PLJ 2012 AJ&K 167
Present: M. Tabassum Aftab Alvi, J.
KHALIDA BEGUM and another--Appellants
MUHAMMAD RASHID KHAN & 5 others--Respondents
C.A. No. 97 of 2009, decided on 14.07.2012.
----It is settled principle of law that a party cannot be allowed to plead its case against pleadings. [P. 170] A
----Petition for succession certificate--Legal heirs were entitled to receive amount of Bank--Uterine brothers and sisters were not entitled to return, if there was full sister--Validity--According to MohammadanLaw if there being only one sister then consanguine sisters and brothers were not excluded from inheritance--Consanguine sisters and brothers were not deprived from inheritance under law. [Pp. 170 & 171] B & C
Sardar Abdul Rashid Chughtai, Advocate for Appellants.
Sardar Nazar Muhammad Khan, Advocate for Respondents.
Date of hearing: 14.7.2012.
The supra titled appeal has been directed against the impugned judgment of the learned District Judge Bagh dated 01.10.2009, whereby besides appellants, respondents herein, were also declared entitled to the heritage of their step brother, Ali Haider Khan, deceased.
2. Precise facts forming background of the instant appeal are that respondents, herein, filed a petition for succession certificate before District Judge Bagh on 14.04.2008, stating therein that Ali Haider Khan had died issueless on 12.03.2008 and as legal heirs they were entitled to receive the amount saved in A/C No. 295-08, National Bank of Pakistan, Sudhan Gali Branch, compensation of damaged house and arrears from Pakistan Railway where the deceased was employed. The respondents craved for issuance of succession certificate in their favour.
3. The application was objected to by the appellants, herein, alleging that respondents being uterine brothers and sisters were not entitled to the heritage of the deceased.
4. The appellants, herein, on the same date i.e. 14.04.2008, also filed a petition for issuance of succession certificate, reiterating almost the same grounds. It was stated in the application that according to injunctions of Islam, commandments of the Holy Quran in Sura Al-Nisa, as well as Mahomedan Law, they were entitled to inherit the whole moveable and immoevable property of the deceased being `Zawil Faroozand Usba'. It was also stated that the respondents, herein, had no concern with the property of the deceased being uterine brothers and sisters.
5. The learned trial Court consolidated both the petitions. After necessary proceedings issues were framed on 12.09.2008 and the parties were directed to lead evidence in support of their respective pleadings. At the conclusion of the trial the learned District Judge, vide impugned judgment dated 01.10.2009, disposed of both the petitions in the following manner:--
(I) Khalida Begum; Appellant No. 1, being widow of the deceased was declared entitled to 10/40 shares i.e. 1/4 share;
(II) Ayesha Begum; Appellant No. 2, being real sister of the deceased, 20/40 shares i.e. 1/2 share;
(III) 4 step brothers, 08/40 shares i.e. 2 shares per brother and
(IV) 2 step sisters, 2/40 shares.
6. Feeling aggrieved from the said judgment, the appellants, herein, were constrained to file the instant appeal on 22.10.2009.
7. Sardar Abdul Rashid Chughtai, Advocate, the learned counsel for the appellants, while reiterating the grounds raised in the appeal and referring to Section 109 of Mahomedan law, argued that according to the injunctions of Islam and Mahomedan Law, uterine brothers and sisters were not entitled to return, if there was full sister. In this regard, the learned counsel, besides, referring to Sura Al-Nisa, verses No. 11 & 176 also placed reliance on a case titled Syed Lal Hussain Shah V. Mst. Robina Shaheen and another (2000 SCR 63). The learned counsel maintained that the trial Court fell in grave error while passing the impugned order and craved that the same may be quashed by declaring that the respondents were not entitled to succession certificate regarding moveable and immoveable property of the deceased.
In case of Syed Lal Hussain Shah, ibid, it was held by the apex Court as under:--
"13. To examine this contention we may first refer to the `Nas' referred by him translated in English it reads as follows:--
(i) Share of a son is double than the daughter;
(ii) If the heirs of the deceased are only two or more daughters then they will get 2/3 of the estate and if there is only one daughter she takes half of the estate............
14. All commentators are agreed that the interpretation of the above is that if a Muslim dies leaving behind one daughter and no other heir she takes half of the estate. When we turn to Shia Law of Inheritance we find that it is also the same. According to Shia Law if there is no son and there is only one daughter her share is one half; if there are two daughters or more they inherit 2/3rd. Sunni law is the same. However, inShia Law, unlike the Sunni law, if there is one daughter she excludes all other heirs including brothers of the deceased. This rule is not inconsistent with rules of inheritance ordained by Allah in the Holy Quran. When there are no other heirs, half of the estate would still be available after giving one half to the daughter. In this situation doctrine of return ("Radd") applies and the residue is also allotted to the daughter. It may be mentioned that doctrine of return ("Radd") is not peculiar to the `Shias' but is also a part of the `Sunni' system of inheritance. In this view of the matter we do not find any force in the contention of Mr. Abdul Aziz Chaudhry that Shia law on the subject is inconsistent with Holy Quran."
