Muslim Family Laws Ordinance Section 4
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Transcript of Muslim Family Laws Ordinance Section 4
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Section 4
Muslim Family Laws Ordinance, 1961
Succession
In the event of death of any son or daughter of the propositus before the opening of
succession, the children of such son or daughter, if any, living at the time the succession
opens, shall per stripes, receive a share equivalent to the share which such son or daughter,
as the case may be, would have received if alive. Court Decisions
Muslim law:- Grandson, under the traditional Muslim law of Inheritance was not excluded
from the inheritance of his grandfather due to absence of his own father—Provision of S. 4,
Muslim Family laws Ordinance, 1961 clearly entitles the grandson for receiving the share
which his father would have inherited, had he been alive. PLD 2003 SC 475 Repugnancy to Injunctions of Islamic. Provision contained in S. 4, Muslim Family Laws
Ordinance, 1961, as presently in force, is repugnant to Injunctions of Islam. There is neither
any ambiguity nor any clarification needed as regards devolution of inheritance and persons
to inherit as also about their shares. In line inheritance prescribed by Quran in presence of
son, children of predeceased children have been excluded as heirs and this position has
been aptly taken care of by Sunnah of our Holy Prophet Muhammad (peace be upon him) in
Ahadith in which precise position of the grandchildren has been elucidated that
grandchildren are to be considered as one’s children in distribution of inheritance in case
none of one’s own children are still alive and grandson has been excluded from inheritance
simultaneously with one of propositus. This Hadith has been followed by all schools
including Fiqa-e-Jafria. To re-explain position, question for determination was and is
whether grandsons/daughters of a propositus whose parents have died during lifetime of
the propositus are included in list of those entitled of inheritance under Qura’nic Injunctions.
Qura’nic Injunctions are of two types; directory and prohibitory. It is a matter of common
sense otherwise also that in presence of a mandatory injunction in respect of any matter no
prohibitory provision would be required. Ayaat of Quran-e-Hakeem on subject of inheritance
are mandatory, clear, explicit and, therefore, need no prohibitory provision for any
explanation. Emphasis in Ayaat of Surah Nisa that directions contained therein as regards
inheritance in all respects have to be followed in letter and spirit and any deviation there
from entails punishment of severe nature, establishes the absolute mandatory. nature
thereof. Another factor which had been weighing with learned members of Commission and
obviously with framers of Section 4 appears to be humane and compassionate consideration
qua orphans. Inheritance principles of Islam are not based on financial positions but as
already stated are essentially based on nearness and close proximity of relations with
deceased whose estate is to be distributed. Above considerations of humane aspects and
compassion, though of great importance, cannot be incorporated in it on account of
immense complications and various discriminatory positions that may emerge therefrom.
For example if orphan children of predeceased children are to be included in list of persons
to inherit why not include the widows of the predeceased children or for that matter children
of predeceased brothers and sisters etc. and if it be so done there will be no end to
inclusions. Again in matter of compassion an orphan grandchild without any tangible asset
with him should not be equated with another orphan grandchild who in his own right may be
much better placed financially than even the direct heir i.e. a son of propositus. In context
of above position that can emerge and does exist in ground realities, human wisdom which,
without any doubt, cannot equate with wisdom of Creator, should not be allowed to muddle
up the scheme of inheritance laid down by Holy Quran as it is bound to create confusion and
choas rather than be of any comfort or solace to fiber of Muslim Society. On plane of pure
worldly considerations even, Section 4 cannot be sustained. In order to meet situations of
financial inequality in society, it is not merely law of inheritance ordained through Quran
which should be tampered with but attempt should be made to create a social order which
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takes care of all the deprived members of the society. Will it not be better to cater for needs
of all orphans in a respectable manner rather than care for only such orphans who are being
allowed to inherit from propositus by virtue of Section 4 alone? "Inclusion of grandchildren
in inheritance from grandfather in presence of sons or daughters at time the succession
opens and to have per stripes a share equivalent to, share which such predeceased son .or
daughter would have received if alive is, therefore, nugatory to scheme of inheritance
envisaged by Quran. Children of predeceased son or daughter appear to have been
purposely excluded and there appears to be a Justification therefore that they are not to
share burdens and responsibilities which a son as an heir would have to undertake on
demise of his father. Examining above aspect on principles of other Jurisprudences as well it
may be observed that it is well Settled even as regards the man-made law that if in any
Such law there is manner and mode prescribed for doing anything in a particular manner it
has to be done in same manner only and not in another manner. It is also well Settled that
doing of anything in manner other than specifically provided for, will be wholly illegal and
will have no effect whatsoever. If this principle is being adhered to as regards .the man-
made law how can one think of deviating from law of Allah which law is base of all laws and
there can be no other law better than that. Although there is no need to derive support from
principles of any other Jurisprudence to interpret law as contained in Quran but
nevertheless above view has been expressed Just to satisfy those minds which are over
