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Succession to Grand – Children

Section 4

Muslim Family Laws Ordinance, 1961

 

Succession

In the event of death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes, receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive.

 

Court Decisions

Muslim law:- Grandson, under the traditional Muslim law of Inheritance was not excluded from the inheritance of his grandfather due to absence of his own father—Provision of S. 4, Muslim Family laws Ordinance, 1961 clearly entitles the grandson for receiving the share which his father would have inherited, had he been alive. PLD 2003 SC 475

 

Repugnancy to Injunctions of Islamic. Provision contained in S. 4, Muslim Family Laws Ordinance, 1961, as presently in force, is repugnant to Injunctions of Islam. There is neither any ambiguity nor any clarification needed as regards devolution of inheritance and persons to inherit as also about their shares. In line inheritance prescribed by Quran in presence of son, children of predeceased children have been excluded as heirs and this position has been aptly taken care of by Sunnah of our Holy Prophet Muhammad (peace be upon him) in Ahadith in which precise position of the grandchildren has been elucidated that grandchildren are to be considered as one’s children in distribution of inheritance in case none of one’s own children are still alive and grandson has been excluded from inheritance simultaneously with one of propositus. This Hadith has been followed by all schools including Fiqa-e-Jafria. To re-explain position, question for determination was and is whether grandsons/daughters of a propositus whose parents have died during lifetime of the propositus are included in list of those entitled of inheritance under Qura’nic Injunctions. Qura’nic Injunctions are of two types; directory and prohibitory. It is a matter of common sense otherwise also that in presence of a mandatory injunction in respect of any matter no prohibitory provision would be required. Ayaat of Quran-e-Hakeem on subject of inheritance are mandatory, clear, explicit and, therefore, need no prohibitory provision for any explanation. Emphasis in Ayaat of Surah Nisa that directions contained therein as regards inheritance in all respects have to be followed in letter and spirit and any deviation there from entails punishment of severe nature, establishes the absolute mandatory. nature thereof. Another factor which had been weighing with learned members of Commission and obviously with framers of Section 4 appears to be humane and compassionate consideration qua orphans. Inheritance principles of Islam are not based on financial positions but as already stated are essentially based on nearness and close proximity of relations with deceased whose estate is to be distributed. Above considerations of humane aspects and compassion, though of great importance, cannot be incorporated in it on account of immense complications and various discriminatory positions that may emerge therefrom. For example if orphan children of predeceased children are to be included in list of persons to inherit why not include the widows of the predeceased children or for that matter children of predeceased brothers and sisters etc. and if it be so done there will be no end to inclusions. Again in matter of compassion an orphan grandchild without any tangible asset with him should not be equated with another orphan grandchild who in his own right may be much better placed financially than even the direct heir i.e. a son of propositus. In context of above position that can emerge and does exist in ground realities, human wisdom which, without any doubt, cannot equate with wisdom of Creator, should not be allowed to muddle up the scheme of inheritance laid down by Holy Quran as it is bound to create confusion and choas rather than be of any comfort or solace to fiber of Muslim Society. On plane of pure worldly considerations even, Section 4 cannot be sustained. In order to meet situations of financial inequality in society, it is not merely law of inheritance ordained through Quran which should be tampered with but attempt should be made to create a social order which takes care of all the deprived members of the society. Will it not be better to cater for needs of all orphans in a respectable manner rather than care for only such orphans who are being allowed to inherit from propositus by virtue of Section 4 alone? “Inclusion of grandchildren in inheritance from grandfather in presence of sons or daughters at time the succession opens and to have per stripes a share equivalent to, share which such predeceased son .or daughter would have received if alive is, therefore, nugatory to scheme of inheritance envisaged by Quran. Children of predeceased son or daughter appear to have been purposely excluded and there appears to be a Justification therefore that they are not to share burdens and responsibilities which a son as an heir would have to undertake on demise of his father. Examining above aspect on principles of other Jurisprudences as well it may be observed that it is well Settled even as regards the man-made law that if in any Such law there is manner and mode prescribed for doing anything in a particular manner it has to be done in same manner only and not in another manner. It is also well Settled that doing of anything in manner other than specifically provided for, will be wholly illegal and will have no effect whatsoever. If this principle is being adhered to as regards .the man-made law how can one think of deviating from law of Allah which law is base of all laws and there can be no other law better than that. Although there is no need to derive support from principles of any other Jurisprudence to interpret law as contained in Quran but nevertheless above view has been expressed Just to satisfy those minds which are over influenced by philosophies of law other than that of Islam. It is also intended to bring home to allsuch thinkers that philosophy of law contained in Quran is the most Just and in consonance with all equitable principles that could possibly be conceived. Next question to be examined is as to what would be solution for socio-economic problem with which orphan grand children may be confronted with on 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. Quran-e-Hakeem is the word of Allah Almighty who is the Creator of Universe and who knoweth everything which none else can know and is the wisest. It will be presently shown that solution for this problem is also available in Holy Quran, Islamic Ideological Council in one of its reports on subject of inheritance has recommended that Uncles and Aunts of orphan grandchildren are duty bound to take care of their orphan nephews and nieces and provide for them. It has also been recommended that in case of non-performance of this duty by Aunts and Uncles a legal obligation be cast upon them to abide by their”duty. Probably above recommendation is derived from Ayat 8 of Sura-e-Nisa which lays down that at time of distribution of assets those next of kins and orphans and others, who are present, be also dealt with kindly. This is a direction for general application to all next of kinds who are present at time of distribution to be taken care of and not specifically for orphan grandchildren. Above could be, one of the solutions for the problem but this solution is not such which will be considered respectable in social conditions of Pakistan inasmuch as in doing such rtype of a thing it is usually given out by performer of duty that he is doing it as a charity and those who receive anything under this arrangement have a feeling of inferiority and may have inhibition in taking something as a matter of charity. If piety which is a requisite of an Islamic Social Order had been prevalent it could well have been a good solution but in situations in which we are placed, better solution would be making of a law for Mandatory will in favour of the orphan grandchildren. This view finds support from a Qura’nic Verse as well. Quran-e-Hakeem through Ayat 180 of Surah Baqara has ordained that it is prescribed that when death approaches near you, if he leaves any goods, that he makes a bequest to parents and next of kins according to reasonable usage and this is due from God-fearing. This Ayat starts with a mandate that a person who sees.death is approaching, has an obligation to create will. Importance of the above mandate of Quran has also been stressed by following Hadifch:

