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Muhammadan Law-Inheritance‑Residuaries‑Female children of grandfather, how‑high‑soever, are not included in category of residuaries in their own right.

The female children of the grand‑father how‑high‑soever are not included in the category of "residuaries in their own right".

When it is stated that a daughter acts as a residuary in the right of the son, or when the son's daughter acts as a residuary in the right of the son's son or the full sister acts as a residuary in the right of the full brother, and the consanguine sister acts as a residuary in the right of the consanguine brother, then all these relations, namely, the son, the son's son, the full brother and the consanguine brother are the relations of the propositus and not any common ancestor.

Syed Ameer Ali's Mohammedan Law, Vol. II, 1965‑Edn., pp. 48 to 152 and Mulla's Mohammedan Law Vol. XIV, 1955 Edn., pp. 65‑70.

M. B. Khizar Tamimi for Appellants.

M. A. Bajwa for Respondents.

Dates of hearing: 13th and 14th February 1967.

JUDGMENT

The following pedigree‑table will help in understanding the facts of this case and in knowing the relationship of the various contestants:

MIS TABLE

2. The property which is the subject‑matter of dispute in this case is situated in Village Bhawana, District Jhang and is described in five paragraphs of the title of the plaint. The plaintiffs were (1) Mehr Dad, son of Dad, (2) Bahadur, (3) Azam, (4) Shahadut, sons of Jamal and (5) Mst. Jannatan widow of Najabat. They filed a suit alleging that the land in question belonged to Khan, son of Amira who died on the 2nd of August 1953, without any issue. The plaint went on to say that the defendants in collusion with revenue officers had got a mutation of inheritance sanctioned in their favour on the 16th of April 1955. The plaintiff's filed an appeal before the Collector, which was dismissed on the 28th of June 1955. The defendants in the case were (1) Mst. Bakhan, wife ef Salabat, a daughter of Naban, (2) Mst. Ziyadan, widow of Murad and (3) Mst. Allan, widow of Alawal, who later on died and was being represented by her legal representative Mst. Nemat. The plaint contended that the aforesaid defendants had no share in the inheritance of Khan according to Shariat. The trial Court decreed the suit of plaintiff's Nos. 1 to 4 on 8‑5‑56 and dismissed it in respect of plaintiff No. 5 holding that the plaintifs 1 to 4 were the only legal heirs of Khan the last male owner, being his residuaries, but Mst. Jannatan (plaintiff No. 5) being a female was not his residuary. The defendants filed an appeal which was dismissed by the learned District Judge, Lyallpur Camp at Jhang on the 27th April 1957. The defendants Nos. 2 and 3 have come up in second appeal to this Court against the judgments and decrees of the Courts below.

3. TJie pedigree‑table which has been quoted above is not in dispute and is clear enough to show the relationship of the parties with Khan the last owner of the land. As the said pedigree‑table will show the defendants‑appellants are the female grand‑children of Sagra the great grandfather of Khan. The sole question for determination is as to whether they fall within the category of "Residuaries" or not. Learned counsel for the defendants‑appel lants referred me to a passage occurring at page 69 in Chapter V1I section 65 of Mulla's Muhammadan Law (XIV Edition) (1955) and argued that the appellants were "Residuaries in the right of mother" and were, therefore, eligible to inherit in this case. The actual passage in the said book reads as follows:‑

"Classification of Residuaries.‑All residuaries are related to the deceased through a male. The uterine brother and sister are related to the deceased through a female, that is, the mother, and they do not, therefore, find a place in the List of Residuaries. The Sirajiyyah divides residuaries into three classes, viz. (1) residuaries in their own right: these are all males comprised in the List of Residuaries; (2) residuaries in the right of another; these are the four female residuaries, namely, the daughter as a residuary in the right of the son, the son's daughter h. 1. s. as a residuary in the right of the son's son h. I. s ., the full sister in the right of the full brother, and the consanguine sister in right of consanguine brother; and (3) residuaries with others, namely, the full sister and consanguine sister, when they inherit as residuaries with daughters and son's daughter h. I. s. But if regard is to be had to the order of succession, residuaries may be divided into four classes, the first class comprising descendants of the deceased, the second class his ascendants, the third the descendants of the deceased's father, and the fourth the descendants of the deceased's true grandfather h. h. s. This classification has been adopted in the Table of Residuaries."