influenced by philosophies of law other than that of Islam. It is also intended to bring home
to allsuch thinkers that philosophy of law contained in Quran is the most Just and in
consonance with all equitable principles that could possibly be conceived. Next question to
be examined is as to what would be solution for socio-economic problem with which orphan
grand children may be confronted with on demise of a grandparent, who may have left
estate from which Uncles and Aunts would inherit but they would not, and thus, may have a
sense of deprivation or for that matter confronted with economic problems. Quran-e-
Hakeem is the word of Allah Almighty who is the Creator of Universe and who knoweth
everything which none else can know and is the wisest. It will be presently shown that
solution for this problem is also available in Holy Quran, Islamic Ideological Council in one of
its reports on subject of inheritance has recommended that Uncles and Aunts of orphan
grandchildren are duty bound to take care of their orphan nephews and nieces and provide
for them. It has also been recommended that in case of non-performance of this duty by
Aunts and Uncles a legal obligation be cast upon them to abide by their"duty. Probably
above recommendation is derived from Ayat 8 of Sura-e-Nisa which lays down that at time
of distribution of assets those next of kins and orphans and others, who are present, be also
dealt with kindly. This is a direction for general application to all next of kinds who are
present at time of distribution to be taken care of and not specifically for orphan
grandchildren. Above could be, one of the solutions for the problem but this solution is not
such which will be considered respectable in social conditions of Pakistan inasmuch as in
doing such rtype of a thing it is usually given out by performer of duty that he is doing it as
a charity and those who receive anything under this arrangement have a feeling of
inferiority and may have inhibition in taking something as a matter of charity. If piety which
is a requisite of an Islamic Social Order had been prevalent it could well have been a good
solution but in situations in which we are placed, better solution would be making of a law
for Mandatory will in favour of the orphan grandchildren. This view finds support from a
Qura’nic Verse as well. Quran-e-Hakeem through Ayat 180 of Surah Baqara has ordained
that it is prescribed that when death approaches near you, if he leaves any goods, that he
makes a bequest to parents and next of kins according to reasonable usage and this is due
from God-fearing. This Ayat starts with a mandate that a person who sees.death is
approaching, has an obligation to create will. Importance of the above mandate of Quran
has also been stressed by following Hadifch: "Narrated" Abdullah-bin-Umar Allah"s Apostle (s.a.w.) said, :It is not permissible for any
Muslim who has something to will, to stay for two nights without having his last will and
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testament written and kept ready with him." It was canvassed by some counsel and the Jurisconsults that this Ayat-e-Qurani has been
abrogated on account of later revelation by which parents had been included in person to
inherit. It is the cardinal principle of interpretation that where two provisions in a law are
irreconcilable the later shall prevail but all efforts should be made to -keep both provisions
intact if a reconciliation of the two can be reached. Direction of creating a will on account of
later revelation by including the parents as heirs is abridged to the extent of will in favour of
parents alone but creation of will as regards others including next of kins who are not heirs
remains intact in mandatory form in which it was revealed. Obviously grandchildren are
nearest next of kin and they having not been included as heirs will be entitled to have a will
created in their favour within limits prescribed for creating will. Significance and limits of
which can be found from "known traditions of Prophet-(s.a.w.) Creation of a will in favour of
orphan grandchildren out of an estate of gramd parents to extent of l/3rd would be another
very plausible solution to meet socio-economic problem in this regard. Measure has been restored in some Muslim countries and that laws enforced in this respect
in Egypt and Kuwait are being effectively made-use of. Federal Shariat Court, however, left
the matter to legislative domain of country to deliberate on it and bring about law which
would safeguard interest of orphan grandchildren and exclude all possible complications of
litigation that may crop up as a result of loose or unthought for provision of law. Creation of
a will was preferred in favour of orphan grandchildren by grandparent over other solutions
which may be available for socio-economic problem, inter alia, for, the following reasons: That this derives strength from Qura’nic Injunctions as the orphan grandchildren being not
heirs would be entitled to will in their favour as regards estate of propositus; That the orphan grandchildren would have fruits from assets of their grandparent without
any inhibition as they would be enjoying the same as of right in the same manner as their Uncles and Aunts as heirs would be enjoying benefits of estate of their father; and that a provision can be made that in case a propositus dies without creating a will, the will,
to the extent of l/3rd in favour of the grandchildren out of the estate with a ceiling that it
does not go beyond the share of their predecessor, shall be deemed to have been created
by the grandparents in their favour From above it squarely follows that in presence of direct mandatory injunctions of Holy
Quran itself and also Ahadith there was no occasion, and could possibly be none ever, to
add anything thereto or subtract anything therefrom in matter of inheritance. Provision
contained in Section 4 of Muslim Family Laws Ordinance, 1961, as presently in force, is
repugnant to Injunctions of Islam and Federal Shariat Court directed President of Pakistan
to take steps to amend law so as to bring said provision in conformity with Injunctions of
