AHMAD NADEEM ARSHAD-J, Through this civil revision, petitioners called in question legality and validity of judgment and decree dated 05.11.2003 passed by learned appellate Court whereby , while accepting appeal of respondents, set-aside judgment and decree dated 05.06.2003 passed by learned trial Court and dismissed suit for declaration filed by petitioners.
2. Facts in brevity are that predecessors of petitioners namely Ghulam Farid and Mst. Haleema instituted a suit for declaration and perpetual injunction on 22.06.1995 and sought a declaration to the effect that their mother namely Mst. Jindai (deceased) was the daughter of Lal Khan (deceased) and they being legal heirs of his pre-deceased daughter (Mst. Jindai) entitled to get 7/128 share in his total legacy . They maintained that after death of Lal Khan, vide mutation No.854 dated 11.10.1984, share of inheritance of Mst. Jandia was given in Mauza Binda whereas they were deprived of her shares in Mauza Basti Usman Shah, Mouza Goona and Mouza Basti Bohar from the legacy of Lal Khan deceased. It is further asserted in plaint that mutation of inheritance No.79 dated 29.04.1973 of Basti Usman Shah, mutation No.2464 dated 11.05.1978 of Mouza Basti Goona, and mutation No.6443 dated 22.06.1973 of Mouza Bohar were sanctioned in favour of respondents No.1 to 10 while ignoring/depriving legal heirs of Mst. Jindai (mother of petitioners) and in all these mutations, they were not shown as legal heirs of Lal Khan, hence, these mutations are illegal, void, against law and facts, ineffective qua the rights of petitioners, and liable to be set aside. Petitioners also challenged mutation No.278 sanctioned in the year 1992 whereby Mst. Aisha respondent No.8 sold her share to defendants/ respondents No.11 to 13 in which the share of petitioners was also included. Suit was hotly contested by respondents/defendants by raising certain legal as well as factual objections and maintained that the suit is barred by time; that petitioners are estopped by their words and conduct to file this suit. On facts, it is maintained that Mst. Jindai, predecessor of petitioners, died in the year 1950, therefore, she was not entitled to any inheritance and prayed for dismissal of the suit. Learned trial Court framed necessary issues and with regard to basic controversy framed issues No.1 to 3 and invited the parties to produce their respective evidence. After recording of evidence, pro and contra, learned trial Court decreed the suit vide judgment and decree dated 05.06.2003. Feeling aggrieved, respondents/defendants preferred an appeal which was allowed by learned appellate Court and resultantly the suit of predecessor of petitioners/plainti ffs was dismissed vide judgment and decree dated 05.1 1.2005, hence, this revision petition.
3. Learned counsel appearing on behalf of petitioners submits that judgments and decrees of both learned courts below are at variance; that judgment and decree of learned appellate court is contrary to law, against law and facts; that the learned lower appellate court wrongly held that mother of petitioners Mst. Jindai was pre-deceased from her father Lal Khan before enforcement of the Muslim Family Law Ordinance, 1961, hence, petitioners/plaintif fs are not entitled to the share of inheritance of their grandfather Lal Khan; that admittedly Mst Jindai died on 29.12.1950 before the death of her father Lal Khan whereas Lal Khan was died in 1970 after the enforcement of Muslim Family Law Ordinance, 1961, therefore, they are entitled to 7/128 share in the inheritance of their grandfather; that inheritance opens the moment when any person die and Lal Khan died after promulgation of Ordinance, 1961 but learned appellate court reversed the findings of learned trial court and dismissed the suit which is against law and facts; that respondents admitted Mst. Jindai as daughter of Lal Khan; that the impugned judgment and decree of learned appellate court is result of misreading and non-reading of material evidence produced by petitioners which are based on surmises and conjectures and while replying upon "YUSUF ABBAS and others versus Mst. ISMA T MUST AFA and others" (PLD 1968 Karachi 480), "SAKHI MUHAMMAD versus AHMAD KHAN and 3 others"
(1980 CLC 1006 ), "IBRAHIM and 3 others versus NEHMA T BI and 5 others" (PLD 1988 Lahore 186), "MUHAMMAD ALI SABT AIN and 4 others versus Mst. SHAHJAHAN BIBI and 9 others" (2004 YLR 1201 ), "KARIM BAKHSH and another versus Mst. ZULEKHAN" (2004 YLR 637) and "MUHAMMAD RAUF versus SIDDIQUE ALI and others" (2007 MLD 1798 ) prayed for acceptance of the revision petition and decree of the suit.
