IN THE SUPREME COURT OF PAKISTAN
Appellate Jurisdiction)
PRESENT:
Mr. Justice Sajjad All Shah
Mr. Justice Amin ud Din Khan
Civil Appeals No. 53 As 54 of 2015.
sitairic the order dated 26A2 2000 passed by the
Peshawar High Court in CX No, 41 of 1995)
Abdul Khaliq (decall thr. LRs.
Appellants On both)
Versus
Fazalur Rebman and others.
For the Appellant (5)
(In both)
For the Respondents Nos,
In CA 53/15:
Iici—iii, 5Irs), 6 
I. J2(Lre(. 19(Lrs(,
20.23. 33(Lrs), 3SfIrs)J:
For the Respondents Nos.
In CA 54/I5:
[ 1. 12. 19.13, 34.361:
Other respondents:
Date of Hearing
Respondents (Sri both)
Mr. Tariq Mahinood, Sr. ASC
Syed Rifaqat Hussain Shah, AOR
Mr. Muhammad Munir Paracha, ASC
A LO NO WITH
Mr. Zulfiqar Khatid Maluka, ASC.
Mr. Muham!r.ad Munir Paracha, ASU
ALONOWITH
Mr. Zulflqar Khald Maluka ASC.
No mo
08.02.2022
Judgment
Sailad All Shah, J. Leave was granted in these cases vide our
order dated 21. I .20'S to consider whether the impugned judgment of the
Peshawar High Court was inconsonance with the evidence led by the
parties and the applicable law to the case.
2. The litigation in these cases is not only very old but has a any
chequcred background. The facts as pleaded and evident from the record
are that the property/ subject matter admittedly was owned by one Naaju
who died somewhere around 1906 leaving beh:nd one son by the name of
Abdul Ohafoor and a daughter Mst. Poshnac. In accordance with the
CA 53 & 54 f2015
2
prevalent custom, the entire property went to Abdul Ohafoor as the only
son to the exclusion of Mst. Roshnae, the daughter. Abdul Ghafoor died
issueless in the year 1921 and again, in accordance with the customary law
prevalent at the relevant time, the entire property went to Mst, Roshnae. It
appears that Mst. Roshnae was a spinster and on 28-4.1964 gifted the
entire property in favour of Abdul Khaliq etc., the appellants. The record
further discloses that alter the death of Mst. Roshnae, the respondents
herein on 23.12.1978 claiming to be collaterals, filed a suit for possession
to claim their Sharal share of inheritance by asserting that Mst. Roshnae
was a limited owner and could not have alienated the whole property
through the registered gift deed being against the principles of Shadah.
3, The appellants after having been served, filed their contesting
written statement and the trial Court after allowing the parties to adduce
their respective evidence, dismissed the suit on merits as well as being
barred by time. The respondents being aggrieved with the judgment of the
trial Court filed an appeal before the District Judge Mandan who, after
hearing the parties, vide its judgment and decree dated 8.11,1994 held that
the respondents were entitled as collaterais to the extent of 1/3rd share in
the subject property. The judgment of the appellate Court was again
challenged by both the parties before the Peshawar High Court by filing two
separate revision petitions and the High Court, after hearing the parties,
dismissed the revision filed by the appellants and partially allowed the
revision filed by the respondents by modifying the judgment of the appellate
Court and holding that the respondents were entitled to 3/4th share instead
of 1/31d as was held by the appellate Court, giving rise to the instant
appeals.
4. The matter does not end here, these appeals were earlier
decided by this Court vide its judgment dated 12.12.2002 modifying the
judgment of the High Court by holding both the appellant and respondents
3
entitled to equal shares in the property left by Abdul Ghafoor. The
appellants against such judgment sought a review which was allowed by
this Court vide its order dated 197.2004 and the suit of the respondents
was dismissed. The record further reflects that some of the legal
heirs/collaterals filed an application under Section 12(2) CPC which was
ultimately allowed vide order dated 309.2011 and while setting aside all
the orders, the review petitions were directed to be heard afresh. The review
petitions were taken up for hearing on 13.3.2014 and vide order of the
same day, were allowed by setting aside the judgment dated 12,12.2002
directing the re-hethng of the petitioner which ultimately were converted
into appeals by this Court vide order dated 21.1.2015 and are being
decided through this judgment.