 

“Narrated” Abdullah-bin-Umar Allah”s Apostle (s.a.w.) said, :It is not permissible for any Muslim who has something to will, to stay for two nights without having his last will and testament written and kept ready with him.”

 

It was canvassed by some counsel and the Jurisconsults that this Ayat-e-Qurani has been abrogated on account of later revelation by which parents had been included in person to inherit. It is the cardinal principle of interpretation that where two provisions in a law are irreconcilable the later shall prevail but all efforts should be made to -keep both provisions intact if a reconciliation of the two can be reached. Direction of creating a will on account of later revelation by including the parents as heirs is abridged to the extent of will in favour of parents alone but creation of will as regards others including next of kins who are not heirs remains intact in mandatory form in which it was revealed. Obviously grandchildren are nearest next of kin and they having not been included as heirs will be entitled to have a will created in their favour within limits prescribed for creating will. Significance and limits of which can be found from “known traditions of Prophet-(s.a.w.) Creation of a will in favour of orphan grandchildren out of an estate of gramd parents to extent of l/3rd would be another very plausible solution to meet socio-economic problem in this regard.

 

Measure has been restored in some Muslim countries and that laws enforced in this respect in Egypt and Kuwait are being effectively made-use of. Federal Shariat Court, however, left the matter to legislative domain of country to deliberate on it and bring about law which would safeguard interest of orphan grandchildren and exclude all possible complications of litigation that may crop up as a result of loose or unthought for provision of law. Creation of a will was preferred in favour of orphan grandchildren by grandparent over other solutions which may be available for socio-economic problem, inter alia, for, the following reasons:

 

That this derives strength from Qura’nic Injunctions as the orphan grandchildren being not heirs would be entitled to will in their favour as regards estate of propositus;

 

That the orphan grandchildren would have fruits from assets of their grandparent without any inhibition as they would be enjoying the same as of right in the same manner as their

 

Uncles and Aunts as heirs would be enjoying benefits of estate of their father; and

that a provision can be made that in case a propositus dies without creating a will, the will, to the extent of l/3rd in favour of the grandchildren out of the estate with a ceiling that it does not go beyond the share of their predecessor, shall be deemed to have been created by the grandparents in their favour

 

From above it squarely follows that in presence of direct mandatory injunctions of Holy Quran itself and also Ahadith there was no occasion, and could possibly be none ever, to add anything thereto or subtract anything therefrom in matter of inheritance. Provision contained in Section 4 of Muslim Family Laws Ordinance, 1961, as presently in force, is repugnant to Injunctions of Islam and Federal Shariat Court directed President of Pakistan to take steps to amend law so as to bring said provision in conformity with Injunctions of Islam. It was further directed that said provision which has been held repugnant to the Injunctions of Islam shall cease to have effect from 31st March, 2000.   P.L.J.2000 FSC 36 = PLD 2000 FSC 1.

 

Applicability-Respondents were children of predeceased daughter of the deceased predecessor. in-interest of the parties. Petitioners excluded the respondents from the mutation of inheritance-Such mutation was assailed in civil suit which was decreed in favour of the respondents-Lower Appellate Court maintained the judgment passed by the Trial Court and revision before High Court was also dismissed. Petitioners played a fraud while getting the mutation sanctioned in their favour and they intentionally and deliberately excluded the respondents. Validity-Where the provision of S.4 of Muslim Family Laws Ordinance, 1961, was very much in the field at the time of attestation of mutation, the principle laid down in the judgment of FSC would not be applicable to the instant case as the judgment had to take effect from 31.3.2000-Petitioners deliberately and knowingly got the names of the respondents omitted from the aforesaid mutation, such act on the part of the petitioners was not appreciated by Supreme Court: Appeal against the judgment passed by Federal Shariat Court was pending adjudication, the decision of the Federal Shariat Court would not be attracted till the disposal of the appeal .2002 S C M R 426