4. Conversely , learned counsel appearing on behalf of respondents, while defending judgment and decree of learned appellate court, submits that there is no evidence or claim on behalf of petitioners that Mst. Jindai died after 1961; that admittedly she died in the year 1950, therefore, she was not entitled to any inheritance; that petitioners have not come to the court with clean hands and they are estopped by their word and conduct to file the suit; that the suit is badly time-barred and while relying upon "SARDAR versus Mst. NEHMA T BI & 8 others (1992 SCMR 82), "NAZIR AHMAD and others versus ABDULLAH and others" (PLJ 1997 SC 446), and "MUHAMMAD MURAD and 12 others versus ALLAH BAKHSH and 34 others" (2006 MLD 286) prayed for dismissal of the revision petition.
5. I have heard the arguments advanced by the learned counsel for the parties, perused the record with their able assistance and gone through the case law referred.
6. A short legal but very important point is involved in this case. The only controversy required for determination is as to whether predeceased daughter 's legal heirs, who died before the promu lgation of Muslim Family Laws Ordinance, 1961, (hereinafter referred to as "Ordinance 1961 ") are entitled to inherit the estate of their grandfather who died after the promulgation of "Ordinance 1961" in terms of section 4 of the Ordinance, 1961. The facts are not disputed rather admitted. Predecessor of petitioners/plaintif fs namely Mst. Jindai was real daughter of Lal Khan and died during his lifetime on 29.12.1950 and her death was reported on 11.01.1951 as is evinced from Exh.D-1, which is a copy of death register , certainly before the promulgation of Ordinance 1961, whereas, Lal Khan, grandfather of petitioners/plaintif fs, died on 28.04.1968 and his death was reported on 14.05.1969 as evinced from the copy of death register produced in evidence as Exh.D-2.
Undeniably , under the Islamic Sharia, predeceased children are not entitled to any inheritance as only the survivors to a deceased are entitled to inheritance. In the year 1961, the Muslim Family Laws Ordinance, 1961 was promulgated on 15.07.1961 and was commenced after issuance of Notification which was published in PLD 1961 Central Statutes at Page 337, wherein section 4 was introduced, by virtue of which, legal heirs of pre-deceased son or daughter of propositus would be entitled to inheritance on re-opening of the succession, which reads as under: - Section 4.-In the event of the death of any son or daughter of the propositus before the opening of the 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 ."
Admittedly , later on section 4 of Ordinance, 1961 was declared un-Islamic by the Federal Shariat Court in a case titled "ALLAH RAKHA and others versus FEDERA TION OF PAKIST AN and others" (PLD 2000 FSC 1) and had also fixed cut-of f date 31.03.2000 i.e., said section shall cease to have effect after the target date, the relevant portion is as under:- "In view of the foregoing discussion, we hold that the provision contained in sectio n 4 of the Muslim Family Laws Ordinance, 1961, as presently in force is repugnant to the Injunctions of Islam and direct the President of Pakistan to take steps to amend the law so as to bring the said provision in conformity with the Injunctions of Islam. We further direct that the said provisions which have been held repugnant to the Injunctions of Islam shall cease to have effected from 31st day of March, 2000."
The aforesaid judgment has been challe nged by the Government before the august Supreme Court of Pakistan, therefore, said judgment of the Federal Shariat Court suspended automatically till the disposal of appeal in view of Article 203(D),1(A)(2) proviso of the Constitution of Islamic Republic of Pakistan, 1973. Hence, section 4 of the Ordinance, 1961 shall remain in field till the decision of appeal by the Hon'ble Supreme Court of Pakistan, Shariat Appellate Bench.
