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Civil Revision No. 1171 of 1983, decided on 23rd September, 1984.
---S. 15--Hanafi Law of Inheritance--Status of pre-emptor--Rules of Hanafi Law of Inheritance stated-- held, in presence of brother, it brother's son, had no right to succeed, for the remoter in blood is excluded by the nearer in blood--Conception of brother as sharer and brother's son as residuary was wrong;--Brother, held further, had superior right of pre-emption than brother's son.- [Muhammadan Law]
Mahomedan Law, 1975-Edition ref.
Mushtaq Ahmad Khan for Petitioner.
Ch. Hafeez Ahmad for Respondent.
Date of hearing: 23rd September 1984.
This civil revision arises out of a suit for pre-emption filed by tile petitioner and the only question for determination is whether the petitioner has been able to establish a right superior to that of the respondent to claim the land in dispute.
2. The following pedigree-table will help in resolving the controversy:- .
| Shahab Din ___________________________ ______________________
Muhammad Din Nazar Hussain Bagga (vendor) (petitioner pre-emptor)
Muhammad Bashir (respondent-vendee) |
As indicated in the table the land was sold by Nazar Hussain in favour of Muhammad Bashir, respondent, while the suit was brought by Bagga, petitioner. The trial Court held that as brother of the vendor the claim of the petitioner was superior to that of the respondent. Accordingly, it decreed the suit. On the other hand, the learned Additional District Judge thought that under the Hanfi Law of Inheritance Bagga as brother was a sharer and Muhammad Bashir as nephew was a residuary with reference to Nazar Hussain. He then went on to say that as a sharer and a residuary stood on the same footing the petitioner could not claim a superior right of pre-emption for himself. Accordingly, he accepted the appeal, set aside the judgment and decree of the learned trial Court and dismissed the suit.
3. The view taken by the learned Additional District Judge with regard to the status of the petitioner and the respondent is clearly unsustainable and against the accepted rules of Hanfi Law of Inheritance. Under the said law, in the presence of the brother, a brother's son, has no right to succeed for the remoter in blood is excluded by the nearer in blood. He was thus wrong in describing the brother as al sharer and the brother's son as a residuary. In fact in the table of residuaries given by Mulla in his Principles of Mahomedan Law, (1975-Edition), a brother is listed much higher than a brother's son in the order of succession. I am, therefore, unable to sustain his finding that in the, matter of succession the petitioner and the respondent stood on the same footing. In fact as already pointed out in the presence of the petitioner', the respondent will not succeed at all to the property of' Bagga. That being so the petitioner roust be field to have a superior right of pre-emption. Consequently, I set aside the judgment and decree of the learned Additional District Judge and restore those of the learned trial Court. There will be no order as to costs.
A.A. Revision accepted
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