25/10/2020
🍂 قانون وراثت۔ وارثان کے حصے قرآن کی رو سے۔ ثواب کی نیت سے شئیر کریں۔
2001 C L C 446
[Lahore]
Before Dr. Munir Ahmad Mughal, J
MUHAMMAD ASHRAF and another‑‑‑Petitioners
versus
FAISAL MASOOD and 2 others‑‑‑Respondents
Civil Revision No.633/D of 1999, heard on 27th September, 2000.
(a) West Pakistan Land Revenue Act (XVII of 1967)‑‑‑
‑‑‑‑S. 45‑‑‑Islamic Law‑‑‑ ‑‑‑ ‑‑‑ of‑‑‑Suit‑land was to the on account of murder of his father as a Diyat‑‑Revenue Authorities mutated the suit‑land in favour of the brothers of the deceased‑‑‑Plaintiff assailed the disputed mutation before Civil Court‑‑‑Suit was dismissed by the Trial Court, but the Lower Appellate Court allowed the appeal and decreed the suit‑‑‑Validity‑‑‑Defendants were not the legal heirs of the deceased and the donor had denied to have gifted the suit‑land to them‑‑‑Judgment of the Lower Appellate Court did not suffer from any illegality and the High Court refused to interfere in the same‑‑‑Plaintiff being not the only heir of the deceased, High Court modified. the judgment and decree of the Lower Appellate Court and directed the Revenue Authorities to also include the names of the other legal heirs in the mutation of suit‑land according to their respective shares.
Young Lawyers And Case Laws
(b) Islamic Law‑‑‑
‑‑‑‑Inheritance‑‑‑Distribution of shares among legal heirs‑‑‑Regulations about inheritance recorded.
Holy Qur'an: IV: 7 ref.
(c) Islamic Law‑‑‑
‑‑‑‑ Inheritance‑‑‑Tarka (legacy), distribution of‑‑‑Procedure discussed.
Holy Qur'an: IV: 11 to 14 ref.
(d) Islamic Law‑‑
‑‑‑‑ Diyat, payment of‑‑‑Guidelines.
The Holy Qur'an:II: 178 and 179; XVII: 33 and XVII: 34 ref,
Ehsanullah Khan Lilla for Petitioner. Sh. Naveed Shaharyar for Respondents.
Date of hearing: 27th September, 2000.
JUDGMENT
This is a revision petition under section 115, C.P.C. against the judgment and decree passed by the learned Additional District Judge, Mandi Bahauddin whereby he accepted the appeal and set aside the judgment and decree, dated 14‑4‑1999 of the learned Senior Civil Judge, Mandi Bahauddin.
2. Briefly stated the facts of the case are that Muhammad Anwar father of respondent No.1 and one Nazir Ahmad were murdered on 30‑9‑1988 in which Muhammad Ashraf son of Sultan and 10 others were challaned. During the trial a compromise was effected between the parties. According to which 160 Kanals of land owned by respondents Nos.2 and 3 i.e. Muhammad Ashraf son of Sultan and Mst. Sultan Bibi daughter of Dada was gifted in equal shares to respondent No.1 and the petitioners and that respondent No.1 filed a suit for declaration with possession of the land measuring 80 Kanals of his share being the sole male heir of Muhammad Anwar deceased wherein it was stated that the present petitioners were not the legal heirs of the deceased, therefore, Mutation No. 1553, dated 24‑9‑1991 attested in their favour to the extent of 2/3 shares of 80 Kanals (suit‑property) was illegal and void, result of fraud and ineffective to his rights.
3. Out of the pleadings of the parties the following issues were framed by the trial Court:‑‑
(1) Whether the suit is not maintainable? OPD
(2) Whether the plaintiff is estopped to file this suit by his act and conduct? OPD
(3) Whether the suit is barred by law and principle of res judicata? OPP
(4) Whether the suit is incorrectly valued for the purpose of court‑fee and jurisdiction, if so, what is the correct valuation? OPD
(5) Whether the plaintiff was given the disputed land as Diyat in a compromise of the murder case and as such he is exclusive owner of the disputed land? OPP
(6) Whether Mutation No. 1553, dated 24‑9‑1991 in favour of defendants Nos.3 and 4 is illegal, against fact, based on fraud and ineffective on the rights of the plaintiff? OPP
(7) Whether the plaintiff is entitled for declaration and possession of the suit‑land as prayed for? OPP
(8) Whether the defendant is entitled to special costs under section 35‑A of C.P.C.? If so, to what amount? OPD.
