1. ' This application under section 115, C.P.C.Involves a civil dispute between two rival competitors for a share in the land left by Sikandar Khan. He owned 122 Kanals of land at Mauza Kahawar Kalan in Tehsil and District Bhakkar. He died without leaving a male issue: He was survived by a widow Mst.
2. Sabo, three daughters, Mst. Khanai, Mst. Gamai and Mst. Jano. By inheritance Mutation No,670 sanctioned on 14-3-1974, Revenue Officer distributed his land in proportion of 1/8th to his widow, 2/3rd, collectively to his three daughters, and, the remainder 5/24 share to Jiwana as his closer residuary. Haq Nawaz son of Samundar claiming preferential right of inheritance to the exclusion of Jiwana filed an appeal against order passed on inheritance Mutation No, 670. On 27-4-1974. Exh.P4, E.A.S.0./Collector, Tehsil Bhakkar found "it is evident from the pedigree-table that Haq Nawaz appellant is nearer to the deceased than the respondent, so he is entitled to the remaining 5/24 share" and allowing the appeal remanded the case to Assistant Collector II Grade, for a fresh decision to the extent of giving 5/24 share to Haq Nawaz. Jiwana filed a further appeal before Additional Commissioner (Revenue), Sargodha Division, Sargodha. Appeal was allowed on 26-8- 1974--Exh.D1 by setting aside the remand order and restoring that of Assistant Collector II Grade originally passed on inheritance mutation No,670. It was found by the Commissioner that Jiwana was a residuary in the fifth degree and as compared to him, Haq Nawaz was a remoter residuary of seventh degree, and, therefore, the former was entitled to inherit to the exclusion of the latter. Order passed in appeal was not assailed further in the Revenue hierarchy. Instead, a suit was filed by Haq Nawaz on 9-11-1974 to have his preferential right of inheritance declared and recognized by the Civil Court for a 5/24 share in the estate left by deceased Sikandar Khan. Para. 2 of the plaint gave the pedigree of the parties on the basis of which the plaintiff had claimed right to inherit the estate of the deceased. Correctness of the pedigree reproduced in the plaint and given in pedigree- tables Exts.P1, P2 and D2 is not in dispute. What is disputed is the plaintiff's right to inherit on its basis. Plaintiff claimed to inherit from the deceased on the basis of being a nearer male descendant of a common ancestor Gama Khan, whereas, Jiwana pressed his claim on the ground of being a descendant in the male line of Qabool Khan. The question for decision would be as to who among them is a closer residuary of the deceased. Plaintiff is son of Samundar Khan son of Muhammad Khan son of Bahu Khan son of Hassan Khan son of Gama Khan. Deceased was son of Mubarik Khan son of Balam Khan son of Gama Khan. Gama Khan was thus a paternal great grandfather of the deceased. Plaintiff is a descendant in the fifth degree in the male line of descent from Gama Khan. Jiwana is son of Haji Khan son of Baloch Khan son of Bahadur Khan. Gama Khan and Bahadur Khan were real brothers and sons of Qabool Khan. Both Haq Nawaz and Jiwana fell in the category of residuaries of the fourth class as descendants of true grandfather h.h.s. Given in the table of Residuaries in Mahomedan Law by D.F. Mulla. However, plaintiff is a nearer degree residuary of the deceased, both being descendants of a common ancestor, namely, Gama Khan.
3. Jiwana was a premoter residuary as compared to the plaintiff. Therefore, plaintiff was entitled to take the residue to the extent of 5/24th share of the estate left by the deceased. In Moohummudan Law of Inheritance, and Rights and Relations affecting it, Sunni Doctrine by Almaric Rumsey, at page 51 of the book, it is stated:-- "Although, as seen above, the test of proximity of degree, as between members of different classes, must be decided by the order of the classes, a question may arise, what rule should be followed if there are claimants in different lines, either some within and some without, or all without, the limits of the classes; as, for instance, if there should be two descendants of two distant Tr. Grandfathers, one such descendant being in a nearer line, but the other being more nearly related in actual number of steps; or, if there should be two such descendants, one in a nearer line, but each removed from the deceased by exactly the same number of steps. By analogy, it would seem that, in either case, the person in the nearer line must succeed, to the exclusion of the other. If the composition of the several classes be examined, it will be seen that, so far as they go, they are constructed on the principle that a nearer line succeeds in preference to a more remote. First, we have the line of the deceased; then (after the interposition of the ascendants) the line of his father; then the line of his father's father; and it is shown that the second of these cannot succeed till the first is exhausted, nor the third till the first and second are both exhausted. It is reasonable to conclude, in the absence of any statement to the contrary, that the same principle holds with respect to all lines at whatever distances, so that, for instance, all residuaries descended from the father's father's father must be exhausted before any residuary descended from the father's father's father's father can succeed."
4. ' Therefore, to this extent, the judgment and decree of the trial Court were correct and those rendered in appeal from it untenable. Upon this view of the matter, I would allow the civil revision, set aside the impugned judgment and decree passed in appeal and restore those of the trial Court to operate by leaving the parties to bear their own costs of litigation.
5. Records be returned.