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Suit No. 280 of 1982 and Civil Miscellaneous No. 2932 of 1986, decided on 28th September, 1986.
‑‑‑Inheritance‑‑After giving away Dhawi‑al‑Furud (sharoer) their fixed share, remainder estate, if any, is inherited by Asbah, residuary.
Mulls's Principles of Muhammadan Law, 7th Edition, para. 65 Bombay, 1972 ref.
]‑‑‑Inheritance‑‑Asbah Nasabi (residuary)‑‑Meanings‑‑Kinds of Asbah (words and phrases).
Asbah Nasabi (residuary) is that relative who is male and whose relationship with the deceased is without an intervening female i.e. his relationship is not through a woman, such as the deceased's son or father because their 'Asubat, stands established directly wit the deceased on account of their personal relationship"
There are, however, three kinds of Asbah which are as under: ‑‑
(1) 'Asbah bi‑Nafsihi He is an heir who is the Asbah in his own right and no woman intervenes between him and the deceased.
(2) 'Asbah bi Ghairihi or Bil Ghair She is that emale heir who on account of another heir, becomes the 'Asbah and that another is the partner in her being 'Asbah.
(3) 'Asbah Ma'al‑Ghair She is that female heir who on account of another heir, becomes the 'Asbah but that another is not her partner in being an 'Asbah.
‑‑‑Inheritance‑‑Asbah bi‑Nafsihi‑‑Preference of such Asbah over the others detailed.
Relatives of four degrees are included in 'Asbah bi Nafsihi' of whom some have preference over the others. Serially they are as under: ‑‑
(I) The persons who themselves are the offsprings of the deceased i.e. son, grandson, great grandson, one after the other, of howsoever law in degree.
(ii) The persons of whom the deceased himself is the offsprings i.e. father, grandfather, great grandfather, one over the other, of howsoeverhigh in degree.
(iii) The persons who are offsprings of the father of the deceased i.e. the true brother, consanguine ('Allati) brother, true brother's son, consanguine '(Allati) brother's son, one after the other, of howsoeverlow in degree.
(iv) The persons who are the offsprings of the grandfather of the deceased i.e. the uncle, consanguine (Allati) uncle, the son of the true uncle, one after the other, of, howsoeverlow in degree.
The estate that is left over after giving the fixed shares to the Dhawi al Furud, (the sharers) the above stated four degrees of heirs one after the other, shall be the heirs of the deceased respectively, and inherit the estate. [p. 142] C
‑‑‑Inheritance‑‑Asbat‑‑General rule of succession detailed.
The principle is that the heir who is closet to the deceased shall get priority in getting the estate, as the son over the grandson and the father over the grandfather. Some of general rules of succession of 'Asbat (pl. of Asbah) are as under‑‑
(1) The closer shall have preferential entitlement over the remote. In case of the presence of several kinds of 'Asbat, at the same time, the closer one to the deceased shall be preferentially entitled to inheritance.
(2) In the case of there being 'Asbat of equal grade, stranger elationship shall be adhered to.
From amongst the 'Asbat, the one who in relationship is closer to the deceased, shall have, in the matter of inheritance, precedence over all the other 'Asbat. Thus, in the above four degrees, foremost precedence is given to those who are the offsprings of the deceased, i.e. his son, daughter, his son's son, of howsoeverlow in degree. After that, is the degree of the root of the deceased, such as his father who, in the presence of the daughter (and in the absence of the son) besides being the Dhu Fard (sharer), is the 'Asbah as well. After the father, according to Imam Abu Hanifah, the true paternal‑grandfather is the substitute of the father. Thereafter is the offspring of the father, that is, the true brother. Thereafter is the consanguine brother, then is the son of the true brother and then is the son of consanguine brother, of howeverlow in degree.
Radd al Mahtar by Ibn‑Abidin (Commentary on Al‑Dur, al‑Mukhtar by Ala‑uddin al Haskafi): Cairo, Vol. V p, 546 and AI‑Sharifiya (Commentary on Al‑Sirajiya) Qur'an Mahal, Karachi, Chapter on Asba't, pp. 37‑39 ref.