The parties led their respective evidence and the learned Civil Judge dismissed the suit on 20‑9‑1995. An appeal was preferred before the learned Additional District Judge, Mandi Bahauddin which was accepted on seeks the reversal of the impugned order,
5. Notice was given to the other side who has appeared and arguments have been heard at length.
6. The only contention of the learned counsel for the petitioners is that the judgment is against the law and facts of the case. Elaborating the arguments he submitted that the murder of Nazir Ahmad and Muhammad Anwar took place on 30‑9‑1988 and at that time the law of Qisas and Diyat i.e. Criminal Law (Second Amendment) Ordinance, 1991 (Ordinance I of 1991) was not in force. It came into force on 4‑1‑1991 and no compromise was filed in the Court for the acquittal of the accused. The compromise was got effected at the instance of Mutalli the grand‑father of Faisal Masood and two petitioners, namely, Muhammad Ashraf and Muhammad Arshad.
7. On the other hand, learned counsel for the respondents has submitted that the main spirit and the cause of the compromise was to compromise on the murder of Muhammad Anwar son of Mutalli and the respondent No.1 Faisal Ahmad is the son of deceased Muhammad Anwar while both the petitioners viz. Muhammad Ashraf, Muhammad Arshad sons of Mutalli are the brothers of the deceased who cannot inherit in the presence of the parents and children of the deceased under the Shariah, and that a& such. the suit should have been decreed, of course according to the Shariah. He submitted that the deceased Muhammad Anwar has left behind him a widow (Mst. Kalsoom Bibi), a mother (Mst. Fatima Bibl), father (Mutalli), a son (Faisal Ahmad) and a daughter (Mst. Najma Yasmin).
8. The contention of the learned counsel for the respondent has got full force as per record shown by both the learned counsel for the parties
9. I have given due consideration to the valuable arguments on both sides.
10. As the revision petitioners are not the heirs of the deceased and that the donor has also denied to have gifted the suit‑land to them, the observation of learned Additional District Judge is, therefore, factually correct legally sound that the plaintiff was given suit‑land as Diyat on account of the murder of his father and that the mutation in dispute has been illegally sanctioned in favour of respondents Nos.3 and 4. However, the fact remains that the petitioner is not the only heir of the deceased Muhammad Anwar. Both sides have admitted that Muhammad Anwar deceased left ‑ehind the following five persons namely Mst. Kalsoom Bibi (widow), Mst. Fatima Bibi (mother), Mutalli (father), Faisal (son) and Mst. Najma Yasmin (daughter). Keeping in view of these facts and circumstances on the record the Judgment of the learned Additional District Judge, Mandi Bahauddin is unexceptionable to the extent of the decree in favour of the plaintiff but with the modification that the entitlement to the suit‑land as Diyat of deceased Muhammad Anwar son of Mutalli shall be as under:‑‑
(1) Mst. Kalsoom Bibi (widow) 18/144
(2) Mst. Fatima Bibi (mother) 24/144
(3) Mutalli (father) ‑ 24/144
(4) Faisal (son)'and 52/144
(5) Mst. Najma Yasmin (daughter) 26/144
11. The Holy Qur'an savs:‑‑
There is a share for men in what has been left by parents and near relatives, and there is a share also for women in what has been left by parents and near relatives, whether it be little or much: for this share has been prescribed (by Allah). [IV: 7).
