ABDUL HAMEED BALOCH, J. Through this judgment I intend to dispose of above titled revision petition filed by the petitioners/applicants against the orders dated 24th August, 2012, and 27th February, 2018 (impugned orders), passed by learned Senior Civil Judge-I, Quetta, (trial court), whereby the application under section 372 of the Succession Act, 1925 was allowed and application filed for revocation of succession certificate was dismissed and against the order dated 10th October, 2018 passed by learned Additional District Judge-VI, Quetta, (appellate court) whereby the appeal filed by the petitioners was also dismissed.
2. Concise facts of the case are that the petitioners filed application for revocation of succession certificate, which was contested by the other side. After hearing the parties the learned trial court vide order dated 27th February, 2018 rejected the revocation application, against which the petitioners filed appeal before learned Additional District Judge-VI, Quetta, but same was also dismissed, hence this petition.
3. Heard and perused the record. The record transpires that in the year 2011 the respondent No. 2 filed application under section 372 of the Succession Act, 1925 (Act 1925) for grant of succession certificate before Senior Civil Judge-I, Quetta, in which publication was duly made in Daily Jang Quetta on 9th September, 2012. The respondent Nawabzada Talal Akbar Bugti and Mst. Ghaman Khatoon appeared, filed rejoinder to the applicant and did not contest the application. Whereas the respondents Nos. 4 to 18 failed to appear, as such proceeded against ex-parte. After recoding ex-parte evidence the learned trial court accepted the application vide order dated 24th August, 2012. The relevant portion of the order reads as under: "Both the witnesses along with applicant appeared before the Court along with their duly attested affidavits and fully supported the application of applicant and no adverse interest of applicant has come on record. Therefore, application is accepted. Even though the respondents have been declared ex-parte from the proceedings, but they are also legal heirs as per Sharai FATWA produced by the applicant, according to which the legal heirs mentioned in Sharai FATWA are entitled to the extent of their respective shares. Thus the application is accepted. Separate succession certificates be issued in favour of each legal heir to the extent of his/her share, subject to furnishing of surety bond by each legal heir separately to the extent of his/her share to the satisfaction of this Court. As far as the immoveable properties of deceased are concerned, the applicant and respondents are directed to adopt proper procedure by fulfilling the coddle (-) formalities and thereafter to file a suit for partition. Application is disposed off accordingly."
4. The petitioners filed amended application for revocation of succession certificate before the trial court with the prayer: "In the light of what has been thoroughly discussed supra it is, therefore, respectfully submitted that order dated 24.08.2012 be recalled, cancelled, rectified, declared null and void as having no sanctity in the eyes of law overtly or covertly, furthermore all the legal heirs of the propositus (Nawab Muhammad Akbar Khan Bugti), in the light of the law contained in section 4 of the ordinance and the verdicts of august Apex court(s) be declared entitled as legal heirs in the legacy of their propositus as per their due legal shares.
Any other relief which this Hon'ble court deems fit may also be granted."
5. The learned trial court vide order dated 27th February, 2018 rejected the application. The relevant portion reads as under: "----------. Furthermore, no mala fide or concealment of facts on behalf of respondents has been pointed out by the applicants of the instant application as the applicant of main succession application had arrayed the applicants as respondents Nos. 6-a. 16, 17 and 18 in the main application and thereafter due process was adopted by the court to procure the attendance of the applicants, but they failed to appear before the court to contest the application and lastly the order dated 24.08.2012 was passed on the basis of Sharai FATWA produced by the applicants, whereby the applicants of the instant application being legal heirs of predeceased sons and daughters of deceased, were disentitled in the assets of deceased................"
6. The petitioners filed appeal under section 383 read with section 388 of the Succession Act, 1925 against the impugned order of the trial court before District Judge, Quetta. The learned appellate Court i.e. Additional District Judge-VI, Quetta vide order dated 10th October, 2018 dismissed the appeal. The relevant para is reproduced hereunder: "----------------------, however, inspire of proceeding ex-parte to the respondents No. 1 and 4 to 18 surviving legal heirs, widows, sons and daughters of late Nawab Muhammad Akbar Khan Bugti were granted their respective shares in the left over assets of late Nawab Muhammad Akbar Khan Bugti as per Sharai Fatwa wherein present appellants were excluded to receive any shares being sons and daughters of predeceased son of Salal Akbar Bugti and Nazili Bugti. Irrespective to the controversy whether notices were properly served upon the appellants or otherwise main controversy between the parties is that whether the appellants are entitled for the shares in the inheritance of late Nawab Muhammad Akbar Khan Bugti being heirs of his predeceased son and daughter, admittedly husband of appellant No. 1 and father of the appellants Nos. 2 and 3 Salal Akbar Bugti and mother of appellants Nos. 4 to 6 Nazili Bugti were died during life time of their propositus, it is settled law that under the Islamic Law succession to the estate of Muslim starts the moment a person died, as per Shari/Fiqah his legal heirs who are alive at that time shall be entitled to inherit his estate............."
