(a) Islamic Law---
‑‑‑‑Inheritance‑‑‑Property in question having been mutated in the name of widow bf the deceased owner under custom, she was not absolute owner of the property but inherited the same as a limited owner‑‑‑Limited interest under custom came to an end on remarriage or death of a person, who enjoyed such ownership‑‑‑Widow having died, after her death the property reverted to the last mate owner (the deceased) and the property would be divisible according to Islamic Law.
(b) Islamic Law‑‑‑
‑‑‑‑Inheritance‑‑‑General‑‑‑No distinction between "movable" or "immovable" property and "ancestral" and "self‑acquired" property in Islamic Law.
There is no distinction in the Islamic Law of Inheritance relating to movable or immovable property. Also there is no such distinction between the ancestral and self‑acquired property.
(c) Islamic law‑‑
‑‑‑‑Inheritance‑‑‑Classes of heirs and inheritance of estate of the deceased‑‑ Principles illustrated.
According to the 'Hanfi Law', there are three classes of heirs namely, (1) Sharers, (2) Residuaries and (3) Distant Kindred. The estate of deceased Muslim is inherited by legal heirs according to their respective shares. First to get are the sharers and thereafter residuaries get their shares. If there are no sharers, the residuaries will succeed to the whole inheritance. If there be neither sharers nor residuaries, the inheritance will be divided among such of the distant kindred as are entitled to inheritance. Distant kindred will get nothing so long the sharers and residuaries are there. Inheritance, in fact, will depend on the circumstances of each case. For example, if in a case surviving relations are father and father's father, the father alone will succeed to the whole inheritance to the entire exclusion of the grandfather, though both fall in the category of sharers. Likewise, if the surviving relations are a son and the son's son, the son alone will inherit the estate and the son's son will not be entitled to any share in the inheritance, though both belong to the class of residuaries. Similarly, if the surviving relations belong to the class of distant kindred i.e. a daughter's son and a daughter's son's son, the former will succeed to the whole inheritance on the rule of succession that the nearer relation excludes the remote one.
Dil Muhammad Tarar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Appellants.
Kh. Muhammad Farooq, Advocate Supreme Court for Respondents Nos. 1 to 5.
Respondent No.7 : Ex parte.
Date of hearing: 7th November, 2001.
IBRAHIM VS REHMAT ALIP L D 2002 Supreme Court 741Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJIBRAHIM and 4 others‑‑‑AppellantsversusREHMAT ALI and 6 others‑‑‑RespondentsCivil Appeal No.266 of 1995, decided on 07/11/2001.(On appeal from the judgment dated 14‑9‑1993 of Lahore High Court, Lahore passed in C.R. No.885 of 1982).
JUDGMENT
NAZIM HUSSAIN SIDDIQUI, J‑‑‑This appeal by leave of this Court is directed against the judgment dated 14‑9‑1993 of learned Single Judge, Lahore High Court, Lahore, whereby Civil Revision No.885 of 1982 was allowed, setting aside the judgment and decree of learned Additional District Judge, Sialkot and restoring that of learned Civil Judge, Pasrur.
2. The facts relevant for decision of this appeal are that one Nawab, the predecessor‑in‑interest of the appellants herein, sued the respondents for possession by claiming 5/20 share in the disputed land, the details of which are given in the plaint. The case of the appellants was that the suit land originally belonged to one Ditt, who died in the year 1918 or 1919. It is alleged that he was governed by Customary Law and accordingly his property was mutated in the name of his widow namely, Mst. Gulab Bibi, as her life estate and she died in the year 1950. Her limited interest had terminated under Muslim Personal Law and Allah Rakha, the predecessor‑in -interest of the appellants, inherited said land as sole eligible heir by Ditt deceased.