 

Bar of limitation-Claims of inheritance under North – West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935, were like all other claims subject to the provisions of Limitation Act, 1908-Plaintiff and defendants had not been excluded from inheritance of properties-Had such heirs been excluded from inheritance they could not claim their share when barred by the law of limitation. Suit for correction of mutation was barred by Art.120, Limitation Act, 1908-Plaintiff claiming share of his wife after her death-Plaintiff’s wife being satisfied with the share of inheritance did not raise objection thereto ­ Plaintiff’s suit being barred by limitation and otherwise not warranted on merits was rightly dismissed by Courts below. Section 4, Muslim Family Laws Ordinance, 1961, having been excluded from the scrutiny of Federal Shariat Court and having not been excluded from the scrutiny of Council of Islamic Ideology, was a good and valid law unless declared un-Islamic by the Council of Islamic Ideology. Vires of S.4, Muslim Family Laws Ordinance, however, having neither been challenged in plaint nor raised before lower Courts could not be challenged in revision before High Court-Courts under provision of OXX, R.5, Civil Procedure Code, 1908, were bound to give decision on issues framed on basis of pleadings-No issue on vires of S.4, Muslim Family Laws Ordinance, 1961 having been framed nor such omission having been challenged, Courts below had thus imported an extraneous legal issue compelling High Court also to discuss the same. P L D 1991 Pesh. 85

 

Date of Death Contention that for purpose of inheritance death of propositus as well as that of son and daughter must occur after coming into force of Ordinance, held, without force. 1980 C L C 1006     P L D 1968 Kar. 480 rel.

 

Entitlement of grandsons to get their share from the inheritance left by their grandfather – Respondents/grandsons of the deceased were declared owners of ¼th share in property left by the deceased grandfather in the order passed by Appellate Court – Petitioners who were sons of the deceased had challenged the order passed by Appellate Court in revision filed before the High Court, contending that in view of the dictum laid down by the Federal Shariat Court in case reported as Allah Rakha and others v. Federation of Pakistan PLD 2000 FSC 1, the respondents were not entitled to get any share from the inheritance left by their grandfather as S.4 of Muslim Family Laws Ordinance, 1961 had been declared repugnant to Injunctions of Islam by the Federal Shariat Court – Contention of the petitioner was repelled because the date given in the said Judgment of Federal Shariat Court from where S.4 of Muslim Family Laws Ordinance, 1961 would cease to have effect was 31-3-2000 and the Judgment had no retrospective effect – Grandfathers of the respondents died in 1969 and mutation of inheritance was sanctioned in 1970 and respondent had filed suit to inherit their share in 1981 and since then they were pressing for their rights – Federal Shariat Court having power to make a declaration to give effect to its Judgment only from a future specified date, would leave the pending proceedings ineffective – Decision of Federal Shariat Court would not take effect before the date specified by it in the decision – Prior to that date neither the decision would take effect nor the law would cease to have effect and the relevant law would continue to remain in force till the day prior to the date fixed by the Court – Inheritance of the deceased having opened in 1969, respondents being grandsons of the deceased were entitled to inherit his estate under S. 4 of Muslim Family Laws Ordinance, 1961, which was very much in force at the relevant time – Judgment and decree passed by Appellate Court being Just and correct, could not be interfered with in revisional Jurisdiction of High Court, 2002 CLC 285 PLD 2000 FSC 1; PLD 1991 SC 71; 1987 SCMR 1206; PLD 1988 SC 287; 1980 CLC 334; 2000 SCMR l463 and PLD 1966 SC 267 ref.

 

Entitlement. Mst. Sammo was alive when Ham Din (last aala owner) died,. Her daughter Fazal Begum had predeceased her. Under S. 4 of Muslim Family Laws Ordinance, share of Fazal Begum which she should have received from her mother, would devolve on her two sons.  P.L.J.1988 Lah. 197   Whether Section 4 of 1961 Ordinance is contrary to Injunctions of Islam. Under Chapter 3-A of Constitution, Federal Shariat Court was established to examine whether or not any law is repugnant to Injunctions of Islam, but Muslim Personal Law was kept outside its Jurisdiction. Judgment of S. C. that Federal Shariat Court also has no Jurisdiction to scrutinize Section 4 of 1961 Ordinance, is binding on all courts in Pakistan. Section 3(2) of Enforcement of Sharia Act, 1991 was declared as ultra vires of Constitution, by Federal Shariat Court. It is not possible to declare that respondents being sons and daughter of deceased son and daughter of deceased are not entitled to claim share out of his legacy.  P.L.J.1995 Qta. 23 = 1995 CLC 51.

