ABDUL SHAKURUL SALAM, J.--This order will dispose of Civil Petitions for Leave to Appeal Nos. 772 of 1989 and 773 of 1989.
2.Office has pointed out that the petitions are barred by four days.
3. Learned counsel for the petitioner states that from the date of delivery of the copy, the petition is very much in time. Otherwise also delay of four days, in the circumstances of the case, is condonable being unintentional.
4.On merits, the learned counsel submits that the suit of respondent No,1 was rightly decreed to the extent of 1/6th share in the estate of her grandmother, the mother having predeceased. This was in accordance with the judgment of the Lahore High Court reported in PLD 1983 Lah.
546. However, on her appeal, the judgment on the point was reversed by the appellate Court and she was granted a decree to the extent of 1/3rd share. Same has been upheld by the High Court.
Learned counsel submitted that the judgments of the two Courts below are in line with the judgment of the learned Peshawar High Court reported as under: PLD 1975 Peshawar 252. The Courts should have followed the Lahore High Court judgment.
5.For facility of understanding a small pedigree table may be stated as under: Mst.
Daulan Lalan Farid Petitioner Manzooran (Respdt.No,1)
It is common ground that Mst. Lalan mother of Mst. Manzooran, respondent No,1, died in the lifetime of her grandmother Mst. Daulan. Inheritance opened on the demise of Mst. Daulan.
6.Case of the petitioner is that even if by fiction of law as enacted in section 4 of the Muslim Family Laws Ordinance, 1961 at the time of opening of the inheritance of Mst. Daulan her predeceased daughter Mst. Lalan be taken as living, Mst. Lalan would inherit the estate of Mst. Daulan to the extent of 1/3; 2/3rd would go to Farid. But from Mst. Lalan, her daughter Mst. Manzooran, respondent No,1, will get one half of 1/3rd i.e, 1/6th, not the whole of the share of Mst. Lalan. Rest of the 1/2 of the estate of Mst. Lalan would go to the reversionaries amongst whom is the petitioner. This is in accordance with the judgment of the Lahore High Court. However, according to the judgment of the Peshawar High Court, Mst. Manzooran gets whole of the estate of Mst. Lalan and since the latter was to inherit 1/3rd, the whole of it has to go to Mst. Manzooran.
7. Since there is a conflict of decision of the two High Courts on the interpretation of the relevant section i.e,, S.4 of Muslim Family Laws Ordinance, 1961, leave is granted for an authoritative decision, subject to the determination of question of limitation at the final hearing. Security Rs,2,000. The appeals shall be processed on present record subject to the parties filing additional documents if so advised. The appeals shall be fixed before the year is out. Stay is declined to the extent of 1/6th share of the respondent not disputed by the petitioners, but for the next 1/6th, interim relief is granted to the petitioner subject to his furnishing full and sufficient security for mesne profits to the satisfaction of the trial Court.