AHMAD NADEEM ARSHAD, J. Through this Civil Revision filed u/s 115 of Code of Civil Procedure, 1908, petitioners have called in question the validity and legality of judgments/orders of learned Courts below whereby they were declined to give their share in the legacy of deceased paternal cousin Abdul Majeed Nasir.
2. Relevant facts forming background of this petition are that respondents No.1 & 2 being real sisters of deceased Abdul Majeed Nasir (who died on 01.06.2014) filed an application for issuance of succession certificate on 24.06.2014 with regard to an amount Rs.1,53,71,462.56/- lying in saving account No.0100435011 at Mezan Bank Limited. Mian Channu Branch by impleading Public-at- Large, widow of deceased namely Khursheed Akhtar and petitioners who were paternal cousins of deceased. Petitioners filed written reply by admitting legal heirship of the parties with deceased and proposed distribution of the legacy of deceased amongst his legal heirs according to Shria.
The learned Trial Court, vide order dated 01.10.2014 issued succession certificate in favour of legal heirs of deceased in the following terms: LEGAL HEIR SHARE Khursheed Akhtar (widow) 1/4 share Begum Munawar Siddique & Allah Rakhi (sisters) respondents No.1 & 22/3 share Muhammad Tufail etc. (petitioners/cousins)the remaining amount in equal shares.
3. Being dissatisfied, respondents filed an application for revocation of said succession certificate on the ground that after deducting the share of widow, they are entitled to get remaining legacy of deceased Abdul Majeed Nasir being his sisters according to doctrine of return (Radd) and rule of exclusion. Petitioners filed its contesting written reply. The learned Trial Court after providing opportunity of hearing, allowed the application via order dated 19.12.2017 and revoked the earlier issued succession certificate and issued fresh succession certificate by declaring that Khursheed Akhtar (widow) would receive her share as 1/4 and the respondents being sisters would receive their share as 2/3 and the remaining legacy would also devolve upon them on the basis of doctrine of "exclusion". Feeling aggrieve+ed, petitioners preferred an appeal which was dismissed by the learned Appellate Court vide order dated 08.09.2018. Petitioners filed instant revision petition to check legality & validity thereof.
4. I have heard learned counsel for the parties at full length and perused the record as well as case laws cited at bar with their able assistance.
5. Petitioners claiming their share in the legacy of deceased Abdul Majeed Nasir on the ground that they are sons of paternal uncles of the deceased, therefore, being paternal cousins they are entitled to get residue from the legacy of deceased after satisfaction of the share of other sharers and relied upon case law cited as "MST. SHAH JAHAN BEGUM THROUGH LEGAL HEIRS V. ZAFAR AHMED AND OTHERS" (PLD 2018 Lahore 426). Whereas, respondents claimed that being sisters, they get 2/3 as a sharer and after satisfying the share of widow i.e. 1/4 they would get the residue on the principal of "Return/Radd" and rule of "Exclusion". Adds that as nearer excludes the remote, hence, respondents figure at serial No.6 exclude the remote as petitioners figured at serial No.15 and relied upon case law cited as "SAADULLAH AND OTHERS V. MST. GULBANDA AND OTHERS"
6. Admittedly, relationship of the parties with deceased are not disputed. There is also no dispute with regard to share of Mst. Khursheed Akhtar being widow, as she would get 1/4 share and the respondents would be entitled to get 2/3 shares being full-sisters of deceased as a sharers.
Controversy is with regard to residue left after satisfying the share of sharers.
7. This Court in Mst. Shah Jahan's case supra, while discussing Saad Ullah's case, observed as under: "Ch. Ehsan ul Haq Virk, Advocate, learned counsel for the petitioners while relying upon Saadullah and others v. Mst. Gulbanda and others (2014 SCMR 1205) and quoting verses of Sura An-Nisa interpreted by Peer Muhamamd Karam Shah, an eminent religious scholar submitted that petitioner/plaintiff being full sister of the propositus under Para 65 of the Muhammadan Law of D.F.
Mulla falls at serial No.6 of the residuary table, whereas the full brother's sons to whom inheritance was also shared are figuring at serial no.9, but both the Courts below erred while ignoring doctrine of "Radd" or "rule of exclusion", whereby the latters/remote were to be excluded by the full sister being nearer.
