' This civil revision petition under section 115, C.P.C. Has been filed by the petitioner to call in question the judgment and decree, dated 11-6-1999 passed by the Additional District Judge, Multan, whereby, the judgment and decree, dated 28-2-1993 passed by the Civil Judge, Multan decreeing the suit filed by the plaintiffs/respondents was upheld.
2. The facts giving rise to the present petition are that a suit for declaration and permanent injunction was filed by the plaintiffs/respondents stating therein, that Mst. Jindan Mai daughter of Rahim Bakhsh, wife of Muhammad Yousaf respondent No,1 and mother of remaining respondents, died prior to the death of her father Rahim Bakhsh. Rahim Bakhsh deceased died leaving behind his son Ahmad Yar, present petitioner. After his death, his property was mutated vide mutation of inheritance No,308 sanctioned on 12-12-1985 in favour of the petitioner. The plaintiffs/respondents claimed that they are entitled to 1/3rd share of the property of Rahim Bakhsh deceased being legal heirs of Mst. Jindan Mai pre-deceased daughter of Rahim Bakhsh. The defendant/petitioner (herein) contested the suit, filed his written statement denying the averments of the plaint and claiming that Mst. Jindan, predecessor-in-interest of the respondents was not his sister and daughter of Rahim Bakhsh. From the factual controversy appearing on the pleadings of the parties, the trial Court led to frame the following issues:-- Issues
(1) Whether the description of the suit land has incorrectly been given, if so to what effect? OPD
(2) Whether the plaintiffs lack cause of action and locus standi to file this suit? OPD
(3) Whether the plaintiffs are estopped by their words and conduct to file their suit? OPD
(4) Whether Mst. Jindan Mai was the daughter of Rahim Bakhsh, as such, on the death of Rahim Bakhsh in the year 1985, the heirs of Mst. Jindan i,e, the plaintiffs were entitled to inherit 1/3rd share of the land owned by Rahim Bakhsh deceased, as such, mutation of inheritance No,308, dated 13- 12-1985 excluding Mst. Jindan Mai or for than matter the plaintiffs, is illegal against facts and law liable to be set aside? OPD
(5) If issue No,4 is proved whether the plaintiffs are entitled to a decree for permanent injunction and declaration as prayed for? OPP
(6) Relief.
3. After recording and appreciating the evidence pro and contra of the parties, the trial Court vide judgment and decree, dated 28-2-1993 decreed the suit and declared the plaintiffs/respondents to be entitled for 1/3rd share out of the inheritance of Rahim Bakhsh, father of Mst. Jindan Mai, their mother.
4. Feeling aggrieved, the petitioner preferred an appeal before the learned Additional District Judge, Multan, who vide judgment and decree, dated 11-6-1999 dismissed the same and upheld the judgment and decree of the trial Court.
5. The learned counsel for the petitioner contended that the document Exh.P.3 produced by the petitioner was tampered document, which could not be relied upon and the decree could not be passed on such document. He further, contended that section 4 of Muslim Family Laws Ordinance, 1961 is not retrospectively effective and mother of the plaintiffs/respondents died before the promulgation of the said Ordinance, hence they are not entitled for the inheritance. He relies on Nazir Ahmad and others v. Abdullah and others 1997 SCM R 281. He further contended that the provisions of section 4 of Muslim Family Laws Ordinance, 1961 are in conflict with principle of Qura'n and Sunnah and are ineffective.
6. I have heard the arguments of the learned counsel for the petitioner and also perused the record.
7. Copy of the Register of entries of death, Exh.P.3 shows that the name of Mst. Jindan daughter of Rahim Bakhsh wife of Muhammad Yousaf had been entered at Serial No,10 of the said register of the concerned Mauza. The efforts were made to tamper the word "daughter ( 7.1 )''. The death entry shows the date of death of Mst. Jindan Mai as 19-8-1957. The Courts below after examining the record had accepted the entries of the document Exh.P.3 and on the basis of this document, they have declared Mst. Jindan Mai, deceased was daughter of Rahim Bakhsh. At this stage, this Court cannot reappraise the evidence, even if it can take a different view and this argument of the learned counsel for the petitioner is misconceived. As to the plea of learned counsel for the petitioner that the provisions of section 4 of Muslim Family Laws Ordinance, 1961 are not retrospectively effective, I am in agreement with this argument of the learned counsel for the petitioner, but to this extent that the provisions of section 4 are not applicable retrospectively, because it would have taken affect, since the day when the ordinance was promulgated.