3. The suit was contested by respondents Nos. l and 2 namely, Rehmat Ali and Mst. Bashiran Bibi in whose favour inheritance Mutation No. 1601 had been attested on 26‑8‑1970, as son and daughter of Mst. Resham Bibi. It is pertinent to point out here that the status of Mst. Resham Bibi, as sole daughter of Mst. Gulab Bibi from Ditt, was seriously disputed. The respondents Nos.3 to. 5 namely, Mst. Razia Begum and Mst. Jamila Begum and Mst. Said Bibi also refuted the claim of the appellants. From pleading of the parties, the following issues were struck:
(1) Was Mst. Gulab Bibi a limited estate owner under customs? OPP
(2) Is plaintiff heir of Ditt, the husband of Mst. Gulab Bibi, if so, to what share he is entitled? OPP
(3) Is suit time‑barred? OPD
(4) Relief.
4. Learned trial Judge decided Issue No.1 in negative and held that Mst. Gulab Bibi was full owner of the suit land. For Issue No.2, his findings are that Allah Rakha s/o Nawab had five paternal uncless cousins and they are heirs of Ditt. Further, it was held that had Issue No.1 been decided in affirmative, they would have been entitled to inheritance of Ditt, but not to the extent of 5/24 share, because in that case Ditt's widow would have become full owner of 1/4 share of Ditt's property and the appellants would have been entitled to 5/24 of 3/4 i.e. 5/32 share of the Ditt's property. The Issue No.3 was decided in affirmative. Consequently, the suit was dismissed with costs.
5. First Appellate Court allowed the appeal, being Civil Appeal No.610 of 1981, and set aside the impugned judgment and decree of trial Court and decreed the suit as prayed. In order to appreciate the respective claims of the parties it would be proper to reproduce the pedigree‑table of the parties, which is as follows:‑‑
IbrahimM.HussainNoor HussainFazal HussainMahand
(apell.No.1)(apell.No.2)(apell.No.3)(apell.No.4)(apell.No.5)
6. It is contended on behalf of the appellants that learned High Court has failed to appreciate the facts in their true perspective. Learned counsel also argued that though it was not proved from the evidence that Mst.Resham Bibi was the daughter of Ditt, yet, High Court on the grounds, which are not sustainable in law, reversed the findings of the First Appellate Court. It is also contended that learned High Court wrongly excluded the appellants on the plea that Bhola or his legal heirs were nearer in degree to the deceased than the appellants. Learned counsel submitted that from Bhola the land devolved upon his son Nawab and from latter to his son Allah Rakha and from last named it reverted to the appellants, as Allah Rakha was not survived by a male child.
7. Vide order dated 22‑3‑1995, leave to appeal was granted to consider the following:
"The trial Court and Appellate Court were at variance on the point of fact as to whether Ditt was in fact also survived by Mst. Resham Bibi, his daughter/mother of defendants‑respondents, therefore, the Revisional Court was competent to reverse the aforesaid findings of fact. Again whether the pedigree‑table set out in para.6 of the impugned judgment of the High Court was proved to be correct and, if so, whether respondents Nos.1 to 7 successors‑in‑interest of Shahna could legally claim share in the inheritance of Ditt in the presence of the petitioners Nos.l to 5 successors‑in‑interest of Bhola, who was nearer in degree than Shahna aforesaid."
8. The crucial point before High Court was whether Mst. Resham Bibi was daughter of the deceased or not. Learned High Court having taken into consideration the testimony of Muhammad Bashir (D.W.2), Rehmat Ali, respondent No. 1, and Mahand appellant No. 2 herein, reached the conclusion and rightly so, that Mst. Resham Bibi was the daughter of Ditt deceased. While recording above findings learned High Court alsd noted that it was nobody's case that Mst. Gulab Bibi was earlier married to some other person or that Mst. Resham Bibi was her daughter from first husband. High Court also held that even if it was assumed that Ditt deceased had no daughter, yet, it would not advance the case of the appellants, because even then they would stand excluded by Bhola, the real brother of Ditt deceased, or his legal heirs, who are nearer in degree to the deceased as compared to the appellants, as such, are entitled to get the entire residue. Learned counsel for the appellants was not able to persuade us to ignore above observations, which stand substantially, corroborated by the evidence available on record.