 

Grand-daughter’s entitlement to inherit the property of grandfather in the event of death of their mother before opening of succession-Predeceased daughter’s daughters were entitled to the share which their mother would have received if she had survived on the death of propositus viz. her father. 1993 C LC 545

 

Heirs of predeceased children. Children of predeceased son or daughter are entitled to inherit the property of their grandfather on his death Provisions of S.4, Muslim Family Laws Ordinance, 1961, are not against Injunctions of Islam and hold good as valid law. 2000 C L C 795 PLD 1980 Pesh. 47 rel. Entitlement of children of predeceased son or daughter of propositus­ Children of a predeceased son or daughter of propositus were entitled only to their shares, and the same could not be increased in any way.  1999 C L C 1216     1998 MLD 1857 ref.

 

Children of predeceased daughter of the last full owner will inherit the same which the mother would have got as if she were alive at the time of the opening of the succession. 1997 SCMR 281

 

Injunctions of Islam   Contention of the petitioner was that provisions of S.4 of the Muslim Family Laws Ordinance, 1961 having been declared by the Supreme Court to be repugnant to Injunctions of Islam respondents were not entitled to inherit any property left by their deceased grandfather- Validity-Where father of the respondents died in the year 1962, the Muslim Family Laws Ordinance, 1961, as it then existed had been rightly applied to the case-Declaration by the Federal Shariat Court and the Shariat Appellate Bench of Supreme Court as to repugnancy having come much latter did not affect the right of the respondents to inherit the share of their father/predeceased son of the deceased-Findings recorded by the Courts below did not suffer from any illegality, Supreme Court declined to interfere with the judgments passed by the Courts below. 2002 SCMR 164 PLD 1997 SC 730 and PLD 1991 SC 466 ref.

 

Only forum which could entertain such plea was Federal Shariat Court, which in exercise of its jurisdiction under Art. 203.D of the Constitution could go into the question whether. S. 4, Muslim Family Laws Ordinance, 1901, was contrary to Injunctions of Islam or not-Supreme Court in exercise of its normal jurisdiction could not declare a provision of a statute to be invalid on ground of inconsistency with the Islamic Injunctions -Leave to appeal was refused in circumstances. 1994 S C M R 681

 

Petitioner contended that neither predeceased son nor step-daughter of deceased owner of property in dispute could inherit any share in property according to Muhammadan Law and that provisions of Family Laws Ordinance, 1961 which had provided that share which predeceased son or daughter of a deceased Muslim would have inherited, would devolve on his or her heirs, was not a valid law – Federal Shariat Court which was vested with exclusive jurisdiction to examine as to whether a provision of law or a law was repugnant to Injunctions of Islam and Sunnah, having not made any such declaration, petitioner could not raise such contention – Petition for leave to appeal was dismissed. Courts below had recorded a finding of fact that step-daughter of deceased Muslim female was entitled to get share in her property – Such findings of fact having not been shown to have suffered from any misreading or non-reading of material piece of evidence, could not be interfered with by Supreme Court petition for leave to appeal was dismissed. 1999 S C M R 1558

 

No retrospective effect ,  Last full owner died before 1958 and immediately on’ his death, succession opened and according to Islamic Law, children of his predeceased sons were not entitled to inherit the estate of deceased-Provisions of S.4 of Muslim Family Laws Ordinance, 1961 has no retrospective effect and would not affect the past and closed transaction.  2002 C L C 819   1990 SCMR 1677 ref.

 

Pendency of first dispute -Death occurring with short interval Devolution of inheritance-Case was not of inheriting the same property twice but it is case of a devolution of two independent inheritances because the deaths had occurred with short intervals and coincidently during the pendency of petition in hand –Factum of inheritance and the devolution thereof is always automatic and instantaneous-One takes effect instantly regardless of what is about to follow and who is to expire next. Provision of S.4, Muslim Family Laws Ordinance, therefore, still holds good as valid law-Inheritance in question, having been effected according to such provision, no exception could be taken to impugned judgment of Courts below whereby heirs of predeceased son/daughter were found entitled to inherit property of their grandfather-Judgments and decrees of Courts below were maintained in circumstances. P L D 1998 Lah. 321

 

