Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD DIN VS Respondent: SHAMSHERHonorable Justice SARDAR MUHAMMAD RAZA KHANZahid Hussain Khan,Respondents: Ex parte.
2007 S C M R 1690
2007 S C M R 1690
[Supreme Court of Pakistan]
Present: Rana Bhagwandas, Actg. C.J. and Sardar Muhammad Raza Khan, JJ
MUHAMMAD DIN and others----Appellants
Versus
SHAMSHER and 8 others----Respondents
Civil Appeal No.2046 of 2006, decided on 5th June, 2007.
(On appeal from the judgment, of the Lahore High Court, Lahore, dated 4-4-2002 passed in Civil Revision No.1550-D of 1991).
Islamic Law---
----Inheritance---Uterine relation---Share---Principle of nearer in degree excludes the remoter---Applicability---Owner of, suit property having died unmarried was survived by mother and a sister---Mother married real paternal uncle of propositus, and out of that wedlock three sons and two daughters were born---Excluding 4/6 shares of mother and sister, Trial Court and Lower Appellate Court distributed remaining 2/6 share equally among all sharers as residuaries---High Court, in exercise, of revisional jurisdiction set aside judgments and decrees passed by two courts below---Validity---Three sons and two daughters had an edge over the rest of persons seemingly appearing in the same degree, as they were uterine brothers and sisters of propositus---Uterine brothers and sisters were placed in a degree nearer to the propositus as compared to the rest of collaterals and 2/6th share as residue would go to theirs---High Court had rightly set aside concurrent findings of two courts below---Hard question of fact about uterine relationship was illegally ignored by two courts below and it was a serious mis-appreciation of fact as well as of law---Supreme Court declined to interfere with judgment and decree passed by High Court---Leave to appeal was refused.
Zahid Hussain Khan, Advocate Supreme Court for Appellants.
Respondents: Ex parte.
Date of hearing: 5th June, 2007.
JUDGMENT
SARDAR MUHAMMAD RAZA KHAN, J.--- Muhammad Din and others have been granted leave to appeal from the judgment, dated 4-4-2002 of the learned Judge in Chambers of Lahore High Court, whereby, on acceptance of civil revision of the respondents, the concurrent judgments and decrees of the learned two Courts below were set aside and the suit filed by the petitioners was dismissed.
2. From the plaint of the petitioners, it is indicated that the' parties are litigating over the property left by Haji Ahmad son of Noor Alam. Their pedigree-table is given in the body of the plaint but the learned counsel appearing for the petitioners/plaintiffs conceded that the one given by the defendants/respondents in their written-statement may be placed reliance upon. Thus, the undisputed pedigree-table is reproduced below in order that the relationships and claims be properly comprehended:--
3. The property of Haji Ahmad, having died unmarried, is in dispute. At the time the succession opened, the two sharers that he was survived by; were Mst. Sabhai, his mother and Mst. Fateh Khatoon, his sister. They, as sharers, received 1/6+1/2=4/6 or 2/3. The remaining 2/6 or 1/3 was to go to the residuaries. All the sons and daughters of Alam Sher, Sultan Ahmad, Alam Noor and Alam Khan are .placed in the same degree as held by Haji Ahmad, the propositus. Thus, all of them, who happened to be the plaintiffs, would normally inherit the remaining 2/6 in equal shares.
4. But, three sons and two daughters of Alam Sher (most of the present respondents) happened to have an edge over the rest of persons seemingly appearing in the same degree. It is a proved fact that Mst. Sabhai, the mother of Haji Ahmad propositus had married his uncle Alam Sher and thus, the sons and daughters of Alam Sher happened to be uterine brothers and uterine sisters of the propositus. They are thus, placed in a degree nearer to the propositus as compared to the rest of the collaterals. 2/6th share, as residue shall certainly go to the lot of the sons and daughters of Alam Sher. .The same was rightly allowed by the learned Judge in Chambers of the Lahore High Court who had very rightly set aside the concurrent findings of two Courts below. The hard question of fact about the uterine relationship aforesaid was illegally ignored by the two Courts below and thus, it was a serious mis-appreciation of fact as well as of law. There is being no force in the appeal, it is hereby dismissed.
M.H./M-77/SC Appeal dismissed.