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Petitioner: MUHAMMAD NADIR KHAN VS Respondent: GOVERNMENT OF SINDH through DCO SangharHonorable Justice MUHAMMAD MUJEEBULLAH SIDDIQUIApplicant in person.,Anand P. Kamrani
P L D 2007 Karachi 197
P L D 2007 Karachi 197
Before Sabihuddin Ahmed, C.J. and Muhammad Mujeebullah Siddiqui, J
MUHAMMAD NADIR KHAN and 4 others---Petitioners
Versus
GOVERNMENT OF SINDH through DCO Sanghar and 13 others---Respondents
Revision Application No.1 of 2006, decided on 19th December, 2006.
(a) Muslim Family Laws Ordinance (VIII of 1961)---
----S. 4---Civil Procedure Code (V of 1908), O. VII, R. 11---Inheritance---Rejection of plaint---Claim of grandson of propositus (plaintiff)---Propositus died in year 1960, while his son died in year 1940---Proprietary rights conferred by Rehabilitation Department on propositus in evacuee suit-land were finally transferred to him on 23-12-1996---Mutation excluding plaintiff from inheritance was attested in year 1997---Decision of Shariat Court declaring S.4 of Muslim Family Laws Ordinance, 1961 to be repugnant to Injunctions of Islam was subject of appeal pending before Supreme Court---Rejection of plaint by Trial Court on ground of such repeal of S.4 of Muslim Family Laws Ordinance, 1961---Appellate Court on basis of judgment of Supreme Court PLD 2003 SC 475 set aside order of Trial Court and remanded case for its decision on merits---Validity---Supreme Court in said judgment had observed that grandson could inherit share of his predeceased father from his grandfather---Not possible to say at such stage that plaintiff had no cause of action at all for examination in a full-fledged trial---If cause of action was to be on only legal issues, even then plaint should not have been rejected under O. VII, R.11, C.P.C.-Parties would be at liberty to raise questions of fact and law as deemed fit by them, which would be decided by Trial Court after framing issues and recording evidence---High Court dismissed revision petition.
Yousaf Abbas v. Asmat Mustafa PLD 1968 Kar. 480; Ibrahim v. Nehmat Bi PLD 1988 Lah. 186; Sardar v. Nehmat Bi 1992 SCMR 82; Nazir Ahmed v. Abdullah 1997 SCMR 81; Muhammad Murad v. Allah Bux 2006 MLD 286 and Shah Alam v. Zafar Iqbal 1986 Law Notes (Lah.) 1176 ref.
Fazeelat Jan v. Sikandar PLD 2003 SC 475 and Manzoor Ahmed v. Abdul Khaliq 1989 SCMR 1329(2) rel.
(b) Islamic Law---
----Succession, opening of---Essential conditions---Deferment of opening of succession---Conditions---Succession normally opens immediately at the time of death of propositus, but such rule is not absolute---Exceptions to such rule---Three conditions must co-exist for opening of succession: propositus, estate left by propositus and successors/heirs---Opening of succession would defer on account of non-fulfillment of requirements of one of such conditions---Succession opens in respect of estate and not in respect of some property in which propositus at the time of his death had merely certain rights, but did not acquire/hold/possess ownership rights---Such property would become subject of succession on fulfillment of conditions of acquiring ownership/proprietary rights---When two such conditions, one death of propositus and other existence of heirs at relevant time are satisfied, but third condition of leaving of estate by propositus (subject matter of succession)' is lacking, then succession would not open until and unless such third condition was satisfied---Child in womb would be included in heirs---Concept of deferring succession even in case of estate held by propositus is not alien to Islamic Law---Principles.
