This Civil Revision is against Judgment dated 08.10.2012, whereby appeal of the petitioners was dismissed and judgment and decree of 13.11.2010 by the learned trial Court, decreeing the suit seeking declaration against inheritance mutation No.1036 dated 21.1 1.2002, was upheld.
2. The issue requiring determination is that whether the petitioners - claimed to be legal heirs of one Muhammad Ali, consanguine brother of deceased Sardar Ali, whose estate is subject-matter of instant litigation - are entitled to inheritance share, equally with the legal heirs of deceased' s true / full brothers namely , Akbar Ali and Muhammad Dawood. Muhammad Ali, Akbar Ali and Muhammad Dawood died before the opening of inheritance and thereafter their legal-heirs claimed share in the estate of Sardar Ali, who died issue less. This specific claim of the petitioners was denied by the courts below .
3. Bare minimum facts, essential for adjudication of the lis at hand, are that upon death of Sardar Ali, inheritance mutation No. 1036 dated 21.11.2002 was recorded, whereby estate of the deceased was divided amongst the legal heirs of true brothers and consanguine brother of the deceased. Deceased Sardar Ali, Akbar Ali and Muhammad Dawood were born to Jewan Bibi and their consanguine brother was born to Talleh Bibi, having common father .
Aggrieved, the predecessors of the respondents No.1 to 5 instituted suit for declaration, on 06.01.2003, claiming exclusive share of inheritance qua the estate of deceased Sardar Ali, which suit was decreed on 13.11.2010 and petitioners were denied share in the estate of Sardar Ali. The petitioners unsuccessfully challenged said findings through appeal, which was dismissed on 08.10.2012. Hence, this Civil Revision.
4. Learned counsel appearing for the petitioners submits that petitioners admitted by legal heirs of consanguine brother of the deceased, hence, per-se entitled to share inheritance, along with respondents No.1 to 5, as Residuaries ['Asbah nasabi ']. It is contended that consanguine brother was related to the deceased without an intervening female, therefore, petitioners fall in the category of Asaba bi-nafsihi , in terms of para-65 of the Muhammadan Law. Learned counsel objects to the maintainability / character of suit under section 42 of the Specific Relief Act, 1877; alleging that appropriate remedy was suit for cancellation of inheritance mutation. Further contends that failure to produce Muhammad Ibrahim - witness of execution of inheritance mutation - as witness would extend petitioners benefit of Article 129 (g) of the Qanun- e-Shahadat Order , 1984, under the principle of withholding of best evidence.
5. Respondents No.6 to 8 were proceeded ex- parte vide order dated 07.12.2102.
6. Conversely , learned counsel for the respondents No.1 to 5 denied entitlement of the petitioners - being legal- heirs of consanguine brother Muhammad Ali. Contends that when descendants of true brothers of deceased Sardar Ali were present, the alleged claim of the petitioners does not hold water . Further supports the judgments by the courts below .
7. Arguments heard. And available record perused.
8. It is not disputed that Muhammad Ali - deceased' s consanguine brother - was born to one Jewan Bibi and deceased along with his two brothers namely Muhammad Daud and Akbar Ali were born to one Talleh Bibi both wives of Khewan, father of the deceased. The submission of the petitioners counsel that commonness of father - notwithstanding different mothers constitu te basis of claim of share in inheritance is erroneous and misconceived.
Likewise, the submission that deceased had allegedly claimed property from common father , therefore, petitioners are entitled to share inheritance is flawed. One must not ignore the fact that property , subject-matter of inheritance dispute, was owned and possessed by the deceased Sardar Ali, at the time of his death. None has disputed factum of such ownership. And question of inheritance was not qua the estate of Khewan.
9. The relations, as alleged and existed inter- se, are not controverted. In the light of the submissions, the legal question that surfaced for determination is whether remoteness or closeness of relationship amongst the Residuaries is of any consequence / significance for the purposes of determining share of inheritance. Learned counsel emphasized that irrespective of remoteness or closeness of the relationship of the residuary , the petitioners are entitled to claim inheritan ce of the deceased Sardar Ali, being residuaries. This assumption is fallacious. The remoteness or closeness of relation, with the deceased, is the most crucial factor in determining the status and entitlement of the collaterals / residuaries. Not ever residuary is entitled to claim share in the inheritance, but only those who claimed nearness of relation, to the exclusion of distant relations, notwithstanding falling in the category of residuaries. Guidance is solicited from the judgment reported as "DHUMAN and other v. GHULAM SARWAR and others" (1985 SCMR 947 ), relevant portion whereof reads as follows: "The learned counsel for the petitioners is not correct in saying that as among the residuaries the remoteness or closeness of the relationship is of no consequence. The table of residuaries in order of succession under Sunni Law itself shows that the inheritance devolves from the descendants of true grandfather how high so ever the full paternal-uncle' s son and thereafter on full paternal-uncle' s sons' son".
