SAFDAR SALEEM SHAHID, J. This civil revision has been directed against the order and memo of costs dated 14.03.2019, whereby the learned Civil Judge, Rahim Yar Khan, while accepting the application for issuance of succession certificate of respondents Nos.2 to 5, granted shares to them and 2. Whether petitioners of instant petition are fall under the definition of Distant Kinder, hence, instant petition is not maintainable and liable to be dismissed? OPR
3. Whether the instant petition is not maintainable in its present form and liable to be dismissed?
OPR
4. Relief.
5. Both the parties produced their oral as well as documentary evidence. After recording of evidence of both the parties, the learned trial Court accepted the succession petition vide order dated 14.03.2019 and the petitioners and respondents Nos. 2 to 5 were granted shares from the insurance policy being legal heirs of the deceased Muhammad Akram falling under the definition of residuary. Feeling aggrieved, the petitioner field an appeal in the Court of learned Additional District Judge, who dismissed the same vide judgment dated 14.06.2019.
6. Learned counsel for the petitioners argued that both the Courts below have violated the provisions of Order XLI, Rule 31 and Order XX, Rule 4 of C.P.C., as no findings have been given on the main issue No.2, therefore, order and judgment passed by the Courts below are liable to be reversed. Furthermore, Muhammad Iqbal and Muhammad Akram were real from mother side, but Abdul Rehman was their heirs of deceased Muhammad Akram and are entitled to recover their legal shares from the movable property of the deceased? OPP brother from paternal side, therefore, the legal heirs of Abdul Rehman do not fall in the category of residuary. Counsel for the petitioner argued- that this view of the learned Additional District Judge is against the basic principle of Succession Act, 1925; the learned Additional District Judge has observed as under:- "Now as per Law of inheritance, in the first step, inheritance of Muhammad Akram shall go to his widow and his full brother namely Muhammad Iqbal as primary heir only and after the death of Muhammad Iqbal, share of Muhammad Iqbal shall go to his widow and his three daughters as primary heir and to his nephew/sons of consanguine brother as residuary.
7. It was further argued that both the Courts below have ignored this fact that the legal heirs of Abdul Rehman are not covered within the legal heirs of Muhammad Akram deceased and were not entitled to have the share. Declaring them sharer, is mis-application of law. Learned counsel for the petitioner argued that this is a matter of inheritance. According to the Mohammedan Law status of respondents Nos. 2 to 5 was not of the legal heirs of Muhammad Akram as they are remote in relation to Muhammad Akram deceased and they cannot claim the inheritance of Muhammad Akram deceased as residuary. Muhammad Iqbal was the real brother of Muhammad Akram, who was alive at the time of death of Muhammad Akram and after one month he also died leaving behind one widow and three daughters. The principle laid down in Muhammadan Law is clear that step mother of deceased was neither a sharer nor a residuary and has no right to inherit the estate of the deceased. Reliance was placed on Mst. Amina Khatoon and 5 others v. Mst. Nighat Jabeen and another (PLD 2018 Sindh 325), Mst. Sughra Begun: and 4 others v. Mst. Akbari Begum and 5 others (PLD 2016 Sindh 232) and Mst. Sarwari Bibi v. Mst. Anwari Bibi and others (2004 MLD 1136). In view of the citations referred above, the judgments of both the Courts are liable to be set aside.
8. Learned counsel for the respondents, on the other hand, resisted the arguments and contended that the respondents are entitled to get share of inheritance, as residuary as like the other sharers of legal heirs of Muhammad Iqbal deceased. Learned counsel in this regard, referred Mst. Shah Jahan Begum through Legal Heirs v. Zafar Ahmed and others (PLD 2018 Lahore 426), Mian Mazhar Ali and others v. Tahir Sarfraz and others (PLD 2011 Lahore 23), Bashir Ahmed and 3 others v. Razia Bibi (2000 SCMR 1100), Bashir Ahmad and 2 others v. Atta Muhammad Khan and 20 others (2005 SCMR 1271), Mst. Bhaggay Bibi and others v. Mst.. Razia Bibi and others (2005 SCMR 1595) and Ghulam Ali v. Ghulam Muhammad and 3 others (1999 YLR 2182). It was argued that there is no illegality or irregularity in the order/judgment of Courts below and law has been properly applied.