9. It is an admitted position that after the death of Ditt, the property was mutated in the name of his widow Mst. Gulab Bibi under the Customary Law. It being so, she was not absolute owner of the property and inherited it under the custom as a limited owner. It is not disputed that under Customary Law "Limited Interest" comes to an end on remarriage or death of a person, who enjoyed limited ownership. It is noted that in the year 1950, Mst. Gulab Bibi expired and after her death the property reverted to last male owner i.e. Ditt (deceased) and when he expired he was survived by his widow Mst.Gulab Bibi, his daughter Mst. Resham Bibi and real brother Bhola.
10. Under the circumstances, the property was divisible among above named three persons, according to Muslim Law. In the above‑referred pedigree, there were two persons by name "Nawab". One, who filed the suit, falls in the line of succession of Faiza, real brother of Fajja, who was father of Ditt deceased. Other Nawab was son of Bhola. It is a proven fact that property left by deceased Ditt under Muslim Law devolved upon his widow, Mst. Gulab Bibi, daughter of Mst. Reshman Bibi and brother. Bhola. It is, evident from the pedigree that Nawab (plaintiff) stood excluded by Bhola or his heirs, who were nearer in degree to the deceased as compared to Nawab plaintiff.
11. High Court reached the conclusion that in view of above factual position, Nawab plaintiff, was not entitled to claim any share in the property of the deceased. No exception can be taken to above findings, which are supported by irrefutable evidence.
12. High Court in the impugned judgment noted that after death of Mst.Gulab Bibi in the year of 1950, respondent No.1, Rahmat Ali, respondent No.2, Mst. Bashiran Bibi as well as Allah Rakha, predecessor‑in -interest of respondents Nos.3 to 5, were alive. High Court noted that, after giving legal shares to Rehmat Ali and Mst. Bashiran Bibi, the residue could be claimed by Allah Rakha, which, however, was not done from 1950 till 1970. Having noted above facts, High Court observed as follows:‑‑
"Therefore, the right of interest of Allah Rakha or his heirs in the disputed property stood extinguished. As mentioned above, Allah Rakha or his legal heirs never asserted their title in the property. The legal heirs of Allah Rakha deceased were rather satisfied with the gift made by Rehmat Ali and Mst. Bashiran Bibi petitioners Nos.l and 2 in their favour. This also amounts to recognition of title of petitioners Nos. 1 and 2 in the disputed land. Therefore, it was not open to Nawab deceased, predecessor‑in‑interest of the respondents to enforce the title of Allah Rakha deceased and then claim that after giving a certain share to Allah Rakha in the disputed property he should be given his share in the inheritance as a residuary. "
13. There is no distinction in the Islamic Law of Inheritance relating to movable or immovable property. Also there is no such distinction between the ancestral and self‑acquired property. According to the 'Hanfi Law', which is applicable in this matter, there are three classes of heirs namely, (1) sharers, (2) residuaries and (3) distant kindred. The estate of deceased Muslim is inherited by legal heirs according to their respective shares. First to get are the sharers and thereafter, residuaries get their shares. If there are no sharers, the residuaries will succeed to the whole inheritance. If there be neither sharers nor residuaries, the inheritance will be divided among such of the distant kindred as are entitled to inheritance. Distant ‑kindred will get nothing so long the sharers and residuaries are there. Inheritance, in fact, will depend on the circumstances of each‑case. For example, if in a case surviving relations are father and father's father, the father alone will succeed to the whole inheritance to the entire exclusion of the grandfather though both fall in the category of sharers. Likewise, if the surviving relations are a son and the son's son, the son alone will inherit the estate and the son's son will not be entitled to any share in the inheritance, though both belong to the class of residuaries. Similarly, if the surviving relations belong to the class of distant kindred i.e. a daughter's son and a daughter's son's son, the former will succeed to the whole inheritance on the rule or succession that the nearer relation excludes the remote one.
14. We have examined the factual position of this case. We are of the view that judgment of High Court is in consonance with the principles of Muslim Law of Inheritance and no valid reason has been shown to reverse said findings.