‑‑‑Inheritance‑‑Son respecting his rights in the estate, has preference over father on basis of Asubat‑‑Reasons stated.
The son respecting his rights in the estate, has preference ver the father on the basis of 'Asubat. The reason being that the son s the offspring, the branch ( L,;. ) and the father is the root of the deceased. The relation of the 'branch' with the deceased is stronger than that of the 'root'. The issues of the son have preference over the father, inasmuch as the basis of their right as well are the same, the son having preference over the father. Likewise 'father' being closer to the deceased than the 'grandfather', has, in principle, the same preference as the 'son' having preference over the 'grandson'. Thus, of the above‑stated degrees if any of the 'Asbat of the first degree is present, of howsoeverlow in degree he may be, no 'Asbah of the second degree shall get any inheritance from the deceased. Likewise, if there is any 'Asbah of the second degree, of howsoeverhigh in degree he may be, he shall exclude all the 'Asbat of the third degree and so the heirs of the third degree shall exclude all the 'Asbat of the fourth degree.
‑‑‑Inheritance‑‑Remainder is for nearer male‑‑Brother of deceased being alive on death of his real brother, will, being the nearest in relationship, exclude grandsons of predeceased brother of deceased as remote in relationship with the deceased‑‑Contention to hold the direct relationship as grandson of predeceased brother of deceased (because of death of two intermediaries) with deceased, in same degree and at par with relationship as that of brother of deceased was fallacious, having no basis in the Holy Quran or Prophet's (p.b.u.h.) traditions.
‑‑‑Inheritance‑‑Residuaries‑‑Remoteness or closeness of relationship is of consequence‑‑Inheritance devolves from descendants of true grandfather howhighsoever the full paternal‑uncle then on the full paternal‑uncle's son and thereafter on full paternal‑uncle's son' and thereafter on full paternal‑uncle's son's son. [p. 1441 G
Dhuman and others v. Ghulam Sarwar and others 1985 S C M R 947 ref.
S.H. Rizvi for Plaintiff.
Niazi A. Khaliq for Defendant.
Ashiq Ali Abdullah for the Intervenor.
Date of hearing: 28th September, 1986.
This is an application under Order XXII, rule 4, C.P.C. (C.M.A. No. 2932 of 1986) by 13 applicants, as Intervenors, who claim to be the legal heirs of the deceased Haji Issa, original defendant in the suit. The defendant Issa died, on 22nd January, 1984. On his sad demise his brother Jumma, the present defendant, was brought on record by order of this Court, dated 6th May, 1984 sis, according to the parties, he was the sole surviving heir of the deceased Issa. The present applicants are the descendants of late Moosa, who was one of the brothers of deceased Issa. Moosa had died in or about 1965, leaving behind his three sons, Faqir Muhammad, Allahdad and Muhammad, who also died prior to the death of Issa. Applicants Nos. 1 to 8 are the sons and daughters of Faqir Muhammad son of Haji Moosa, whereas applicants 11 to 13 are the sons and daughters of Muhammad son of Haji Moosa. Applicant No. 9 is the widow of Allahdad son of Moosa, whereas applicant No. 10 is widow of Haji Moosa. It may be mentioned here that the learned counsel for these 13 applicants dropped, during the course of his argument, applicants Nos. 4 to 10 and 13, as will be referred td later, and confined his submission in respect of applicants Nos. 1, 2, 3, 11 and 12 only.
2. There is no cavil that the father and the grandfather of applicants Nos. 1 to 8 and 11 to 13 and also the husbands of applicants Nos. 9 and 10 died long before the death of Haji Issa. Now, the question before me is: whether the applicants are the legal heirs of late Haji Issa so as to claim an interest in the suit land.
