' Nawab son of Wahab Din was the owner in possession of the land measuring 71 Kanals 2 Marls. He died on 16-2-1964 and Inheritance Mutation No,1035 was sanctioned on 24-2-1964. At the time of death of Nawab, Ghulam Ahmad son of Fazalan petitioner herein and the respondents Nos.19 to 23 being sons and daughters of Mst. Fazalan (since died on 27-11-1958) were alive and as such were entitled to 2/9 share from the estate left by Nawab, being the grandsons and granddaughters, but the Mutation No,1035 was attested by the Revenue Authorities without giving any share to the petitioner and the respondents Nos.19 to 23. Since the petitioner and respondents Nos.19 to 23 could have not been deprived from their lawful share, therefore, suit for declaration was filed before the Civil Court, Gujrat, challenging the Inheritance Mutation No,1035 dated 24-2-1964. The claim of the petitioner was conceded by the respondents Nos.1 to 6 and 17 to 23, who made the statement in favor of the petitioner on 16-1-1994, 12-2-1994 and 8-3-1994 before the trial Court, However, respondents Nos.7 to 16 and 24, contested the suit by tiling the written statement. They admitted the death of Mst. Fazalan being the daughter of Nawab, but denied the entitlement of the petitioner and respondents Nos. 19 to 23 in the inheritance of deceased Nawab. The learned trial Court after framing the issues, proceeded to record the evidence and vide its judgment dated 17-2-2001 decreed the suit of the petitioner. The respondents Nos.7 to 16 and 24 filed an appeal against the judgment and decree dated 17-2-2001 of the Civil Judge, which was accepted by the learned Additional District Judge, Kharian on 26-11-2001 and the suit filed by the petitioner was dismissed, hence this revision petition.
2. Learned counsel for the petitioner on the strength of cases reported as Mst. Saima Naz v. Sh.
Pervaiz Afzal (2002 SCM R 164) and Muhammad Ali and others v. Muhammad Ramzan and others (2002 SCM R 426), contends that section 4 of the -Muslim Family Laws Ordinance, 1961 is applicable and the petitioner and respondents Nos.19 to 23 being sons and daughters of Mst.
Fazalan/predeceased daughter of Nawab, are entitled for the share to the extent of 2/9 from the property of Nawab. Learned counsel for the respondents could not controvert the legal position taken by the petitioner.
3. I have heard the arguments of both the parties and examined the record. The suit of the petitioner was decreed by the learned Civil Judge on 17-2-2001. Arpeal filed by the respondents has been accepted by the learned Additional District Judge, Kharian on the ground that section 4 of the Must' a Family Laws Ordinance, 1961, has been declared against the Injunctions of Islam and the only way to halt the operation of the decision of Hon'ble Federal Shariat Court is that it would have been challenged before the Hon'ble Shariat Bench of the Supreme Court of Pakistan. According to the learned Additional District Judge, since the verdict of F.S.C. Was never challenged before the Hon'ble Supreme Court of Pakistan, therefore, it means that previously according to section 4 of the Muslim Family Laws Ordinance. 1961, the children of predeceased son of daughter of a person were to inherit from the inheritance alongwith other children of the deceased that is to say brother and sister of the predeceased person, but now aftei the abovesaid verdict of the F.S.C., the position has been changed altogether. According to the learned Additional District judge the judgment of the F.S.C. Is not retrospective, but now the change of substantive law has occurred during the pendency of the original civil suit, therefore, the impugned mutation sanctioned in 1964 depriving the petitioner was valid.
4. There is no cavil with the proposition that according to section 4 of the Muslim Family Laws Ordinance, 1961, the children of predeceased son/daughter of a person are entitled to inherit from the inheritance alongwith other children of the deceased. There is also no dispute about the fact that the Hon'ble Federal Shariat Court has declared section 4 of the Muslim Family Laws Ordinance 1961 against the Injunctions of Islam in case reported as Allah Rakha and others v. Federation of Pakistan and others (PLD 2000 FSC 1). There is no force in the findings of the learned Additional District Judge that section 4 of the Ordinance has been declared violative of Injunction of Holy Qur'an as such the petitioner and respondents Nos.19 to 23 cannot get any share of the property of their predecessor-in-interest Nawab. While gong through the judgment of the Federal Shariat Court in the above-referred case, it is specifically mentioned in paragraph No,63 thereof that said provisions of the Ordinance, which has been held repugnant to the Injunctions of Islam shall cease to have effect from 31-3-2000. In the case in hand, the disputed mutation was sanctioned on 24.2- 1964 after the death of predecessor of the parties namely Nawab as such, the case of Allah Rakha would not be applicable to the instant case. Even otherwise, the Hon'ble Federal Shariat Court, while declaring section 4 of the Ordinance as repugnant to Holy Qur'an has taken care of the rights of orphan grand-children in paras. 55 and 57 of its judgment, which is reproduced as under:-- "55. The next question to be examined is as to what would be the solution for the socio-economic problem with which the orphan grandchildren may be confronted with on the demise of a grandparent, who may have left estate from which uncles and aunts would inherit but they would not, and thus, may have a sense of deprivation or for that matter confronted with economic problems.
56. .........................................
57. The Islamic Ideological Council in one of its reports on the subject of inheritance has recommended that the uncles and aunts of orphan grandchildren are duty bound to take care of their orphan nephew and nieces and provide for them. It has also been recommended that in the case of non-performance of this duty by aunts and uncles a legal obligation be cast upon them to abide by their duty. Probably the above recommendation is derived from Ayat 8 of Sura-e-Nisa which lays down that at the time of distribution of assets those next of kins and orphan and others, who are present, be also dealt with kindly. This is direction for general application to all next of kins who are present at the time of distribution to be taken care of and not specifically for orphan grandchildren."
' Even otherwise, the decision of the Hon'ble Federal Shariat Court in the above-referred case, declaring section 4 of the Ordinance as repugnant to the Injunctions of Islam, would take effect, if any, after the appeal pending before this Court is disposed of in view of sub-Article (2) of Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973.
5. The learned Additional District Judge has committed material irregularity by misinterpreting section 4 of the Muslim Family Laws Ordinance, judgment in the case of Allah Rakha (PLJ 2000 FSC 1) and the provisions of Article 203-D(2) of the Constitution of Islamic Republic of Pakistan, 1973 and fell in error by setting aside the well-reasoned judgment of the learned trial Court dated 17-2-2001.
Resultantly, this revision petition is accepted. The judgment and decree dated 26-11-2001 passed by the Additional District Judge, Kharian is set aside and the judgment and decree dated 17-2-2001 passed by the learned Civil Judge decreeing the suit of the petitioner is restored with costs.