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(a) Muslim Family Laws Ordinance (VIII of 1961)--‑

‑‑‑ S. 4‑Inheritance‑‑Death of any son of daughter of propositus before opening of succession‑Children of such son or daughter, if any, living at the time the succession opened, shall per stripes receives a share equivalent to share which such son or daughter as the case may be, would have received if alive.‑[Muhammadan Law].

Yusuf Abbas and others v. Mst. Ismat Mustafa and others P L D 1968 Kar. 480 ; Sakhi Mohammad v. Ahmad Khan 1980 C L C 1006 and Kamal Khan alias Kamla v. Mst. Zainab P L D 1983 Lah. 546 ref.

(b) Constitution of Pakistan (1973)‑--

----Art. 185(3)‑West Pakistan Muslim Personal‑Law (Shariat) Appli cation Act (V of 1962), preamble‑West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983), preamble --Muslim Family Laws Ordinance (VIII of 1961), Ss. 4 & 3(1)-- Question as to whether Amending Act of 1983 would make Act V of 1962 into a self‑contained Code of law of inheritance in Pakistan and that being so, the non obstante clause in S. 2‑A of Ordinance, 1983 would nullify effect of S. 4 of Muslim Family Laws Ordinance, 1961 despite its own non obstante clause in a part of S. 3(1) thereof‑Question left to be examined in more detail in a fit and proper case when it comes before Supreme Court.

(c) Constitution of Pakistan (1973)‑‑

‑‑ Art. 185(3)‑Muslim Family Laws Ordinance (VIII of 1961), S. 4‑Question as to whether it was not the intention of law‑maker in S. 4 of Ordinance, 1961 to provide an opportunity of obtaining only Islamic Law shares, to the children of pre‑deceased son or daughter of propositus and that intention was not to increase their Islamic law shares‑Question left to be examined in more detail in a fit and proper case when it comes before Supreme Court.

Kamal Khan alias Kamla P L D 1983 Lah. 546 ref.

Muhammad Ismail Qureshi, Advocate Supreme Court and Mian Ataur Rehman, Advocate‑on‑Record for Petitioners.

M. Hussain Awan, Advocate Supreme Court and Ch. Muhammad Aslam, Advocate‑on‑Record for Respondents Nos. 1 to 7.

Date of hearing : 10th February, 1986.

MUHUMMAD AFZAL ZULLAH, J.‑‑

Leave to appeal has been sought from judgment, dated 18‑11‑1976 of the Lahore High Court ; whereby a Regular Second Appeal filed by the respondent‑side which had arisen out of a case of inheritance, was allowed.

One Atta Muhammad who died in 1944 was the last male holder of the land in dispute. He had two sons, Muhammad Hayat and Ahmad Yar. Ahmad Yar died during his lifetime in 1942 leaving one widow Mst. Allah Jawai and two daughters Iqbal Mai and Sardar Mai from the womb of Mst. Hakim Zadi his second wife who had pre‑deceased him (Allah Yar) in 1940. Learned counsel stated that on the death of Atta Muhammad his son Muhammad Hayat got his half share in the inheritance while the remaining half was mutated in the name of Mst. Allah Jawai, Atta Muhammad's daughter‑in‑law‑widow of his predeceased son Ahmad Yar, as limited on net. In 1962, she sold 47 Kanals 2 Marlas of land to the respondent‑side. The petitioners, namely, the two grand‑daughters of Atta Muhammad from his pre‑deceased son Ahmad, Yar filed a declaratory suit for avoiding the sale as void and ineffective in so far as their rights are concerned. The suit was decreed and the respondents appeal was dismissed in 1964. The respondents filed second appeal which was allowed on 18‑11‑1976 on two grounds that the inheritance from Atta Muhammad (or notionally from Ahmad Yar) having opened before 1948 the Customary law will govern the case and thus the petitioners as grand‑daughters of Atta Muhammad or as daughters of Ahmad Yar will not inherit any property. Thus, they had no locus standi under Custom to file a suit. The High Court also found that if the inheritance is to be treated under pure Muslim Law even then the property being of Atta Muhammad, Iqbal Mai and Sardar Mai his grand‑daughters from pre‑deceased son Ahmad Yar would not inherit anything and thus had no right to challenge the alienation made by Allah Jawai, widow of Ahmad Yar. Argument raised with reference to section 4 of the Muslim Family Laws Ordinance, 1961, where under the right of inheritance was conferred on the grand children of the propositus notwithstanding the fact that the concerned parents of the grand‑children had died before the death of the propositus, but it was repelled by the remarks that the inheritance in the present casa had opened much before the promulgation of the Muslim Family Laws Ordinance, 1961.

