1. ' MUHAMMAD AFZAL ZULLAH, CJ.---This appeal through leave of the Court is directed; against the rejection of the appellants' plaint under Order VII Rule 11 C.P.C.
2. ' The first appeal was returned to the appellants for presentation to the proper Court. The matter was then taken to the High Court and vide the impugned judgment dated 18-4-1984 the order of rejection of the appellants' plaint under Order VII Rule 11 C.P.C. Was upheld. The controversy involved is: whether, in the land in dispute relating to inheritance of a deceased displaced person right holder, vis-a-vis, the allotment and transfer of evacuee land under the Displaced Persons (Land Settlement) Act the appellants side could be given any benefit of the statutory measures taken from time to time in Pakistan giving right of inheritance. It is commonly known as grand-children's inheritance. The appellants' side claiming to be such a beneficiary has been denied the benefit by rejection of their plaint on the assumption that generally the Muslim Law of Inheritance does not permit the above noted statutory dispensation in favour of the grand-children. It may be observed that the major question of the right of grand-children to inheritance of grand-father came up before the Shariat Appellate Bench but it was not resolved on account of procedural and technical impediments. However, that Bench had not given any final verdict one way or the other. Keeping this aspect of the matter in view it now needs to be noted as to what were the facts and circumstances and the points on the basis of which leave to appeal was granted in this case. The relevant part of the leave granting order reads as follows:- "The petitioners Nos.1 to 7 claim to be the children of Din Muhammad a pre-deceased son of Sardar Muhammad a displaced person right holder. It appears that they were given the share, which as heirs they would have inherited in some land but were denied the same right in respect of other property. They were compelled to file the civil suit but without any success. It was held that Sardar Muhammad, having died on 27-8-1950, the Family Laws Ordinance promulgated on 15-7-1961 could not by virtue of Section 4 thereof, be of any assistance to them. An appeal before the District Court was not entertained and its memorandum was returned on account of jurisdictional evaluation. The High Court, having entertained a revision petition dismissed the same affirming the trial Court view namely that the 1961 Ordinance being not retrospective, the petitioners were not entitled to any relief as Grand-children of Sardar Muhammad.
3. "After hearing the learned counsel for the petitioners who has relied on Iqbal Mai v. Falak Sher PLD 1986 SC 228 and other judgments of the superior Courts and the learned counsel for the respondents, who has cited Muhammad Ali v. Abdul Aziz 1988 SCMR 267 we consider it a fit and proper case to grant leave to appeal inter-alia to examine the following questions:--
(a) Whether the property, being evacuee, the petitioners would not be entitled to the relief claimed, by virtue of Para 46 of the Rehabilitation Scheme;
(b) Whether the Family Laws Ordinance, 1961 read with other connected laws would not be given such effect so as to entitle the petitioners in this case to inherit the estate left by Sardar Muhammad.
4. "In this context the question of retrospectivity would also need examination".
5. ' This leave grant order is reported as Manzur Ahmad and 7 others v. Abdul Khaliq and 7 others 1989 SCMR 1329 (2). We have heard both the learned counsel at length.
6. ' During the arguments it came to light that the general question of the right of the grand-children to inherit the property of the grand-father has emerged again and again as a question of Islamic Law of inheritance which needed final resolution. It is true that in earlier authorities an assumption was made of generally accepted Muslim Law in the Sub-Continent that the grandchildren do not inherit. It is being re-opened for further examination in the light of the relevant Constitutional mandates that such like questions have to be decided in accordance with the injunctions of Islam as contained in Quran and Sunnah. That is why this Court has kept open the question as to whether Section 4 of the Family Laws Ordinance did not in fact recognize any such pre-existing law of Islamic inheritance; namely, that the grand-children do inherit and thus this provision is more of declaratory nature and may not be a new legislative dispensation. In that context its retrospective effect has also been opened for examination. Learned counsel for both sides have cited in one or the other context the following judgments: ' Abdur Rashid v. Pakistan PLD 1962 SC 42; Akbar v. Sadiq 1972 SCMR 23; Mst.Iqbal Mai v. Falak Sher PLD 1986 SC 228; Muhammad Ali v. Abdul Aziz 1988 SCMR 267; Kamal Khan v. Mst.Zainab PLD 1983 Lah. 546; Sakhi Muhammad v. Ahmad Khan 1980 CLC 1006; Zafar Yab Ali v. Settlement Commissioner 1985 CLC 2647.
7. ' In the present case the learned Judge in the High Court in a very short order held that as Sardar Muhammad died before the enforcement of the Muslim Family Laws Ordinance, 1961, the children and widow of his pre-deceased son Din Muhammad could not inherit any share out of the estate because according to him the provisions of the aforementioned Ordinance were not to operate retrospectively. The decision of the learned trial Court holding the appellants to be disentitled to get any share out of the estate of Sardar Muhammad deceased was treated as unexceptionable.
8. Similar was the conclusion reached by the learned trial Judge though the examination of the issues is somewhat detailed. Today both the learned counsel very ably tried to canvass and support the two. Different points of view both on the general question of Islamic Law of inheritance as well as on the questions which are peculiar to this case because it also involves interpretation and application of certain Notifications vis-a-vis the evacuee property on the question of inheritance by grand-children. There was one area of agreement; namely, that as the matter has now emerged it could not be said with certainty that the appellants had no cause of action at all for examination in a full-fledged trial even if it was to be on only legal issues and thus it was not such a case in which the plaint should have been rejected under Order VII Rule 11 C.P.C.
9. ' The next question arose is: whether, this Court should finally resolve the controversy in this very appeal; or the case should be remanded to the High Court for first exercise at that level so that this Court is benefited by the views of the High Court also on very vital questions of public importance.
10. On this the learned counsel for the respondents had very valid objection; namely, that the facts and merits otherwise not having been examined by the learned trial Court the respondents' pleas in that behalf, which according to their learned counsel, are very strong and formidable would not be tried and that side thus would suffer prejudice. Their learned counsel, accordingly, was of the view that the remand should be to the trial Court. Learned counsel for the appellants has also a similar apprehension regarding the remand to the trial Court; namely, the judgment rendered by the said Court having discussed some of the major issues the verdict in that forum has gone against the appellants. Therefore, according to him if that verdict is repeated the appellants would be prejudiced.
11. After hearing both the sides on this ancillary issues we deem it fit to remand the case to the trial Court with the further direction so as to allay the apprehension of the appellants that the matter shall be tried as a regular suit and that the plaint was neither liable to be rejected under Order VII Rule 11 C.P.C. Nor it would now he rejected under the said provision. Parties shall be afforded full opportunity of trial on all issues in controversy. The judgment of the trial Court as also the judgment of the High Court impugned in this appeal shall not influence the fresh trial and fresh decision. This appeal is accordingly partly allowed in the above terms. There shall he no order as to costs.