This verse contains five legal regulations about inheritance. First, both men and women have a share in it. Second, it must be divided among all heirs, however, little or insignificant it may be. So much so that if only one yard of cloth be left by the deceased, it must be cut, say into ten parts, if it is so required. However, an heir may buy the shares of the others by mutual consent. Third, it is implied in the verse that this law applies to all sorts of property transferable or non‑transferable, agricultural or industrial, or of any other type. Fourth, it shows that the right of inheritance becomes valid only when the deceased leaves some property behind him. Fifth, it is also clear from this that when the nearest relatives are alive the distant ‑ relatives have no right in inheritance. "
12. The Holy Qur'an further says:‑‑
As regards inheritance, Allah enjoins you concerning your children that:
The share of the male shall be twice that of the female.
In case the heirs be more than two females, their total share shall be two‑third of the whole and if there be only one daughter, her share shall be half of the whole.
If the deceased has children, each of his parents shall get one‑sixth of the but if he be childless and his parents alone are his heirs, their mother shall have one‑third of the whole. NAM If the deceased has brothers and sisters also, the mother shall be entitled to one‑six of the whole.
The division of all these shares shall take place only after fulfilling the terms of the will and after the payment of the debt (if any)....
As regards your parents and your children, you do not know who is more beneficial to you. Allah has apportioned these shares and most surely Allah is All‑knowing, All‑wise.
And you will get half of what your wives leave behind, if they be childless; but if they leave children, then your share will be one‑fourth of what they have left, after the fulfilment of their will and the payment of their debt (if any). As for them, they will be entitled to one‑fourth of the inheritance left by you, if you are childless; but EMPM in case you leave behind children, their share will be one‑eighth of the whole after the fulfilment of your will and payment of your, debt (if any).
And if the deceased, whether man or woman, (whose property is to be divided as inheritance), leaves no children and no parents behind, but has one brother or one sister alive. Each of the two will be entitled to 1/6 of the whole but in case the brothers and the sisters are more than one, then the total share of all of them will be one‑third of the whole, after the fulfilment of the will and the payment of the debt (if any), provided that it is not injurious (to the heirs). This is the Commandment of Allah and Allah is All‑knowing and Lenient.
These are the limits prescribed by All Woso obeys Allah and his Messenger he will admit him into the gardens underneath which canals flow where he will abide for ever: this is the great success. [IV: 11 to 14]. wpm
13. It is also mentioned in the Holy Qur'an:
O! Believers, the law of retribution has been prescribed for you in cases of murder; if a free man commits a murder, the free man shall be punished for it and a slave for a slave; likewise if a woman is guilty of murder the same shall be accountable for it. But in‑case the injured brother is willing to show leniency to 'the murderer, the blood money should be decided in accordance with the common law and the murderer should pay it in a genuine way. This is an allowance and mercy from your Lord. Now there shall be a painful torment for anyone who transgresses the limits after this. O! men of understanding, there is security of life for you in the law of retribution. It is expected that you will refrain from breaking this law. [II: 178 and 179].
14. The Holy Qur'an further says:‑‑
And if one is killed unjustly we have granted the right of retribution to his relation, for he shall be helped. [XVII: 33]. .‑
Keep your pledges, for you shall be accountable for your pledges. [XVII: 34].
15. In the light of the above Qur'anic versions, the petitioners were bound to fulfil their contract of paying Diyat to the legal heirs of the deceased. The respective shares of the legal heirs of the Muhammad Anwar to the light of the above Qur'anic Injunction are as under:‑‑
(1) Mst. Kalsoom Bibi (widow) 18/144
(2) Mst. Fatima Bibi (mother) 24/144
(3) Mutalli (father) 24/144
(4) Faisal (son), and 52/144
(5) Mst. Najma Yasmin (daughter) 26/144
16. Keeping in view of these facts and circumstances on the record the judgment of the learned Additional District Judge, Mandi Bahauddin is unexceptionable to the extent of passing of the decree in favour of the plaintiff but with the modification that the entitlement to the suit‑land as Diyat of deceased Muhammad Anwar son of Mutalli shall be as above.
17. The revision petition is, therefore, dismissed and the judgment of the learned Additional District Judge, Mandi Bahauddin is upheld with the above modification .and the learned District Collector, Mandi Bahauddin is E directed to pass an order of correction in Mutation No.1553, dated 24‑9‑1991 in the light of this judgment and send a compliance report to this Court through the Registrar to be kept on record on this file as well.
Order accordingly.