Islam. It was further directed that said provision which has been held repugnant to the
Injunctions of Islam shall cease to have effect from 31st March, 2000. P.L.J.2000 FSC 36
= PLD 2000 FSC 1. Applicability-Respondents were children of predeceased daughter of the deceased
predecessor. in-interest of the parties. Petitioners excluded the respondents from the
mutation of inheritance-Such mutation was assailed in civil suit which was decreed in favour
of the respondents-Lower Appellate Court maintained the judgment passed by the Trial
Court and revision before High Court was also dismissed. Petitioners played a fraud while
getting the mutation sanctioned in their favour and they intentionally and deliberately
excluded the respondents. Validity-Where the provision of S.4 of Muslim Family Laws
Ordinance, 1961, was very much in the field at the time of attestation of mutation, the
principle laid down in the judgment of FSC would not be applicable to the instant case as
the judgment had to take effect from 31.3.2000-Petitioners deliberately and knowingly got
the names of the respondents omitted from the aforesaid mutation, such act on the part of
the petitioners was not appreciated by Supreme Court: Appeal against the judgment passed
by Federal Shariat Court was pending adjudication, the decision of the Federal Shariat Court
would not be attracted till the disposal of the appeal .2002 S C M R 426
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Bar of limitation-Claims of inheritance under North - West Frontier Province Muslim
Personal Law (Shariat) Application Act, 1935, were like all other claims subject to the
provisions of Limitation Act, 1908-Plaintiff and defendants had not been excluded from
inheritance of properties-Had such heirs been excluded from inheritance they could not
claim their share when barred by the law of limitation. Suit for correction of mutation was
barred by Art.120, Limitation Act, 1908-Plaintiff claiming share of his wife after her death-
Plaintiff's wife being satisfied with the share of inheritance did not raise objection thereto
Plaintiff's suit being barred by limitation and otherwise not warranted on merits was rightly
dismissed by Courts below. Section 4, Muslim Family Laws Ordinance, 1961, having been
excluded from the scrutiny of Federal Shariat Court and having not been excluded from the
scrutiny of Council of Islamic Ideology, was a good and valid law unless declared un-Islamic
by the Council of Islamic Ideology. Vires of S.4, Muslim Family Laws Ordinance, however,
having neither been challenged in plaint nor raised before lower Courts could not be
challenged in revision before High Court-Courts under provision of OXX, R.5, Civil Procedure
Code, 1908, were bound to give decision on issues framed on basis of pleadings-No issue on
vires of S.4, Muslim Family Laws Ordinance, 1961 having been framed nor such omission
having been challenged, Courts below had thus imported an extraneous legal issue
compelling High Court also to discuss the same. P L D 1991 Pesh. 85 Date of Death Contention that for purpose of inheritance death of propositus as well as
that of son and daughter must occur after coming into force of Ordinance, held, without
force. 1980 C L C 1006 P L D 1968 Kar. 480 rel. Entitlement of grandsons to get their share from the inheritance left by their
grandfather - Respondents/grandsons of the deceased were declared owners of ¼th share
in property left by the deceased grandfather in the order passed by Appellate Court -
Petitioners who were sons of the deceased had challenged the order passed by Appellate
Court in revision filed before the High Court, contending that in view of the dictum laid down
by the Federal Shariat Court in case reported as Allah Rakha and others v. Federation of
Pakistan PLD 2000 FSC 1, the respondents were not entitled to get any share from the
inheritance left by their grandfather as S.4 of Muslim Family Laws Ordinance, 1961 had
been declared repugnant to Injunctions of Islam by the Federal Shariat Court - Contention
of the petitioner was repelled because the date given in the said Judgment of Federal
Shariat Court from where S.4 of Muslim Family Laws Ordinance, 1961 would cease to have
effect was 31-3-2000 and the Judgment had no retrospective effect - Grandfathers of the
respondents died in 1969 and mutation of inheritance was sanctioned in 1970 and
respondent had filed suit to inherit their share in 1981 and since then they were pressing for
their rights - Federal Shariat Court having power to make a declaration to give effect to its
Judgment only from a future specified date, would leave the pending proceedings ineffective
- Decision of Federal Shariat Court would not take effect before the date specified by it in
the decision - Prior to that date neither the decision would take effect nor the law would
cease to have effect and the relevant law would continue to remain in force till the day prior
to the date fixed by the Court - Inheritance of the deceased having opened in 1969,
respondents being grandsons of the deceased were entitled to inherit his estate under S. 4
of Muslim Family Laws Ordinance, 1961, which was very much in force at the relevant time
- Judgment and decree passed by Appellate Court being Just and correct, could not be
interfered with in revisional Jurisdiction of High Court, 2002 CLC 285 PLD 2000 FSC 1; PLD
1991 SC 71; 1987 SCMR 1206; PLD 1988 SC 287; 1980 CLC 334; 2000 SCMR l463 and PLD
1966 SC 267 ref. Entitlement. Mst. Sammo was alive when Ham Din (last aala owner) died,. Her daughter
Fazal Begum had predeceased her. Under S. 4 of Muslim Family Laws Ordinance, share of
Fazal Begum which she should have received from her mother, would devolve on her two
sons. P.L.J.1988 Lah. 197 Whether Section 4 of 1961 Ordinance is contrary to Injunctions
of Islam. Under Chapter 3-A of Constitution, Federal Shariat Court was established to
examine whether or not any law is repugnant to Injunctions of Islam, but Muslim Personal
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Law was kept outside its Jurisdiction. Judgment of S. C. that Federal Shariat Court also has
no Jurisdiction to scrutinize Section 4 of 1961 Ordinance, is binding on all courts in Pakistan.
