This revision petition arises from the judgment and the decree of the learned Additional District Judge, Abbottabad, dated 15-10-1991, modifying the judgment and the decree of a learned Civil Judge First Class, Abbottabad dated 11-11-1982, dismissing the suit involving the dispute over the inheritance of Muhammad Ismail, who died issueless in 1988 leaving behind Ghulam Haider, plaintiff, as his paternal uncle, Mst. Zainum Noor and Fazal Nishan his paternal aunts, Mst. Roshan.
Jan, mother, Mir Afzal uterine brother and Mst. Hasan Jan and Safaida Jan as uterine sisters.
2.Facts giving rise to this petition are that Muhammad Ismail, was owner of landed property in two villages: Banda Faizullah Khan and Nawan Shehr Shamali, Tehsil and District Abbottabad. On his death on the 12th March, 1988, two inheritance Mutations Nos.263 and 2264 were respectively attested on 6th September, 1988 and 13th September, 1988 for the land left by him in the two village in the following manner:-- Mst. Roshan Jan mother: 1/5 share Mir Afzal uterine brother Mst. Zainum Noor and Suffaida Jan uterine sister:1/5 share Ghulam Haider unlce: 3/5 share 3.Feeling dissatisfied, Ghulam Haider, uncle of Muhammad Ismail deceased filed a suit against Mst.
Roshan Jan, Mir Afzal and his two sisters Mst. Suffaida Jan and Husan Jan wherein besides throwing a challenge to the propriety of the aforesaid inheritance mutations, he sought declaration to the effect that he alongwith his two sisters, namely, Mst. Zainum Noor, and Fazal Nishan was entitled to the land left by Muhammad Ismail to the exclusion of Mst. Roshan Jan, mother, Mir Afzal his uterine brother Mst. Hasan Jan and Sufaida Jan his uterine sisters. The case of the plaintiff set up in the plaint briefly is that Mst. Roshan Jan defendant No,1 was married to his brother Rehmatullah. Out of the wedlock only Muhammad Ismail was born. Rehmatullah died and Mst. Roshan Jan contracted her second marriage with Qutub Din, a Gujar by caste, from whom Mir Afzal, her son and Mst. Hasan Jan and Sufaida Jan daughters were born. Rehmatullah, plaintiffs brother and Muhammad Ismial's father, predeceased his father Amirullah, in 1927, therefore, Muhammad Ismail was not entitled to inherit the disputed land. On Amirullah's death, the plaintiff and his two sisters defendants 5 and 6 had inherited the entire land including that illegally mutated in the name of Muhammad Ismail following the doctrine of representation and that, in any case, on the death of Muhammad Ismail, his mother and his uterine sisters, defendants 1 to 4 were not entitled to inherit his estate and that the plaintiff and his two sisters had inherited the entire land in dispute.
4.The suit was strenuously contested by defendants Nos.2 to 4, both on factual and legal plane, as in the meantime defendant No,1 had died. For the purpose of this petition the following four issue are crucial:--
(7) Whether in the inheritance Mutation No, 263 dated 6-9-1988 in respect of the estate of deceased Muhammad Ismail son of Rehmatullah and Mutation No,2264 dated 13-9-1988 in respect of the deceased is collusive, based on fraud, illegal, wrong, ineffective and liable to be cancelled?
(8) Whether the plaintiff is entitled to the decree of declaration as prayed for in the plaint?
(9) Whether the plaintiff is entitled to the decree of permanent injunction as prayed for?
(10) Whether the plaintiff is entitled to the decree of possession as prayed for?
5.The learned trial Judge took up issues Nos.l and 5 to 10 together and the assertion of the plaintiff that Rehmatullah, father of Muhammad Ismail having predeceased his own father Amirullah, and that the latter stood disinherited was not entertained. Muhammad Ismail was held entitled to the share of land which his father would have inherited if he had survived him. It was further held that Mst. Roshan Jan mother would inherit 1/3rd share, Mir Afzal uterine brother and his two uterine sisters would jointly inherit 1/3rd share, while the remainder 1/3rd share would devolve upon the plaintiff and still non-suited him. The learned Additional District Judge, on appeal, modified the judgment and the decree and held the plaintiff entitled "to 2/3rd share in the legacy of late Muhammad Ismail deceased while Mst. Roshan Jan defendant No, 1 (deceased) was entitled to 1/3rd share which now goes to defendants 2 to 4 as her heirs".