5. Learned counsel for the appellants made two-fold submissions;
firstly, that the respondents are distant kindred and in presence of Mst.
Rcshnae the full sister of Abdul G}iafoor are not entitled to inheritance
and; secondly, that if they are collaterals and are held as residuaries still
they are not entitled to any share as the sister being a superior residuary
would eliminate the inferior. To support his submissions, reference was
made to the Table of Residuaries annexed to para 65 of Principles of
Mohammedan Law' by D.F. Mullah 10 show that the full sister stands at
Serial No.6 of the Table whereas descendants cliche grandfather how-high--
so ever stand at Serial No. 13 and consequently, submitted that the full
sister would exclude descendants of the true grandfather. Reliance was also
placed on the judgments of this Court in the cases of Saaduliah and others
vs. .Mst. Gulbanda and others (2014 SCMR 1205) and Muhammad Sharif vs.
Niamat Thl,i (2021 SCMR 1355). It was next contended that even if they are
held as collaterals having a superior right as residuaries than the full
sister, still they would be entitled only to 1/3- 1 share in the property
because on demise of Naaju, Mat. Roshnae would have got 1/3"' share as
CA 53 &5l a 2Dt5 
4
daughter whereas Abdul Ghafoor would have gotten 2/31d of inheritance as
son and upon the demise of Abdul Ohafoor, Mst. Roshnac again as the only
sister would have received a share making her share as 2/3rd leaving 1/31d
for the collaterals. To support his submission, it was contended that The
West Pakistan Muslim Personal Law (Shariat) Application Act, 1962
hereinafter referred to as the 'Act of 1962") had a retrospective
application and would have application from the date Nanju died, reliance
was placed on the judgment of this Court in the case of Muzaftar Khan us.
Roshwt Jan (PLD 1984 SC 394) and Fagir Ahmed Khan vs. Riaz Ahmad
(2020 SCMR 346).
6. On the other hand, the learned counsel for the respondents
argued that Mst. Roshnae held the estats as limited owner' under
customary law and after termination of said estate the property was to
devolve upon the legal heirs of the last full owner i.e. Abdul Grafter in
accordance with Shariah, which included the plaintiffs/respondents as his
collaterals. it was argued that section 7 of the Act of 1962 repealed The
NWFP Personal Law (Shariat) Application Act, 1935 (hereinafter referred to
as the "NWIP Act of 1935") and through section 2 of The West Pakistan
Muslim Personal Law (Shariat) Application (Amendment) Act, 1964
(hereinafter referred to as the "Amendment Act of 1964); sub-section (2)
of section 7 of the Act of 1962 was repealed by virtue of which the Act of
1962 would be applicable to cases even where the death of the last full
owner had occurred before the commencement of the Act of 1962.
Therefore, the Act of 1962 would be applicable to the case at hand and
consequently, through the application of section 3, limited estates in
respect of immovable property held by Muslim females under customary
law would stand terminated and by virtue of section 5, Muslim Personal
Law (Shariah) would be applicable and the estate would devolve upon such
persons who would have been entitled to succeed upon the death of the last
5
fujI owner. Hence, it was argued that upon the death of Abdul Ghafoor, the
respondents/plaintiffs would be entitled to a share in his estate under
Muslim Personal Law (Shariai4 as residuaries being descendants of the time
grandfather how-high-so-ever. Reliance was placed on para 65
Mohammedan Law by D.F. Mulls and the judgment of this Court in the
case of WarisAli and others vs. Rasoolan Th'bt(PLD 2014 SC 779).
