of plaintiff are against the facts; law, therefore, ineffective upon the rights of the plaintiff, if so whether plaintiff is entitled to the decree as legal heir of Allah Bakhsh (deceased)
OPP"
The parties led their evidence. The learned trial court observed that Ghulam Hassan/petitioner was a distant kindred of Allah Bakhsh (deceased) and Mst. Wasso Mai was paternal aunt of the deceased Allah Bakhsh, therefore, both were held entitled to 1/3rd share in the property. The appeal filed by the petitioner was dismissed and the findings of the trial court were upheld. Now the matter is under consideration of this court in its revisional jurisdiction.
10.The real controversy involved in the matter is that who was entitled to share in inheritance and in what preference. The deceased was a Sunni Muslim. As per Islamic Law of inheritance applicable to Sunni Muslims, there are three classes of heirs, i,e, Sharers, Residuaries and Distant Kindred as provided in the Muhammadan Law reproduced below:-- "61. Classes of heirs.-There are three classes of heirs, namely, (1) Sharers, (2) Residuaries, and (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 claims of the sharers are satisfied;
(3) "Distant Kindred" are all those relations by blood who are neither Sharers nor Residuaries."
11.After the death of the deceased, it is to be ascertained which of the surviving relations belong to which class of heirs, and after the same is determined, they are to be assigned their respective shares.
12. First the Sharers are to be allocated their shares in inheritance. If, there is. no Sharer or if after allocating share to sharers some property is: left behind which is called residue, it is to be A transferred to the residuaries. In case there is neither any sharer nor residuary, the property is to be transferred to distant kindred, however, the distant kindred are excluded in case there is any sharer or residuary available.
13. The mother of the deceased is a sharer as per list of legal heirs, which are reproduced below:-- SharersNormal Share of oneNormal share of Two or more collectivelyConditions under which The normal Share is inheritedThis columns sets out--
(A) Shares Of Shares As varied by special circumstances.
S. Mother1/6 -- Where there is a child or Child of a Son h. I. s. , or Where there are two or more brothers or sisters or even one brother and one sister, whether full consanguine or uterine.1/3 when no child or Child of a son h.1.1., And no more than one brother or sister (if any), but if there is also a wife or husband and the father, then only 1/3 of what remains after deducting The wife's Or husband's share.
The normal share of the mother is 1/6th share in the property of the deceased in the presence of his child or child of his son or where the deceased has two or more brothers or sisters or even one brother and one sister. But this condition does not exist in the present case so the mother has not to inherit her normal share but to inherit her share as provided in special circumstances. The mother in special circumstances is entitled to inheritance of 1/3rd share in the property when there is no child or child of son of the deceased how low so ever (`h.i.s.') and not more than one brother or sister (if any), but if there is also a wife or husband and the father, then only 1/3 of what remains after deducting the wife's or husband's share. The deceased was unmarried. Therefore, in the present case, the mother Mst. Bhako was entitled to inheritance 1/3 share in his property. There is no other sharer in the present case.
14. Now the residue i,e, 2/3rd property is to be distributed among the residuaries. The relevant portion of Muhammadan Law is provided below:-- "65. Residuaries. If there are no sharers, or if there are Sharers, but there is a residue left after satisfying their claims, the whole inheritance or the residue, as the case may be, devolves upon Residuaries in the order set forth in the annexed table."
The table of residuaries in order of succession under the Sunni law provides for main categories, which are as follows: I. Descendants, which include son and son's son his., II. Ascendants, which include Father and True Grandfather h.h.s.; III. Descendants of the father, which include Full brother, Full sister, Consanguine Brothers, Consanguine sister, full brother's son, Consanguine brother's son, full brother's son's son, Consanguine brother's son's son.
IV. Descendants ofthe true Grandfather h.h.s. The male descendant of grand-father how highsoever as included in the list of residuaries is reproduced below: "DESCENDANTS OF TRUE GRANDFATHER h.h.s.
13. Full Paternal Uncle.
14. Consanguine Paternal Uncle.
15. Full Paternal Uncle's Son.
16. Consanguine Paternal Uncle's Son.
17. Full Paternal Uncle's Son's Son.
18. Consanguine Paternal Uncle's. Son's Son. Then come remoter male descendants of Nos, 17 and 18, in like order and manner's descendants of Nos, 11 and 12.
19. Male Descendants of More Remote True Grandfather's. In like order and manner as the deceased's paternal-uncles and their sons and son's sons."
15. No heir in the first three categories of residuaries is available. The petitioner falls under the fourth category as male descendant of true Grand Father how high so ever ('h.h.s.'), and he is entitled to inherit as a residuary, whereas the paternal aunt falls at Serial No,6 within the category of number IV of the distant kindred, which is as under:- "68. Four Classes.---(1). Distant Kindred are divided into four classes, namely:-- I. Descendants of the deceased other than sharers and residuaries; II. Ascendants of the deceased other than sharers and residuaries; III. Descendants of parents other than sharers and residuaries; IV. Descendants of the ascendants how high so ever other than residuaries.
(6) Pat. Aunts (f., c., or ut.) and their children and their descendants."
16. The distant kindred are not entitled to inherit in the presence of sharers or residuaries. The relevant portion of Muhammadan law is reproduced below:-- "67. Distant Kindred. ---(1) If there be no shares or Residuaries, the inheritance is divided amongst Distant Kindred.
(2) If the only sharer be a husband or wife, and there be no relation belong to the class of Residuaries, the husband or wife will take his or her full share, and the remainder of the estate will be divided among Distant Kindred."
The same principle has been laid down in the judgment reported as Muhammad Ryas (deceased) through his legal heirs and others v. Mst. Khursheed Bibi(deceased) through her legal heirs and others 2016 M LD 1674 wherein it has been held as under:-- "According to the mandate of Muhammadan Law, in the presence of residuaries, distant kindred cannot inherit anything."
17. In view of what has been discussed above, the paternal aunt being from the category of distant kindred was not entitled to inherit during the availability of sharer and residuary. Therefore, after allotment of 1/3rd share in the property of the mother as sharer, the remaining 2/3rd would have vested in the petitioner as residuary. This aspect of the matter has not been taken into consideration by the courts below rather the courts had been treating the petitioner as distant kindred and had erroneously exercised the jurisdiction vested in them and misapplied the law by dividing the property equally between the petitioner and the respondent No, 1 (paternal aunt).
18. For what has been discussed above, the judgments and decrees passed by the courts below are set-aside and the suit filed by respondent No,1 is dismissed, with the result that Mst. Bhako Mai as mother is held entitled to 1/3rd share in property through inheritance of Allah Bakhsh (deceased) and Ghulam Hassan/petitioner is also entitled to remaining 2/3rd share in property through inheritance as residuary to the exclusion of Mst. Wasso Mai, .distant kindred and as a consequence the mutation of inheritance No, 47 dated 18.09.1991 in favour of the petitioner and respondent No, 2 is restored. The Civil Revision is allowed in the afore-referred terms.