NADEEM AKHTAR, J.---This miscellaneous appeal has been filed by the appellants against order dated 01.04.2017 passed in Succession Petition No,168/2016 by learned Additional District Judge-IV Khairpur whereby the said succession petition filed by respondent No,1 under Sections 370 and 372 of the Succession Act, 1925, was allowed.
2. Respondent No,1 Mst. Nighat Jabeen filed the above succession petition in respect of the assets left by her late husband Lutuf Ali Phulpoto ("deceased") who was murdered on 03.05.2013.
Appellant No,1 is the real mother and appellants 2 to 6 are siblings of the deceased. Respondent No,1 had originally claimed that the deceased was governed by the Shia Law of inheritance and had left only three legal heirs viz. mother (appellant No,1), widow (respondent No,1) and a daughter viz. Mst. Toba Zohra. These assertions were disputed by the appellants by filing objections in the respondent No,1 's succession petition that the deceased was governed by Sunni Hanafi law and they were also his legal heirs. Respondent No,1 did not contest the above objection and conceded that the appellants were also legal heirs of the deceased who was governed by Sunni Hanafi law.
The present appeal has been filed on several grounds, however, at the time of hearing only two grounds were pressed by the appellants ; namely, that respondent No,1, widow of the deceased, did not disclose all the assets left by the deceased and as such the impugned order should not have been passed without holding an inquiry in this behalf ; and, step brother of the deceased could not have been included in the list of legal heirs of the deceased as he was not entitled to inherit from the estate of the deceased. The second ground regarding inclusion of step brother of the deceased in the list of the legal heirs was not opposed by respondent No,1, however, she strongly resisted the first ground regarding the alleged non-disclosure of the assets of the deceased.
3. As to the first ground regarding the alleged non-disclosure of assets by respondent No,1, it may be noted that no particulars of any such asset were disclosed or pointed out by the appellants either in their objections before the learned Additional District Judge or in the present appeal. On the contrary, the statement given by respondent No,1 in her succession petition regarding movable and immovable properties left by the deceased was duly verified by her on oath. Therefore, except for a vague and general assertion by the appellants without any supporting material or details, there was no rebuttal to the disclosure made on oath by respondent No,1. In the above circumstances, it cannot be assumed or said that respondent No,1 had suppressed any property left by the deceased, and the appellants are not justified in making any assertion or allegation in this behalf.
4. As to the second ground regarding inclusion of step brother of the deceased in the list of the legal heirs, it may be noted that under the Hanafi Law of inheritance heirs can be divided into seven classes, three principal and four subsidiary classes. The three principal classes are (i)
Sharers or Qur'anic heirs who are those heirs who have been named in the Holy Qur'an and have been assigned specific shares viz. husband, wife, father, true grandfather hhs, mother, true grandmother hhs, daughter, son's daughter his full sister, consanguine sister, uterine brother, and uterine sister, (ii) Residuaries or agnatic heirs who are all those persons for whom there are no specified shares and who take the residue after sharers have been satisfied or they take the whole estate if there is no sharer, and (iii) Distant Kindred or uterine heirs who are entitled to succeed only when there is no sharer or residuary. The four subsidiary classes of heirs are (i) successor by contract, (ii) acknowledged kinsman, (iii) universal legatee and (iv) the State.
According to Hanafi Law, in the first instance the property of the deceased goes to sharers, and if the estate is not exhausted by sharers, it goes to residuaries and if there is no sharer and/or residuary, the property is distributed amongst the distant kindred. It is to be noted that heirs nearer in degree exclude the more remote. Since step brother of the deceased was neither a sharer nor a residuary, he had no right to inherit from the estate of the deceased and as such the impugned order to the extent of grant of his share is not sustainable in law.
5. In the above circumstances, the appeal is partly allowed by setting aside the impugned order to the extent of inclusion of name of step brother of the deceased in the list of his legal heirs. However, the impugned order does not call for any interference by this Court to the extent of grant of succession certificate and letters of administration in the name of respondent No,
1. Learned Additional District Judge is directed to proceed strictly in accordance with Sharia for implementation of the impugned order dated 01.04.2017 subject to the above modification.
This civil miscellaneous appeal and listed application stand disposed of in the above terms.