Yousaf Abbas v. Mst. Asmat Mustara PLD 1968 Kar. 480; Sakhi Muhammad v. Ahmed Khan 1980 CLC 1006; Ibrahim v. Nehmat Bi PLD 1988 Lah. 186; Sardar v. Nehmat Bi 1992 SCMR 82; Nazir Ahmed v. Abdullah 1997 SCMR 281; Muhammad Murad v. Allah Bux 2006 MLD 286; Shah Alain v.Zafar Igbal 1986 Law Notes (Lah.) 1176; Aimnul Hadaya, Urdu Translation of Hidaya by Allama Moulana Syed Amir Ali, Vol.4, P.869; Fatawah Usmani by Muhammad Mazharul Haq Ansari published by Quanuani Qutab Khana, Katcheri Road, Lahore; Urdu Dairia Maarifi Islamia, published by University of Punjab in Vol. 21, 1st Edn. 1987,p,569; Encyclopedia of Islam, 1993 Edn., Vol. VII, p.60 Edited by C.E. Bosworth E Van Donzel W.P. Heinrichs and the Late Ch. Pellat; Islamic Law of Inheritance titled as Mufeedul Waresin by Moulana Syed Mian Sahib Asghar Hussain, Huhadis, Dar-ul-Uloom Deoband, published in Pakistan by Adarah-e-Islamiat and Muslim Law of Inheritance complied by Al-Haj Muhammad Allah Ibne S. Jang, p.88 rel.
Muhammad Murad v. Allah Bux 2006 MLD 286 dissented from.
(c) Words and phrases---
----"Milk" or "Truka" or Mal-e-Metruka"---Definition.
Fatawah Usmani by Muhammad Mazharul Haq Ansari published by Quanuani Qutab Khana, Katcheri Road, Lahore; Urdu Dairia Maarifi Islamia, published by University of Punjab in Vol. 21, 1st Edn. 1987, p.569; Encyclopedia of Islam 1993 Edn. Vol VII, p.60 Edited by C.E. Bosworth E Van Donzel, W.P. Heinrichs and the Late Ch. Pellat ref.
Applicant in person.
Anand P. Kamrani for Respondents Nos.11 and 14.
Date of hearing, 4th December, 2006.
JUDGMENT
MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The relevant facts as alleged in the Revision Application are that Suleman Khan son of Ranjeet Khan expired in the year 1960 leaving behind the following heirs:--
(1) Aman Khan son of Suleman Khan
(2) Nisar Ahmed son of Suleman Khan
(3) Mst. Mubarik Sana daughter of Suleman Khan
(4) Mst. Hameeda Bano daughter of Suleman Khan
2. Names of the above heirs were entered by the Mukhtiarkar Shandadpur in the record of rights. Usmam Khan father of respondent No.14 Jamil Ahmed and son of Suleman Khan had died in the year 1944 in India. The Respondent No.14, Jamil Ahmed subsequently approached Mukhtiarkar Shandadpur and got his name as well as, Resheeda Begum's name, his sister entered in the record of rights, as legal heirs, thereby reducing the shares of the sons and daughters of deceased Suleman Khan who were alive at the time of his death. It is alleged that according to Sharia Law, prevailing before the promulgation of Muslim Family Laws Ordinance, 1961, the grandson/daughter of predeceased son/daughter were not entitled to inherit any share in the properties left by their grand father/mother. According to applicant the Muslim Family Laws Ordinance, 1961 is not retrospective in effect and therefore, is, not applicable in this case, for the reason that Usman Khan son of Suleman
Khan and father of respondent Jamil Ahmed predeceased Suleman Khan in the year 1944, and Suleman Khan also expired in the year 1960, before the promulgation of Muslim Family Laws Ordinance, 1961. Reliance in this behalf is placed on the following judgments:
(1) Yousaf Abbas v. Asmat Murtaza PLD 1968 Kar. 480;
(2) Ibrahim v. Nehmat Bi PLD 1988 Lah. 186;
(3) Sardar v. Nehmat Bi 1992 SCMR 82, and
(4) Nazir Ahmed v. Abdullah 1997 SCMR 81;
3. It is alleged that the subsequent mutation made by Mukhtiarkar was set aside by Assistant Commissioner Shandadpur and the appeal and revision, preferred before the Commissioner Mirpurkhas and Member (Judicial) Board of Revenue Sindh, were also dismissed. Respondent No.14, Jamil Ahmed then filed suit for declaration and permanent injunction assailing the cancellation of subsequent entry in the record of rights, but the plaint was rejected under Order VII, Rule 11, C.P.C. for the reason that the relict' was sought under section 4 of the Muslim Family Laws Ordinance, 1961, which was promulgated in the year 1961 and has been subsequently declared to be repugnant to the Injunctions of Islam. Respondent Jamil Ahmed preferred appeal