Section 3(2) of Enforcement of Sharia Act, 1991 was declared as ultra vires of Constitution,
by Federal Shariat Court. It is not possible to declare that respondents being sons and
daughter of deceased son and daughter of deceased are not entitled to claim share out of
his legacy. P.L.J.1995 Qta. 23 = 1995 CLC 51. Grand-daughter's entitlement to inherit the property of grandfather in the event of
death of their mother before opening of succession-Predeceased daughter's daughters
were entitled to the share which their mother would have received if she had survived on
the death of propositus viz. her father. 1993 C LC 545 Heirs of predeceased children. Children of predeceased son or daughter are entitled to
inherit the property of their grandfather on his death Provisions of S.4, Muslim Family Laws
Ordinance, 1961, are not against Injunctions of Islam and hold good as valid law. 2000 C L
C 795 PLD 1980 Pesh. 47 rel. Entitlement of children of predeceased son or daughter of
propositus Children of a predeceased son or daughter of propositus were entitled only to
their shares, and the same could not be increased in any way. 1999 C L C 1216 1998 MLD
1857 ref. Children of predeceased daughter of the last full owner will inherit the same which the
mother would have got as if she were alive at the time of the opening of the succession.
1997 SCMR 281 Injunctions of Islam Contention of the petitioner was that provisions of S.4 of the Muslim
Family Laws Ordinance, 1961 having been declared by the Supreme Court to be repugnant
to Injunctions of Islam respondents were not entitled to inherit any property left by their
deceased grandfather- Validity-Where father of the respondents died in the year 1962, the
Muslim Family Laws Ordinance, 1961, as it then existed had been rightly applied to the
case-Declaration by the Federal Shariat Court and the Shariat Appellate Bench of Supreme
Court as to repugnancy having come much latter did not affect the right of the respondents
to inherit the share of their father/predeceased son of the deceased-Findings recorded by
the Courts below did not suffer from any illegality, Supreme Court declined to interfere with
the judgments passed by the Courts below. 2002 SCMR 164 PLD 1997 SC 730 and PLD
1991 SC 466 ref. Only forum which could entertain such plea was Federal Shariat Court, which in exercise of
its jurisdiction under Art. 203.D of the Constitution could go into the question whether. S. 4,
Muslim Family Laws Ordinance, 1901, was contrary to Injunctions of Islam or not-Supreme
Court in exercise of its normal jurisdiction could not declare a provision of a statute to be
invalid on ground of inconsistency with the Islamic Injunctions -Leave to appeal was refused
in circumstances. 1994 S C M R 681 Petitioner contended that neither predeceased son nor step-daughter of deceased owner of
property in dispute could inherit any share in property according to Muhammadan Law and
that provisions of Family Laws Ordinance, 1961 which had provided that share which
predeceased son or daughter of a deceased Muslim would have inherited, would devolve on
his or her heirs, was not a valid law - Federal Shariat Court which was vested with exclusive
jurisdiction to examine as to whether a provision of law or a law was repugnant to
Injunctions of Islam and Sunnah, having not made any such declaration, petitioner could
not raise such contention - Petition for leave to appeal was dismissed. Courts below had
recorded a finding of fact that step-daughter of deceased Muslim female was entitled to get
share in her property - Such findings of fact having not been shown to have suffered from
any misreading or non-reading of material piece of evidence, could not be interfered with by
Supreme Court petition for leave to appeal was dismissed. 1999 S C M R 1558 No retrospective effect , Last full owner died before 1958 and immediately on' his death,
succession opened and according to Islamic Law, children of his predeceased sons were not
entitled to inherit the estate of deceased-Provisions of S.4 of Muslim Family Laws
Ordinance, 1961 has no retrospective effect and would not affect the past and closed
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transaction. 2002 C L C 819 1990 SCMR 1677 ref. Pendency of first dispute -Death occurring with short interval Devolution of inheritance-
Case was not of inheriting the same property twice but it is case of a devolution of two
independent inheritances because the deaths had occurred with short intervals and
coincidently during the pendency of petition in hand -Factum of inheritance and the
devolution thereof is always automatic and instantaneous-One takes effect instantly
regardless of what is about to follow and who is to expire next. Provision of S.4, Muslim
Family Laws Ordinance, therefore, still holds good as valid law-Inheritance in question,
having been effected according to such provision, no exception could be taken to impugned
judgment of Courts below whereby heirs of predeceased son/daughter were found entitled
to inherit property of their grandfather-Judgments and decrees of Courts below were
maintained in circumstances. P L D 1998 Lah. 321 Principle of "per stripes" in S. 4-Connotation-Section 4, Muslim Family Laws Ordinance
has been enacted to cater the needs of grandchildren and to remove their sufferings but it
cannot be interpreted so as to decrease the shares of the other descendants-Section 4 of
the Muslim Family Laws Ordinance, 1961 in spite of non obstante clause, has to be
interpreted in the light of S. 2, Muslim Personal Law (Shariat) Application Act, 1962 and
both the statutes can stand together. The phrase "per stripes" means: By roots or stocks;
by representation. This term, derived from the civil law, is much used in the law of descents
and distribution, and denotes that method of dividing an intestate estate where a class or
group of distributes take the share which their deceased ancestor would have been entitled
to, taking thus by their right of representing such ancestor, and not as too many individuals.