Principle of “per stripes” in S. 4-Connotation-Section 4, Muslim Family Laws Ordinance has been enacted to cater the needs of grandchildren and to remove their sufferings but it cannot be interpreted so as to decrease the shares of the other descendants-Section 4 of the Muslim Family Laws Ordinance, 1961 in spite of non obstante clause, has to be interpreted in the light of S. 2, Muslim Personal Law (Shariat) Application Act, 1962 and both the statutes can stand together. The phrase “per stripes” means: By roots or stocks; by representation. This term, derived from the civil law, is much used in the law of descents and distribution, and denotes that method of dividing an intestate estate where a class or group of distributes take the share which their deceased ancestor would have been entitled to, taking thus by their right of representing such ancestor, and not as too many individuals. It is the anti-thesis of per capita. It means that the distribution has to be made to a group of share-holders taking the share of their ascendants.  Per stripes referred to in section 4 is the anti-thesis of per capita. This means a share according to the stock or the root or the family as against per capita which means share per head. This assumes greater importance only where the propositus leaves behind a number of grandchildren whose parents died during the lifetime of the propositus. The principle of succession in such cases will not be inheritance per capita but per stripes i.e. in accordance with the root or stock to which the grandchild belongs and will only get the share to which the grand-child is entitled through his parent. In the event of there being a single surviving grandchild the principle of per stripes is pushed to the background but cannot be employed to support a principle which militates against the Islamic Law of inheritance. On the opening of succession each group of children of the deceased sons/daughters would inherit the share of their father/mother and each individual would not get the share in his/her individual capacity. Section 4 has been added to cater the needs of grandchildren and to remove their sufferings but it cannot be interpreted so as to decrease the share of the other descendants. 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. Under section 2 of the Muslim Personal Law (Shariat) Application Act, 1962, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where parties are Muslim. In spite of the non-obstante clause section 4. is to be interpreted in the light of section 2 of the Act, 1962. Both thus can stand together. Grandchild is not entitled to more share than what could be inherited from the parents according to Islamic Law-Estate would be divided in proportion of the respective shares of their parents and heirs claiming through different line of descent would get their own shares as per stripes. On the opening of succession each group of children of the deceased sons/daughters would inherit the share of their father/mother and each individual would not get the share in his/her individual capacity. Section 4 has been added to cater the needs of grand-children and to remove their sufferings but it cannot be interpreted so as to decrease the share of the other descendants. 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. Under section 2 of the Muslim Personal Law (Shariat) Application Act, 1962, the rule of decision shall be the Muslim Personal Law (Shariat) (in cases where parties are Muslim). In spite of the non-obstante clause section 4 is to be. interpreted in the light of section 2 of the Act, 1962. Both thus can stand together. The succession in the present case opened on the death of S. R, if alive, would have inherited the entire property of his father. Notionally, it would be presumed that R after inheriting the estate of his father, had died. Accordingly, the succession would re-open and all the legal heirs of the deceased would get their shares in accordance with the Muslim Law of Inheritance. The contention that the daughter of it would inherit the entire share of her father being the sole surviving child, was against the principle of Muslim Law of Inheritance. She would get whatever she would be entitled to get on the death of her father. The principle of Muslim Law of Inheritance was that the near in degree would exclude the remotest. Before the introduction of section 4, the children of predeceased son were deprived of any share. The intention of section 4 was to safeguard the interest of the children of predeceased son and not to deprive the other heirs of the propositus of their due. Thus, section 4 cannot be interpreted in a way so as to exclude the other legal heirs of the deceased. Section 4 could not, therefore, be construed against the interest of the other heirs of the deceased who were entitled to share the inheritance in accordance with the principles of Muslim Law of Inheritance.  As such, grandchild was not entitled to more share than what could be inherited from the parents according to Islamic Law. The estate would be divided in proportion of the respective shares of their parents. The heirs claiming through different line of descent would get their own shares per stripesP L D 1990 S. C. 1051PLD 1986 SC 228 and PLD 1988 Kar. 446 ref. Ordinance by adopting principle of per stripes distribution meant to keep intact share of predeceased offspring to be inherited by such offspring’s off-springs . Heirs of predeceased issue. Entitled to inherit from propositus what their predecessor-in­interest would have inherited. Predeceased son would be considered notionally alive for purposes of inheritance on death of such pre­deceased son’s father. P L D 1975 Pesh.252

 

Question of abatement on death of sole plaintiff (Suit for redemption).­One of several legal representatives of deceased, succeeding to equity of redemption may continue the suit without joining the others, for benefit of entire body of heirs. P L D 1968 Lah.520

 

Repugnancy to injunctions of Islam. Person in order to be entitled to inherit his parents or near ones. Must be alive. Section 4 of Muslim Family Laws Ordinance, 1961 providing for inheritance of predeceased offspring living at time of opening of succession. Held, against injunc­tions of Islam and liable to be repealed.

 

