Suit for Declaration in Pakistan:
After the death of the original owner of the suit-land, mutation of property left by the deceased was sanctioned in favor of his two sons (plaintiffs) and a daughter of the deceased daughter of the original owner dying 40 years before the original owner. The claim of plaintiffs/sons of the deceased owner was that the deceased daughter of the original owner/sister of plaintiffs was not entitled to the inherent property of the deceased original owner and had challenged said mutation through a suit for declaration in Pakistan & Succession certificate in Pakistan.
Muslim family Law:
Plaintiffs contended that S. 4 of Muslim Family Laws Ordinance, 1961 whereby children of predeceased son and daughter of deceased original owner were held entitled to receive a share from the property of the original owner, having been declared un-Islamic by Federal Shariat Court, defendant, who was the daughter of the deceased daughter of the original owner, could not get the disputed share. Validity. Judgment of Federal Shariat Court which had been challenged before Supreme Court would be suspended automatically till the decision of appeal filed before Supreme Court, given Art. 203D(1-A)2) of the Constitution of Pakistan (1973) and S. 4 of Muslim Family Laws Ordinance, 1961 would remain in the field till disposal of said appeal by the Supreme Court.
Succession Certificate in Pakistan:
In case of a suit for declaration in Pakistan & Succession certificate in Pakistan mutation in dispute was sanctioned before the judgment of Federal Shariat Court whereby S. 4 of Muslim Family Laws Ordinance, 1961 was declared against Injunctions of Islam. Judgment of Federal Shariat Court had a prospective effect; In the case of suit for declaration in Pakistan & Succession certificate in Pakistan defendant being grand-daughter of the original owner of the property was entitled to get share equal to the share of her deceased mother because of S. 4 of Muslim Family Laws Ordinance, 196l which at the relevant time was in force. Suit for declaration in Pakistan & Succession certificate in Pakistan filed by plaintiffs was righty dismissed concurrently by Courts.
Conflict of decisions of two High Courts on the interpretation of S. 4, Muslim Family Laws Ordinance, 1961 (PLD 1975 Pesh. 252). Supreme Court subject to determination of the question of limitation at the final hearing; however, declined to the extent of 1/6th share of the respondent not disputed by the petitioners but for the next 1/6th, interim relief was granted to the petitioner subject to his furnishing full and sufficient security for mense profits to the satisfaction of Trial Court.
The legal position in the suit for declaration in Pakistan & Succession certificate in Pakistan is quite clear that the moment (grandfather) of predeceased son expired, the due share of inheritance of predeceased son would vest in him he would become the owner of the same. Such inheritance of predeceased son would not depend on entry in the mutation, which was meant only to incorporate a factum. If inheritance mutation contrary to S. 4 and share of the predeceased son is recorded, it will not operate as estoppel qua him to claim his inheritance share. Courts below would be wrong in rejecting the claim of predeceased son and upholding inheritance mutation in favor of widow to exclude share of a predeceased son. High Court sets aside such concurrent judgments of Courts below in exercise of its revision jurisdiction and decreeing inheritance share of predeceased son in the inheritance of his predeceased father.
Decisions of Supreme Court or the Shariat Appellate Bench of Supreme Court. Binding effect of Federal Shariat Court’s jurisdiction to scrutinize S. 4, Muslim Family Laws Ordinance, 1961. Competency of decisions of Supreme Court/Shariat Appellate Bench of Supreme Court would be binding on all other Courts. Federal Shariat Court would have no jurisdiction to scrutinize S. 4. Muslim Family Laws Ordinance, 1961 given the judgment of Shariat Appellate Bench of Supreme Court (PLD 1981 SC 120) wherein it had held that scrutiny thereof was outside the jurisdiction of that Court as per terms of Art. 203B, Constitution of Pakistan.
Grandchildren of Deceased:
Grandchildren of deceased (of his predeceased son/daughter) in terms of S. 4, Muslim Family Laws Ordinance, 1961, would, thus, be entitled to inherit the property of their grandfather to the extent their father/mother would have inherited if they were alive at the time of opening up of a succession of deceased (grandfather) in the suit for declaration in Pakistan & Succession certificate in Pakistan. Provision of S. 4 creating inheritance entitlement in favor of children of pre-deceásed son or daughter of propositus. Whether retrospective in operations? Supreme Court is granting leave to appeal to consider this question in the suit for declaration in Pakistan & Succession certificate in Pakistan. 1s to Last full owner died in 1951, and immediately on his death, succession opened.
According to Islami Law, the children of his predeceased sons were not entitled to inherit the deceased’s estate. The Muslim Family Laws Ordinance, 1961, came into force in 1961, and since the provisions of S. 4 of the Ordinance had no retrospective effect, the same could not be applied to the present case. Courts below acted within the framework of law by -suiting the petitioners and excluding them from the deceased’s inheritance, the original owner.