15. In consequence, we hold that the appeal is devoid of any merits and the same is dismissed with no order as to costs.
M.B.A/I‑51/S
Appeal dismissed.
(a) Islamic Law---
‑‑‑‑Inheritance‑‑‑Property in question having been mutated in the name of widow bf the deceased owner under custom, she was not absolute owner of the property but inherited the same as a limited owner‑‑‑Limited interest under custom came to an end on remarriage or death of a person, who enjoyed such ownership‑‑‑Widow having died, after her death the property reverted to the last mate owner (the deceased) and the property would be divisible according to Islamic Law.
(b) Islamic Law‑‑‑
‑‑‑‑Inheritance‑‑‑General‑‑‑No distinction between "movable" or "immovable" property and "ancestral" and "self‑acquired" property in Islamic Law.
There is no distinction in the Islamic Law of Inheritance relating to movable or immovable property. Also there is no such distinction between the ancestral and self‑acquired property.
(c) Islamic law‑‑
‑‑‑‑Inheritance‑‑‑Classes of heirs and inheritance of estate of the deceased‑‑ Principles illustrated.
According to the 'Hanfi Law', there are three classes of heirs namely, (1) Sharers, (2) Residuaries and (3) Distant Kindred. The estate of deceased Muslim is inherited by legal heirs according to their respective shares. First to get are the sharers and thereafter residuaries get their shares. If there are no sharers, the residuaries will succeed to the whole inheritance. If there be neither sharers nor residuaries, the inheritance will be divided among such of the distant kindred as are entitled to inheritance. Distant kindred will get nothing so long the sharers and residuaries are there. Inheritance, in fact, will depend on the circumstances of each case. For example, if in a case surviving relations are father and father's father, the father alone will succeed to the whole inheritance to the entire exclusion of the grandfather, though both fall in the category of sharers. Likewise, if the surviving relations are a son and the son's son, the son alone will inherit the estate and the son's son will not be entitled to any share in the inheritance, though both belong to the class of residuaries. Similarly, if the surviving relations belong to the class of distant kindred i.e. a daughter's son and a daughter's son's son, the former will succeed to the whole inheritance on the rule of succession that the nearer relation excludes the remote one.
Dil Muhammad Tarar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Appellants.
Kh. Muhammad Farooq, Advocate Supreme Court for Respondents Nos. 1 to 5.
Respondent No.7 : Ex parte.
Date of hearing: 7th November, 2001.
JUDGMENT
NAZIM HUSSAIN SIDDIQUI, J‑‑‑This appeal by leave of this Court is directed against the judgment dated 14‑9‑1993 of learned Single Judge, Lahore High Court, Lahore, whereby Civil Revision No.885 of 1982 was allowed, setting aside the judgment and decree of learned Additional District Judge, Sialkot and restoring that of learned Civil Judge, Pasrur.
2. The facts relevant for decision of this appeal are that one Nawab, the predecessor‑in‑interest of the appellants herein, sued the respondents for possession by claiming 5/20 share in the disputed land, the details of which are given in the plaint. The case of the appellants was that the suit land originally belonged to one Ditt, who died in the year 1918 or 1919. It is alleged that he was governed by Customary Law and accordingly his property was mutated in the name of his widow namely, Mst. Gulab Bibi, as her life estate and she died in the year 1950. Her limited interest had terminated under Muslim Personal Law and Allah Rakha, the predecessor‑in -interest of the appellants, inherited said land as sole eligible heir by Ditt deceased.
3. The suit was contested by respondents Nos. l and 2 namely, Rehmat Ali and Mst. Bashiran Bibi in whose favour inheritance Mutation No. 1601 had been attested on 26‑8‑1970, as son and daughter of Mst. Resham Bibi. It is pertinent to point out here that the status of Mst. Resham Bibi, as sole daughter of Mst. Gulab Bibi from Ditt, was seriously disputed. The respondents Nos.3 to. 5 namely, Mst. Razia Begum and Mst. Jamila Begum and Mst. Said Bibi also refuted the claim of the appellants. From pleading of the parties, the following issues were struck:
(1) Was Mst. Gulab Bibi a limited estate owner under customs? OPP
(2) Is plaintiff heir of Ditt, the husband of Mst. Gulab Bibi, if so, to what share he is entitled? OPP
(3) Is suit time‑barred? OPD
(4) Relief.