7, We have heard the learned counsel for the parties and have
minutely perused the record. It appears from the record that after the death
of Naaju, the property devolved upon Abdul Ghafoor, his son, to the
exclusion of his daughter according to the customary law prevalent at that
time. After the death of Abdul Choicer, who died issueless, the property
devolved upon Mat. Roslrnae i.e. his sister as limited owner' also in
accordance with customary law. The NWFP Act of 1935 did not terminate
the limited estates of Muslim females and even though through section 7 of
the Act of 1962 the NWFP Act of 1935 was repealed, nonetheless, sub-
section (2) of section 7 of the Act of 1962 provided that in such cases where
the death of the last full owner had occurred before the commencement of
the Act of 1962 the Act of 1962 will not apply and the cases will be
governed by the Acts repealed in sub-section (1) of section 7 of the Act of
1962. For reference, section 7 of the Act of 1962 is produced below:
7. 
Repeal and Savings.- (1) The following
enactments are hereby repealed:
(a)
. -.
(b)
(C)
(ci) The NWFP Muslim Personal Law (Shariat)
Application Act, 1935;
(C)
112
(g)
(h)
(Q) 
This Act shall not apply to cases where the
 death of the lasifull owner or the termination of
the life estate or the death of the legatee-n- -
enjoyment, as the case nay be, has occurred
cA$3&4r1oI5
before the commencement thereof, and all such
cases shrill be governed by the Acts repealed in
subsection (1) according to the territories in
which they were operative.
8.
However, thereafter, through section 2 of the Amendment Act
of 1964 which was enacted on 15.4.1964, sub-section (2) of section 7 of the
Act of 1962 was repealed meaning thereby that even if the last full owner
had died before the commencement of the Act of 1962, the Act of 1962
would still apply to such cases. For reference, section 2 of the Amendment
Act of 1964 is reproduced below:
2. Amendment of Section 7 of Act V of 1962..
In Section 7 of the West Pakistan Muslim Personal
Law (Shariat) Application Act) 1962,
  Sub-Section (2)
shall be omitted.
9.
In such view of the matter and through the cumulative effect of
sections 3 and S of the Act of 1962, even where the last full owner had died
prior to the commencement of the Act of 1962, the limited estate held by a
Muslim female in relation to the said estate would now be terminated and
upon such termination, those persons would be entitled to the estate as
would have been entitled under Muslim Personal Law (Shariali) upon the
death of the last full owner and if any such heir had died in the meantime,
his/her share would devolve in accordance with Shariah on such persons
who would have succeeded him/her if he/she had died immediately after
the termination of the life estate. It was further stipulated in the proviso to
section 5 of the Act of 1962 that the Muslim female holding the limited
estate under customary law shall be deemed to be entitled to her share
under Muslim Personal Law Shariah) in the eutate of the last full owner
and the same shall devolve on her. For re 1ercncc, sections 2 and 5 of the
Act of 1962 are reproduced below: 
-
 
Termination of Limited Estates under
Customary Law.- The limited estates in respect of
immovable property held by Muslim females under
e Customanj Law are hereby terminated:
Provided that nothing herein contained shall
apply to any such estate saved by any enactment,
repealed by this Act, and the estates so excepted
shall continue to be governed by that enactment, not
withstanding its repeal by this Act.
S. Devolution of Property on the Termination
of Life Estate and Certain Wills.- The life estate
terminated under section 3 or the property in respect
of which the further operation of will has ceased
under section 4 shall devolve upon such persons as
would have been entitled to succeed under the
Muslim Personal Law(Shared) upon the death of the
last full owner or the testator as though he had died
intestate; and if any such heir has died in the
meantime, his share shall devolve in accordance with
Shariat on such persons as would have succeeded
him, if he had died immediately after the termination
of the life estate or the death of the said legatee:
Provided that the share to which a Muslim
female holding limited estate under Customary Law
would have been entitled under the Muslim Personal
Law (Shariat) upon the death of the last full owner
shall devolve on her
10. In order to provide certainty, the last full owner' as provided in
section 5 of the Act of 1962, to our minds, appears to he the full owner
wherealter the property did not devolve through inheritance, which in this
case would be Abdul Ghafoor. Any other meaning to the word last full
owner would not only he against the spirit of section 5 but would also
result in uncertainty by delving into an uncertain period in the past. In the
instant case, it is an admitted position that Abdul Ghafoor, the last full
owner, died issueless in the year 1921 and the property devolved on Mst.