It is the anti-thesis of per capita. It means that the distribution has to be made to a group
of share-holders taking the share of their ascendants. Per stripes referred to in section 4 is
the anti-thesis of per capita. This means a share according to the stock or the root or the
family as against per capita which means share per head. This assumes greater importance
only where the propositus leaves behind a number of grandchildren whose parents died
during the lifetime of the propositus. The principle of succession in such cases will not be
inheritance per capita but per stripes i.e. in accordance with the root or stock to which the
grandchild belongs and will only get the share to which the grand-child is entitled through
his parent. In the event of there being a single surviving grandchild the principle of per
stripes is pushed to the background but cannot be employed to support a principle which
militates against the Islamic Law of inheritance. On the opening of succession each group of
children of the deceased sons/daughters would inherit the share of their father/mother and
each individual would not get the share in his/her individual capacity. Section 4 has been
added to cater the needs of grandchildren and to remove their sufferings but it cannot be
interpreted so as to decrease the share of the other descendants. According to section 4,
share from the deceased grandfather's property has been bestowed upon the children of his
predeceased son but this does not mean that the other heirs of the deceased would be
excluded from their share of inheritance. Under section 2 of the Muslim Personal Law
(Shariat) Application Act, 1962, the rule of decision shall be the Muslim Personal Law
(Shariat) in cases where parties are Muslim. In spite of the non-obstante clause section 4. is
to be interpreted in the light of section 2 of the Act, 1962. Both thus can stand together.
Grandchild is not entitled to more share than what could be inherited from the parents
according to Islamic Law-Estate would be divided in proportion of the respective shares of
their parents and heirs claiming through different line of descent would get their own shares
as per stripes. On the opening of succession each group of children of the deceased
sons/daughters would inherit the share of their father/mother and each individual would not
get the share in his/her individual capacity. Section 4 has been added to cater the needs of
grand-children and to remove their sufferings but it cannot be interpreted so as to decrease
the share of the other descendants. According to section 4, share from the deceased
grandfather's property has been bestowed upon the children of his predeceased son but this
does not mean that the other heirs of the deceased would be excluded from their share of
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inheritance. Under section 2 of the Muslim Personal Law (Shariat) Application Act, 1962, the
rule of decision shall be the Muslim Personal Law (Shariat) (in cases where parties are
Muslim). In spite of the non-obstante clause section 4 is to be. interpreted in the light of
section 2 of the Act, 1962. Both thus can stand together. The succession in the present case
opened on the death of S. R, if alive, would have inherited the entire property of his father.
Notionally, it would be presumed that R after inheriting the estate of his father, had died.
Accordingly, the succession would re-open and all the legal heirs of the deceased would get
their shares in accordance with the Muslim Law of Inheritance. The contention that the
daughter of it would inherit the entire share of her father being the sole surviving child, was
against the principle of Muslim Law of Inheritance. She would get whatever she would be
entitled to get on the death of her father. The principle of Muslim Law of Inheritance was
that the near in degree would exclude the remotest. Before the introduction of section 4,
the children of predeceased son were deprived of any share. The intention of section 4 was
to safeguard the interest of the children of predeceased son and not to deprive the other
heirs of the propositus of their due. Thus, section 4 cannot be interpreted in a way so as to
exclude the other legal heirs of the deceased. Section 4 could not, therefore, be construed
against the interest of the other heirs of the deceased who were entitled to share the
inheritance in accordance with the principles of Muslim Law of Inheritance. As such,
grandchild was not entitled to more share than what could be inherited from the parents
according to Islamic Law. The estate would be divided in proportion of the respective shares
of their parents. The heirs claiming through different line of descent would get their own
shares per stripes. P L D 1990 S. C. 1051PLD 1986 SC 228 and PLD 1988 Kar. 446 ref.
Ordinance by adopting principle of per stripes distribution meant to keep intact share of
predeceased offspring to be inherited by such offspring's off-springs . Heirs of predeceased
issue. Entitled to inherit from propositus what their predecessor-ininterest would have
inherited. Predeceased son would be considered notionally alive for purposes of inheritance
on death of such predeceased son's father. P L D 1975 Pesh.252 Question of abatement on death of sole plaintiff (Suit for redemption).One of several
legal representatives of deceased, succeeding to equity of redemption may continue the suit
without joining the others, for benefit of entire body of heirs. P L D 1968 Lah.520 Repugnancy to injunctions of Islam. Person in order to be entitled to inherit his parents
or near ones. Must be alive. Section 4 of Muslim Family Laws Ordinance, 1961 providing for
inheritance of predeceased offspring living at time of opening of succession. Held, against
injunctions of Islam and liable to be repealed. Repugnancy to Injunctions of Islam-Validity of S.4, Muslim Family Laws Ordinance,
