Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD IQBAL VS Respondent: MUHAMMAD ASHRAFHonorable Justice Syed Zahid HussainMian Shahid Iqbal,Taqi Ahmed Khan
2006 Y L R 3247
2006 Y L R 3247
[Lahore]
Before Syed Zahid Hussain, J
MUHAMMAD IQBAL---Petitioner
Versus
MUHAMMAD ASHRAF and others-Respondents
Civil Revision No.2642 of 2002, heard on 25th January, 2006.
(a) Islamic law---
----Inheritance, opening of-Sale of land by co-sharer---Effect---Plaintiff filed a suit for partition seeking annulment of sale-deed executed by his uncle, a co-sharer in favour of defendant---Suit and appeal dismissed---Validity---Muslim's estates vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith---Plaintiff who was admittedly grandson of deceased was held entitled to his share according to Shariat in suit property---Plaintiff's uncle being a co-sharer could make alienation to the extent of his share hence right or interest acquired in suit property by defendant through sale could not be frustrated---Impugned sale had no adverse effect on rights of plaintiff and he might have claimed of his share from portion of undivided property---Matter was remitted to trial Court by the High Court for further proceedings in accordance with law.
Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.
C.A. No. 986 of 1996, dated 29-3-2002 distinguished.
(b) Islamic law---
----Inheritance, opening of---Muslim's estates legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith.
Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC I ref.
(c) Co-sharer---
----Sale of land by co-sharer---Effect---Co-sharer can make alienation to the extent of his share.
Mian Shahid Iqbal for Petitioner.
Taqi Ahmed Khan for Respondents Nos. 1 and 3.
Nemo for other Respondents ex parte.
Date of hearing: 25th January, 2006.
JUDGMENT
SYED ZAHID HUSSAIN, J.---The suit for partition instituted by the petitioner/plaintiff was dismissed by the trial Court on 14-5-2002 whereagainst his appeal met with similar fate on 4-9-2002 (though with certain observations) by the learned Additional District Judge, Sialkot. This is revision petition qua the same.
2. The learned counsel for the petitioner and of respondents Nos.1 and 3 have been heard whereas the rest of the respondents have despite service failed to cause their representation. The petition thus has been heard ex parte qua them.
3. The suit instituted by the petitioner/plaintiff was that being grandson of Feroze Din (son of Mst. Saleema, the daughter of Feroze Din), he was entitled to 1/70th share in the suit property the house. He had sought the annulment of sale-deed dated 26-1-1996 executed in favour of Muhammad Ashraf respondent No.1 through which the said vendee had acquired share therein as a result of sale by Muhammad Amin.
The material and essential facts are not in dispute and the controversy can be determined and resolved on the basis of admitted facts that Feroze Din had died in the year 1960 whereas his daughter Mst. Saleema, (the mother of the petitioner) being one of his successors became entitled to her share in the leftover of Feroze Din immediately on his death. In Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, while dealing with the inheritance issues of Muslims it was observed that "As soon as an owner dies, succession to his property opens. There is no State intervention or clergy's intervention needed for the passing of the title immediately, to the heirs. Thus it is obvious that a Muslim's estates legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith." Since the mother of the petitioner/plaintiff had become entitled to her share in the estate of her father on his death, the petitioner was entitled to succeed her, on her death. There is no denial of the fact that a co-sharer can make alienation to the extent of his share. The right or interest thus acquired in the property by Muhammad Ashraf respondent No.1 through sale cannot be frustrated. The petitioner/plaintiff is also entitled to the share who steps into the shoes of his mother, (if there be no other successors of Mst. Saleema Bibi). Even the Appellate Court seem to be conscious of this aspect who observed that "Since sale in favour of defendant No.1 is within the entitlement of Muhammad Amin and has no adverse effect on the rights of the plaintiff. The plaintiff may claim his share from portion of undivided property lying under the possession of Muhammad Tufail". Though the right and interest of respondent No.1 stand duly safeguarded and protected, Mr. Taqi Ahmed Khan, Advocate who represents him has made reference to judgment dated 29-3-2002 in C.A. No.986 of 1996. But the crucial aspect of the precedent case was that Barkat Ali had died in that case prior to enforcement of Muslim Personal Law Shariat Application Act, 1948, whereas in the instant case Feroze Din died in the year 1960 i.e. much after the enforcement of Shariat application laws. This makes significant difference.
Thus, by holding that the petitioner/plaintiff was entitled to succeed his mother qua the property left by late Feroze Din and upholding the sale made in favour of respondent No.1, the matter is remitted to the trial Court for further proceedings therein in accordance with law. The two judgments and decrees passed by the two Courts below stand modified in the above terms by accepting the version petition to the extent indicated above. No order as to costs.
F.B./M-485/L Petition allowed.