against the rejection of plaint, which was heard by learned Additional District Judge Shandadpur. It was alleged before the learned Additional District Judge that the agricultural land bearing Survey No.192/1, 2, admeasuring 2.37 acres belong to grandfather of Jamil Ahmed. The grandfather Suleman Khan expired in the year 1960, while Usman father of Jamil Ahmed had expired during the life time of Suleman Khan. It was contended that the Mutation was made in the year 1997. It was further contended before the First Appellate Court, that the question of inheritance was opened in the year 1997 and all the legal heirs in accordance with the Sharia Laws read with section 4 of the Muslim Family Laws Ordinance, were entitled to inherit their respective shares. It was stated that no legal heir of the deceased Suleman Khan raised objection except Nadir Khan, the applicant in the present revision application and respondent No.4 before the First Appellate Court, who was not a legal heir of deceased Suleman Khan as he was husband of Mst. Hameeda, daughter of Suleman Khan. It was further submitted that the learned Civil Judge has misdirected in holding that the relief sought on the basis of section 4 of the Muslim Family Laws Ordinance, 1961 was not available as it was declared repugnant to the Injunctions of Islam. Reliance was placed in this behalf on the judgment of Hon'ble Supreme Court in the case of Fazeelat Jan v. Sikandar, PLD 2003 SC 475, wherein it has been held as follows:--
"Section 4 of the Muslim Family Laws Ordinance, 1961, clearly entitles the grandson for receiving the share which his father would have inherited if he been alive. No doubt the theory Mahjub-ul-Irs has been revived by the Federal Shariat Court and section 4 of the Muslim Family Laws Ordinance has been declared as repugnant to the Islamic Sharia yet such verdict has been challenged before the Supreme Court of Pakistan and thereby the operation of the verdict has been suspended automatically till the disposal of the appeal as provided under Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973. The grandson, therefore, can inherit the share of his predeceased father from his grandfather."
4. The learned Additional District Judge while placing reliance on the above judgment set aside the order rejecting the plaint and remanded the case back to the trial Court for disposal on merits.
5. Being aggrieved with the above judgment, the applicants filed this Revision Application.
6. The Revision Application was admitted to regular hearing to consider the question whether the son of predeceased son can inherit in a succession, which was opened in the year 1960, whereas Muslim Family Laws Ordinance, 1961 was enacted in the year 1961. In the admission order by learned Single Judge of this Court, it was observed that the learned Additional District Judge has misunderstood the dictum of Fazeelat Jan v. Sikandar case.
7. Subsequently when the matter came for regular hearing before the Hon'ble Chief Justice, on 4-9-2006, the applicant contended that the respondent No.14 was not entitled to any share in the property of Suleman Khan who died before the promulgation of Muslim Family Laws Ordinance, 1961 and the Ordinance has no retrospective effect, Reliance was placed in this behalf on a Single Bench judgment of Lahore High Court, in the case of Muhammad Murad v. Allah Bux, 2006 MLD 286.
8. On the other hand, learned counsel for respondents Nos. 11 and 14 contended that the claim of evacuee property was finalized in the year 1996 and the Muslim Family Laws Ordinance, 1961 was in force at that time therefore, the respondent No.14 is entitled to inherit the property left by Suleman Khan in terms of section 4 of the Muslim Family Laws Ordinance. In support of his contention he placed reliance on another Single Bench judgment of Lahore High Court in the case of Shah Alam v. Zafar Iqbal, 1986 Law Notes (Lah.) 1176. The Hon'ble Chief Justice observed that an authoritative pronouncement of' this Court is required therefore, the matter was to be heard by a Division Bench.