9. Arguments heard. Record perused.
10. There are three classes of heirs namely;
1. Sharers,
2. Residuaries, and 3. Distant Kindred.
"Sharers" are those who are entitled to a prescribed share, of the inheritance; "Residuaries" are those who take no prescribed share, but succeed to the "residue" after the claims of the sharers are satisfied; and "Distant Kindred" are all those relations by blood who are neither Sharers nor Residuaries. According to the Hanfi Law the first in the distribution of estate of a deceased Muhammadan, after payment of his funeral expenses, debts, and legacies, is to allot their respective shares to such of the relations as belong to the class of sharers and are entitled to a share. The next step is to divide the residue, (if any) among such of the residuaries as are entitled to the residue. If there are no sharers, the residuaries will succeed to the whole inheritance. If there are neither sharers nor residuaries, the inheritance will be divided among such of the distant kindred as are entitled to succeed thereto. The distant kindred are not entitled to succeed so long as there is any heir belonging to the class of sharers or residuaries. But there is one case in which the distant kindred will inherit with a sharer; and that is where the sharer is the wife or husband, of the deceased. Thus if a Muhammadan dies leaving a wife and distant kindred, the wife as sharer will take her share which is 1/4 and the remaining three-fourths will go to the distant kindred, the husband as sharer will take his 1/2 share, and the other half will go to the distant kindred.
11. In this case, Muhammad Akram deceased left one wife, whereas one real brother Muhammad Iqbal, who died after one month of his death, leaving behind three daughters and a wife. The other brother Abdul Rehman died 18 years back from the death of Muhammad Akram. He was having four male heirs. In that scenario the wife will get as sharer and rest of the legal heirs of Muhammad Iqbal and Abdul- Rehman will get the share from the remaining inheritance of Muhammad Akram deceased.
12. The principle laid down in Section 93 of Muhammadan Law states: "93. Representation.---(1) The principle of representation has more than one meaning. It may be applied for the purpose of deciding.
(a) what persons are entitled to inherit, or
(b) the quantum of the share of any given person on the footing that he is entitled to inherit.
(2) Where for purpose (a) the rule of exclusion applies (i.e., the nearer in degree excludes the more remote it is true both of Sunnis and Shias that the principle of representation is not recognized as qualifying the rule of exclusion. Thus if A dies leaving him surviving a son and grandsons by a predeceased son, the grandsons are excluded from inheritance by their uncle. They do not take in their father's stead though he would have been an heir had he survived his father.
(3) But if both sons predeceased the propositus who died leaving three grandsons by one son and two by the other then all the grandsons are held. In that case, is the principle of representation to be applied for purpose (b), that is for ascertaining the share of each grandson? This is a further and different question. If the principle is applied, the grandsons of one branch will have to divide into three what the grandsons of the other branch divide in half."
In this proposition the principle laid down, as mentioned above, is safely applicable that when a Muslim man dies leaving behind a wife but no issue, his wife will inherit 1/4th share of his property.
The remaining 3/4th will go to the remaining legal heirs. In this proposition one real brother of the deceased was left who died after one month of deceased. He had a wife and three daughters. Now remaining 3/4th property will be divided to his legal heirs. His wife will get share as sharer to the extent of 1/8th of the property, 3/4th and 2/3rd of the remaining property will be given to the daughters (three in number) with equal share. Now if the deceased had a son then the sons of deceased's step-brother Muhammad Iqbal would not get any share, but in this case since Abdul Rehman had only three daughters and no son, therefore, the remaining 1/3rd will go to the sons of the deceased Muhammad Iqbal.
13. The citations referred by learned counsel for the petitioners i.e. Mst. Amima Khatoon and 5 others, Mst. Sughra Begum and 4 others and Mst. Sarwari Blbi (supra) are not as such applicable to the present petition, whereas the citations referred by the counsel for the respondents i.e., Mst.
Shah Jahan Begum through Legal Heirs, Mian Mazhar Ali and others, Bashir Ahmed and 3 others, Bashir Ahmad and 2 others, Mst. Bhaggay Bibi and others and Ghulam Ali (supra), are as such applicable to the present proposition.
14. It has also been noted that the learned Additional District Judge in the operative para of his judgment has made the following observation:- "In the light of detailed discussion above and the calculation above, I found illegality in the order of the learned trial Court dated 14.03.2019 and the share calculated by him. Resultantly, appeal in hand is hereby dismissed.'
15. It is noted that it was a clerical mistake because the result concluded by the learned Additional District Judge shows that he was agreed with the findings of the learned Civil Judge as the shares and division of shares have been calculated in detail which also have been mentioned by the learned Additional District Judge.
16. Upshot of the above discussion is that the petitioners have failed to point any illegality in the judgments of both the Courts below, calling for interference in the revisional jurisdiction of this