Learned counsel for the respondents in the very beginning pointed out that the total land inherited by Allah Jawai as limited owner was more than 600 Kanals and she sold muchless than what she would have obtained as her share (one‑eighth) under section 5 of the Punjab/Sind/N.‑W. F. P./Baluchistan Muslim Personal Law (Shariat) Application Act (V) of 1962. Therefore, he would be ready and willing to enter into a settlement out of Court with the petitioners to the effect that they may retain the entire remaining land while the respondents would keep 47 Kanals 2 Marlas of land purchased by them in 1962. We afforded opportunity of consultation between the parties and adjourned the case for a day.

The learned counsel for the petitioners while conceding that the concession made from the respondent side is beneficial to the petitioners as against a danger of their losing the entire or part of the land which has gone to them, has vehemently contended that they were entitled to the entire share of land which would have come to Ahmad Yar deceased as one of the two heirs of his father Atta Muhammad. His reliance is an the somewhat wide language used in section 4 of the Muslim Family Laws Ordinance which provides that in the event of the 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 of daughter as the case may be, would have received if alive. He contended that although under the Islamic Law of Inheritance if Ahmad Yar would have survived Atta Muhammad and would have passed on inheritance to his two daughters, the petitioners, would have obtained only two‑third of Ahmad Yar's shares yet under section 4 of the Muslim Family Laws Ordinance their share has been enhanced to the full inheritance of Ahmad Yar which he would have obtained from Atta Muhammad. He cited Yusuf Abbas and others v. Mst. Ismat Mustafa and others (P L D 1968 Kar. 480), Sakhi Muhammad v. Ahmad Khan (1980 C L C 1006) and Kamal Khan alias Kamla v. Mst. Zainab (P L D 1983 Lah. 546).

Two questions might arise in a case like the present one:

Firstly, whether the amendment in Act V of 1962 by the West Pakistani Muslim Personal Law (Shariat) Act (Amendment) Ordinance (No. XIII) of 1983, promulgated in pursuance of the judgments of the Federal Shariat Court and the Shariat Appellate Bench of this Court would make Act V of 1962 into a self‑contained Code of Law of Inheritance in Pakistan and that being so, the non obstante clause in section 2‑A which provides that the said law shall operate notwithstanding anything to the contrary contained in any other law for the time being in force, would nullify the effect of section 4 of the Muslim Family Laws Ordinance ; despite its own non obstante clause in a part of subsection (1) of section 3 thereof which provides that the provisions of the Ordinance shall have effect notwithstanding any law, custom or usage. If that were so, the petitioners might not be able to inherit any property at all.

The second question is whether it was not the intention of the law maker in section 4 of the Muslim Family Laws Ordinance to provide an opportunity, of obtaining only Islamic taw shares, to the children of predeceased son or daughter of propositus and that the intention was not to increase their Islamic law shares. This view, contrary to what the learned counsel thought, was taken in the latest case cited by him from Lahore Kamal Khan alias Kamla which thus goes against him. If this view is ultimately upheld the petitioners might have to shed off a part of the, inheritance they have already obtained.

In either case if the point raised by the learned counsel is pressed to its logical ends there might be serious danger to the petitioners ultimately suffering a loss.

In this view of the matter, we feel that a fair effore having been made from the respondent‑side, the learned counsel for the petitioner was in a position to accept the same.

In the peculiar circumstances of this case, therefore, we do not consider it a fit case for grant of leave to appeal. The questions noted above raised by the learned counsel and considered in the cited cases might be examined in more details in a fit and proper case when it comes before this Court.

With these observations leave to appeal is refused as on the facts of the case it is not a fit case for grant thereof.

M. B. A. Leave to appeal refused.

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