I have gone through the esteemed judgment of the apex Court with great care and found that almost in an identical situation, the full sisters of issueless brother exclude consanguine brother even figuring at serial No.7 of the residuary table, more nearer to the full brother's son as the case in hand, but with all reverences, I am of the view that while rendering such view by the august Supreme Court and concurring with concurrent findings of the Courts below, the capacity of full sister as referred in residuary table provided under sub-para (6) of Para 65 of Muhammadan Law by D.F. Mulla was partly placed before their lordships as depicted in Para-6 of cited judgment to the following effect:- (6). FULL SISTER- In default of full brother and the other residuaries above named, the full sister takes the residue. Whereas, her complete reference as per afore-noted law is as follows:- (6). FULL SISTER- In default of full brother and the other residuaries above named, the full sister takes the residue if any, if there be (1) a daughter or daughters, or (2) a son's daughter or daughters h.l.s., or even there be (3) one daughter and a son's daughter or daughters h.l.s. Thereby being default of perfect reference the view in Saadullah's case (supra) was formed. Had it been plenary placed/pleaded before the apex Court during the hearing of precedent case, the position might be otherwise and after giving thoughtful consideration to verse No.176 of Sura An- Nisa as well as the relevant provision of Muhammadan Law (supra), this Court is clear in mind that full sister may inherit in the following three categories:- Firstly: As a Sharer, when child, (ii) child of a son h.l.s. (iii) father (iv) true grandfather (v) full brother or (vi) consanguine brother will not be available; Secondly: As a Residuary in the presence of brother and failing to inherit in either of these two capacities; and Thirdly: As a Residuary with daughters or son's daughter or daughters h.l.s. or one daughter and son's daughter h.l.s. provided there is no nearer residuary.
In the present case, the propositus died without leaving child, child of a son, father, grandfather, brother or consanguine brother, hence the petitioner as a sister had to inherit being sharer
8. Whereas, august Supreme Court of Pakistan in Saad Ullah's case held as under: "We have heard the arguments of learned Advocate Supreme Court for the appellants as well as the respondents Nos.1 and 2 and perused the case record. There is no dispute as regards 1/6th share from the estate of deceased, devolving upon his mother Mst. Behram and 2/3rd share in favour of his three real sisters named above, which is in conformity with Divine dictate, per Verse No.176 of Sure An-Nisa from the Holy Quran, which, for ease of reference is reproduced as under:- They ask thee for a pronouncement. Say: Allah hath pronounced for you concerning distant kindred. If a man die childless and he have a sister, hers is half the heritage, and he would have inherited from her had she died childless. And if there be two sisters, then theirs are two-thirds of the heritage, and if they be brethren, men and women, unto the male is the equivalent of the share of two females. Allah expoundeth unto you, so that ye err not. Allah is Knower of all things.
(English translation by Pickthall)
The other part of the controversy relating to remaining 1/6th share agitated in the appeal, which is the main issue, is as to whether under the category of residuaries, per Muhammadam Law, it would devolve upon three real sisters of the deceased in preference to consanguine brother by following the doctrine of return (Radd), or it would go to Rehmat Khan as residuary, being consanguine brother of the deceased. In this regard, we have perused the table of residuaries in the form of a chart given in the book "Principles of Mahomedan Law" by D.F. Mulla, a renowned scholar, researcher and jurist, and seen that the real sisters being nearer in degree of relationship with the deceased stand at serial No.6, while the consanguine brother stands at serial No.7......
This being the legal position, the only submission of the learned Advocate Supreme Court for the appellants that since 2/3rd share has been already inherited by the three real sisters of the deceased in their capacity as sharers, therefore, the remaining 16th share of the estate of the deceased would devolve on his consanguine brother, arrayed at serial No.7 of the residuary, is ill- founded and misconceived. As applying the doctrine of return (Radd) and rule of "exclusion", the three sisters of the deceased would not only inherit 2/3rd share, as sharers, from the estate of their deceased real brother, having died issueless but being nearer in the category of residuary at serial No.6 the remaining 1/6th share will also devolve upon them in such capacity. Thus, in their presence, the consanguine brother, being at serial No.7 would not inherit anything from the estate of the deceased as residuary. We have confronted learned Advocate Supreme Court for the appellants with this legal position to which he has not been able to give any rebuttal of this proposition."
9. Now the question is that after satisfying the shares of sharers, who is entitled to get residue?
Whether respondents being full-Sisters get the residue as a residuary after getting their share as sharers and rule of "Exclusion" applies on them or get the residue on the principle of "Return/Radd".
10. In Sahih Al-Bukhari Volume 8, Book 80, Number 724, Ibn 'Abbas narrated as under: The Prophet said, "Give the Fara'id (the shares of the inheritance that are prescribed in the Qur'an) to those who are entitled to receive it. Then whatever remains, should be given to the closest male relative of the deceased."
The above saying of prophet Hazrat Muhammad (Peace Be Upon Him) in this Hadith is very much clear that after satisfying the shares described in the Holy Quran, residue will be distributed among the closest male relatives of the deceased.
11. In the table of sharers prepared by D.F Mulla in "Principles of Mohammadan Law" ""Full Sister"" is described at serial No.11 wherein column No.3 prescribes conditions under which "Full Sister" would get normal share from the legacy of deceased i.e. "when no Child, Child of a son h.i.s, Father, True grandfather, or Full brother are present". In column No.4 conditions under which "Full Sister" succeeds as residuary prescribed i.e. "with the full brother she becomes a residuary". From the perusal of said conditions, neither conditions mentioned in column No.3 nor mentioned in column No.4 exit in the present case, therefore, respondents being "Full Sisters" will get their share of 2/3 as sharer.
