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| Daughter's inheritance died before Parents. |
⚖️ بیٹی پہلے فوت ہو جائے تو اس کے شوہر کا کیا حق ہوگا؟
محمودہ بیگم اپنے والدین سے پہلے فوت ہوگئیں۔ بعد میں ان کے والدین کا انتقال ہوا تو ان کی جائیداد میں محمودہ کے بچوں نے اپنا حقِ وراثت مانگا۔
اصل سوال یہ تھا کہ محمودہ کے شوہر کو بھی وارث سمجھا جائے گا یا نہیں؟
لاہور ہائی کورٹ نے قرار دیا کہ محمودہ کے بچوں کو دفعہ 4 مسلم فیملی لاز آرڈیننس 1961 کے تحت حق ملنے کا مطلب یہ نہیں کہ دوسرے وارثوں کا حق ختم ہوجائے۔ محمودہ کا شوہر بھی اس جائیداد کی تقسیم کی کارروائی میں وارث کے طور پر شامل ہوگا۔
اہم بات: دفعہ 4 کا مقصد پہلے فوت ہونے والے بیٹے یا بیٹی کی اولاد کو حق دینا ہے، لیکن اس کی وجہ سے دوسرے شرعی وارثوں کو ان کے حق سے محروم نہیں کیا جاسکتا۔
حوالہ: Mian Mazhar Ali and others v. Tahir Sarfraz and others, PLD 2011 Lahore 23۔
Must read judgement.
PLD 2011 Lahore 23
Before Umar Ata Bandial, J
Mian MAZHAR ALI and others---Petitioners
Versus
TAHIR SARFRAZ and others---Respondents
Writ Petition No.2204 of 2010, decided on 24th March, 2010.
Muslim Family Laws Ordinance (VIII of 1961)--
-S. 4-Constitution of Pakistan, Art.199--Constitutional petition-right of inheritance-Wife of petitioner predeceased her parents and after their death petitioner claimed to be a legal heir pf his parents-in law---Validity-According to 5.4 of Muslim Family Laws Ordinance, 1961, share from deceased grandfather's property had been bestowed upon the children of his predeceased son but the same did not mean that other heirs of the deceased would be excluded from their share of inheritance-Petitioner who was a widower of predeceased daughter was to be treated as an heir in the proceedings regarding division of property devolved upon his pre-deceased wife from her parents-Petition was allowed in circumstances.
Mst. Bhaggay Bibi and others v. Mst. Razia Bibi and others 2005 SMR 1595 ref.
Mst. Zainab v. Kamal Khan alias Kamla 1990 SCMR 1051 fol.
Mirza Aamer Baig for Petitioners.
Azhar Aqeel Arain for Respondents Nos. 1, 2 and 3.
ORDER
UMAR ATA BANDIAL, J.-In a suit for partition filed by the heirs of Mehmooda Begum who predeceased her parents, a question has arisen whether her her widower, widower, Mian Sarfraz Ahmed, is liable to be treated as her heir along with her children or not. Depending on the the answer to that question said Mian ian Sarfraz Ahme Ahmed who is o is impleaded as one of the parties 1 as one of the parties in the suit shall being the husb suit. shall being the husband, be arrayed as heir in the
- Learned counsel for the respondents submits that section 4 of the Muslim Family Laws Ordinance, 1961 recognize the right of inheritance of grandchildren of a propositus and this cannot be extended to the widow or widower of such a predeceased heir. In the present case, Mehmooda Begum preder predeceased her parents and therefore he submits that only the children of Mehmooda Begum are entitled to be heirs of her property inherited from her parents. He has relied on the case law but that deals only with the rights of grandchildren and not the right of other heirs of a predeceased issue of a propositus. On the other hand the learned counsel for the petitioners places reliance on a Supreme Court judgment in the case of Mst. Bhaggy Bibi and others v. Mst. Razia Bibi and others (2005) SCMR 1595) wherein with reference to provision of section 4 ibid the following observations with regard to right of inheritance of a widow along with her children are made:-
"This section does not override the law of Shariah and consequently, the parties will not get more than their share in the property in accordance with law of Shariah and the widows and daughters of Maula Dad would get to which they would have been entitled on the death of Maula Dad, after opening of succession of Mughla. The purpose of enacting section 4 (ibid) was to cater the need for grandchildren to remove their sufferings but this provision cannot be interpreted in a manner effecting the shares of other descendants in the property in accordance with law of Shariah. This Court in Zainab v. Kamal Khan PLD 1990 SC 1051 resolving the controversy arising out of the provision of section 4 of Muslim Family Laws Ordinance, 1961, held that according to law of Shariah, the heirs of predeceased children would inherit what their father or mother would have inherited during their life time opening of succession." the
The said judgment places reliance on another precedent of apex Court judgment in the case of Mst. Zainab v. Kamal Khan alias Kamla (1990 SCMR 1051) wherein also it is observed as follows:--
"According to section 4, the share from the deceased grandfather's property has been bestowed upon the children of his predeceased son but this does not mean that the other heirs of the deceased would be excluded from their share of inheritance."?
- As a result of the foregoing principle laid down by the Hon'ble Supreme Court in the foregoing cases Mian Sarfraz Ahmed widower of Mehmooda Begum in the present case is to be treated as an heir in the proceedings regarding division of the property devolved upon Mehmooda Begum from her parents. Petition allowed.
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