1. This Civil Revision is directed against the judgment dated 22-5-1988 of the learned District Judge, D.I.Khan, vide which the judgment dated 13-4-1987 of the learned Civil Judge, D.I.Khan was maintained.
2. 2.The facts in brief are that Mohammad Ayaz, predecesor-in-interest of the parties was the owner of the suit land. On his death in the year 1963, his inheritance Mutation No.5034 was attested on 17- 3-1963 in the names of his heirs in the following manner:
(1) Mst. Zargulla, widow 1/8 share
(2) Mst.Sailan,Bibi and Mst. Saeed Nama alias Saeeda Bibi Daughters1/2 share
(3) Abdul Qayum, grandson 1/2 share Mst.Saeeda Nama alias Saeeda Bibi died in the year 1981 and her inheritance Mutation No.6061 was attested on 11-3-1981 in the name of Haji Gulshan, plaintiff-petitioner herein her husband, and Karim Khan, Mohammad Aslam and Mst. Nek Bibi, defendants-respondents 3 to 5 hcrein, son and daughters respectively. The plaintiff-petitioner instituted a suit for declaration in the Court of Senior Civil Judge, D.I.Khan, on 11-6-1981 challenging the aforesaid two inheritance mutations. His contention was that Abdul Qayum, defendant-respondent No.1 herein, could inherit 5/24 share in the property of Mohammad Ayaz and the daughters were entitled to 8/24 shares each. Having inherited the lesser share to which Mst.Saeeda Nama was entitled, her heirs, i.e. The plaintiff/petitioner (huband) and defendants-respondent 3 to 5 (son and daughters) on her death were deprived of their legal shares vide Mutation No.6061 attested on 11-3-1987. He, therefore, prayed for correction of aforesaid mutations and also for correction of entries in the Jambandi.
3. 3.The suit was contested by the defendant-respondent No.1 herein on various legal and factual pleas. From the pleading of the parties, the following issues were framed:-
(1) Whether the plaintiff has got a cause of action?
(2) Whether the suit is not within time?
(3) Whether the suit is res judicata?
(4) Whether the plaintiff is estopped to sue?
(5) Whether the suit is incompetent in its present form?
(6) Whether the plaintiff is entitled to the declaration prayed for?
(7) Relief?
4. 4.The parties to the suit produced their evidence which they wished and then the learned Civil Judge, D.I.Khan while discussing issues Nos.1 and 2 together held that Abdul Qayum, defendant- respondent Not inherited 1/2 share in the property of Muhammad Ayaz deceased in conformity with the Muslim Family Laws Ordinance, 1961, and because the plaintiff-petitioner raised no objection to Mutation No.5034 for a long time, the suit was time-barred. These issues were decided against the plaintiff-petitioner. The suit was found not barred under section 11, C.P.C. Issue No.3 was decided accordingly. Issues Nos.4 and 5 were disposed of as not pressed. While giving findings on issue No.6, it was held that the plaintiff-petitioner was not entitled to the decree prayed for. The suit was consequently dismissed on 11-4-1987.
5. 5.The judgment and decree of the lower Court was assailed in appeal before the learned Additional District Judge, D.I.Khan. It was argued before the learned Additional. District Judge that according to Muhammadan Law after allotting 1/8th share to the widow, 2/3rd share should have been given to the daughters of the deceased and the remaining share to the defendant/respondent No.1. The validity of section 4 of the Muslim Family Laws Ordinance, 1961 was challenged on the ratio of decision of Shariat Bench reported in PLD 1980 Peshawar 47. The learned Additional District Judge was of the view that the aforesaid decision of the Shariat Bench was not retrospective and that section 4 of the Muslim Family Laws Ordinance, 1961 was a valid legislation, under which defendant-respondent No.1 inherited the property. The plaintiff-petitioner's suit instituted on 11-6-1981 was declared as time-barred on the view that he had the knowledge of the so-called rights of his wife and accepted all the liabilities and limitations which his wife had left for him due to running of period of limitation. With these observations, the findings of the trial Court on all the issues were maintained and appeal filed by the plaintiff-petitioner was dismissed vide judgment dated 22-5-1988.
