Law of inheritance

The Hon’ble Supreme Court of Pakistan approved the table of residuaries provided in ‘Principles of Muhammadan Law’ by D.F. Mulla.
Where deceased has no child and is survived by sisters and consanguine brothers and sisters, after ½ share is given to full sister as a sharer (2/3rd in case of more than one sister), the rest of the share goes to the residuaries. In the table of residuaries, the order of succession as provided in ‘Principles of Muhammadan Law’ by D.F. Mulla and approved by the august Apex Court, full sister ranks higher than consanguine brothers and sisters and full brothers sons also ranks lower to the full sister and consanguine brothers and sisters
CASE NO. : C.R. NO.442-D-2003
Muhammad Tariq etc. Vs. Sabira Bibi etc.
JUDGMENT SHEET
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
CASE NO. : C.R. NO.442-D-2003
Muhammad Tariq etc. Vs. Sabira Bibi etc.
Petitioners by : Malik Muzaffar Khan Awan, Advocate
Respondents by : Rai Tanveer Asghar, Advocate
Date of hearing : 26.02.2020
AAMER FAROOQ J. The dispute, in the present petition, pertains to the property, which is in nature of land measuring 14-kanals 16-marlas situated in village Darkala, Tehsil and District Islamabad. In this regards, one Mst. Ism Jan, who was daughter of Qaim Din, was married to Afsar Khan. The said Afsar Khan died and Mst. Ism Jan received her share from her husband. Mst. Ism Jan died on 14.11.1984 leaving behind her sister Resham Jan (sister) and nephew Muhammad Aslam (son of deceased brother). The property, owned by Mst. Ism Jan, was transferred in favour of Mst Resham Jan and Muhammad Aslam. The legal heirs of Muhammad Siddique, predecessor-in-interest of respondents No.1 to 5, filed a Suit for Declaration to the effect that Muhammad Siddique, Abdur Razzaq and Muhammad Abbas, sons of Qaim Din hence are the legal heirs of Mst. Ism Jan and entitled to share in her property. In this behalf, challenge was made primarily to the share in the property received by Muhammad Aslam as son of deceased brother of Mst. Ism Jan. Learned trial court, vide judgment and decree dated 29.10.2001, dismissed the suit, however, respondents No.1 to 5, filed appeal which was allowed vide judgment dated 30.04.2003 and the suit was decreed in favour of plaintiffs.
2. Learned counsel for the petitioners, inter alia, contended that since Mst. Ism Jan had no issue, hence her property devolved upon her sister to the extent of ½ share as a sharer; that remainder devolved upon Muhammad Aslam, the predecessor-in-interest of respondents No.6(a) to 6(h). It was contended that learned appellate court has wrongly decided the matter in favour of plaintiffs inasmuch as the step brothers (agnate brothers) are lower in the category of residuary. In support of his contentions, learned counsel placed reliance on cases reported as ‘Abdul Qadir and others Vs. Allah Daad and others’ (1997 CLC 48), ‘Kabir Hussain and 3-others Vs. Mst. Iqbal Bibi and 2-others’ (1991 MLD 1681) and ‘Lal and others Vs. Barkhurdar and others’ (1996 SCMR 1964).
3. Learned counsel for respondents No.1 to 5, inter alia, contended that suit has rightly been decreed in favour of plaintiffs and impugned judgment does not suffer from any misreading or non-reading of evidence.
4. Arguments advanced by learned counsels for the parties have been heard and the documents, placed on record, examined with their able assistance.
5. Before proceeding to render findings, it is pertinent to mention that notices were issued to all the respondents, however, representation was made only on behalf of respondents No.1 to 5, whereas all other respondents were ordered to be proceeded exparte vide order dated 14.09.2015.
6. As noted above, the suit was filed by predecessor-in-interest of respondents No.1 to 5, being the step brother of deceased Mst. Ism Jan. Respondents No.9 to 11 conceded the claim of the plaintiffs.
7. Learned trial court framed eight different issues, out of which, issue No.7 is the key issue, which is as follows:-
“Whether the plaintiff is entitled to get the decree for possession as prayed for? OPP”
The basis of prayer of the plaintiffs was that since the predecessorin-interest of Muhammad Aslam namely Muhammad Sharif died before death of Mst. Ism Jan, hence Muhammad Aslam was not entitled to any share in the property of Mst. Ism Ja

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