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Writ Petition No. 573/11 of 1976, decided on llth November, 1986.

‑‑‑Paras. 46 & 46‑A‑‑Muhammadan Law‑‑Inheritance‑‑Land of original owner taken over by his widow as limited owner, held, would devolve upon heirs of such original owner in accordance with Muslim Laws after death of widow‑‑Where any person entitled to inherit such land died prior to death of widow, heirs of such person at time of death of widow, would inherit his share according to Muhammadan Law.‑ [Muhammadan Law].

Ch. Muhammad Sadiq for Petitioners.

Tanvir Ahmad Sheikh for Respondent No. 1.

Nemo for Respondents Nos. 2 and 3.

Rana Muhammad Bashir Khan for Respondents Nos. 4 to 6. Qamar‑uz‑Zaman for Respondents Nos. 7 to 9.

Date of hearing: lath November, 1986.

This writ petition relates to the inheritance of one Moamla. He died, before Independence, in the area not constituting India, leaving behind a widow, namely, Mst Ambah. Land left by Moamla was mutated in the name of Mst. Ambah as a limited owner. After Independence she migrated to Pakistan. Land was transferred to her heirs in lieu of the land left by her in India. She died in 1952/1953 whereupon Mutation No. 24 was attested on 14th November, 1957 regarding her inheritance, and the land left by her was awarded to Mst. Chhoti, Chand Mal and Mst. Waziri in the following shares:

Mst . Chhoti 5 / 8

Chand Mal 9/32

Mst. Waziri 3/32

Admittedly, Mst. Chhoti is daughter of Moamla and Chand Mal is one of his collaterais. One Ibrahim was brother of Chand Mal. The said Ibrahim died in 1950. Mst. Waziri is his widow. Chand Mal has since died and the petitioners, Bukal and others, are his legal representatives. They challenged Mutation No. 24 before the Additional Settlement Commissioner (Revenue; , exercising powers of the Settlement Commissioner, by means of revision petition which was dismissed on 15th November, 1972. Then they filed second revision petition before the Member, Board of Revenue, which was also dismissed on 30th January, 1976. Thereafter, they invoked Constitutional jurisdiction of this Court.

2. The said Mst. Waziri is respondent No.1 in the present petition. Respondent No.2 Mst. Sarsan, is daughter of Mst. Waziri from the said Ibrahim. The said Mst. Chhoti is respondent No.3. Respondents Nos.4 to 6, Imdad Hussain and others, have taken some land from Mst. Sarsan in exchange of their own land. Respondent No.7 is the Member, Board of Revenue, who passed order, dated the 30th January, 1976. The said Additional Commissioner (Revenue), with powers of Settlement Commissioner, Lahore, is respondent No.8. Respondent No‑9 is Assistant Collector Grade II, with powers of Assistant Settlement Commissioner, who attested the mutation in dispute.

3. It was contended by learned counsel for the petitioners that the land in dispute would devolve upon the heirs of Moamla under Muslim Law on the assumption that he had died in 1952/1953 when the death of Mst. Ambah had taken place. According to him, since Ibrahim had expired before the death of Mst. Ambah, he or his legal heirs would not be entitled to have any share in the land of Moamla. In this connection, reliance was placed by him on paragraphs 46 and 46‑A of the West Pakistan Rehabilitation Settlement Scheme.

4. In reply to arguments addressed by learned c9unsel for the petitioners, it was submitted by learned counsel for the reespondents that according to paragraph 46‑A of the said Scheme land in dispute would devolve upon the heirs of Moamla who would have inherited his property at the time of his death if Muslim Law had been applicable at that time and since at that time his heirs were Mst. Ambah, Mst. Chhoti, Ibrahim and Chand Mal, they would get his land in the following shares:‑

Mst., Ambah 1/8

Mst. Chhoti 1/2

Ibrahim 3/1 _

Chand Mal 3/16

According to them, since Ibrahim had died before the death of Mst. Ambah, his heirs at the time of death of Mst. Ambah would get his share. There is no dispute on the point that at the time of death of A Mst. Ambah, Mst. Waziri, Mst. Sarsan and Chand Mal were the only heirs of Ibrahim under t:he Muslim Law. The submission of learned counsel for the respondents was that Mst. Waziri, Mst. Sarsan and Chand Mal would have 1/8th, one‑half, and 3/8th shares respectively, in the land of the share of Ibrahim (3/16th share) in the land left by Moamla. It was also submitted by learned counsel for the respondent that on the death of Mst. Ambah, her 1/8th share in the land left by Moamla would go to her daughter, namely, Mst. Chhoti as she was the only heir left by Mst. Am bah. Learned counsel for the petitioner also did not dispute the proposition that Mst.Ambah did not leave any heir other than Mst. Chhoti. Thus, according to learned counsel for the respondents, Mst. Chhoti would have 5/8th share in the land left by Moamla i.e. her own one‑half share as daughter of Moamla plus 1/8th share of her mother, Mst. Ambah.

5. Arguments advanced by learned counsel for the respondents Are supported by the language of paragraph 46‑A of the said Scheme therefore, agree with them and hold that the land left by Moamla will devolve upon his following heirs in the shares given against each:‑

Mst. Chhoti 5/8 (her own one‑half share as daughter

of Moamla, together with 1/8th share

of her mother, Mst. Ambah).

Chand Mal 33/128 (his own share i.e. 3/16th as collateral

of Moamla together with his share i.e.

9/128th as an heir of Ibrahim).

Mst. Waziri 3/128 (as widow of Ibrahim).

Mst. Sarsan 3/32 (as daughter of Ibrahim).

Mutation No. 24 regarding the inheritance of Moamla and orders passed by respondents Nos. 7 to 9 are modified accordingly.

6. The writ petition is accepted to the extent of above modifications, with no orders as to costs.

H.B.T./603/L Order accordingly.

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