8. Sardar Nazar Muhammad Khan, Advocate, the learned counsel for the respondents, while controverting the arguments advanced on behalf of the appellants, submitted that the trial Court, neither committed any illegality nor the impugned order was passed in contradiction to the injunctions of Islam as well as Mahomedan Law, hence, prayed that the appeal may be dismissed.
9. After hearing the learned counsel for the parties at great length, I have perused the contents of appeal and examined the record made available, as well.
10. A contemplate perusal of the verses of the Holy Quran i.e. Verses No. 11 & 176 of Sura Al-Nisa, reveals that if a widow has no child then she will be entitled to 1/4th share from the property of her husband and if a full sister is alive, she will be granted 1/2 share from moveable and immoveable property of her deceased brother. Both the appellants being widow and real sister of the deceased were granted the same shares by the Court below. Even the learned counsel for the appellants, frankly conceded that both the appellants were granted their respective shares, strictly according to the injunctions of the Holy Quran as well as Mahomedan Law. However, his contention was that as the respondents were step brothers and sisters of the deceased, therefore, they were not entitled to residuary shares which returned to Appellant No. 2 being full sister as visualized by Section 109 of Mahomedan law which is reproduced as under:
"Uterine Brothers and sisters when excluded from "Return".--If there are uterine brothers or sisters, and also full sisters, the uterine brothers and sister are not entitled to participate in the Return, and the residue goes entirely to the full sisters. This rule does not apply to consanguine sisters. Consanguine sisters and uterine brothers and sisters divide the Return in proportion to their shares."
A bare reading of the above-mentioned provision of law makes it clear that the same was not attracted in the given case. According to pleadings of the parties and record Appellant No. 2 and the respondents were not uterine brothers and sisters who were in fact consanguine brothers and sisters. It is settled principle of law that a party cannot be allowed to plead its case against the pleadings. Therefore, the above provision of law and cited precedent are not helpful to the appellants.
11. According to Mahomedan Law if there being only one sister then consanguine sisters and brothers are not excluded from inheritance. In this regard `principles of Mahomedan law' by Sir Dinshah FardunjiMulla, revised by M. Hadayat Ullah, 1988, 16th Edition, Page 73, Note of Section 51 supra, is relevant which is reproduced as under:--
"Note: There being only one full sister, the consanguine sisters are not excluded from inheritance, but they inherit 1/6 which together with the sister's 1/2, makes up 2/3, the collective share of full sisters in the inheritance".
Similarly Para 7 Note of Section 52 listed at Page 77, ibid, is as follows:--
"7. Consanguine sister: Takes a residuary with consanguine brother, the brother, taking a double portion."
A glance perusal of the principles of Mahomedan Law, supra, makes it crystal clear that consanguine sisters and brothers are not deprived from the inheritance under law.
12. The basic injunctions Of the Holy Quran as laid down in Sura Al-Nisa Verses 11 and 176 relied upon by the learned counsel for the appellants, translated in English are also reproduced as under:
"11 And unto you belongeth a half of that which your wives leave, if they have no child; but if they have a child then unto you the fourth of that which they leave, after any legacy they may have bequeathed, or debt (they may have contracted, hath been paid). And unto them belongeth the fourth of that which they leave if they have no child, but if they have a child then the eighth of that which they leave, after any legacy he may have bequeathed, or debt (ye may have contracted, hath been paid). An if a man or a woman have a distant heir (having left neither parent nor child), and he (or she) have a brother or a sister (only on the mother's side then to each of them twain the brother and the sister) the sixth, and if they be more than two, then they shall be sharers in the third, after any legacy that may have been bequeathed or debt (contracted) nor injuring (the heirs by willing away more than a third of the heritage) hath been paid. A commandment from Allah. Allah is Knower, Indulgent
176. They ask thee for a pronouncement. Say Allah hath pronounced for you concerning distant kindred. If a man die childless and he have a sister, hers is half the heritage, and he would have inherited from her had she died childless. And if there be two sisters, then theirs are two-thirds of the heritage, and if they be brethren, men and women, unto the male is the equivalent of the share of two females. Allah expoundethunto you, so that ye err not. Allah is Knower of all things".
A comparative study of principles of Mahomedan law and basic injunctions of the Holy Quran as laid down in Versus 11 & 176 of Sura-Al-Nissa makes it clear that the impugned judgment was passed by the learned District Judge in accordance with the above injunctions and principles which need no any interference of this Court.
For the reasons enlisted hereinabove, finding no substance in the instant appeal the same is hereby dismissed with no order as to costs.
(R.A.) Appeal dismissed