3. Mr. Ashiq Ali Abdullah, learned counsel for the applicants submits that there being no sharers the residuary will be entitled to the entire estate left by the deceased. He relies on paragraph No. 65 of Mulla's Principles of Muhammadan Law, 7th Edition, Bombay, 1972 and the table of 'Residuaries in order of succession under Sunni Law' appearing at page 64‑A of the said book and submits that the said table contains four categories, namely (i) Descendants, (ii) Ascendants, (iii) Descendants of father, and (iv) Descendants of true grandfather. There being no descendants or ascendants of the deceased the estate will devolve on the descendants of the father of the deceased. Referring to the classification of residuaries, in order of succession, as given in the said table, it is submitted by him that the list of descendants and ascendants as given in classifications Nos. 1 and 2 excludes the remote, whereas classification No. (iii) does not exclude any one, and the group, as a whole, inherits the entire estate in the absence of the heirs classified under (i) and (ii). Therefore, the full brother i.e. Jumma, the present defendant will not exclude the sons of Haji Moosa although he died prior to the death of Issa. However, applicants Nos. 4 to 8 and 13, being daughters of late Haji Moosa and applicants 9 and 10 being widows of Faqir Muhammad and Allahdad both sons of late Haji Moosa will be excluded as non‑heirs. He, at the end of arguments, confined his submission to applicants Nos. 1, 2, 3, 11 and 12 and claimed them as heirs being the grandsons of pre‑deceased Moosa. It is, further submitted by him that the applicant sons do not claim their inheritance from their grandfather, Moosa who if living at the time of the death of Issa the applicants would not have inherited from Haji Essa. Son according to the counsel, it is not a case of exclusion of grandson by son or a grandfather by father. The applicant sons are in absence of their father and grandfather are the direct heirs of the deceased Issa who was uncle of their father and brother of their grandfather.
4. The whole argument of the learned counsel for the applicants, I must say, is misconceived. The table referred by him itself negates his submission as would be further evident by the following discussion on the subject.
5. It is an accepted rule of inheritance of Sunni Muslim law that after giving away the Dhawi al‑Furud (sharers) their fixed shares, the remainder estate_ if any is inherited by Asbah Residuary.
This rule is based on the following tradition of the Holy Prophet (p.b.u.h.), as narrated by Abdullah Ibn Abbas.
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i. e first of all give away the shares of the sharers, thereafter whatever is left is for the nearer male.
Primarily, Asbah Nasabi (Residuary) is that relative who is male and whose relationship with the deceased is without an intervening female i.e. his relationship is not through a woman, such as the deceased's son or father because their 'Asubat stands established directly with the deceased on account of their personal relationship. There are, however, three kinds of Asbah which are as under:
(1) 'Asbah bi Nafsihi He is an heir who is the Asbah in his own right and no woman intervenes between him and the deceased.
(2) 'Asbah bi Ghairihi or Bil Ghair she is that female heir who on account of another heir, becomes the 'Asbah and that another is the partner in her being 'Asbah.
(3) 'Asbah Ma'al‑Ghair She is that female heir who on account of another heir, becomes the 'Asbah but that another is not her partner in being an 'Asbah.
Since the instant case relates to Asbah bi‑Nafsihi it may be stated, without adverting to the other two kinds of 'asbat, as the case of applicant daughters has not been pressed, that relatives of four degrees are included in 'Asbah bi Nafsihi of whom some have preference over the others. Serially they are as under:‑‑
(I) The persons who themselves are the offsprings of the deceased i.e. son, grandson, great grandson, one after the other of howsoeverlow in degree.
(ii) The persons of whom the deceased himself is the offsprings i.e. father, grandfather, great grandfather, one over the other, of howsoeverhigh in degree.
(III) The persons who are offsprings of the father of the deceased i.e. the true brother, consanguine ('Allati) brother, true C brother's son, consanguine ('Allati) brother's son, one after the other, of howsoeverlow in degree.
(iv) The persons who are the offsprings of the grandfather of the deceased i.e. the uncle, consanguine ('Allati) uncle, the son of the true uncle, one after, of, howsoeverlow in degree.
The estate that is left over after giving the fixed shares to the Dhawi al furud, (the sharers) the above‑stated four degrees of heirs one after the other, shall be the heirs of the deceased respectively, and inherit the estate. he principle is that the heir who is closet to the deceased shall get Priority in getting the estate, as the son over the grandson and the father over the grandfather. Some of general rules of succession D of 'Asbat (pl. of Asbah) are as under:‑‑
(1) The closer shall have preferential entitlement over the remote.