1961 on the touchstone of Art. 2A of the Constitution-High Court has no power to declare
any law invalid on the touchstone of Art. 2A of the Constitution-Objectives Resolution
having become substantive part of the Constitution by insertion of Art. 2A in the
Constitution, it would not have overriding effect vis-à-vis, the remaining provisions of the
Constitution-Effect of Art. 2A of the Constitution-Object of inserting Art. 2A in the
Constitution was that Objectives Resolution should no longer be treated merely as a
declaration of intent but should enjoy the status of a substantive provision an d become
equal in weight and status as the other substantive provisions of the Constitution-Where
inconsistency was found to exist between the provisions of the Constitution and the
Objectives Resolution, same should be harmonized by the Courts in accordance with the
established rules of interpretation of Constitutional documents-Courts being creatures of the
Constitution could not annul any existing Constitutional provisions on the plea of
repugnancy with the provisions of Art. 2A of the Constitution-Courts being the creatures of
the Constitution on no principle of law they could be allowed to cut the tree on which they
were perched-Role of Objectives Resolution, notwithstanding the insertion of Art. 2A in the
Constitution (whereby the Objectives Resolution has been made a substantive part thereof)
has not fundamentally transformed from the role envisaged for it at the outset; viz. that it
should serve as beacon light for the Constitution makers and guide them to formulate such
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provisions for the Constitution which reflect ideals and the objectives set forth therein-
Provisions of Art. 2A of the Constitution were never intended at any stage to be self-
executory or to be adopted as a test of repugnancy or of contrariety-Courts were not
empowered to apply the test of repugnancy by invoking Art. 2A of the Constitution for
striking down any other provision of the Constitution Provisions of Arts. 203.D & 203.G of
the Constitution vesting exclusive jurisdiction in Federal Shariat Court and the Supreme
Court (Appellate Shariat Bench) prima facie create bar of various types for treating
Objectives Resolution as a self - executory instrument enforceable by the Courts for the
change of existing statute law into Islamic enforceable law, over and above the methods,
envisaged in various Constitutional provisions-High Court, thus, had no jurisdiction to
declare any law invalid on the touchstone of Art. 2A of the Constitution-Provision of S. 4,
Muslim Family Laws Ordinance being applicable in matters of inheritance covered by it
would, therefore, govern the rights of the parties in the case. 1993 C L C 1989 PLD 1980
Pesh. 47; PLD 1981 SC 120; PLD 1988 FSC 42; PLD 1988 SC 287; 1990 CLC 1683; PLD
1991 Kar. 174; PLD 1992 Lah. 45; PLD 1989 Lah. 490 PLD 1992 SC 595 ref. PLD 1988 SC
287 PLD 1986 SC 360 PLD 1992 SC 595;and PLD 1957 SC 219 ref. Relevant provisions of Act V of 1962 and Ordinance VIII of 1961 have to be read together
and rule of interpretation for harmonising statutory provision is to be applied-Last male
owner dying in 1947-Life estate of widow of deceased terminating in 1962-Persons entitled
to inherit on termination of life estate of widow by operation of law vide S.3, West Pakistan
Muslim Personal Law (Shariat) Application Act, 1962-On death of last male owner his sister
and widow were alive; while his brother and his daughter had predeceased him-Claimants
for inheritance were appellant i.e. son of predeceased brother and children of pre-deceased
daughter-While enforcing S.5, West Pakistan Muslim Personal Law (Shariat) Application Act,
1962, for the purpose of devolution of estate of last full owner Muslim Family Laws
Ordinance 1961, had to be applied-Section 4, Muslim Family Laws Ordinance 1961, allows
inheritance to children of pre-deceased son or daughter to the extent that the son or
daughter would have got-On termination of life estate, children of pre-deceased daughter of
last full owner, would inherit the share which their mother would have got as if she were
alive at the time of opening of succession i.e. on the demise of last full owner-Last full
owner would thus, be succeeded by his heirs, the widow, sister and pre-deceased
daughter's children-Appellant, the pre-deceased brother's son would not inherit Distribution
of shares amongst heirs, assigned by High Court having not been assailed in appeal, no
interference therein was called for. 1992 S C M R 82 Predecessor of parties, on his death left behind his widow, daughter and a daughter of his
predeceased son-Wife and daughter of deceased being entitled to 1/8th share and 7/24th
shares respectively were rightly given those shares by Courts below-Predeceased son's
daughter, however, claimed remaining 14/24th share to which her father would have been
entitled if alive at the time of death of deceased predecessor-Grand - child was not entitled
to more share than what could be inherited from the parents-Predeceased son's daughter
could claim only 1/2 share of the property to which her father would have been entitled if
alive at the time of death of her grandfather-Trial Court had thus, rightly decreed her' suit
to the extent of 7/24th share-Remaining 7/24th shares of predeceased son were to be
distributed amongst his other Shari heirs-Pre-deceased son's mother was to receive 1/6th
share and of the same which would be 7/144th share in the entire property, while his sister
would get the residue i.e. 35/144th in the entire property in addition to the property
inherited by them as Shari heirs of deceased predecessor-Petition for leave to appeal was
converted into appeal directing revenue record to be corrected regarding the entire property
left by deceased predecessor, whether same was included in the present litigation or not.