6. 6.Dissatisfied from the judgments and decrees of the lower Courts, the plaintiff-petitioner has filed this revision petition under section 115 of the Civil Procedure Code.
7. 7.S. Saeed Hassan Shah Sherazi, Advocate, learned counsel for the plaintiff-petitioner and Zahid Yousuf Advocate, learned counsel for the defendant-respondent No.1 addressed arguments on the application of section 4 of the Muslim Family Laws Ordinance, 1961 (hereinafter called as the Ordinance). According to them, discussion on section 4 of the Ordinance is required to be made because it having been declared against the Injunctions of Islam by the Shariat Bench in the case of Mst.Farishta v.Federation of Pakistan PLD 1980 Peshawar 47, Abdul Qayum, defendant- respondent No.1, son of predeceased son of Mohammad Ayaz, could not inherit the property at all.
8. On being referred to the decision in Federation of Pakistan v. Mst. Frishta PLD 1981 SC 120, learned counsel for the petitioner conceded that section 4 of the Ordinance is a legislation still operative.
9. The Shariat Bench of the Supreme Court declared section 4 of the Ordinance as part of law and scrutiny of section 4 as outside the jurisdiction of Shariat Court. While dealing with the subject and scope of Article 203-B of the Constitution, the august Supreme Court observed: "Article 227 of the Constitution of Pakistan (1973) is to be enforced through the Council of Islamic Ideology, whereas Article 203-B is to be enforced through Courts. In Article 227 the scope and sphere of Council of Islamic Ideology is very wide whereas in Article 203-B the jurisdiction of the Courts is limited both in point of time and also as regards certain subjects mentioned therein. To come nearer to the point in hand, Article 203-B excludes from its purview examination of "Muslim Personal Law", whereas there is no such exclusion from the purview of the Council of Islamic Ideology. Allowing both these Articles to operate in their respective spheres, the conclusion is inevitable that all such laws which apply to Muslims in their capacity as Muslims, whether these are statutory laws, or are applied under sanction of a statute are left to be dealt with by the Council of Islamic Ideology and are not to be gone into by Courts and this is what the phrase "Muslim Personal Law" for the purpose of its exclusion in the context means. In other words, the aforesaid phrase does not mean the pure religious laws of "Muslim" or under the denomination "Muslim" to Pakistani Muslims which may sometimes be different from the corresponding portion of pure "Muslim Laws" as administered in certain Muslim States unaffected by the non-Islamic Legislation or juristic influence".
10. The accepted position of law, therefore, is that section 4 of the Ordinance still holds the field. But the question is as to why this issue was raised in the lower Courts when the parties were not at variance on this issue. Nowhere in the plaint the vires of section 4 of the Ordinance was challenged.
11. What was alleged in the plaint was that Abdul Qayum was given excessive share in the property of Mohammad Ayaz than the one to which he was entitled under the law. I am of the view that the Courts below were misdirected to give findings on an extraneous issue. The Courts are not to decide a matter on which neither the parties are at variance nor any issue is framed. AIR 1943 Allahabad 184 may be referred. The object of framing issues is to ascertain the real dispute between the parties by narrowing down the area of conflict and determining where the parties differ. Under Order 20 Rule 5 of the C.P.C. The Courts are bound to give decision on each issue framed with the reasons therefor unless the finding upon any one or more of the issues is sufficient for the decision of the suit. Since no issue was framed nor the parties had challenged the vires of section 4 of the Ordinance, the Courts below imported an extraneous legal issue for discussion compelling this Court also to discuss the same as above. The discussion in a way may help in removing the impression that section 4 of the Muslim Family Law Ordinance 1961 is not a good law.
12. It is a valid legislation unless declared un-Islamic by the Council of Islamic Ideology as has been observed by the august Supreme Court in the case cited above.
13. 8.Now coming to the main issue pertaining to the shares of Muslim Law heirs under section 4 of the Ordinance, we find that the issue has now been resolved by the august Supreme Court in the case of Mst. Zainab v. Kamal Khan alias Kamala reported in PLD 1990 SC 1051. .