4. The learned counsel stated that the defendants‑appellants fall within the second category, namely, "Residuaries in the right of another". He says that this class contemplates four female residuaries, namely, (1) the daughter as a residuary in the right of the son, (2) the son's daughter how‑low‑soever as a residuary in the right of the son's son how‑low‑soever; (3) the full sister in the right of the full brother, and (4) the consanguine sister in the right of the consanguine brother. He says that if the inheri tance is considered to have gone to Sagra, then the defendants appellants were the Sagara's son's daughters and quite fitted in the description given above. I have given my anxious consideration to the point, which is raised by the learned counsel. I do not find any force in the same. The discussion about the position of the residuaries is given in greater detail in section 11 of Syed Ameer Ali's Muhammadan Law (Volume II) (1965 Edition as Edited by Raja Said Akbar Khan at page 48). The learned author deals with the subject of residuaries in the following manner:

"Residuaries.‑The residuaries or asabah are divided into two groups, viz., asabah by nasab or kinship to the deceased, and 'asabah by salab or the special cause of wala.

The former group again is divided into three classes

(1) residuaries in their own right;

(2) residuaries in another's right; and

(3) residuaries together with another.

The first class includes all agnatic male relations, that is, in whose line of relationship to the deceased no female enters; for, if a female were to come in, the male is no longer a Residuary; he would belong to the category of either Sharers or 'Uterine Relations', e.g., a mother's son is not a Residuary but a Sharer (Durr‑ul‑Mukhtar 864).

These are the Asabah proprio jure (Asabah‑be‑nafsihi).

Residuaries in their own right.‑(1) Residuaries in their own right are divided into four sub‑classes:‑

(a) The offspring of the deceased, meaning thereby the deceased's sons or lineal male descendants;

(b) his root, i.e., the ascendants; in other words, his father and true grandfather, how‑high‑soever;

(c) the offspring of his father, viz., full brothers and consan guine brothers and their lineal male descendants;

(d) the offspring of the true grandfather how‑high‑soever; in other words, lineal male descendants however remote, of lineal ascendants however removed.

Consequently, descendants in the male line of the paternal great‑grandfather of an intestate are within the class of residuary heirs and entitled to take to the exclusion of the children of the intestate's sisters. Likewise descendants of a paternal grand father's brother are residuaries and entitled to the inheritance in preference to granddaughters in the female line.

It must be remarked that in the succession of the Asabah proper when the relations are of the same degree of affinity, pre ference is given to the strength of blood or consanguinity. The Durr‑ul‑Mukhtar lays down as a legitimate conclusion from the Prophet's doctrine, surely kinsmen by the same father and mother shall inherit before kinsmen by the same fairer only; that where relations are of an equal degree of affinity, regard is to be paid to the strength of blood. For example when the deceased leaves a full‑brother and a half‑brother by the same father only, though the degree of affinity is the same, yet the tie of blood being stronger in the case of a full‑brother than in that of the half‑brother, preference is given to him. In the same way the son of a full‑brother is preferred to the son of a half brother on the father's side. So also when there is with the brother's son a paternal uncle, the uncle has no interest in the inheritance. Lineal male descendants exclude all agnates in the ascending as well as collateral lines.

The Fatawai‑Alamgiri defines the asabah‑be‑nafsihi to mean every male into whose line of relation to the deceased no female enters.' Such residuaries are of four sorts‑the offspring of the deceased, and his root, the offspring of his father, and the offspring of his grandfather. Hence the nearest of the resi duaries is the son; then the son's son, how‑low‑soever; then the father; then the grandfather, or father, now‑high‑soever; then the full‑brother ; then the half‑brother, by the father; then the son of the full‑brother, then the son of the half‑brother by the father; then the full paternal uncle; then the half paternal uncle on the father's side; then the son of the, full paternal uncle; then the son of the half‑paternal uncle; then the full‑paternal uncle of the father; then the half‑paternal uncle of the father on the father's side; then the son of the father's full paternal uncle; then the son of the father's half‑paternal uncle on the father's side; then the 'paternal uncle of the grandfather; then his son how‑low‑soever.

When there are several residuaries in the same degree, the property is divided between them by bodies, not by families' (i.e. per capita and not per stirpes). As, for instance, when there is a son of one brother and ten sons of another, or the son of one paternal uncle and ten sons of another, the property is to be divided into eleven parts, of which each takes one part.

(2) Residuaries in another's right.‑The Residuraries in another's right are those females who become residuaries only when they co‑exist with certain males, that is, when there happen to or, males of the same degree, or who, though of a lower degree. would take as such (Durr‑ul‑Mukhtar pp. 864, 865)

These are four in number, viz.:‑‑

(a) Daughters (with sons).

(b)Son's daughters (with son's son or a male descendant still further removed in the direct line.

This applies to the daughters of all lineal male descendants however low. For example, when there is a son's daughter CO‑existing with a son's daughter, the latter takes her half (like the daughter of the deceased), and the one‑sixth goes to the son's daughter and so on. If there are two son's daughters, the son's daughter will take nothing unless she has a lineal mole descendant of the same or lower degree co‑existing, such as a brother or nephew.

(c) The full sister (with her own or full brother).

(d) The sister by the same father, or, in other words, a consanguine sister (with her brother).