Repugnancy to Injunctions of Islam-Validity of S.4, Muslim Family Laws Ordinance, 1961 on the touchstone of Art. 2A of the Constitution-High Court has no power to declare any law invalid on the touchstone of Art. 2A of the Constitution-Objectives Resolution having become substantive part of the Constitution by insertion of Art. 2A in the Constitution, it would not have overriding effect vis-à-vis, the remaining provisions of the Constitution-Effect of Art. 2A of the Constitution-Object of inserting Art. 2A in the Constitution was that Objectives Resolution should no longer be treated merely as a declaration of intent but should enjoy the status of a substantive provision an d become equal in weight and status as the other substantive provisions of the Constitution-Where inconsistency was found to exist between the provisions of the Constitution and the Objectives Resolution, same should be harmonized by the Courts in accordance with the established rules of interpretation of Constitutional documents-Courts being creatures of the Constitution could not annul any existing Constitutional provisions on the plea of repugnancy with the provisions of Art. 2A of the Constitution-Courts being the creatures of the Constitution on no principle of law they could be allowed to cut the tree on which they were perched-Role of Objectives Resolution, notwithstanding the insertion of Art. 2A in the Constitution (whereby the Objectives Resolution has been made a substantive part thereof) has not fundamentally transformed from the role envisaged for it at the outset; viz. that it should serve as beacon light for the Constitution ­makers and guide them to formulate such provisions for the Constitution which reflect ideals and the objectives set forth therein-Provisions of Art. 2A of the Constitution were never intended at any stage to be self-executory or to be adopted as a test of repugnancy or of contrariety-Courts were not empowered to apply the test of repugnancy by invoking Art. 2A of the Constitution for striking down any other provision of the Constitution Provisions of Arts. 203.D & 203.G of the Constitution vesting exclusive jurisdiction in Federal Shariat Court and the Supreme Court (Appellate Shariat Bench) prima facie create bar of various types for treating Objectives Resolution as a self – executory instrument enforceable by the Courts for the change of existing statute law into Islamic enforceable law, over and above the methods, envisaged in various Constitutional provisions-High Court, thus, had no jurisdiction to declare any law invalid on the touchstone of Art. 2A of the Constitution-Provision of S. 4, Muslim Family Laws Ordinance being applicable in matters of inheritance covered by it would, therefore, govern the rights of the parties in the case. 1993 C L C 1989 PLD 1980 Pesh. 47;  PLD 1981 SC 120; PLD 1988 FSC 42; PLD 1988 SC 287; 1990 CLC 1683; PLD 1991 Kar. 174; PLD 1992 Lah. 45; PLD 1989  Lah. 490 PLD 1992 SC 595 ref. PLD 1988 SC 287 PLD 1986 SC 360 PLD 1992 SC 595;and  PLD 1957 SC 219 ref.

 

Relevant provisions of Act V of 1962 and Ordinance VIII of 1961 have to be read together and rule of interpretation for harmonising statutory provision is to be applied-Last male owner dying in 1947-Life estate of widow of deceased terminating in 1962-Persons entitled to inherit on termination of life estate of widow by operation of law vide S.3, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962-On death of last male owner his sister and widow were alive; while his brother and his daughter had pre­deceased him-Claimants for inheritance were appellant i.e. son of pre­deceased brother and children of pre-deceased daughter-While enforcing S.5, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, for the purpose of devolution of estate of last full owner Muslim Family Laws Ordinance 1961, had to be applied-Section 4, Muslim Family Laws Ordinance 1961, allows inheritance to children of pre-deceased son or daughter to the extent that the son or daughter would have got-On termination of life estate, children of pre-deceased daughter of last full owner, would inherit the share which their mother would have got as if she were alive at the time of opening of succession i.e. on the demise of last full owner-Last full owner would thus, be succeeded by his heirs, the widow, sister and pre-deceased daughter’s children-Appellant, the pre-deceased brother’s son would not inherit ­ Distribution of shares amongst heirs, assigned by High Court having not been assailed in appeal, no interference therein was called for.  1992 S C M R 82

 

Predecessor of parties, on his death left behind his widow, daughter and a daughter of his pre­deceased son-Wife and daughter of deceased being entitled to 1/8th share and 7/24th shares respectively were rightly given those shares by Courts below-Predeceased son’s daughter, however, claimed remaining 14/24th share to which her father would have been entitled if alive at the time of death of deceased predecessor-Grand – child was not entitled to more share than what could be inherited from the parents-Predeceased son’s daughter could claim only 1/2 share of the property to which her father would have been entitled if alive at the time of death of her grandfather-Trial Court had thus, rightly decreed her’ suit to the extent of 7/24th share-Remaining 7/24th shares of predeceased son were to be distributed amongst his other Shari heirs-Pre-deceased son’s mother was to receive 1/6th share and of the same which would be 7/144th share in the entire property, while his sister would get the residue i.e. 35/144th in the entire property in addition to the property inherited by them as Shari heirs of deceased predecessor-Petition for leave to appeal was converted into appeal directing revenue record to be corrected regarding the entire property left by deceased predecessor, whether same was included in the present litigation or not. 1992 S C M R 935

 

Resjudicata,   Petitioners being children of daughter of deceased filed suit claiming 1/2 share out of the estate of deceased-Respondents resisted the suit including plea of res judicata-Trial Court decreed the suit observing that petitioners in previous suit had challenged validity of gift in favour of respondents, whereas in present suit, petitioners had claimed legal share out of inheritance of deceased, thus, cause of action in both the suits was different-Appellate Court set aside the judgment and decree and dismissed the suit as barred by res judicata-Validity-Judgment passed by Trial Court in previous suit that questions of gift as well as claim of petitioners with regard to inheritance of deceased had been agitated and duly determined by finding them not entitled to any share out of inheritance of deceased-Such judgment and decree having not been challenged had attained finality. thus, present suit was squarely hit by principle of res judicata and as such impugned judgment did not warrant interference-Supreme Court dismissed the petition and refused to grant leave to appeal. 2002 S C M R 1183

 

Retrospective effect. Children of pre-deceased child are only entitle to inheritence if death of predeceased takes place after promulgation of Ordinance i.e. 15.7.1961.   P.L.J.1997 SC 446 = 1997SCMR 281 = NLR 1997 Civil  276.