In case of the presence of several kinds of 'Asbat, at the same time, the closer one to the deceased shall be preferentially entitled to inheritance.
(2) In the case of there being 'Asbat of equal grade, stronger relationship shall be adhered to.
From amongst the 'Asbat, the one who in relationship is closer to the deceased, shall have, in the matter of inheritance, precedence over all the other 'Asbat. Thus, in the above four degrees, foremost precedence is given to those who are the offsprings of the deceased, i.e. his son, daughter, his son's son, of howsoeverlow in degree. After that, is the degree of the root of the deceased, such as his father who, in the presence of the daughter (and in the absence of the son) besides being the Dhu Fard (sharer), is the 'Asbah as well. After the father, according to Imam Abu Hanifah, the true paternal‑grandfather is the substitute of the father. Thereafter is the offspring of the father, that is, the true brother. Thereafter is the consanguine brother, then is the son of the true brother and then is the son of consanguine brother, of however low in degree. For the above discussion, reference may be made to "A Code of Muslim Personal Law", Karachi, 1980, Vol. II pp. 520‑24; Cf. Radd al Muhtar by Ibn‑Abidin, (Commentary on Al‑Dur, al‑Mukhtar by Ala‑uddin al Haskafi): Cairo, Vol. V p. 546, with particular reference to the following text appearing in Sayyid Sharif Al‑Jurjani's AI‑Sharifiya (Commentary on Al‑Sirajiyah) Qur'an Mahal, Karachi, Chap. on Asba't pp. 37‑39.
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8. As has been stated above, the son respecting his rights in the estate, has preference over the father on the basis of 'Asubat. The,, reason being that the son is the offspring, the branch and the father is the root ( 0‑i ) of the deceased. The relation of the 'branch' with the deceased is stranger than that of the 'root'. The issues of the son have preference over the father, inasmuch as the basis of their right as well as the same, the son having preference over the father. Likewise 'father' being closer to the deceased than the 'grandfather', has, in principle, the same preference as the 'son' E having preference over the 'grandson'. Thus, of the above‑stated degrees if any of the 'Asbat of the first degree is present, of howsoever low in degree he may be, no 'Asbah of the second degree shall get any inheritance from the deceased. Likewise, if there is any 'Asbah of the second degree, of howsoever high in degree he may be, he shall exclude all the 'Asbat of the third degree and so the heirs of the third degree shall exclude all the 'Asbat of the fourth degree.
9. Applying the above principles to the facts of the present case, Juma, brother of the deceased Essa, being alive on the death of his real brother Essa, will, being the nearest in relationship, exclude the applicants (now, Nos. 1, 2, 3, 11 and 12) being grandsons of the pre‑deceased Moosa, the brother of Essa, the deceased, as remote in relationship with the deceased. The submission to hold the direct relationship of the applicants as grandsons of the pre‑deceased brother Moosa, (because of the death of two intermediaries) with the deceased Essa, in the same degree and at par with relationship as that of Jumma, the defendant, is fallacious, having no basis in the Holy Qur'an or the Prophet's traditions. On the contrary, it goes against the express words of the tradition of the Holy Prophet has quoted in para. 5 above, that the remainder is for the nearer male
10. In the end, I may also refer to a judgment of the Hon'ble Supreme Court reported as Dhuman and others v. Ghulam Sarwar and others 1985 S C M R 947, the relevant paragraph reads as under:‑‑
"The learned counsel for the petitioners is not correct in saying G that as among the residuaries the remoteness or closeness of the relationship is of no consequence. The table of residuaries in order of succession under Sunni Law itself shows that the inheritance devolves from the descendants of true grandfather howhighsoever the full paternal‑uncle then on the full paternal‑, uncle's son and thereafter on full paternal‑uncle's sons' son."
11. In result, the application is dismissed.
M . B: A Application dismissed
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