1992 S C M R 935 Res- judicata, Petitioners being children of daughter of deceased filed suit claiming 1/2
share out of the estate of deceased-Respondents resisted the suit including plea of res
judicata-Trial Court decreed the suit observing that petitioners in previous suit had
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challenged validity of gift in favour of respondents, whereas in present suit, petitioners had
claimed legal share out of inheritance of deceased, thus, cause of action in both the suits
was different-Appellate Court set aside the judgment and decree and dismissed the suit as
barred by res judicata-Validity-Judgment passed by Trial Court in previous suit that
questions of gift as well as claim of petitioners with regard to inheritance of deceased had
been agitated and duly determined by finding them not entitled to any share out of
inheritance of deceased-Such judgment and decree having not been challenged had
attained finality. thus, present suit was squarely hit by principle of res judicata and as such
impugned judgment did not warrant interference-Supreme Court dismissed the petition and
refused to grant leave to appeal. 2002 S C M R 1183 Retrospective effect. Children of pre-deceased child are only entitle to inheritence if death
of predeceased takes place after promulgation of Ordinance i.e. 15.7.1961. P.L.J.1997 SC
446 = 1997SCMR 281 = NLR 1997 Civil 276. Contention that pronouncement of Federal Shariat Court whereby provisions of S.4 of
Muslim Family Laws Ordinance, 1961 were declared repugnant to Injunctions of Islam did
not have retrospective effect, was valid-Provision of S.4 of the Ordinance being applicable at
the time of passing of order of Collector as well as Commissioner, heirs of deceased could
not be deprived of their share of inheritance. 2001 C L C 13 Right of inheritance of child of predeceased son before promulgation of Muslim
Family Laws Ordinance, 1961. Ownership of land in question claimed on basis of two
successive decrees of Court. Decree prior in time was valid on the ground that transaction in
question was accepted correct by vendors thereof and subsequently mutation was also got
attested on basis thereof, on specified date. Subsequent suit culminating into decree was
instituted after the decree had been obtained by prior vendee and decree in that suit was
also granted subsequently in time. Subsequent decree, however, was obtained by rival
claimant not on ground of purchase but on ground of being owner through inheritance from
his father while in fact his father had predeceased his grandfather, the latter having died in
1952 and his inheritance mutation had been attested in 1952. Suit of rival claimant could
not have been instituted on another ground for he had no cause of action and locus standi
to bring that suit. Rival claimant being child of predeceased son could not inherit from
grandfather in 1952 because such right was given to a grandchild in the year 1961 through
S. 4, Muslim Family Laws Ordinance, 1961, which was not given retrospective effect. Decree
granted in favour of rival claimant in which prior vendee had not been impleaded and which
was subsequent in point of time was declared to be ineffective against the rights of prior
vendee. P.L.J.1996 Pesh. 303 = 1996 MLD 1156. S. 4 a valid Law. Whether or not heirs of pre-deceased son/daughter are entitled to
inheritance. S.4 of Muslim Family Laws Ordinance 1961 holds good as a valid Law. Heirs of
predeceased son/daughter are entitled to inheritance according to said provision.
P.L.J.1998 Lah. 510 = PLD 1998 Lah. 32L After enforcement of S. 4 of Muslim Family Laws Ordinance, right of inheritance, from estate
of deceased father, could not be denied, to children from pre-deceased daughter of
deceased. Being children of pre-deceased daughter, her share had automatically devolved
upon respondents who were her children. This being so, mutation of inheritance, ignoring
children from-pre-deceased daughter of deceased, was ab-initio void and result of fraud as
same offend provisions of S. 4 of Muslim Family Laws Ordinance and purport of mutation
was to deprive of a lawful heir from his legal due from estate of propositus which could not
be Justified, on any principle of equity or law and therefore, such like entries, which were
based on fraud and concealment of facts, could be ignored, and be corrected, at any stage,
with a view to give effect to rights, of lawful heirs, which had already devolved upon them,
by operation of law. P.L.J. 1998 Lah. 928 = 1998 CLC 1216. Succession to property in question, opening out on the demise of its owner prior to
enforcement of Muslim Family Laws Ordinance -Effect.Muslim Family Laws Ordinance, 1961
is not retrospective in nature. Succession to property in question, having opened out on the
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demise of its owner prior to enforcement of Muslim Family Laws Ordinance, 1961, S. 4
thereof, would not apply for regulating rights of inheritance-Deceased owner having left
behind three sons and one widow, they would inherit his property; his fourth son having
predeceased him, children of that son would not inherit-Widow of deceased owner also
having died before the enforcement of Muslim Family Laws Ordinance, her three surviving
sons would inherit in equal shares while her grandson (sons of predeceased son) would not
inherit her share. 1994 C L C 75 Succession to the estate of widow of predeceased son of last male owner-Such
widow succeeded to the estate of last male owner a: widow of his predeceased son on the
strength of rule of representation recognised under customary law; and subsequently to the
estates of two nephews of her husband collaterally, as a representative of her deceased
husband-Widow, thus, succeeded to the three last male owners of land in question viz. her
father-in-law and two nephews of her husband-Succession tit the estate of widow opened
upon her death-Prior to the death of widow, S. 4, Muslim Family Laws Ordinance had taken
effect giving right of succession to the children of predeceased son and daughter of
propositus-Defendant being daughter of predeceased son and the widow would be entitled
to inherit a share from the estate taken by widow on the demise of last male owner (her
father-in-law)-Extent of defendant's share was however, dependent upon the personal law
governing succession-Insertion of S. 2.A in Act V of 1962 by Ordinance XIII of 1983
substituted custom retrospectively-Land in question, falling for distribution upon opening
out of succession consequent upon the death of widow, would be divided in terms of Shariat
Law supplemented by S.4, Muslim Family Laws Ordinance, 1961-Last full owners (deceased)
having acquired agricultural land under custom prior to 15th March 1948, would be deemed
to have inherited under Muslim Personal Law, their heirs would inherit in accordance with
Muslim Law whether they were male or female heirs; widow holding life estate would act as
a conduit so as to pass land in question, to heirs of last full owner/owners under Muslim
Personal Law of inheritance-Enough material being not on record to finally determine as to
the heirs to land in question, and extent of their shares therein, case was remanded for
decision afresh in accordance with law. 1993 C L C 567 PLD 1955 Lah. 420; PLD 1958
(W.P.) Lah. 448; 1992 SCMR 82, 992 SCMR 935and 1992 SCMR 1773 rel. The extract called from the Holy Qur'an reminds us that our knowledge regarding who is
nearer to us from the viewpoint of benefit or is going to benefit us more is indeed limited
and it is, therefore, that we should submit ourselves to the shares ordained by God, for He
is All. Knowing and All. Wise. The commands of the Prophet (May the blessings of Allah be
upon him) have to be obeyed and for obedience reward and for disobedience chastisement
is going to follow. The conclusion is, therefore irresistible that those who confine themselves
to the text of the Holy Quran alone are violating the Injunctions of the Holy Qur'an when
they exclude the consideration of the Hadees of the Holy Prophet in the matter of
inheritance. A warning has been given that whosoever transgresses His limits, that is to say,
the shares, which He has already specified should be ready for a degrading punishment.