4. Learned trial Judge decided Issue No.1 in negative and held that Mst. Gulab Bibi was full owner of the suit land. For Issue No.2, his findings are that Allah Rakha s/o Nawab had five paternal uncless cousins and they are heirs of Ditt. Further, it was held that had Issue No.1 been decided in affirmative, they would have been entitled to inheritance of Ditt, but not to the extent of 5/24 share, because in that case Ditt's widow would have become full owner of 1/4 share of Ditt's property and the appellants would have been entitled to 5/24 of 3/4 i.e. 5/32 share of the Ditt's property. The Issue No.3 was decided in affirmative. Consequently, the suit was dismissed with costs.
5. First Appellate Court allowed the appeal, being Civil Appeal No.610 of 1981, and set aside the impugned judgment and decree of trial Court and decreed the suit as prayed. In order to appreciate the respective claims of the parties it would be proper to reproduce the pedigree‑table of the parties, which is as follows:‑‑
IbrahimM.HussainNoor HussainFazal HussainMahand (apell.No.1)(apell.No.2)(apell.No.3)(apell.No.4)(apell.No.5) |
6. It is contended on behalf of the appellants that learned High Court has failed to appreciate the facts in their true perspective. Learned counsel also argued that though it was not proved from the evidence that Mst.Resham Bibi was the daughter of Ditt, yet, High Court on the grounds, which are not sustainable in law, reversed the findings of the First Appellate Court. It is also contended that learned High Court wrongly excluded the appellants on the plea that Bhola or his legal heirs were nearer in degree to the deceased than the appellants. Learned counsel submitted that from Bhola the land devolved upon his son Nawab and from latter to his son Allah Rakha and from last named it reverted to the appellants, as Allah Rakha was not survived by a male child.
7. Vide order dated 22‑3‑1995, leave to appeal was granted to consider the following:
"The trial Court and Appellate Court were at variance on the point of fact as to whether Ditt was in fact also survived by Mst. Resham Bibi, his daughter/mother of defendants‑respondents, therefore, the Revisional Court was competent to reverse the aforesaid findings of fact. Again whether the pedigree‑table set out in para.6 of the impugned judgment of the High Court was proved to be correct and, if so, whether respondents Nos.1 to 7 successors‑in‑interest of Shahna could legally claim share in the inheritance of Ditt in the presence of the petitioners Nos.l to 5 successors‑in‑interest of Bhola, who was nearer in degree than Shahna aforesaid."
8. The crucial point before High Court was whether Mst. Resham Bibi was daughter of the deceased or not. Learned High Court having taken into consideration the testimony of Muhammad Bashir (D.W.2), Rehmat Ali, respondent No. 1, and Mahand appellant No. 2 herein, reached the conclusion and rightly so, that Mst. Resham Bibi was the daughter of Ditt deceased. While recording above findings learned High Court alsd noted that it was nobody's case that Mst. Gulab Bibi was earlier married to some other person or that Mst. Resham Bibi was her daughter from first husband. High Court also held that even if it was assumed that Ditt deceased had no daughter, yet, it would not advance the case of the appellants, because even then they would stand excluded by Bhola, the real brother of Ditt deceased, or his legal heirs, who are nearer in degree to the deceased as compared to the appellants, as such, are entitled to get the entire residue. Learned counsel for the appellants was not able to persuade us to ignore above observations, which stand substantially, corroborated by the evidence available on record.
