1. MUHAMMAD AFZAL ZULLAH, J.-- Leave to appeal has been sought from judgment, dated 2-2-1985 of the Lahore High Court; whereby a Regular Second Appeal arising out of a declaratory decree in a suit relating to inheritance, was dismissed and first appellate judgment of affirmation of the decree, was upheld.
2. The respondent-side had filed a declaratory suit seeking their share in the estate left by one Shahwali who died in 1921. The property in question went to Gulab Khatoon Shahwali's widow as limited estate because Shahwali was issueless. Gulab Khatoon died in 1962. The question of inheritance then arose as explained by both the learned counsel. The learned trial Judge decided the question of inheritance on the basis that one-fourth would go to the heirs of Gulab Khatoon.
3. Out of the remaining three-fourth, one-third each to Mst. Amiran and Mst.Himtan sisters of Shahwali. There would still be left 1/12th share which was allowed to four collaterals of Shahwali (deceased); namely, Rajwali, Sanghar, Ghazan and Ghulam Muhammad with share of 1/48th each.
4. Ghulam Muhammad having in the meanwhile died (but after Shahwali), his 1/48th share received from the estate of Shahwali was distributed as follows: One-third to Ashraf Khatoon, the mother of Ghulam Muhammad and through her to her heirs; The remaining two-third was given to the collaterals of Ghulam Muhammad, namely, Rajwali (petitioners' predecessor-in-interest) Ghazan and Sanghar in equal shares.
5. Learned counsel for the petitioners had contended that at the time of death of Ghulam Muhammad in 1939 only Rajwali was alive. Sanghar and Ghazan had already died in 1924 and 1939 respectively. Therefore, the two-third share out of 1/48th from Shahwali's estate which was deemed to have gone to Ghulam Muhammad should have been given to Rajwali the surviving collateral of Ghulam Muhammad at the time of his death.
6. This question needs consideration. It would also need examination as to what is the effect of the petitioners' failure to implead some necessary parties in the First Appeal filed against the decree passed by the learned trial Court.
7. Leave to appeal accordingly, is granted.
8. Security Rs.2,500.