SARDAR MUHAMMAD RAZA KHAN, J.---Filed by the same party against a common judgment between the same parties, both will be disposed of through this judgment.
2. Without referring to the lengthy details already given in our judgment under review as well as that of the High Court, suffice it to mention that we were confronted with the devolution of inheritance qua the property that originally belonged to one Najo survived by his son Abdul Ghafoor and Mst. Roshanai. After the death of Abdul Ghafoor the property happened to be possessed by Mst. Roshanai as limited owner.
3. We have already held that after the termination of limited estates through West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), Mst. Rohsanai transferred the entire property in favour of Abdul Khaliq etc., petitioners through registered gift-deed dated 28-4-1964. Fazalur Rehman etc., respondents in their capacity as the collaterals filed a suit claiming their shari share.
The learned trial Court dismissed the suit; the learned First Appellate Court and the learned High Court granted them a decree of 3/4 share which, through the judgment under review, was modified to 1/2 share.
4. After hearing Mr. Muhammad Aman Khan, learned counsel for the petitioners and Mr. Maazullah Barkandi, learned counsel for the caveators/respondents, it dawned upon us that because of inadvertence and because of the point having not been attended to, the Court had fallen into a serious non-interpretation of relevant law on the subject resulting into the grant of undue share to the respondents not sanctioned by shari law of inheritance.
5. From the pedigree-table on record it is an admitted position that the respondents, claiming relationship with Abdul Ghafor from one Behram, fall in the last category of clause iv of Distant Kindred, being descendants of remoter ancestors how highsoever. (true of false). Para.67 of Principals of Mahomedan Law by D.F. Mulla reproduced below:-- "67. Distant Kindred.---(1) If there he no shares or Residuary, the inheritance is divided amongst Distant Kindred.
(2) If the only sharer be a husband or wife, and there be not relation belonging to tile class of Residuaries, the husband or wife will take his or her full share, and the remainder of the estate will be divided among Distant Kindred."
Would clearly suggest that the distant kindred inherit only when there are no sharers or residuaries.
It is a decided fact that if a sharer or a residuary exists, the distant kindred- are completely ousted from the inheritance. In the instant case Mst. Roshanai, the donor was the real sister of Abdul Ghafoor who died issueless. She would, therefore, inherit A 1/2 share in the property of her brother Abdul Ghafoor as sharer and as of her own right. As the sharer is in existence and as in the presence of sharer no distant kindred is entitled to inherit, the entire residue under para-66 of the text aforesaid and under the Principle of Rel.= (radd.), would revert to the slprer. The para for convenience of reference is reproduced:-- "66. Return (Radd.).---If there is a residue left after satisfying the claims of Sharers, but there is no Residuary, the residue reverts to the Sharers in proportion to their shares. This right of reverted is technically called -Return or Radd.
Exception.--Neither the husband nor the wife is entitled to the Return so long as there is any other heir, whether he be a Sharer of a Distant Kinsman. But if there be no other heir, the residue will go to the husband or the wife, as the case may be, by Return."
6. In this view of the matter, the entire property of Abdul Ghafoor would go to Mst. Rashanai. She Was original owner of the entire property which got transferred through registered gift deed to the present petitioners. The distant kindred being not entitled to inherit at all, any share granted to them by the High Court or by this Court in order under, review was unwarranted. The trial Court had rightly dismissed the suit. The review petition is accepted, the impugned judgment and decree of this Court is hereby reviewed and the respondents/plaintiffs are non-suited.