MUHAMMAD IJAZ KHAN, J.- Through this Civil Revision Petition, petitioners have challenged the judgment and decree of the learned Civil Judge-XXII, Peshawar dated 27.10.2023, whereby the suit filed by respondents / plaintiffs No.1 to 7 was decreed against the present petitioners/ defendants alongwith other defendants and the judgment and decree of the learned Additional District Judge- XII, Peshawar dated 18.04.2025, whereby the appeal filed by the present petitioners / defendants was also dismissed.
2. Precisely, the facts leading to the filing of the instant petition are that the respondents / plaintiffs No.1 to 7 brought a suit for declaration to the effect that they being the legal heirs of Zahoor Ali who was the son of Mashar Khan are entitled for their respective shares in the legacy of their paternal grant parents namely, Mashar Khan and Awal Bibi and as such their inheritance mutation No. 5769 attested on 22.05.2009, whereby the respondents / plaintiffs have been excluded from the same is incorrect and thus liable to correction. When the present petitioners then defendants and other respondents / defendants were summoned, they submitted their written statement, whereby their sole objection was that since the predecessor-in-interest of the respondents / plaintiffs namely Zahoor Ali had died in the lifetime of Mashar Khan, therefore, they are not entitled for their share in the legacy of Mashar Khan and thus in view of the aforesaid sole ground, the learned trial court without recording any evidence passed a summary judgment and decree dated 27.10.2023. Being aggrieved of the aforesaid judgment and decree, the petitioners preferred an appeal to the Court of learned Additional District Judge-XII, Peshawar but the same has also been dismissed vide judgment and decree dated 18.04.2025, hence the instant petition.
3. Arguments of learned counsel for the petitioners were heard in considerable detail and record perused with his able assistance.
4. In order to understand the relationship between the contesting parties, the pedigree table of Mashar Khan being relevant is reproduced below:- The aforesaid pedigree table of the parties would show that they all derive their interest from Mashar Khan and his widow Awal Bibi and it is the case of respondents / plaintiffs No.1 to 7 that they are the LRs of Zahoor Ali and who though had died in the lifetime of Mashar Khan but they are entitled for their respective shares in the legacy of their paternal grand-parents namely, Mashar Khan and Awal Bibi, whereas the stance of the petitioners / defendants is that since the father of the respondents / plaintiffs namely, Zahoor Ali had died in the lifetime of Mashar Khan, therefore, they are not entitled for their respective shares, therefore, in the given facts and circumstances, a pure legal question is involved in the instant case, therefore, this Court will proceed to address the same in the following para.
5. In order to comprehensively resolve the controversy in the instant case, it will be relevant to reproduce Section 4 of The Muslim Family Laws Ordinance, 1961 (hereinafter to be referred as "The Ordinance of 1961") which caters for the instant controversy:-
4. Succession. (1) In the event of 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.
The aforesaid Section 4 of The Ordinance of 1961 was further amended vide Act No. XXVIII of 2021 which amendments though is irrelevant for the present controversy, however, the same is also reproduced below:-
2. Amendment of section 4, Ordinance VIII of 1961. In the Muslim Family Laws Ordinance, 1961 (VIII of 1961), section 4 shall be re-numbered as sub-section (1) thereof and after sub-section (1), re- numbered as aforesaid the following new sub-sections shall be added, namely:- "(2) If a Muslim male from Ahl-e-Teshih dies, the share of a widow in the immovable property left behind by her deceased husband shall be as follows:-
(a) one-fourth share of the fixed price or value of the property, if there is no child left behind the deceased husband; and
(b) one-eighth share, if there is child left behind.
(3) If there are two or more widows, the share, as mentioned in sab-section (2), shall be divided equally among them.
(4) The price or value of the property shall be the price or value existing at the time of payment and not the price or value which existed at the time of death of the husband Provided that if the legal heirs of the deceased do not give the widow her share in the above terms, she shall become entitled to her due share in the corpus of immovable property.
(5) A widow is entitled to her share in the corpus of movable property of her deceased husband provided that the provisions of sub-sections (2) and (3) shall mutatis mutandis apply.
(6) Fagah-e-Jafri recognizes right of a husband to get his share from the property left by his deceased wife, either movable or immovable, as follows:-
(a) One-half share, if there is no child left behind, and
(b) one-fourth share of the property, if there is child left behind.
(7) In case of dispute, the parties or any of the parties may have recourse to a court of competent jurisdiction or by approaching the Mujtahid-e Alam from the panel maintained by the Council of Islamic Ideology. The decision of Mujtahid-e-Alam shall have a status of an award and the same shall be dealt with in accordance with the provisions of the Arbitration Act, 1940 (X of 1940).
Explanation-The expression "Mujtahid-e-Alam (Faqih-e-Azam)" means a juris-consult, religious scholar or doctor of Shia school of thoughts well versed with Sharjah having international repute and of such recognition. The Council of Islamic Ideology shall maintain a panel of Mujtahid-e-Alam having aforesaid qualifications.