6.Mr. Muhammad Afsar Jadoon, learned counsel for the petitioners, has, for my address, raised the following proposition:-- "Whether a uterine brother and two uterine sisters arc entitled to the estate of a Hanafi Muslim if he is also survived by his mother and real paternal-uncle? If so, to what extent?
7.In support of this proposition, the learned counsel for the petitioners has placed reliance on item No, 9 in the Table of Sharers in the Mulla's Treatise 'Principles of Muhammadan Law' and contended that mother, the uterine brother and uterine sisters would jointly inherit as sharers the estate of Muhammad Ismail to the extent of 1/6th and 1/3rd respectively while the residue would devolve upon his paternal-uncle.
8.Mr. Abdur Rauf Jadoon, learned counsel for the plaintiff-respondent, on the contrary, urged that Amirullah died in 1957 whereas his son Rehmatullah father of Muhammad Ismail had predeceased him, therefore, the latter stood disinherited because Muslim Family Laws Ordinance (VIII of 1961) recognising the doctrine of representation had been enforced later in the year 1961.
9.The contention of the learned counsel for the plaintiff-respondent, I 'am afraid, is devoid of substance. The plaintiff-respondent has not at all been able to substantiate his plea that Amirullah had died in the year 1957. He has examined Abdul Aziz P.W.2 but he has uttered not a word as to when Amirullah died. The best evidence qua his year of death would have been either his death certificate from the quarters concerned or at least his inheritance mutation. Having not brought on the record these documents, the presumption is irresistible that had those documents been produced it would have revealed that Amirullah had died under the domain of Muslim Family Laws Ordinance, (VIII of 1961). The only contention of the learned counsel for the plaintiff-respondent is thus devoid of force.
10.Under the Islamic Jurisprudence, the Holy Quran is the first and primary source of law. Law of inheritance is a very striking example as it finds its origin in the very verses of the Holy Quran. The verses of the Holy Quran have been fairly specific about the scheme of Inheritance and have furnished considerable guidance to the jurists who later on laid it down scientifically. (See Hamid Khan's" Islamic Law of Inheritance," Lahore Law Times Publications, 1980 Edition pp. 2,3). The following are the words in which Law of Inheritance has been described in the Holy Qur'an:-- "God commands you concerning your children: the male shall have the equal of the portion of two females, but if there are more than two females, they shall have two-third of what he has left, and if there is one, she shall have the half. And as for his parents, each of them shall have the sixth of what he has left, if he, has a child; but if he has no child and only his parents inherit him, then his mother shall have the third; but if he has brothers, then his mother shall have the sixth, after payment of the bequests he has made, and of his debt. You know not whether yotir parents or your children be of greater use to you. This is an Ordinance from God, and God is knowing and wise. And you shall have half of what your wives leave if they die without issue; but if they have a child, then you shall have a fourth of what they leave after payment of any bequest they may have bequeathed or a debt; and they shall have fourth of what you leave if you have no child, but if you have a child, then they shall have the eighth of what you leave after payment of any bequests you may have bequeathed or a debt; and if a man or a woman, having no children leaves inheritance and he (or she) has a brother or a sister, then each of these two shall have the sixth and if they are more than that, they shall be sharers in the third after payment of any bequest that may have been bequeathed or a debt that does not harm others". (Sura IV: 11, 12).
"Say, God will give you a decision concerning the persons who leave neither descendants nor ascendants as heirs, but have a sister, let her have half of what he leaves. And he (the brother) shall be her heir, if she has no issue. But if there be two sisters, let them both have two-thirds of what he leaves. And if there be more brothers and sisters, let the male have like the portion of two females." (Sura IV: 176).
11. The Hanafi School provides that the heirs can be divided into seven classes, three principal and the four subsidiary classes. The three principal classes arc:-(i) The Qur'anic Heirs called, "Sharers".
(ii) The'Agnatic Heirs called, "Residuaries".
(iii) The Uterine Heirs called, "Distant Kindred".
The subsidiary classes of heirs are:
(1) The Successor by Contract;
(2) The Acknowledged Kinsman;
(3) The Universal Legatee;
(4) The State.
12.According to Hanafi Law the property of the deceased goes, in the first instance, to the Quranic Heirs i,e, Sharers. If the estate is not exhausted by them, it goes, to the Agnatic Heirs or Residuaries.
And finally, in the absence of Sharers and Residuaries, the property is distributed among the Distant Kindred.
