' Sufaid Khan was owner of 130 Kanals 16 Marlas of land. He died in 1972. Upon his death on 21-11-1977 mutation No, 432 regarding his inheritance was sanctioned and his entire estate was transferred to Mst. Zenib, her only surviving granddaughter being the daughter of Rajoo a predeceased son of Sufaid Khan who died during the lifetime of Sufaid Khan. Kamal Khan alias Kamla, petitioner brought a suit challenging the mutation on the ground that Mst. Zenib was not a granddaughter of Sufaid Khan and that he as a nephew of Sufaid Khan was entitled to inheritance. The suit was dismissed on 19-10-1980 when the trial Court came to the conclusion that Mst. Zenib was a granddaughter of Sufaid Khan and that under section 4 of the Muslim Family Laws Ordinance, 1961 she is entitled to the whole of the property as she is to receive a share equivalent to the share which her predeceased father would have received, if alive. The judgment was maintained in appeal when the petitioner's appeal was dismissed on 9-5-1981. The petitioner has brought a revision petition against the orders of the two Courts below. He has challenged the finding of the Courts below that Mst. Zenib was a granddaughter of Sufaid Khan, and, it has also been urged that Mst. Zenib, even if, she is found to be the granddaughter of Sufaid Khan, could inherit only to the extent of half of the estate of her own father, and not more.
2. As regards the finding that Mst. Zenib is the granddaughter of Sufaid Khan no interference can be made as the concurrent finding of th A Courts below was based on proper evidence. D-5 is the Nikahnama of 31-10-1975 in which Mst. Zenib has been described as the daughter of Rajoo. This is prior to 1977 when the mutation of inheritance was entered and the petitioner brought a suit. In 1975, there was no dispute regarding the parentage of Mst. Zenib. The Courts below were, therefore, justified in relying on this piece of evidence in coming to the conclusion that Mst. Zenib was daughter of Rajoo, the predeceased son of Sufaid Khan. The interpretation of section 4 of the Family Laws Ordinance, 1961, however, requires further consideration.
3. The learned counsel for the respondent relies oil the case of Mst. Zarina Jan v. Mst. Akbar Jan (1) in support of his contention that Mst. Zenib will inherit whole of the property which her father would have inhcrited, if he was alive. The learned counsel for the petitioner has not {{FOOT NOTE}}
(1) PLD 1975 Pesh, 252 {{FOOT NOTE}} ' produced any other judgment on this question but has argued that only such interpretation of section 4 can be made which is in accordance with the Islamic principles of inheritance.
4. Succession was provided for, for the benefit of the orphaned sons and daughters of predeceased's parent under the Muslim Family Laws Ordinance, 1961. It can be safely assumed that this was meant to remedy the discrimination which was believed to exist against a grandchild whose B parent had died before the succession opened. The law provides that the parent of such a grandchild will be deemed to be alive for the purpose of succession. It cannot, however, be assumed that the law ever intended to give a share to the grandchild more than what would have been his due if the parent was actually alive when the succession opened.
5. In the present case Rajoo was the only son of Sufaid Khan and Mst. Zenib, the only child of Rajoo.
Rajoo, however, died during the lifetime of Sufaid Khan. When Sufaid Khan died the only lineal descendant left was Mst. Zenib. The question for determination is, how much of the estate of Sufaid Khan will pass to Mst. Zenib. According to Peshawar judgment referred to above Mst. Zenib will get the entire estate as she will represent her own father who as the only son would inherit the entire property of Sufaid Khan, his father.
6. The whole process of succession depends on the fiction that Rajoo was alive at the time of the death of Sufaid Khan. In this event Rajoo will naturally inherit the entire estate of his father being the only son but he can pass on such of his estate to his children as is permissible under the Islamic.
Law of Inheritance. Mst. Zenib being the only surviving child she cannot get more than one half of the estate of Rajoo and the remaining half must revert to the collaterals. If the rule laid down in the Peshawar judgment is to be adopted then Mst. Zenib will get twice the share allowed to her under the Islamic Law of Inheritance. With utmost respect and in all humility, I am unable to share this view because the Legislature never intended to give greater benefit to the grand child of a predeceased parent than would have been his due, if the parent was alive. The starting point is, C that notionally the off-spring 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.
7. Per stripes referred to in section 4 is the antithesis of per capita. This means a share according to the stock or the root or the family as against per capita which means share per head. This assumes greater importance only where the propositus leaves behind a number of grand children whose parents died during the lifetime of the propositus. The principle of succession in such case will not be inheritance per capita but per stripes i,e, in accordance with the root or stock to which the grandchild belongs, and will only get the share to which grandchild is entitled through his parent. In the event of there being a single surviving grandchild the principle of per stripes is pushed to the background but cannot be employed to support a principle which militates against the Islamic Law of Inheritance.
8. In my view Mst. Zenib can inherit only to the extent of Islamic share in the estate of her father, Rajoo notionally assessing that he was alive at the time of the death of Sufaid Khan the original porosities and that Rajoo's death occurred only subsequent to the death of Sufaid Khan. This means that Rajoo will inherit the entire estate of Sufaid Khan being the only son of Sufaid Khan and that Mst. Zenib will inherit only one half of the estate of Rajoo, Rajoo having no son but only one daughter. The remaining half of Rajoo's estate will revert to his collaterals namely Kamal Khan petitioner. The judgments of the two Courts below are, therefore, partially reversed and Kamal Khan's suit is decreed to the extent of one-half share of the estate. There shall be no order as to costs.