9. We have heard the applicant Muhammad Nadir Khan in person and Mr. Anand P. Kamrani, learned counsel for respondents Nos. 11 and 14.
10. The main contentions raised by the applicant are that Muslim Family Laws Ordinance, 1961 which was promulgated with effect from 15th July, 1961 had no retrospective effect and consequently section 4 thereof is not applicable to the facts of the present case. He contended that the admitted fact is that propositus Suleman Khan, expired in the year 1960 and his son Usman Khan father of respondent No.14 Jamil Ahmed died in India in the year 1944. He has submitted that the succession under the Islamic Law opens immediately on the death of propositus. The propositus Suleman Khan expired in the 1960 and at that time respondent No.14 Jamil Ahmed being son of predeceased son was excluded from inheritance in the property/estate left by grandfather Suleman Khan on account of the principle of Mahjub-ul-Irs. According to him the succession in respect of the suit property opened in the year 1960. The respective shares of the legal heirs entitled to inherit the property of propositus at that time, devolved on them in the year 1960. It was a past and closed chapter on 15th July, 1961 when section 4 of the Muslim Family Laws Ordinance, 1961, was enacted and therefore, the Respondent No.14 Jamil Ahmed shall not be entitled to inherit any property left by his grandfather Suleman Khan. Resultantly he had no cause of action to the suit. He has maintained that the learned Senior Civil Judge Shandadpur rightly rejected the plaint under Order VII, Rule 11, C.P.C., which was not open to any exception and the learned Additional District Judge Shandadpur fell in error in setting aside' the order and remanding the case back to the trial Court for disposal of the case on merits.
11. On the other hand, Mr. Kamrani learned counsel for Respondent No.14 has submitted that the normal rule of opening of succession under Islamic Law immediately on the death of propositus is not attracted to the facts and circumstances of the present case. He has argued that grandfather of Respondent No. 14, the propositus Suleman Khan was a claimant. He filed his claim under the Rehabilitation Scheme whereby the suit land was allocated to him but the proprietary right in the suit land was not conferred on the propositus at the time of his death and, therefore, the suit-land was not a part of the estate left by Suleman Khan at the time of his death. The title/proprietary rights in the suit-land were conferred on Suleman Khan after his death when RL-2 was issued by the Rehabilitation Authorities on 30-10-1961. He has produced copy of the "Naqsha Taqseem-e-Arazi" to show that the right was matured on 30-10-1961 and still it was confirmed subject to payment of government dues which according to him, were paid subsequently. He has submitted that the Clearance Certificate bearing No.147 was issued on 29-6-1974 whereafter the suit property was finally transferred on 23-12-1996, under the orders of Additional Deputy Commissioner Sanghar and thereafter on 26-12-1996 the suit-land was transferred from Central Government (being an evacuee property) to propitious Suleman Khan son of Ranjeet Khan and then only the succession opened. According to him, the suit property was not the estate of the propositus at the time of this death in the year 1960 and therefore, the succession in respect of suit property was not opened at the time of his death but was opened when the suit property became estate of the propositus after conferment of proprietary rights on transfer of suit-land from Central Government to the propositus. Admittedly at that time section 4 of the Muslim Family Laws Ordinance, 1961 was holding the field. conferring the right of inheritance on Respondent No.14, notwithstanding any other law for the time being in force.
12. Mr. Kamrani has conceded to the legal proposition that Muslim Family Laws Ordinance, 1961 has no retrospective effect but has submitted that in this case the question of retroactive application of section 4 of the Muslim Family Laws Ordinance, 1961, is not involved. According to him the question for consideration is as to when the succession opened in respect of the suit property and the finding thereon shall be determining factor.