7. Section 4 of the Muslim Family Laws Ordinance, 1961 (Ordinance 1961) reads as under: "4. Succession.---In the, event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time of 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."
8. The purpose of above referred provision is to protect the right of orphan. Under the provision the predeceased children of a deceased could not be deprived from inheritance in any manner. The referred provision is clear and no ambiguity is left. The children of predeceased son or daughter are entitled to inherit the property of their grandfather on his death. Section 4 of the Ordinance, 1961 entitled the grand children for receiving the share which their father would have inherited had been alive. Though the Honorable Federal Shariat Court had been declared section 4 of the Ordinance, 1961 repugnant to Islam. The verdict was challenged before Honorable Supreme Court of Pakistan and operation of verdict stand suspended automatically. Reliance is placed on 2018 YLR 2685. It was held therein: "5. No doubt, it is matter of record that Mst. Tasneem expired in 1992 whereas deceased Abdul Ghaffar expired on 12.09.2015 hence status of Mst. Tasneem (one of daughters of Abdul Ghaffar) is 'Predeceased'. Equally, the declaration of section 4 of Muslim Family Laws Ordinance, 1961 as repugnant to injunction of Islam by Federal Shariat Court is also a matter of fact. Section 4 of Muslim Family Laws Ordinance, 1961 was declared against the injunction of Islam. At this point, it is material to add here that application of such decision of Federal Shariat Court is subject to Article 203-D of Constitution which reads:- "Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal therefrom may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal."
Since, the judgment of the Federal Shariat Court, referred by the counsel for the respondents, has been challenged before apex Court therefore, in view of Article 203-D of the Constitution, the said judgment shall become operative after disposal of the said appeal hence till such time those, entitled for benefit of section 4 of the Muslim Family Laws Ordinance, shall continue enjoying fruit thereof which clearly entitles the grand children for receiving the share which their mother would have inherited, had she been alive, so has been held by august Supreme Court of Pakistan in many cases."
The Honorable Supreme Court of Pakistan in case Mst. Bhaggay Bibi v. Mst. Razia Bibi, 2005 SCMR 1595 held: "3. We are afraid, learned counsel wants the calculation of the shares of parties in the property of Mughla, the original owner, whereas the dispute related only to the extent of the share of Maula Dad, predeceased son of Mughla in' the property. Section 4 of Muslim Family Laws Ordinance, 1961 provides that 'in the event of the death of any son or daughter of the propositus before the opening of 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". This section does not override the law of Shariah and consequently, the parties will not get more than their share in the property in accordance with law of Shariah and the widows and daughters of Maula Dad would get to which they would have been entitled on the death of Maula Dad, after opening of succession of Mughla.
The purpose of enacting section 4 (ibid) was to cater the need of grandchildren to remove their sufferings but this provision cannot be interpreted in a manner effecting the shares of other descendants in the property in accordance with law of Shariah. This Court in Zainab v. Kamal Khan PLD 1990 SC 1051 resolving the controversy arising out of the provision of section 4 of Muslim Family Laws Ordinance, 1961, held that according to law of Shariah, the heirs of predeceased children would inherit what their father or mother would have inherited during their life time on the opening of succession."
In view of above discussion the instant revision petition is accepted. The orders dated 24th August, 2012, and 27th February, 2018 passed by learned Senior Civil Judge-I, Quetta, and order dated 10th October, 2018 passed by learned Additional District Judge-VI, Quetta are set aside. It is ordered that all the legal heirs of late Nawab Muhammad Akbar Khan Bugti whether alive or dead at the time of death of their predecessor (Nawab Muhammad Akbar Khan Bugti) are entitled to their sharai share from the legacy of late Nawab Muhammad Akbar Khan Bugti. No orders as to costs.