13.As already stated, Sharers are those heirs who have been named in the Holy Quran and have been assigned specific shares. These are twelve in number, two of them being relations by marriage, that is husband and wife and the rest of them are relations by consanguinity or blood.
These are as follows:-
(1) Husband.
(2) Wife.
(3) Father.
(4) True Grandfather hhs.
(5) Mother.
(6) True Grandmother hhs.
(7) Daughter.
(8) Son's daughter hls.
(9) Full sister.
(10) Consanguine sister.
(11) Uterine brother, and
(12) Uterine sister.
14. Residuaries are all those persons for whom there is no specified share and who take the residue after sharers have been satisfied, or they take the whole estate if there is no sharer.
15. According to Al-Sirrajiyyah, "A distant kinsman is every relation, who is neither a sharer nor a residuary". So, it can be said that a Distant Kinsman is only entitled to succeed when there is no sharer or residuary. It will be noticed on referring to the Tables of Sharers and Residuaries in the Mulla's Principles of Muhammadan Law that there are six sharers who inherit under certain circumstances as residuaries. These are the father and true grandfather h.h.s., the daughter and son's daughter h.l.s. And the full sister and consanguine sister. Of these, only the father and true grandfather inherit in certain events both as sharers and residuaries. In fact they are the only relations who can inherit at the same time in a double capacity. The other four, who are all females, inherit either as sharers or residuaries. The circumstances under which they inherit as sharers are set out in the Table of Sharers. They succeed as residuaries and can succeed in that capacity alone, when they are combined with male relations of a parallel grade.
16. In the aforesaid Book "Principles of Muhammadan Law" for the sake of convenience, two separate Tables for Sharers and. Residuaries have been set out after taking into account relevant considerations under the Muslim Law of Inheritance. These Tables cater for almost every situation.
17. After having a bird eye view of tie broad principles governing the Muslim Law of Inheritance, let me now revert to the case in hand. On the death of Muhammad Ismail, he has been admittedly survived by the following possible heirs and successors:--
(i) Mother.
(ii) Uterine brother.
(iii) Two uterine sisters.
(iv) Paternal-uncle.
(v) Two paternal-aunts.
18. Mother is principal sharer and always inherits her deceased son. Shel takes 1/6 of the estate of the deceased when he is survived by a child or child of a son his. She also takes 1/6 when the deceased has left two or more brothers or sisters or even one brother and one sister, whether full, consanguine or uterine. As Muhammad Ismail deceased has also been survived by a uterine brother and two uterine sisters, Mst. Roshan Jan mother would inherit 1/6 share in the estate left by the deceased.
19.In the matters of uterine brothers and sisters there is no distinction of sex and they share equally.
Uterine brother or sister, if one will take 1/6 and, if two or more, will take 1/3 collectively; provided the deceased left no child or child of a son his, father or true grandfather.
When there is no Residuary belonging to any one of the:
(i) Descendants of the deceased,
(ii) Ascendants of the deceased,
(iii) Ascendants of father of the deceased, then Residuaries in this class succeed in the following order:
(1) Full Paternal Uncle;
(2) Consanguine paternal-uncle;
(3) Full paternal-uncle's son;
(4) Consanguine paternal-uncle's son.
(5) Full paternal-uncle's son's son.
20. Having regard to what has been discussed above, the paternal-aunts are excluded from the estate of Muhammad Ismail deceased. The parties to the dispute would, therefore, inherit the estate of Muhammad Ismail deceased to the extent as detailed below:--
(1) Mst. Roshan Jan mother = = 1/6
(2) Mir Afzal, Uterine brother, Hasan Jan and Mst. Sufaida Jan terine sisters= 1/3
(3) Total 1/3 + 1/6 = 1/2
(4) Residue =1/2 Ghulam Haider = 1/2 Paternal-uncle as a Residuary.
21.In the light of the above discussion the appellate judgment and the decree of the learned Additional District Judge is modified and a decree for declaration is granted to the plaintiff that he is entitled to 1/2 share in the estate left by Muhammad Ismail his nephew in both the villages whereas the defendants 2 to 4 are entitled to the remaining 1/2 share in accordance with their sharai shares. The plaintiff-respondent is not proved to be in possession of the disputed land, therefore, a decree for possession of 1/2 share of the estate left by Muhammad Ismail deceased in villages Banda Faizullah Khan and Nawan Shehr Shamali is also granted to the plaintiff-petitioner.
No order as to costs.