12. Although, in the residuary table, "Full Sister" is also figured at serial No.6 as a residuary, wherein it is described that in default of full brother and the above mentioned other residuaries, the "Full Sister" takes the residue if any, if there be (1) a daughter or daughters, or (2) a son, son's daughter or daughters h.I.s, or even if there be (3) one daughter and a son's daughter or daughters h.I.s. Meaning thereby, to get share from the legacy of deceased as residuary the "Full Sister" has to fulfill said two conditions.
13. Renowned Islamic book by Dr. Tanzeel-ur-Rahman guides regarding the shares of "Full Sister" as under:
14. Another Islamic book translated by Allama Molana Syed Ameer Ali from describes on the point under discussion as under:
15. From the above discussion, it is abundantly clear that "Full Sister" will get as a sharer in default of full brother. However, in presence of full brother she excluded from the category of sharers and becomes residuary with his full brother and takes half of the residue left after satisfaction of the other residuaries figured before them and his brother will take double portion. "Full Sister" will also excluded from the category of sharer in presence of a daughter or daughters, or a son's daughter or daughters h.I.s or even if there be one daughter and a son's daughter or daughters h.I.s. From the perusal of table of sharers and residuaries, it appears that there are six sharers who inherit under certain circumstances as residuaries. These are the father and true grandfather h.h.s, the daughter, son's daughter h.l.s, full sister and consanguine sister. From the said sharers, only the father and true grandfather inherit in certain events both as sharers and residuaries. Meaning thereby, they can inherit at the same time in a double capacity. The other four, who are all females, shall inherit either as sharers or residuaries. The circumstances under which they inherit as sharers are set out in the table of shares. They succeed as residuaries and can succeed in that capacity alone, when they are combined with male relations of a paternal grade. The full sister and consanguine sister succeed as residuary when they co-exist with the full brother and consanguine brother respectively.
Therefore, it appears that "Full Sister" inherits in three different capacities, firstly as a sharer under the circumstances set out in the table of sharers; secondly as a residuary with full brother when there is a brother; and failing to inherit in either of these two capacities, thirdly as a residuary with daughters, or son's daughter h.l.s. or one daughter or a son's daughter h.l.s. provided there is no nearer residuary. In present case, as there is no brother, daughters, or son's daughters h.l.s or one daughter and a son's daughter h.l.s. Hence, the respondents No.1 & 2 will remain in the category of sharer and get 2/3rd share from the legacy of deceased after satisfying the share of widow and will not fall within the category of residuary.
16. From the table of sharers and residuaries it appears that certain relations entirely exclude others from inheritance, which is called "Principle of Exclusion" and the same is described by "SIRAJIYYAH" in the part headed "Of Exclusion". a) "Whoever is related to the deceased through any person shall not inherit while that person is living". b) "The nearest of blood must take." Means that the nearer in degree excludes the more remote.
The above principle may, therefore, be read thus "within the limits of each class of heirs, the nearer in decree exclude the more remote."
As discussed supra, the nearer in degree exclude the more remote within the limits of each class of heirs. Respondents who do not fall in the category of residuary, therefore, cannot exclude the remote i.e. paternal uncle's sons who are figured at serial No.15 of the residuary table. In this way, "Rule of Exclusion" will not apply on them.
17. Now the next question arises, whether they will get the residue in the light of principle of "Return/Radd". Principal of Return (Radd) was defined in para No.66 of "Principles of Mohammadan Law" by D.F. Mulla in the following terms: "66.Return (Radd). - If there is a residue left after satisfying the claims of sharers, but there is no Residuary, the residue revert to the Sharers in proportion to their sharers. This right of reverter is technically called "Return" or Radd."
From perusing said para, it appears that the doctrine of return (Radd) applies when after assigning shares to all sharers, there is surplus, and there being no residuary and in that eventuality the residue reverts to the sharers in proportion to their respective shares. The sharers who are entitled to the Return are seven i.e. one Male and seven females viz, uterine brother or sister, daughter, son's daughter, "Full Sister", consanguine sister, mother and the paternal grandmother. If there be one of such person, only the whole surplus is given to that particular heir. Huband and wife (wives) are two sharers who are ordinarily not entitled to return, but if there be no other heir, whether he be a sharer of a Distant Kinsman, the residue will go to the husband or the wife, as the case may be, by Return. The basic condition of principle of Return (Radd) is that there is no residuary but in the instant case full paternal uncle's sons are present at serial No.15 of class IV "Decedents of Two Grandfather h.h.s." In presence of said residuary, principle of Return (Radd) does not apply and the residue left after satisfying the claim of sharers will be distributed among the petitioners being residuary.
18. For the foregoing reasons, this revision petition is allowed. Consequently, impugned judgments/orders of the Courts below are set aside. Hence, the legacy of Abdul Majeed Nasir (deceased), after satisfying the claim of sharers i.e. Mst. Khursheed Akhtar (widow 1/4 share), respondents/Full Sisters (2/3 share), the remaining residue will be distributed in equal shares amongst the petitioners. As per peculiar facts of the case, there is no order as to cost.