(8) As enshrined in Article 227 of the Constitution of the Islamic Republic of Pakistan, the inheritance rights of Ahle-e-Tashih and matters connected therewith on ancillary thereto shall be decided according to their personal law interpreted by Fiqah-e-Jafria (Shia school of thought)".
A plain reading of subsection(1) of Section 4 of The Ordinance of 1961 manifestly shows 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, who are living at the time of opening of succession i.e. at the time of death of grandfather / mother shall be entitled for such share in the legacy which is to be equivalent to the share which such son or daughter would have received if alive, therefore, in view of the above, the law on the subject is clear that in case of death of grandfather / mother the living grand children shall be entitled for their share equal to the share of their father / mother, as the case may be.
6. It would be relevant to mention here that though Section 4 of The Ordinance of 1961 was declared by the Federal Shariat Court as un-Islamic in its judgment[1], however, the said judgment has been challenged by the Federal Government before the Shariat Appellate Bench of the Supreme Court in C.Sh.A 1/2000 and connected cases titled "Tanveer Jehan .vs. Federation of Pakistan and others" and thus keeping in view the constitutional command and mandate of proviso to clause (2) of Article 203-D, no such decision of the Federal Shariat Court shall have binding effect before the expiration of the period within which an appeal may be preferred to the Supreme Court or, where an appeal has been so preferred and during the pendency of the said appeal and before the disposal of such appeal, and thus when the said appeal is still pending before the Shariat Appellate Bench of the Apex Court then the said judgment of the Federal Shariat Court has no binding effect and as such Section 4 of The Ordinance of 1961 shall be deemed to be part of the Statute and the same shall have a binding effect on the parties, therefore, the only plea as agitated by the petitioners / defendants in their written statement is neither legally sustainable nor sufficient to deprive the respondents / plaintiffs from their share in the legacy of their paternal grandparents.
In a case[2], the Apex Court has held that as regards the contention that section 4 of the Ordinance is no longer the law of Pakistan, the referred to decision of the Federal Shariat Court in the case of Allah Rakha (which had struck down section 4 of the Ordinance) was challenged in an appeal filed under Article 203F of the Constitution before the Shariat Appellate Bench of this Court, and leave was granted. Since the appeal is pending adjudication the said decision of the Federal Shariat Court (impugned therein) has not come into effect, because the second part to the proviso to clause (2) of Article 203(D) of the Constitution stipulates that: 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 preferred, before the disposal of such appeal.'
Consequently, section 4 of the Ordinance continues to be the subsistent law of Pakistan, and shall remain so till such time that the Shariat Appellate Bench of the Supreme Court either upholds the decision of the Federal Shariat Court in the Allah Rakha case or dismisses the said appeal. In one of the recent judgment[3], the Apex Court has further clarified that as per mandate of Section 4 of The Ordinance of 1961, the same would apply only to those grandchildren who are living at the time of death of the propositus, whereas the great grandchildren would not fall within the meaning of "children" but since in the present case the respondents / plaintiffs are the grandchildren of Mashar Khan and they were living at the time of his death, therefore, the benefit of Section 4 of The Ordinance of 1961 has to be extended to them.
7. During the course of arguments, learned counsel for the petitioners made much emphasis that a summary judgment could not be issued in the instant case and the learned trial court was required to have formulated issues and record evidence, however, when he was confronted with the written statement as filed by them which shows that they have not agitated any other ground, then in such eventuality the learned trial Court has rightly passed the summary judgment. He though during the course of arguments also made much emphasis that respondents / plaintiffs have already been compensated and that some of the legacy had purchased by the petitioners/defendants from their own pocket, however, when the petitioners / defendants have not pleaded such facts in their written statement then legally they would not be able to lead any evidence in support of such pleas as any such evidence would amount evidence beyond pleadings and more particularly when only a preliminary decree has been passed and the factum that the petitioners/defendants had already been given their share in the legacy could be taken into consideration at the time of passing the final decree, therefore, both these submissions of the learned counsel for the petitioners are misconceived.
8. It is also relevant to mention here that there are concurrent findings against the petitioners/defendants and such findings could only be upset by this Court in its revisional jurisdiction if the same suffers from misreading or non-reading of evidence or if the same suffer from any jurisdictional defect or any material irregularities, however, this Court is of the firm view that the two fora below have rightly applied the law of the land on the subject and as such their concurrent findings could not be upset.
9. In view of the above, this Revision Petition being bereft of any merit is hereby dismissed in limine.
1. Allah Rakha and others Vs. Federation of Pakistan and others (PLD 2000 Federal Shariat Court 1)
2. Mst. Kalsoom Begum .vs. Peron Ditto and others (2022 SCMR 1352)
3. Hassan Aziz and others vs. Meraj ud Din and others (2022 SCMR 1131)