' The brief facts out of which the present revision petition arises are that the petitioners filed .a suit for declaration against respondents before the Civil Judge, D.G. Khan, on 5-1-1999. The contents of the plaint reveals that the petitioners filed a suit for declaration contending therein that the petitioners/plaintiffs are owners in possession of the suit property and the Mutation No,149 dated 21-5-1998 is wrong, illegal and ineffective against the rights of the plaintiffs petitioners. The contents of the plaint further reveal that owners of the suit-property was the father of the petitioners-plaintiffs; that at the time of the death of their father the petitioners were the only heirs of their father; that there was another sister of the petitioners-plaintiffs Mst. Zohran who died some 45-50 years ago before the death of their father; that according to Shariat the sister of the petitioners is not entitled to take the share from the property of their father. The respondents filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed the following issues:--
(1) Whether the plaintiffs are owners in possession of the suit property? OPP
(2) Whether Mutation No,149 dated 21-5-1998 is against law and tact, ineffective and inoperative upon the rights of the plaintiffs? OPP
(3) Whether the plaintiffs have no cause of action? OPD
(4) Whether the plaintiffs are estopped by their word5 and conduct to file this suit? OPD
(5) Whether the suit of plaintiffs is false, and vexacious and the defendants are entitled to special costs under section 35-A, C.P.C.? OPD
(6) Relief.
2. The learned trial Court dismissed the suit vide judgment and decree dated 7-5-2002. The petitioners being aggrieved filed an appeal before the District Judge, D.G. Khan, who dismissed the same vide judgment and decree dated 18-2-2003.
3. The learned counsel of the petitioners submits that judgments of both the Courts below are not in accordance with dictum laid down by the Federal Shariat Court in "Allah Rakha and others v.
Federation of Pakistan" PLD 2000 FSC 1. He further submits that it is the duty and obligation of the Courts below to decide the cases in accordance with the jurisdictions of Islam in view of the Article 2A of the Constitution. He further submits that the respondent was not entitled to inherit more than the share which could have been inherited by her mother, if she was alive. He further submits that both the Courts committed material irregularity at the time of deciding the controversy between the parties.
4. I have given my anxious consideration to. The contention of the learned counsel of the petitioner and perused the record.
5. It is better and appropriate to reproduce the family pedegree-table of original owner Ghulam Hussain to resolve the controversy between the parties:-- Pedigree-table of original owner Ghulam Hussain Zohra Mai Jewan Karim Bakhsh ' Zohra died about 40/50 years before' death of her father Ghulam Hussain according to the petitioners; whereas she died about 25/30 years before death of Ghulam Hussain according to the respondent.
' Zulaikha ' The mutation of inheritance was sanctioned in favour of all the legal heirs of Ghulam Hussain vide Mutation No, 149 which was sanctioned by the Revenue Officer on 21-5-1998 in view of section 4 of Muslim Family Laws Ordinance, 1961. Section 4 of the Muslim Family Laws Ordinance was declared un-Islamic by the Federal Shariat Court titled in "Allah Rakha and others v. Federation of Pakistan and others" PLD 2002 FSC 1. The Federal Shariat Court had fixed cut off date 31-3-2002 i.e, said section shall cease to have effect after the target date. It is pertinent to mention here that the aforesaid judgment of the Federal Shariat Court has been challenged before the Honourable Supreme Court, therefore, judgment of the Federal Shariat Court shall be suspended automatically till the disposal of appeal in view of Article 203(D), 1(A)(2) proviso, therefore, section 4 of Muslim Family Laws Ordinance, shall remain in the field till the disposal of appeal by the Supreme Court of Pakistan, Shariat Appellate Bench. In arriving to this conclusion, I am fortified by the law laid down by the Honourable Supreme Court in "Fazeelat Jan and others v. Sikandar through his legal heirs"
6. It is admitted fact that Mutation No,149 was sanctioned on 21-5-1998 by the Revenue Officer in view of section 4 of the Muslim Family Laws Ordinance, 1961; whereas Federal Shariat Court declared section 4 of Muslim Family Laws Ordinance against Injunction of Islam, D vide judgment dated 29-12-1999. The Federal Shariat Court as mentioned above, has fixed cut off dated 31-3- 2000. It is settled principle of law that the judgment of Federal Shariat Court has prospective effect and not retrospective effect. In arriving to this conclusion, I am fortified by the law laid down by the superior Courts in the following judgments:- - "Muhammad Yusuf v. Chief Settlement Commissioner and others" PLD 1968 SC 101; "Chief Land Commissioner and others v. Ch. Atta Muhammad Bajwa and others" 1991 SCMR 736; "Muhammad Sharif, etc. v. Nawab Ali, etc." 2002 CLC 285.
' The Courts below have no jurisdiction to decide the matter in view of Article 2A of the Constitution in view of Article 203-0 of the Constitution as law laid down by the Honourable Supreme Court in "Hakam Ali's case PLD 1992 SC 595 and law laid down by the D.B. Of this Court in "Muhammad Ramzan's case" 2001 CLC 158. The question of law has been considered by this Court in "Kamal Khan alias Kamala v. Zainab Bibi" PLD 1983 Lahore 546 and laid down the following principle:-- "The starting point is that notionally the offspring of the propositus is deemed to be alive for the purpose of succession, at the time of the death of the propositus, and the succession of the grandchild is to be calculated again notionally as if the parent of the grandchild died after the death of the original propositus."
' The aforesaid proposition of law has also supported by the law laid down by the Superior Courts in the following judgments:-- "Ibrahim and 3 others v. Nehmat Bi and others" PLD 1988 Lahore 186; "Mst. Lqbal Mai and others v. Falak Sher and others" PLD 1986 SC 228; "Asghar Ali v. Siraj-ullah Khan alias Shaji-ullah" 1993 CLC 545.
' The ratio of the aforesaid judgments of the superior Courts, is that the grandchild is entitled to share equal to the share of his mother or father in view of section 4 of the Muslim Family Laws Ordinance, 1961. It is pertinent to mention here that mutation of inheritance reveals that Karim Bakhsh, Jewan and Zohra Mai, are legal heirs of original owner Ghulam Hussain, had taken 4 share; whereas granddaughter of original owner i.e, Zulaikha daughter of Zohra Mai, secured one share which means that she had taken share only of her mother which is in accordance with law laid down by the Superior Courts in the aforesaid judgments. Even otherwise, it is pertinent to mention here that the petitioners did not take the aforesaid grounds in the memorandum of the appeal before the First Appellate Court. The grounds which arc taken by the petitioners in the memorandum of appeal, are reproduced hereunder for ready reference:-- {{URDU TEXT}} ' The aforesaid grounds clearly reveal that the petitioners did not take plea which was argued by the learned counsel of the petitioners before this Court, therefore, the counsel of the petitioners cannot allow to raise the aforesaid plea before this Court as per law laid down by the superior Courts in the following judgments:-- "Ashfaq-ur-Rehman v. Ch. Muhammad Afzal" PLD 1971 SC 766; "John E. Brown-lee v. Vivian Mac Milian" AIR 1940 PC (sic).
' In view of what has been discussed above, this civil revision has no merit and the same is dismissed.