Roshnac as limited owner in accordance with customary law. Therefore,
upon the application of the Act of 1962 pursuant to the Amendment Act of
1964, the limited estate held by Mst. Roshnac would be deemed to he
terminated and those persons would be entitled to succeed who were
entitled to inherit from the estate of the last full owner i.e. Abdul Ghafoor in
accordance with Muslim Personal Law Shariah). Hence, the inheritance of
CA&4I1UJ5
Abdul Ghafoor would be deemed to have opened at that time and was to
devolve amongst such persons entitled to inherit from his estate under
Shañ&t
11.
In such view of the matter and upon the opening of the
inheritance of the deceased Abdul Ohafoor, Mat. Roshnae would inherit 1/2
share in the estate of Abdul Ghafoor as a Quranic sharer, being his full
sister. This has been ordained by the Holy Quran in Surah An-Nisa, Verse
176 wherein it has been explicitly ordained that in the absence of a child, a
full sister is entitled to inherit 1/2 share in the property of the deceased
Muslim. Reference may also be made to Saaduflah's case supra).
12.
Now the only question that remains to be decided is whether
Mat. Roshnae would also inherit the remaining half share as a residuary or
would the same be inherited by the plaintiffs/ respondents who also claim
to be residuaries of Abdul Ghafoor as descendants of the true grandfather
how-high-so-ever. In this regard, we have gone through the case law cited
by the learned counsel for the parties and have perused para 65 of
Principles of Mohammadan Law' by D.F. Mullah and the Table of
Residuaries annexed thereto, as relied upon by both the parties. In our
view, Mst. Roshnae would also inherit the remaining 1/2 share in the
estate of Abdul Ohafoor as a residuary because a full sister is placed higher
in the Table of Residuaries at serial No.6, whereas, descendants of the true
grandfather how-high-so-ever are placed at serial No. 13 and below and
thus, would not be entitled to inherit after being excluded by the full sister
placed higher to them. For convenience, the Table of Residuaries annexed
to Para 65 has been reproduced below:
T..BLE OF RESIDIJARIES IN ORDER OF SUCCESSION -
Sunni Law
t.ESCENDANTS:
ON,
LA 5j& 54etiffiI)
Daughter takes as a residuary with the son, the son taking a
double portion.
(2) SON'S SON hIs-the nearer in degree excluding the more
remote. Two or more Sons Sons inherit in equal shares. Sons
daughter his, takes as a residuary with an equal sons
Son .......
II. ASCENDANTS:
(3) FATHER.
(4)
TRUE GRANDFATHER h.h.s.- the nearer in degree
excluding the more remote.
Ill. DESCENDANTS OF FATHER:
(5) FULL BROTHER.
FULL SISTER- takes as a residuary with full brother, the
brother taking a double portion.
(6) FULL SISTER- In default of full brother and the other
residuaries above named, the full sister takes the residue if
any.....
(7) CONSANGUINE BROTHERS.
CONSANGUINE SISTER.- takes a residuary with consanguine
brother, the brother, taking a double portion.
(8)
CONSANGUINE SISTER.- In default of consailguine
brother and the other residuaries above-named, the
consanguine sister takes the residue .............
(9) FULL BROTHERS SON.
(10) CONSANGUINE BROTHERS SON.
11) FULL BROTHERS SON'S SON.
(12) CONSANGUINE BROTHERS SONS SON.
Then come remoter male descendants of No. 11 and No. 12,
that is, the son of No. 11, then the son of No. 12, then the sons
son of No. 11, then the son's son of No. 12 and so on in like
order.
IV. DESCENDANTS OF TRUE GRANDFATHER h.h.s.
(13) FULL PATERNAL UNCLE.