9. It is an admitted position that after the death of Ditt, the property was mutated in the name of his widow Mst. Gulab Bibi under the Customary Law. It being so, she was not absolute owner of the property and inherited it under the custom as a limited owner. It is not disputed that under Customary Law "Limited Interest" comes to an end on remarriage or death of a person, who enjoyed limited ownership. It is noted that in the year 1950, Mst. Gulab Bibi expired and after her death the property reverted to last male owner i.e. Ditt (deceased) and when he expired he was survived by his widow Mst.Gulab Bibi, his daughter Mst. Resham Bibi and real brother Bhola.
10. Under the circumstances, the property was divisible among above named three persons, according to Muslim Law. In the above‑referred pedigree, there were two persons by name "Nawab". One, who filed the suit, falls in the line of succession of Faiza, real brother of Fajja, who was father of Ditt deceased. Other Nawab was son of Bhola. It is a proven fact that property left by deceased Ditt under Muslim Law devolved upon his widow, Mst. Gulab Bibi, daughter of Mst. Reshman Bibi and brother. Bhola. It is, evident from the pedigree that Nawab (plaintiff) stood excluded by Bhola or his heirs, who were nearer in degree to the deceased as compared to Nawab plaintiff.
11. High Court reached the conclusion that in view of above factual position, Nawab plaintiff, was not entitled to claim any share in the property of the deceased. No exception can be taken to above findings, which are supported by irrefutable evidence.
12. High Court in the impugned judgment noted that after death of Mst.Gulab Bibi in the year of 1950, respondent No.1, Rahmat Ali, respondent No.2, Mst. Bashiran Bibi as well as Allah Rakha, predecessor‑in -interest of respondents Nos.3 to 5, were alive. High Court noted that, after giving legal shares to Rehmat Ali and Mst. Bashiran Bibi, the residue could be claimed by Allah Rakha, which, however, was not done from 1950 till 1970. Having noted above facts, High Court observed as follows:‑‑
"Therefore, the right of interest of Allah Rakha or his heirs in the disputed property stood extinguished. As mentioned above, Allah Rakha or his legal heirs never asserted their title in the property. The legal heirs of Allah Rakha deceased were rather satisfied with the gift made by Rehmat Ali and Mst. Bashiran Bibi petitioners Nos.l and 2 in their favour. This also amounts to recognition of title of petitioners Nos. 1 and 2 in the disputed land. Therefore, it was not open to Nawab deceased, predecessor‑in‑interest of the respondents to enforce the title of Allah Rakha deceased and then claim that after giving a certain share to Allah Rakha in the disputed property he should be given his share in the inheritance as a residuary. "
13. There is no distinction in the Islamic Law of Inheritance relating to movable or immovable property. Also there is no such distinction between the ancestral and self‑acquired property. According to the 'Hanfi Law', which is applicable in this matter, there are three classes of heirs namely, (1) sharers, (2) residuaries and (3) distant kindred. The estate of deceased Muslim is inherited by legal heirs according to their respective shares. First to get are the sharers and thereafter, residuaries get their shares. If there are no sharers, the residuaries will succeed to the whole inheritance. If there be neither sharers nor residuaries, the inheritance will be divided among such of the distant kindred as are entitled to inheritance. Distant ‑kindred will get nothing so long the sharers and residuaries are there. Inheritance, in fact, will depend on the circumstances of each‑case. For example, if in a case surviving relations are father and father's father, the father alone will succeed to the whole inheritance to the entire exclusion of the grandfather though both fall in the category of sharers. Likewise, if the surviving relations are a son and the son's son, the son alone will inherit the estate and the son's son will not be entitled to any share in the inheritance, though both belong to the class of residuaries. Similarly, if the surviving relations belong to the class of distant kindred i.e. a daughter's son and a daughter's son's son, the former will succeed to the whole inheritance on the rule or succession that the nearer relation excludes the remote one.
14. We have examined the factual position of this case. We are of the view that judgment of High Court is in consonance with the principles of Muslim Law of Inheritance and no valid reason has been shown to reverse said findings.
15. In consequence, we hold that the appeal is devoid of any merits and the same is dismissed with no order as to costs.
M.B.A/I‑51/S
Appeal dismissed.
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