These Injunctions of the Qur'an make us extremely wary and we cannot conceive for a
single moment of transgressing the limits of Allah as laid down in the Qur'an. Verse 33, i.e.,
Second Citation will show that God has indicated right - holders with respect to every
property left by parents and relations and as promises are concerned, those have to be met
during the lifetime. In the Fourth Citation i.e., Verse 176 has been clarified but towards the
end it has been explained that God was elaborating all this so that we should not be led
astray and again God says that He is All-Knowing. As far as the Fourth Citation, i.e., last
Verse of Sura `Anfal' is concerned, that indicates that inheritance is to go by blood
relationship and that some of them have been preferred in the Book of God over others for
he is All-Knowing. The argument that Verse VIII of Sura Al.Nisa provided for a share of the
orphans is plainly untenable, for it does not specify any share for the orphan muchless
orphan grand-child and all that it says is that a portion should be given to them and kind
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words should be spoken to them. It may be added that the word used in Verse 7 and the
word used in Verse 8 are not synonymous. First is while the second speaks of relatives
generally and quite obviously does not refer to those persons for whom share has been
specified in the Holy Qur'an itself. The Holy Qur'an speaks of the share of RIJAL and NISA
and it goes without saying that RIJAL and NISA and cannot be but persons living at the time
when succession opens. If the intention was to give something to the MEET as well, the
words RIJAL and NISA would not have occurred. It will follow that before that a person can
inherit his parents or near ones, he should be alive and he can only get something if
something has been left by his parents or near ones. Something new has been inducted into
the Muslim Personal Lave by section 4 of the Muslim Family Laws Ordinance. Held: Section
4 of the Muslim Family Laws Ordinance is against the injunctions of Islam and it should be
repealed and to relieve distress of the son/daughter of a predeceased son the legislation
suggested may he considered. P L D 1980 Pesh.47 Sura `Nisa' (Fourth Sura) ; Sura
`Anfal' (Eighth Sura), Last Verse ; TAFHIMUL QURAN by Maulana Abul A'ala Maudoodi and
translation by A. Yusaf Ali; MOARFAL QURAN by Maulana Mufti Muhammad Shafi, Vol. II,
pp. 310 to 313 QANUN VIRASAT by Maulana Mufti Rashid Ahmad YATIM POTAY KA HAQ-E-
VIRASAT by Sayed Ghulam Ahmad Rizvi published by Anjuman Khuddam.ul.Qur'an, Lahore
; MAJMUA QAWANIN ISLAM by Dr. Tanzilur Rahman, Vol. V and his Book Islamization of
Pakistan Law, pp. 56 to 72 ; SAHI BUKHARI SHARIF . SAHI MUSLIM SHARIF published by
Quran Mahal, Karachi, pp. 666.667 IMAM WALI DIM MUHAMMAD BIN ABDULLAH KHATIM
ALAMRANI by MASHKAT SHARIF published by DINI KUTAB KHANA URDU BAZAR LAHORE
(1961 Edn. SAHI BUKHARI.) published by Nur Muhammad, Aram Bagh, Karachi, p. 997 ;
Muslim Law of Inheritance. by AI.Haj Mohomed Ullah Ibn S. Jung, M. A., LL. D., published
by Law Publishing Co. Lahore ; YATIM POTAY KI VIRASAT by Muhammad Ismail Zabih
Rajorvl, pp. 49 to 51 ; Durrul Mukhtar published by Law Publishing Co., Lahore FATAWA
ALAMGIRI, pp. 426. 427 & 429 ; FATAWA MAZHARI by Professor Muhammad Masood
Ahmad, p. 211 and 'AHSANUL FATAWA' by Mufti Rashid Ahmad Ludhianvi, pp. 73 to 104 ref.
Words "in the event of death of any son or daughter of propositus before the
opening of succession" bring within their compass the sons of daughters dying before as
well as after the Ordinance came into force. Only condition is that death should occur before
succession has opened - Benefit of succession open to all heirs including both citizens of
Pakistan and foreigners- Succession by children of deceased son or daughter).Provision
applies to Muslims who are citizens of Pakistan. Not applicable to Muslim from East Africa
who happened to be a British subject. Provision a departure from accepted Muslim law of
inheritance. Finding however, declared not to be res judicata as between son and children of
deceased son, the latter not being parties to the case. P L D 1968 Kar.480