' ABDUL KHAL1Q KHAN, J.-Through this Constitutional writ petition under Article 9 of the Provisional Constitution Order, 1981 read with Laws (Continuance in Force) Order 1 of 1977, for the declaration that the judgments, dated 9-12-1979 and 27-3-1980 of the respondents, Member, Board of Revenue N.-W. F. P., Peshawar and Additional Commissioner, Hazara Division, Abbottabad are null and void and of no legal effect and to grant any further relief to which the petitioners are entitled: ,
2. The facts which form the background are that one Sher Zaman Khan son of Amirullah owned landed property in villages Baisala and Serian-Dharampani. He expired in 1977, leaving behind 2 sisters, the present petitioners and 2 grand-daughters namely, Mst. Khalida Parveen and Mst.
Abida Parveen, respondents Nos. 3 and 4, daughters of his predeceased son Zardad Khan. On the death of Sher Zaman Khan, the Revenue Officer vide his order, dated 4-2-1978 attested mutation No, 327 with regard to his landed property situate in village Baisala and that mutation No, 1975 in respect of his property in village Serian Dharampani, in favour of the petitioners (2/3rd share), and respondents 3 and 4 (grand-daughters) the remaining 1/3rd share. The mentioned granddaughters could not reconcile to the aforementioned distribution of the property, therefore, they went in appeals which were accepted and the Revenue Officer was directed to attest the mutations in accordance with law. These orders on further appeal were confirmed by the Additional Commissioner, Hazara vide order, dated 9-9-1978. After remand, the Revenue Officer vide order, dated 21-10-1978 attested the two mutations reversing his earlier decision, giving 1/3rd share to the petitioners (sisters of Sher Zaman Khan) and 2/3rd share to respondents Nos. 3 and 4 daughters of the pre-deceased son Zardad Khan.
3. Failing in appeal before the Collector, the respondents Nos. 3 and 4 went in appeal to the Court of Additional Commissioner who vide order dated 9-12-1979 accepted the plea of the present respondents Nos. 3 and 4 that they alone were entitled to inherit the entire property left behind by their grand-father Sher Zaman Khan, as daughters of his pre-deceased son Zardad Khan. The petitioners have called in question the orders of the Member, Board of Revenue N.-W. F. P., Peshawar as well as that of the Additional Commissioner, Hazara Division, Abbottabad referred to above.
4. The basic, rather the only question that requires examination is if in the presence of the law of inheritance, the heirs of the pre-deceased son were to exclude the sisters of Zardad Khan, the last owner of the disputed property.
5. In order to appreciate the legal position and find answer to the question, it may be necessary to refer to section 4 of the Muslim Family Laws Ordinance, 1961. It reads :- "4. Succession.-In the event of the death of any son or dangler of the porosities before the opening of succession, the children of such son or daughter, if any living at the time the succession opens, shall receive a share equivalent to the share which such son or daughter, as the case may be, would have receive if alive."
6. It is crystal clear from the reading of the above reproduced law that the heirs of the pre- deceased children, on the death of the grand-father become entitle to their father's share in property of their grand-father.
7. In the instant case, to make it further clear, Zardad Khan father of respondents Nos. 3 and 4 is to be considered for the purposes of inheritance, alive at the time of the death of Sher Zaman Khan, the last owner. There is no controversy that the petitioners are the sisters of Sher Zaman deceased while respondents Nos. 3 and 4 daughters that of Zardad Khan, pre-deceased son of Sher Zaman Khan.
8. Under the Muslim Laws, sisters are entitled as sharers to 2/3rell share in the inheritance of their brother provided that the last owner had no (i) child, (ii) child of his son, (iii) father, (iv) true grand- father, (v) full) brother (table of sharers--Sunni Law as given in 'Principles of Mahomedan Law' by Sir Dinshah Fardunji Mulla, Twelfth Edition).
9. We have held above that Zardad Khan is to be considered alive for the purposes of inheritance, at the time of the death of his father Sher Zaman Khan. In the circumstances the petitioners in this situation were debarred to inherit any share in the property left behind by Sher Zaman Khan as `sharers'. As far as the inheritance as residuaries is concerned, no doubt the son has much better position than possessed by full sisters. In this connection the table of residuaries in order of succession at page 58-A of the book mentioned above requires perusal.
10. In view of the change brought in the law of succession by the Ordinance referred to above, the son (now is legal heirs) will exclude the sisters from inheriting any share in the property of the last owner namely, Sher Zaman Khan.
11. The result is that no ground exists for interference with the impugned orders and consequently, the petition must fail and is accordingly dismissed hereby. Parties however, are left to bear their own costs.