13. Before proceeding further, we would like to observe that the Muslim Family Laws Ordinance, 1961 was enforced with effect from 15th July, 1961 section 4 of the Muslim Family Laws Ordinance, 1961 was struck down by the Federal Shariat Court having been declared repugnant to Islamic Sharia, thereby reviving the theory of Mahjub-ul-Irs, but the verdict has been challenged before the Hou'ble Supreme Court of Pakistan. The appeal is still pending and the operation of the verdict stands suspended automatically till the disposal of the appeal as provided under Article 203-D of the Constitution of Islamic Republic of Pakistan, 1973. (Mst. Fazeelat Jan v. Sikandar, PLD 2003 S.C. 475). The Hon'ble Supreme Court has held that the grandson, therefore, can inherit the share of his predeceased father from his grandfather. We would like to add with respect that the dictum is applicable in appropriate cases only on examination of facts and law in each case.
14. As is evident, from the marshalling of facts, in the earlier part of this Judgment, we find that the learned two courts below have not decided the issue under consideration on merits. The learned trial Court rejected the plaint under Order VII, Rule 11, C.P.C. mainly on the ground that section 4 of the Muslim Family Laws Ordinance, 1961, was declared repugnant to Injunctions of Islam and Islamic Law does not entitle the plaintiff/Respondent No.14 to inherit property of his grandfather. The learned First Appellate Court set aside the order of rejection of plaint by placing reliance on the Judgment of Hon'ble Supreme Court in the case of Mst. Fazeelat Jan (Supra). The Revision Application was initially admitted to regular hearing to consider two points whether son of predeceased son can inherit in succession, which was opened in the year 1960. When section 4 of the Muslim Family Laws Ordinance, 1961 was enacted in the year 1961. The second point was whether learned Additional District Judge has misunderstood the dictum laid down by the Hon'ble Supreme Court in the case of Mst. Fazeelat Jan v. Sikandar.
15. At the very outset we would like to observe that the learned Additional District Judge has correctly understood and applied the law laid down by the Hon'ble Supreme Court in the case of Mst. Fazeelat Jan (Supra) as he has merely observed that the grandson can inherit share of his predeceased father from his grandfather as held by the Hon'ble Supreme Court in the case of Fazeelat Jan. The learned Additional District Judge has merely set aside the order, rejecting the plaint, and has remanded the case back to the trial Court for disposal of the same on merits.
16. We have been able to lay hand on an order of Hon'ble Supreme Court in the case of Manzoor Ahmed v. Abdul Khaliq, 1989 SCMR 1329(2), in which an identical question was raised in similar circumstances. In the precedent case a suit regarding inheritance in a case of evacuee land was filed. The plaint was rejected by the trial Court under Order VII, Rule 11, C.P.C. First appeal was preferred before the Lahore High Court. The appeal was dismissed and the rejection of plaint was upheld. The matter was taken to the Hon'ble Supreme Court and the leave was granted to examine the following questions:--
(a) Whether the property, being evacuee, the petitioner would not be entitled to the relief claimed, by virtue of Para. 26 of Rehabilitation Scheme'?
(b) Whether Muslim Family Laws Ordinance, 1961 read with other connected laws would not be given such effect so as to entitle the petitioner in this case to inherit the estate left by Sardar Muhammad?
17. While granting leave the Hon'ble Supreme Court observed that in this context the question of retrospectivity would also need re-examination.
18. However, when the appeal was finally argued, the Hon'ble Supreme Court did not deem fit to record authoritative pronouncement. All the questions of law pertaining to section 4 of the Muslim Family Laws Ordinance were kept open. The Hon'ble Supreme Court observed that, "there was one area of' agreement, namely as the matter now has emerged, it could not be said with certainty that the appellant has no cause of action at all for examination in a full-fledged trial. Even if it was to be on only legal issues and thus, it was not such a ease in which the plaint should have been rejected under Order VII, Rule 11, C.P.C."