7. The stance of respondents/defendants is that the requirement of section 4 of the Ordinance, 1961 is, the occurrence of death of the daughter of propositus as well as opening of succession should both take place subsequent to the promulgation of the Ordinance, 1961 and as the predecessor of petitioners/plaintif fs had died before the promulgation of the Ordinance, 1961 therefore, they are not entitled to get any inheritance from the legacy of Lal Khan and to strengthen their stance they mainly relied upon "NAZIR AHMAD and others versus ABDULLAH and others" (PLJ 1997 SC 446) which was also relied upon by the learned appellate Court and based its judgment on the foundation of that case law .
8. There is no cavil with the proposition that section 4 of the Ordinance, 1961 has no retrospective effect.
Unfortunately , learned appellate court and respondents failed to understand the proposition settled by the august Supreme Court of Pakistan in judgment referred supra. The facts in brevity of that case are that one Jara had two sons; Nawab and Ali Muhammad. Ali Muhammad died on 01.11.1925, his son Khair Din pre-deceased him, therefore, at the time of his death, Mst. Fazlan Bibi, his daughter-in-law , was given half share of his land measuring 409 Kanal 10 marla , as the limited owner under custom. Whereas above mentioned other brother namely Nawab had two widows; Mst. Roshan and Mst. Bhagan Bibi. He had also two daughters; Mst. Aisha Bibi and Mst. Daulat Bibi who died during the lifetime of his father . Chiragh Din, who claimed to be son of Nawab, was not accepted by the Court, as in Civil Appeal No.29 of 1929, the learned District Judge, Sialkot vide its judgment dated 01.08.1929 declared that he was not a son of Nawab, therefore, not entitled to inherit his land. Since Mst. Fazlan Bibi had acquired the rights under custom as of a limited owner , on her death in December , 1984, the questions of succession to Ali Muhammad and Nawab were re-opened, as on termination of the life estate, under Section 5 of the Muslim Personal Law (Shariat) Application Act, 1962 the property reverted to last full owner , resultantly , devolved to Ali Muhammad and then Nawab. Section 4 of the Ordinance was not in field when Ali Muhammad died on 1.1 1.1925 and Nawab died in November 1927. If their properties had been inherited in above mentioned years, the question of re-opening of their succession would not have arisen. But succession open in December , 1984 when Mst. Fazlan Bibi died and her limited estate ceased and property revert ed to last full owner . Being legal heirs of Mst. Aisha Bibi who was one of the daughters of Nawab along with legal heirs of her sister namely Mst. Daulat Bibi who died during the lifetime of her father Nawab in the year 1925 and the collaterals of said Ali Muhammad were declared to be entitled to inherit the suit land. The Hon'ble Supreme Court of Pakistan while allowing appeal of appellants No.8 & 9, who were children of Daulat Bibi pre-deceased daughter of Nawab were declared entitled for inheritance by keeping in view the Full Bench (comprising of five learned Judges) judgment of the Hon'ble Supreme Court in the case of "Sardar vs. Nehmat Bibi & 8 others" (1992 SCMR 82). Therefore, this case law did not help to the stance of respondents rather against them as in both judgments the Hon'ble Supreme Court of Pakistan while deciding the right of inheritance, kept in mind the date when succession opens. In both judgmen ts, the succession opens after promulgation of Ordinance, 1961, therefore, declared that pre-deceased children were entitled to inheritance of propositus.