CA 53 & 5401 aL5 
1()
(14) CONSANGUINE PATERNAL UNCLE.
(15) FULL PATERNAL UNCLE'S SON.
(16) CONSANGUINE PATERNAL UNCLES SON.
(17)FULL PATERNAL UNCLES SONS SON.
(18)CONSANGUINE PATERNAL UNCLES SONS SON.
Then come remoter male descendants of Nos. 17 and 18, in
like order and manner as descendants of Nos.11 and 12.
MALE DESCENDANTS OF MORE REMOTE TRUE
GRANDFATHERS - in like order and manner as the deceased's
paternal uncles and their Sons and sons sans.
13. After minutely examining the Table of Residuaries, the
submission of Mr. Porsche, learned ASC for the plaintiffs/respondents that
since the sister is a sharer in the estate of Abdul Ghafoor, therefore, she
would not inherit as a residuary, does not appeal to us for the reason that
the Table of Residuaries at serial No.6 provides that in default of a Ml
brother and the other residuaries above named, the fiifl sister takes the
residuary if any ...'. The words above named' are of great significance and
negate the submission of the learned counsel by entitling a full sister to
inherit as a residuary in absence of the residuaries detailed in serial No .1 to
serial No.5, meaning thereby, that the residuaries placed below serial No. 6
would not inherit anything in the presence of full sister. Admittedly, the
plaintiffs/respondents are placed much below i.e. under sub-heading No.
IV as DESCENDANTS OF TRUE GRANDFATHER h.h.s' and therefore,
would be excluded from inheriting the property as residuaries by the full
sister which is placed above them. This was the view taken by this Court in
a judgment delivered by a two-member Bench in Saadullah's case (supra).
On the other hand, the plaintiffs/ respondents rely on Wares All's case
(supra) which was also rendered by a two-member Bench of this Court and
wherein seemingly an opposite view from Saadullah's case was taken.
CAj&4vf2OL5 
II
However, notably, the judgment in Saaduilah's case was prior in time and
the view rendered by the learned Bench in Wails A/is case had neither
taken into account the judgment rendered in Saadullah's case and - nor
distinguished it. Furthermore, the view taken by this Court in Saaduilahs
case has also been followed by this Court in its recent judgment in
Muhammad Sharit's case (supra).
14, Therefore, in view of the above, Mid. Roshnae was entitled to
inherit the entire estate of Abdul Ohafoor, being his full sister. Notably, the
Amendment Act of 1964 was enacted on 15.4.1964 and came into force at
once, therefore pursuant to the Amendment Act of 1964 through which the
Act of 1962 was made applicable to cases even where the full owner had
died prior to the commencement of the Act of 1962, the limited estate held
by Mat. Roshnae was terminated and she inherited the complete estate of
Abdul Ohafoor in her personal capacity as per Muslim Personal Law
Shariah). Therefore, the gift made by Mst. Roshnae to the appellants on
28.4.1964, i.e. after the enactment of the Amendment Act of 1964, was
valid as she was no longer holding the estate as a limited owner but had
inherited the entire suit property according to Shariah. It is a settled
proposition of law that at the time the inheritance of a deceased Muslim
opens, all the entitled legal heirs become owners to the extent of their
shares there and then, therefore, sanction of mutation, issuance of
succession certificate etc. are procedural matters regulated by procedural
laws just to make records and for fiscal purposes. Reference is made to the
cases of Khan Muhammad tb', LRs and Others vs. Mst. Khatoon Bibi and
Others (2017 SCMR 1476) and Mahmood Shah vs. Khalid Hussain Shah
(2015 SCMR 869). Therefore, Mst. Roshnae was competent to gift the entire
suit property to the appellants and consequently, the gift would be valid.
15. 
In view of what has been discussed above, these appeals are
allowed, the impugned judgment and decree of the High Court is set-aside
Ok 53& 54of2015
and the judgment and decree passed by the trial Court dismissing the suit
of the plaintiffs/ respondents is restored. No order as to costs,
Islamabad,
Announced on
Approved