According to the averments of para. No,3 of the plaint, it was averred by the plaintiffs that Rahim Bakhsh, deceased died in the year 1985 and Mst. Jindan Mai sometimes earlier pre-deceased to her father and mutation of inheritance was sanctioned on 12-12-1985. Rapat Roznamcha Waqiati was entered by Patwari on 12-11-1985. From this it reveals that Rahim Bakhsh had died in the year 1985 and the succession opened on the day when the last male-holder of the property died. The succession in the instant case opened on the death of Rahim Bakhsh, owner of the property, when the Muslim Family Laws Ordinance, 1961 was prevailing in the area. The case of Nazir Ahmed (supra) was applicable in that case. The original owner of the property Ali Muhammad died on 1-11- 1925 and his property was transferred in the name of Mst. Fazalan as limited owner, who died in the year 1984 and thereafter, property had been transferred in the name of the legal heirs, but in the instant case Rahim Bakhsh died in the year 1985. Thus, the case referred to above is not helpful to the petitioner. This contention of the learned counsel is also repelled. As to the last objection of the learned counsel for the petitioner that the provisions of section 4 of Muslim Family Laws Ordinance, 1961 are contrary to the principle of Qura'n and Sunnah is concerned I will like to rely on case of Federation of Pakistan v. Mst. Farishta PLD 1981 SC 120, wherein this proposition was discussed by the Honourable Judges of Supreme Court (Shariat Appellate Bench) observed that, "examined in the light of the above discussion, it is clear and we hold that section 4 of the Muslim Family Laws Ordinance VIII of 1961 is a special statutory provision which is intended to be applied only to Muslims of Pakistan as a class by itself, and from that point of view, constitutes a personal law for the Muslims i,e, Muslim Personal Law in the sense above explained. The Honourable Supreme Court further observed that its scrutiny was outside the jurisdiction of the High Court and the judgment and order of that Court, holding to the contrary was declared, not correct and it was set aside".
8. In case of Mst. Zainab v. Kamal Khan alias Kamala PLD 1990 SC 1051, the Honourable Supreme Court observed that "section 4 of Muslim Family Laws Ordinance, 1961 is intended to safeguard interest of children of predeceased son and in para.12 of the judgment, the Honourable Judges observed that "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. The Federal Shariat Court or the Honourable Supreme Court of Pakistan have not so far declared the provisions of section 4 contrary to the Injunctions of Islam. It has been held in case of Muhammad Hassan Musa and others v. Sardar Muhammad Javed Musa 1995 CLC 51 that "a careful perusal of section 3(2) of the Shariah Act, 1991 reveals that a Court has been allowed to interpret the existing provisions of law, in accordance with the principles of Shariah and no powers have been conferred upon it to declare whether any law is repugnant or contrary to the Holy Qura'n or Sunnah of the Holly Prophet, therefore, in such view of the legal position, on the strength of the arguments advanced by Mr. Basharatullah, it is not possible to declare that respondents being the sons and daughters of deceased son and daughter of late General Muhammad Musa are not entitled to claim share out of the legacy left by him. It would be advantageous to note that such powers even otherwise, could not be exercised, because it being a personal law enjoys Constitutional protection and for that matter, as it has been observed hereinabove that even the Federal Shariat Court, which was created under the Constitution to scrutinize the different laws at the touchstone of Shariat has not been empowered to examine the provisions of Muslim Family Laws Ordinance, as has been observed by the Honourable Supreme Court in PLD 1981 SC 120. Since there is no dispute between the parties in respect of their respective shares in terms of section 4 of the Ordinance of 1961, therefore, no interpretation of whatsoever nature is warranted by this Court at the touchstone of Islamic Injunctions".
9. In case of Gul Muhammad v. Nemat Bibi and 8 others PLD 1988 Lah. 186, the Honourable Judges of Lahore High Court, Rawalpindi Bench observed that "sons of pre-deceased daughter are entitled to receive the share equal to the share of her mother for which she was entitled if alive".
10. In case of Nizam Din and 6 others v. Faiz Muhammad and 14 others PLD 1998 Lah. 321, the Honourable High Court had held that "at present section 4 of Muslim Family Laws Ordinance, 1961 holds good as valid law".
11. In agreeing with the dictum laid down in the cases referred to above, I have no hesitation to hold that section 4 of the Muslim Family Laws Ordinance, 1961 still holds good and the respondents as legal heirs of Mst. Jindan Mai, the pre-deceased daughter of Rahim Bakhsh, are entitled to inherit 1/3rd share from the inheritance of Rahim Bakhsh, deceased, the father of Mst. Jindan. This objection of the learned counsel for the petitioner has no force. Both the Courts below have validly passed the impugned judgments and decrees and committed no illegality, which calls for no interference.
12. For the foregoing reasons, I see no force in this petition, which is dismissed in limine.