 

Contention that pronouncement of Federal Shariat Court whereby provisions of S.4 of Muslim Family Laws Ordinance, 1961 were declared repugnant to Injunctions of Islam did not have retrospective effect, was valid-Provision of S.4 of the Ordinance being applicable at the time of passing of order of Collector as well as Commissioner, heirs of deceased could not be deprived of their share of inheritance. 2001 C L C 13

 

Right of inheritance of child of predeceased son before promulgation of Muslim Family Laws Ordinance, 1961. Ownership of land in question claimed on basis of two successive decrees of Court. Decree prior in time was valid on the ground that transaction in question was accepted correct by vendors thereof and subsequently mutation was also got attested on basis thereof, on specified date. Subsequent suit culminating into decree was instituted after the decree had been obtained by prior vendee and decree in that suit was also granted subsequently in time. Subsequent decree, however, was obtained by rival claimant not on ground of purchase but on ground of being owner through inheritance from his father while in fact his father had predeceased his grandfather, the latter having died in 1952 and his inheritance mutation had been attested in 1952. Suit of rival claimant could not have been instituted on another ground for he had no cause of action and locus standi to bring that suit. Rival claimant being child of predeceased son could not inherit from grandfather in 1952 because such right was given to a grandchild in the year 1961 through S. 4, Muslim Family Laws Ordinance, 1961, which was not given retrospective effect. Decree granted in favour of rival claimant in which prior vendee had not been impleaded and which was subsequent in point of time was declared to be ineffective against the rights of prior vendee.  P.L.J.1996 Pesh. 303 = 1996 MLD 1156.

 

S. 4 a valid Law. Whether or not heirs of pre-deceased son/daughter are entitled to inheritance. S.4 of Muslim Family Laws Ordinance 1961 holds good as a valid Law. Heirs of pre­deceased son/daughter are entitled to inheritance according to said provision.  P.L.J.1998 Lah. 510 = PLD 1998 Lah. 32L

 

After enforcement of S. 4 of Muslim Family Laws Ordinance, right of inheritance, from estate of deceased father, could not be denied, to children from pre-deceased daughter of deceased. Being children of pre-deceased daughter, her share had automatically devolved upon respondents who were her children. This being so, mutation of inheritance, ignoring children from-pre-deceased daughter of deceased, was ab-initio void and result of fraud as same offend provisions of S. 4 of Muslim Family Laws Ordinance and purport of mutation was to deprive of a lawful heir from his legal due from estate of propositus which could not be Justified, on any principle of equity or law and therefore, such like entries, which were based on fraud and concealment of facts, could be ignored, and be corrected, at any stage, with a view to give effect to rights, of lawful heirs, which had already devolved upon them, by operation of law.  P.L.J. 1998 Lah. 928 = 1998 CLC 1216.

 

Succession to property in question, opening out on the demise of its owner prior to enforcement of Muslim Family Laws Ordinance –Effect.­Muslim Family Laws Ordinance, 1961 is not retrospective in nature. Succession to property in question, having opened out on the demise of its owner prior to enforcement of Muslim Family Laws Ordinance, 1961, S. 4 thereof, would not apply for regulating rights of inheritance-Deceased owner having left behind three sons and one widow, they would inherit his property; his fourth son having predeceased him, children of that son would not inherit-Widow of deceased owner also having died before the enforcement of Muslim Family Laws Ordinance, her three surviving sons would inherit in equal shares while her grandson (sons of predeceased son) would not inherit her share. 1994 C L C 75

 

Succession to the estate of widow of predeceased son of last male owner-Such widow succeeded to the estate of last male owner a: widow of his predeceased son on the strength of rule of representation recognised under customary law; and subsequently to the estates of two nephews of her husband collaterally, as a representative of her deceased husband-Widow, thus, succeeded to the three last male owners of land in question viz. her father-in-law and two nephews of her husband-Succession tit the estate of widow opened upon her death-Prior to the death of widow, S. 4, Muslim Family Laws Ordinance had taken effect giving right of succession to the children of predeceased son and daughter of propositus-Defendant being daughter of predeceased son and the widow would be entitled to inherit a share from the estate taken by widow on the demise of last male owner (her father-in-law)-Extent of defendant’s share was however, dependent upon the personal law governing succession-Insertion of S. 2.A in Act V of 1962 by Ordinance XIII of 1983 substituted custom retrospectively-Land in question, falling for distribution upon opening out of succession consequent upon the death of widow, would be divided in terms of Shariat Law supplemented by S.4, Muslim Family Laws Ordinance, 1961-Last full owners (deceased) having acquired agricultural land under custom prior to 15th March 1948, would be deemed to have inherited under Muslim Personal Law, their heirs would inherit in accordance with Muslim Law whether they were male or female heirs; widow holding life estate would act as a conduit so as to pass land in question, to heirs of last full owner/owners under Muslim Personal Law of inheritance-Enough material being not on record to finally determine as to the heirs to land in question, and extent of their shares therein, case was remanded for decision afresh in accordance with law. 1993 C L C 567 PLD 1955 Lah. 420; PLD 1958 (W.P.) Lah. 448; 1992 SCMR 82, 992 SCMR 935and  1992 SCMR 1773 rel.