14. 9.The issue as to who are the heirs entitled to inherit under section 4 of the Ordinance came under discussion earlier before the Karachi High Court in the case titled Yusuf Abbas and another v. Ismat Mustafa and another, reported in PLD 1968 Karachi 480. The words "in the event or used in section 4 of the Ordinance were considered as referring only to the death of a son or daughter of a propositus occurring before the succession opens. It was held that these words would bring within their compass the sons and daughters dying before as well as after the Ordinance came into force.
15. The useful findings rendered are in the following words:- "The words 'in the event of refer only to the death of the son or daughter of the propositus occurring before the succession opens. These words would bring within their compass the sons and daughters dying before, as well as after the Ordinance came into force. The only addition is that the death should occur before the succession has opened, and even if the succession opens after the promulgation of the Ordinance, section 4 would apply with full force, and the children of the predeceased son or daughter of the propositus would be entitled to be included in the succession to the estate of the propositus. One consideration which has to be borne in mind in construing section 4 of the Ordinance is the purpose for which this law was passed. The Ordinance aims at alleviating the sufferings of the children whose unfortunate lot it is to lose their father or mother during the lifetime of their grandfather, or grandmother as the case may be. The construction of such statutes should be just sensible and liberal, so as to give effect to the purpose for which they are passed."
16. The decision in Yaqub Abbas's case was followed by the Lahore High Court in Sakhi Mohammad v.
17. Ahmad Khan 1980 CLC 1006 and subsquently by the Supreme Court in Mst. Iqbal Mai v. Falak Sher PLD 1986 SC 228. However, the question as to whether it was not the intention of law-maker in section 4 of the Ordinance to provide an opportunity of obtaining only Islamic law shares to the children of predceased son or daughter of propositus and that intention was not to increase their Islamic law shares was left to be examined in more detail in a fit and proper case. This question then came up for consideration before the august Supreme Court in the case of Mst. Zainab v.
18. Kamal Khan alias Kamala PLD 1990 SC 1151. The rule laid down reads as under:-- "On the opening of succession each group of children of the deceased sons/daughters would inherit the share of their father/mother and each individual would not get the share in his/her individual capacity. Section 4 has been added to cater the needs of grandchildren and to remove their sufferings but it cannot be interpreted so as to decrease the share of the other descendants.
19. According to section 4, share from the deceased grandfather's property has been bestowed upon the children of his predeceased son but this does not mean that the other heirs of the deceased would be excluded from their share of inheritance. Under section 2 of the Muslim Personal Law (Shariat) Application Act,1962, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where parties are Muslims. In spite of the non obstante clause section 4 is to be interpreted in the light of section 2 of the Act, 1962. Both thus can stand together."
10. The plaintiff-petitioner having received the share to which he was entitled and the other heirs of the propositus i.e. The daughters and widow were not excluded from inheritance. Even if they had been excluded from inheritance they could not claim their share due to bar of limitation. It has been held in a number of authorities before that the claims under the Muslim Personal Law (Shariat) Application Act, 1935 are like all other claims subject to the provisions of the Limitation Act.
20. Out of these, we may refer to a case reported in PLD 1961 Peshawar 9 which was relied upon in the case of Mukammil Shah v. Mst Apogai PLD 1970 Peshawar 110 and also in the recently pronounced judgment of the Supreme Court in the case of Habibullah Jan and 3 others v. Mohd. Hassan etc. PLD 1991 SC 93. It was held in the aforesaid authority as under:-- "However, the claims under the Muslim Personal Law (Shariat) Application Act,1935, are like all other claims, subject to the provisions of the Limitation Act. If a claim to the estate of the deceased is preferred under the Muslim Personal Law (Shariat) Application Act, 1935, and the claim is under the bar of limitation, the bar of limitation will prevent the claim from being entertained."
21. 11.Applying the test to the present case, we find that the plaintiff/petitioner is claiming the Shari share of his wife Mst. Saeed Bibi who in her lifetime raised no objection to the Mutation No.5034 attested on 17-3-1963. Thus the suit for declaration claiming Shari share in the property of Muhammad Ayaz and for correction of Mutation No.5034 is hopelessly time barred under Article 120 of the Limitation Act.
22. 12.Resultantly, this civil revision being devoid of any merit is dismissed. Parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.