19. The Hon'ble Supreme Court further considered the question whether the controversy should be finally resolved or the case be remanded to the High Court. Objection was raised that the facts and merits have not been examined by the learned trial Court and, therefore, the case be remanded to the trial Court. No finding was therefore, given on the controversy. The Hon'ble Supreme Court merely held that the plaint was not liable to be rejected under Order VII, Rule 11, C.P.C. and directed the trial Court to afford full opportunity to the parties on all the issues in controversy. This judgment of Hon'ble Supreme Court is reported as Manzoor Ahmed v. Abdul Khaliq, 1990 SCMR 1677.
20. The above authority is sufficient to uphold the impugned order passed by the learned Additional District Judge Shandadpur.
21. However, since the case was referred to Division Bench for the reason that there are contradictory judgments of Single Benches and an authoritative pronouncement of this Court is required, therefore, we have considered it appropriate and expedient to record an authoritative judgment on pure questions of law.
22. As already observed the learned two Courts below have not considered the issues on merits therefore, taking guidance from the judgment of Hon'ble Supreme Court in the case of Manzoor Ahmed v. Abdul Kahliq, we would not like to resolve the controversy in this case. The simple reason being that after remand of the case to the Trial Court as directed by the First Appellate Court, the parties shall be afforded full opportunity. They shall be at liberty to raise the questions of' fact and law as deemed fit by them. The learned Trial Court after framing of issues and recording of evidence shall decide all the question of facts and law.
23. With the clarification that the findings which we propose to give on the legal controversy shall not amount to a finding in this case, we would like to decide the pure question of law, for the reason that, so far, we have not been able to lay hand on any authoritative pronouncement by any Superior Court in respect of the issue as to when the succession opens under the Islamic Sharia and more particularly the Hanafi School of Law, in respect of a property left by deceased in which he had no ownership right at the time of his death.
24. The issue pertaining to right of inheritance, from the estate of grandfather, in respect of grandsons, acquiring right through the predeceased son, came for consideration before a Single Judge of this Court in the case of Yousuf Abbas v. Mst. Asmat Mustafa PLD 1968 Karachi 480. The relevant facts in this case were that the plaintiffs were son and daughter of a predeceased daughter who died in the lifetime of her father in the year 1922. The propositus left several properties movable and immovable. The plaintiffs claimed shares in the properties/assets left by propositus through their predeceased mother under the provisions of Muslim Family Law Ordinance, 1961. The defendants took plea that the plaintiffs were not entitled to any share in the estate of propositus. A plea was taken that the Muslim Family Laws Ordinance, shall apply only in cases where the death of propositus and his predeceased son or daughter, both occurs after the promulgation of the Ordinance. The contention was repelled by His lordship Noor-ul-Arfin, J. It was held that section 4 of the Muslim Family Laws Ordinance, 1961, was applicable if the death of the son or daughter of the propositus occurs before the succession opens. It was further held that the words used in section 4 of the Muslim Family Laws Ordinance, bring within their compass the sons and daughters dying before, as well as after the Ordinance carne into force. The only condition was that the death should occur before the succession has opened after promulgation of the Ordinance, section 4 would apply with full force and the children of predeceased son or daughter of propositus would be entitled to be included in the succession to the estate of the propositus. It was further observed that the construction of such statute; should be just, sensible and liberal so as to give effect to the purposes for which they are passed. This proposition of law was followed by a learned Single Judge of the Lahore High Court in the case of Sakhi Muhammad v. Ahmed Khan, 1980 CLC 1006. It was again followed by another learned Single Judge of the Lahore High Court in the case of Ibrahim v. Nehmat Bi, PLD 1988 Lahore 186. This judgment of the Lahore High Court was up-held by a larger Bench of Hon'ble Supreme Court in the case of Sardar v. Nehmat Bi, 1992 SCMR 82. The Hon'ble Supreme Court while up-holding…
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