 

The extract called from the Holy Qur’an reminds us that our knowledge regarding who is nearer to us from the viewpoint of benefit or is going to benefit us more is indeed limited and it is, therefore, that we should submit ourselves to the shares ordained by God, for He is All. Knowing and All. Wise. The commands of the Prophet (May the blessings of Allah be upon him) have to be obeyed and for obedience reward and for disobedience chastisement is going to follow. The conclusion is, therefore irresistible that those who confine themselves to the text of the Holy Quran alone are violating the Injunctions of the Holy Qur’an when they exclude the consideration of the Hadees of the Holy Prophet in the matter of inheritance. A warning has been given that whosoever transgresses His limits, that is to say, the shares, which He has already specified should be ready for a degrading punishment. These Injunctions of the Qur’an make us extremely wary and we cannot conceive for a single moment of transgressing the limits of Allah as laid down in the Qur’an. Verse 33, i.e., Second Citation will show that God has indicated right – holders with respect to every property left by parents and relations and as promises are concerned, those have to be met during the lifetime. In the Fourth Citation i.e., Verse 176 has been clarified but towards the end it has been explained that God was elaborating all this so that we should not be led astray and again God says that He is All-Knowing. As far as the Fourth Citation, i.e., last Verse of Sura `Anfal‘ is concerned, that indicates that inheritance is to go by blood relationship and that some of them have been preferred in the Book of God over others for he is All-­Knowing. The argument that Verse VIII of Sura Al.Nisa provided for a share of the orphans is plainly untenable, for it does not specify any share for the orphan muchless orphan grand-child and all that it says is that a portion should be given to them and kind words should be spoken to them. It may be added that the word used in Verse 7 and the word used in Verse 8 are not synonymous. First is while the second speaks of relatives generally and quite obviously does not refer to those persons for whom share has been specified in the Holy Qur’an itself. The Holy Qur’an speaks of the share of RIJAL and NISA and it goes without saying that RIJAL and NISA and cannot be but persons living at the time when succession opens. If the intention was to give something to the MEET as well, the words RIJAL and NISA would not have occurred. It will follow that before that a person can inherit his parents or near ones, he should be alive and he can only get something if something has been left by his parents or near ones. Something new has been inducted into the Muslim Personal Lave by section 4 of the Muslim Family Laws Ordinance. Held: Section 4 of the Muslim Family Laws Ordinance is against the injunctions of Islam and it should be repealed and to relieve distress of the son/daughter of a predeceased son the legislation suggested may he considered. P L D 1980 Pesh.47 Sura `Nisa‘ (Fourth Sura) ; Sura `Anfal‘ (Eighth Sura), Last Verse ; TAFHIMUL QURAN by Maulana Abul A’ala Maudoodi and translation by A. Yusaf Ali; MOARFAL QURAN by Maulana Mufti Muhammad Shafi, Vol. II, pp. 310 to 313 QANUN VIRASAT by Maulana Mufti Rashid Ahmad YATIM POTAY KA HAQ-E-VIRASAT by Sayed Ghulam Ahmad Rizvi published by Anjuman Khuddam.ul.Qur’an, Lahore ; MAJMUA QAWANIN ISLAM by Dr. Tanzilur Rahman, Vol. V and his Book Islamization of Pakistan Law, pp. 56 to 72 ; SAHI BUKHARI SHARIF . SAHI MUSLIM SHARIF published by Quran Mahal, Karachi, pp. 666.667 IMAM WALI DIM MUHAMMAD BIN ABDULLAH KHATIM ALAMRANI by MASHKAT SHARIF published by DINI KUTAB KHANA URDU BAZAR LAHORE (1961 Edn. SAHI BUKHARI.) published by Nur Muhammad, Aram Bagh, Karachi, p. 997 ; Muslim Law of Inheritance. by AI.Haj Mohomed Ullah Ibn S. Jung, M. A., LL. D., published by Law Publishing Co. Lahore ; YATIM POTAY KI VIRASAT by Muhammad Ismail Zabih Rajorvl, pp. 49 to 51 ; Durrul Mukhtar published by Law Publishing Co., Lahore FATAWA ALAMGIRI, pp. 426. 427 & 429 ; FATAWA MAZHARI by Professor Muhammad Masood Ahmad, p. 211 and ‘AHSANUL FATAWA’ by Mufti Rashid Ahmad Ludhianvi, pp. 73 to 104 ref.

 

Words in the event of death of any son or daughter of propositus before the opening of succession” bring within their compass the sons of daughters dying before as well as after the Ordinance came into force. Only condition is that death should occur before succession has opened – Benefit of succession open to all heirs including both citizens of Pakistan and foreigners- Succession by children of deceased son or daughter).­Provision applies to Muslims who are citizens of Pakistan. Not applicable to Muslim from East Africa who happened to be a British subject. Provision a departure from accepted Muslim law of inheritance. Finding however, declared not to be res judicata as between son and children of deceased son, the latter not being parties to the case. P L D 1968 Kar.480

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