When the females are of the same degree as the males (or as in the case of son's daughters or the daughters of a son's son bow‑low‑soever‑when they co‑exist with lineal male descend ants though of a lower degree)‑each female takes half the share of a male. For example, where there are two sons and three daughters or two brothers and three sisters, each daughter or sister, as the case may be, will take one‑seventh, whilst each son or brother two‑sevenths.

Residuary with another.‑It must be remembered, however, that many males may become in certain contingencies, resi duaries but it does not foil,‑w that in all cases their sisters would become residuaries with them. ‑ It is only when the female is a sharer herself that instead of taking a share, she takes as a resi duary when co‑existing with a male residuary.

For example, if a man dies leaving behind him a widow, a paternal and an aunt, be the latter by the same father and, mother, or by the same father only', the aunt, not being a share according to law, is not entitled to any share in the inheritance of her deceased nephew, and her brother (the uncle) takes the entire after allotment of the widow's share.

When there is one sister of the whole blood, and consanguine brother and sisters, the full sister will take her half, and the residue will be divided among the half‑brothers and sisters in the propotion of two to one.

When there are several full sisters, they will take their two thirds, and the remainder will be divided as above.

When the deceased leaves only a full‑sister and a consanguine sister, they take a moiety and one‑sixth respectively, and the residue is divided among them pro rata.

When there are two or more full‑sisters and several consan guine sisters, but no (consanguine) half‑brother, the full‑sisters take the whole, the consanguine, sisters take nothing.

(3) Residuary with others.‑The Residuaries with others are‑

(a) Full‑sisters with daughters or son's daughters.

(b) Consanguine sisters with daughters or son's daughters,

When there is one daughter or son's daughter with a full consanguine sister, the daughter or son's daughter takes her moiety, and the remainder goes to the sister.

When there are several daughters or son's daughters, they take two‑thirds, and the residue appertains to the sister.

When there are several daughters and full‑sisters with son's daughters, the daughters and full‑sisters exhaust the inheritance.

If there are two daughters, a son's daughter, and a lineal male descendant such as a son's son or a son's grandson, the two daughters take two‑thirds between them; the son's son takes two ninths, being two‑thirds of the residue, and the son's daughter takes the remaining one‑ninth.

When the deceased leaves a daughter and several daughters of a pre‑deceased son, the daughter takes her half and the son's daughters one‑sixth, and the residue is divided among the daughter and son's daughters pro rata; but if there are two or more daughters, they take two‑thirds as their share and the remainder by turn and 'there is nothing for the son's Daughters'; but if there is a male among them, he makes the females (whether they be his sisters or cousins) residuaries with him, so that if there were two daughters or more, they would have two thirds between them, and the remainder would pass to the children of the son, in the proportion of two parts to the males and one part to the females. The male may be of a lower degree, still he would make them residuaries with him; so that the remainder would be between him and them in. the same proportion, or two parts to each male, and one to each female."

5. The above passage will show that the female children the grandfather how‑high‑soever are not included in the category of "Residuaries in their own right". The passage quoted iii i 31ia is to the same effect though it is somewhat in a jumbled form. When it is stated that a daughter acts as a residuary in the right of the son, or when the son's daughter acts as a residuary in the right of the son's son or the full sister acts as a residuary in the right of the full brother, and the consanguine sister acts as a residuary in the right of the consanguine brother, then all these relations,, namely, the son, the son's son, the full brother and the consanguine brother are the relations of the propositus and not any common ancestor (or as a matter of fact as is the present case of the great grandfather of the propositus). The matter is made further clear by Mulla himself on page 70 of the same book, where under the heading Female Residuaries, it is written as follows:

"Female Residuaries.‑There are two points to be noted in connection with female residuaries, which are stated below.

(1) The female residuaries are four in number, of whom two are descendants of the deceased, namely, the daughter and son's daughter h. 1. s., and the other two are descendants of the deceased's father, namely, the full sister and consanguine sister. No other female can inherit as a residuary.

(2) All the four females inherit as residuaries with corresponding males of a parallel grade. But none of these except the son's daughter h.‑I. s. can succeed as a residuary with a male lower in degree than herself. Thus the daughter cannot succeed as a residuary with the son's son, nor the sister with the brother's son; but the son's daughter may inherit as a residuary not only with the son's son but with the son's son or other lower son's son; see ill. (m) and the note thereto."

The illustrations in support of the above are given as illustrations Nos. 1, 2, 5, 6 and 8 under section 65 on pages 65 to 69 of Mulla's Book. Since these illustrations are by themselves clear, I need not dwell upon this point any further.

6. The upshot of the above discussion is that both the Courts below have rightly interpreted the law and there being no force in the appeal the same is hereby dismissed leaving the parties to bear their own costs.

A.H. Appeal dismissed.

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