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Civil Petition for Special Leave to Appeal No. 155‑P of 1979, decided on, 3rd July, 1979.
(On appeal from the Judgment and Order of the High Court, Peshawar, dated 2‑5‑1979 in Civil Revision No. 328 of 1978).
‑ S. 42 read with Civil Procedure Code (V of 1908), O. XXXIX, rrr. 1 & 2‑Declaration‑Injunction, temporary‑Muhammadan Law Does not reognise spes successionis‑Presumptive heir‑Has no right at all in property of his ancestor‑Petitioner having no vested right in praesenti in property belonging to his living grandfather, held, cannot be allowed to restrain his grandfather from disposing of his property in any manner.‑[Injunction‑Muhammadan Law].
Mst. Hamida Begum v. Mst. Murad Begum and others P L D 1975 S C 624 ref.
Mian Muhammad Yunas Shah, Advocate Supreme Court instructed by Noor Ahmad Khan, Advocate‑on‑Record for Petitioner.
M. Qasim Imam, Advocate‑on‑Record for Respondents.
Date of hearing: 3rd July, 1979.
.‑The facts, shortly stated, are that Muhammad Siddique, petitioner herein, filed a suit against his grandfather Shah Pasaqd Khan, respondent No. 1 herein, and the other respondents seeking a declaration that his grandfather who is an old man of 120 years with failing mental and physical condition, is under the influence of other defendants and they are‑taking undue advantage by persuading his grandfather to alienate his immovable property in their favour. The plaintiff further prayed for grant of a temporary injunction restraining his grandfather from disposing of his property.
The trial Judge rejected the request for temporary injunction but on appeal at petitioner's instance, the Additional District Judge, Mardan, reversed the order of the trial Judge and issued an ad interim injunction as prayed for.
The Peshawar High Court; however, in revision, set aside the order of the learned Additional District Judge, and the petitioner has now filed this petition for special leave to appeal.
The view that prevailed with the learned Single Judge in the High Court who heard the case is that during his lifetime, Shah Pasand Khan is entitled to deal with his property in any manner he likes, and he rejected the plea that the doctrine spes successionis was attracted in view of the dictum laid down by this Court in Mst. Hamida Begum v. Mst. Murad Begum and others (P L D 1975 S C 624), that the Muhammadan Law does not recognise spes Successionis, i. e. an expectation or hope of succeeding to the property of another by survival and that till that death occurs a presumptive heir has no right at all in the property of his ancestor.
Since the petitioner has no vested right in praesenti in the property belonging to his grandfather, he cannot be allowed to restrain him from disposing of the property in any manner. This petition, therefore, has no merit, and is accordingly dismissed in limine.
Petition dismissed.
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