9. The petitioners/plaintif fs cannot be said to have had any vested right with regard to property/estate of Lal Khan deceased during his lifetime, who died on 28.04.1969. Their right to succession came into existence only on the death of propositus as at that time the Ordinance, 1961 was already in field and operative. The words "In the event of death of any son or daughter of propositus before the opening of succession" appearing in Section 4 of the Ordinance, 1961 are very important and were interpreted by in a case titled as "YUSUF ABBAS and others versus MST ISMA T MUST AFA and others " reported as (PLD 1968 Karachi 480 ) in the following terms:- "The words 'in the event of' refer only to the death of the son or daughter of the propositus occurring before the succession opens. These words would bring within their compass the sons and daughters dying before as well as after the Ordinance came into force. The only condition is that the death should occur before the succession has opened and if the succession opens after the promulgation of the Ordinance, Section 4 would apply with full force and the children of the predeceased son or daughter of the propositus would be entitled to be included in the succession to the estate of the propositus. One consideration, which has to be borne in mind in construing of section 4 of the Ordinance is the purpos e for which this law was passed. The Ordinance aims at alleviating the sufferings of the children whose unfortu nate lot it is to lose their father or mother during the lifetime of their grandfather or grand-mother as the case may be. The construction of such statutes should be just, sensible and liberal so as to give effect to the purpose for which they are passed. The meaning, which Dr. I, Mahmood, seeks to give to the word 'in the event of' in section 4, is not only against the plain and unam biguous language of the section but would lead to unjust and harsh conse quences and would defeat the very intent and purpose for which this law was brought. My conclusion, therefore, is that it is not the requirement of section 4 of the Muslim Family Laws Ordinance 1961 that the occurrence of the death of the son or daughter of the propositus as well as the opening of succession should both take place subsequent to the promulgation of the Ordinance. The only requirement of the section is that succession should open after the Ordinance is brought into effect even though in some cases a part of the requisites for its operation such as the death of the plaintiff 's mother is draw n from a time antecedent to the promulgation of the Ordinance."
This observation was later on followed by this Court in judgments reported as "SAKHI MUHAMMAD versus AHMAD KHAN and 3 others" (1980 CLC 1006 ), and "IBRAHIM and 3 others versus NEHMA T BI and 5 others" (PLD 1988 Lahore 186). This court in another case titled "Kamal Khan alias Kamala versus Zainab Bibi" ( PLD 1983 Lahore 546 ) laid down the following principle:- "The Starting point is that notionally the offspring of the propositus is deemed to be alive for the purpose of succession, at the time of the death of the propositus, and the succession of the grandchild is to be calculated again notionally as if the parent of the grandchild died after the death of the original propositus."
10. The ratio of aforesaid judgments is that the grandchildren are entitled to receive share equal to the share of their mother or father in view of section 4 of the Ordinance, 1961 irrespective of the fact their mother or father died before or after the promulgation of the Ordinance, 1961 and the only condition is that the succession should be open after the promulgation of the Ordinance, 1961.
11. Therefore, there is no doubt in my mind that it is not the requirement of Section 4 of the Muslim Family Law Ordinance, 1961 that the occurrence of death of the son or daughter of propositus as well as opening of succession should both take place subsequent to the promulgation of the Ordinance, 1961. The only requirement of section is that succession should open after the Ordinance is brought into effect. Section 4 is made applicable when succession of propositus opens and it is an established principle of Muslim Law that the succession of a Muslim opens the moment he dies.
12. It is settled law that no limitation runs against a wrong entry , mutation is also not a starting point of limitation. In a matter of inheritance, the limitation does not preclude a person to get his share from inheritance. Learned trial Court framed issue No.5 with regard to limitation in the light of preliminary objection raised by defendants and placed its onus upon defendants/respondents. The defendants failed to produce any evidence to discharge the initial onus, therefore, learned trial Court decided the issue against them. Learned appellate Court did not touch this issue while rendering its judgment. Meaning thereby , the findings of learned trial court remain unchanged.
Defendants/respondents did not challeng e those findings by filing any cross-objection, therefore, the objection of respondents that the suit is time-barred at this stage is misconceived.
13. Epitome of the above discussion is that the learned appellate court failed to apply correct law, therefore, impugned judgment and decree dated 05.11.2003 passed by the learned appellate court are not sustainable in the eyes of law. Resultantly set aside and consequently , this civil revision is allowed, judgment and decree of the learned trial court dated 05.06.2003 is restored and the suit of petitioners/plaintif fs is hereby decreed with no order as to costs.