10. The petitioners claimed to fall within the category of 'Asbah bi nafsihi', which claim on the face of it is contrary to the reckoned principle of acknowledging preferences, based on nearness /closeness of relation, i.e. one nearer in relation succeeds in preference to a more remote / distant relation'. The question of preferability of nearer degree residuary, based on the test of proximity of degree in relation, between those nearer in line and one's remotely related to the deceased, led to determination of controversy between two rival claimants, in case reported as HAQ NAWAZ v. GHULAM HUSSAIN and 8 others" (PLD 1991 Lahore 330), which aptly illustrates the point in issue.
Applying the dictum, nearer proximity of the predecessors of respondents No.1 to 5, to the deceased - legal heirs of real/full brother(s) of the deceased Sardar Ali, irrespective of their death before the opening of inheritance - establish their entitlement/eligibility , as residuary , to get share in the estate of the deceased, to the complete exclusion of the petitioners - who had more distant / remote relation with the deceased, being legal heirs of deceased's consanguine brother - who otherwise died before Sardar Ali. The principle of preferability of residuary on account of proximity of degree in relation to the deceased was discussed in the case of "INTERNATIONAL BUILDING INDUSTRIES LIMITED v. JUMMA and 14 others" (1987 CLC 138), wherein reliance was again placed on "DHUMAN's case (supra). It is expedient to reproduce relevant portion of judgment in the case of "International Building Industries Limited" (supra): "7. The principle is that the heir who is closet to the deceased shall get priority in getting the estate, as the son over the grandson and the father over the grandfather. Some of general rules of succession of 'Asbat (pl. of Asbah) are as under:
(1) The closer shall have preferential entitlement over the remote. In case of the presence of several kinds of 'Asbat, at the same time, the closer one to the deceased shall be preferentially entitled to inheritance.
(2) In the case of there being 'Asbat of equal grade, stronger relationship shall be adhered to.
From amongst the 'Asbat, the one who in relationship is closer to the deceased, shall have, in the matter of inheritance, precedence over all the other 'Asbat. Thus, in the above four degrees, foremost precedence is given to those who are the off springs of the deceased, i.e. his son, daughter , his son's son, of how so ever low in degree.
After that, is the degree of the root of the deceased, such as his father who, in the presence of the daughter (and in the absence of the son) besides being the Dhu Fard (sharer), is the 'Asbah as well. After the father , according to Imam Abu Hanifah, the true paternal-grandfather is the substitute of the father . Thereafter is the offspring of the father , that is, the true brother . Thereafter is the consanguine brother , then is the son of the true brother and then is the son of consanguine brother , of how ever low in degree".
11. In view of the above, I sum up that the petitioners - claimed to be legal-heirs of consanguine brother - are not entitled to claim share in the inheritance of the deceased, being falling in distant degree / category of relations, as compared to the respondents No.1 to 5 - claimed to be legal-heirs of true/full brothers of the deceased. I do not find any flaw in the character of the suit, filed under section 42 of the Specific Relief Act 1877, claiming right in the property , along with ancillary relief of declaration of invalidity qua the disputed inheritance mutation No.1036. The factum of proximity of degree of relation, inter-se, is not denied. Any dispute qua distinctive ownership of Sardar Ali, at the time of his death, is conspicuous by its absence. In these circumstance s, the question of claiming any advantage upon failure to produce witness of the inheritance mutation, under Article 129(g) of the Qanun-e- Shahadat Order , 1984, is irrelevant.
12. I have examined the judgments of the Courts below and do not find any illegality, while denying claim of the petitioners qua share in the inheritance, in view of the facts of this case and legal principles, prescribed under the Muhammadan Law. The Courts below have had extensively dealt with the evidence recorded and no case of misreading or non-reading of evidence is made out before me. Learned counsel for the petitioner has failed to point any incidence of material irregularity in the exercise of jurisdiction, necessitating indulgence by this court in exercise of revisional jurisdiction.
13. In view of the above, this civil revision is without any merit and the same is, therefore, dismissed.
14. No order as to costs.