SUMMARY OF ARGUMENTS

i. Section 4 of Muslim Family Laws Ordinance 1961, is not contrary to Shariah

There is no clear Qur’anic verse or authoritative hadith excluding orphaned grandchild from
inheriting their grandfather’s property. Since the grandfather inherits the property of his
grandsons even though the father of the testator has predeceased him, the same principle
be applied to the lineal descendants. The Arabic word awlad is also used to mean
grandchildren. The Arabs describe male and female grandchildren as awlad or sons and
daughters. Therefore, the word awlad should not be confined to sons and daughters only,
but should be extended also to their substitutes, i.e, grandchildren. Hence section 4 of
Muslim Family Laws Ordinance is not contrary to Shariah.

ii. Federal Shariat Court cannot strike down laws or provisions repugnant to
injunctions of Islam

According to section 203D (1A) of the Constitution of Pakistan 1973, if Federal Shariat
Court finds any repugnancy of any law or provisions of law with injunctions of Islam, it shall
cause to the (Federal / Provincial) Government to be given notice specifying particular
provision that appears to be so repugnant and afford to such Government adequate
opportunity to have its point of view placed before the court.

According to proviso of section 203D (2) of the Constitution of Pakistan 1973, the decision
of Federal Shariat Court shall not be deemed to take effect before expiration of the period
within which an appeal therefrom may be preferred to the Supreme Court or where an
appeal has been so preferred before the disposal of such appeal.

Hence in Allah Rakha and others v. Federation of Pakistan and others 1, in which section 4
has been declared repugnant to Islam by this hon’ble court, the appeal is still pending in
Shariat Bench of Supreme Court, and the section 4 of MFLO continues to carry same effect
as also declared by Supreme Court in Muhammad Ali and others v. Muhammad Ramzan
and others2 and in the case of Fazeelat Jan and others v. Sikandar through his Legal Heirs
and others3.

1
PLD 2000 FSC 1
2
(2002 S C M R 426)
3
(P L D 2003 SC 475)

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 ARGUMENTS ADVANCED

I. Section 4 of Muslim Family Laws Ordinance 1961, is not contrary to Shariah

 There is no clear Qur’anic verse or authoritative hadith excluding orphaned grandchild

from inheriting their grandfather’s property.

 One of the principles of the Islamic law of inheritance is that “a nearer in kinship
excludes the remoter from inheritance” the children of a predeceased son or daughter
cannot inherit the property of their grandfather who is survived by a son or sons. This
rule is absolute and has no exceptions. Some Middle Eastern states attempted to solve
the problem by adopting the device of “Obligatory Bequests.” The legislature in Pakistan
has preferred representational succession for the purpose.
In modern times representation is the proper remedy for coping with orphaned
grandchildren
Representational succession is preferred over obligatory bequests as a solution of
disinheritance of orphaned grandchildren.

 Since the grandfather inherits the property of his grandsons even though the father of
the testator has predeceased him, the same principle be applied to the lineal
descendants as the right of representation entitles a grandfather to inherit the property
of his grandsons even though the father of the testator has predeceased him.

 The Arabic word awlad is also used to mean grandchildren. The Arabs describe male
and female grandchildren as awlad or sons and daughters.
Marriage with a daughter is prohibited in the Qur’an, but nothing is said about marriage
with the daughter’s daughter. However, it is unanimously agreed that Islam prohibits
marriage with granddaughter only because children of children are also children.
However, it is unanimously agreed that children of children are also children. Therefore,
the word awlad should not be confined to sons and daughters only, but should be
extended also to their substitutes, i.e, grandchildren on both the son’s and daughter’s
side. The words dhakar and unthayain mean ‘males’ and ‘females’ and not ‘sons’ and
‘daughters’.

2
 Translation of Verse 4:11: The correct meaning of this verse is “God ordains you in
respect of your descendants that the share of one male is equivalent to that of two
females.”4

 The Qur’an and Ahadith of the Prophet Muhammad (PBUH) have shown great concerns
for the protection and welfare of the orphans and their property. Any legislation depriving
them of inheriting their grandfather’s property would be against this spirit of the Qur’an
and the Sunnah of the Prophet.
For instance;
If a person has five sons and four of his sons predeceased him, leaving several
grandchildren alive, is there any reason in logic or equity whereby the entire property of
the grandfather should be inherited by one son only and a large number of orphans left
by the other sons should be deprived of inheritance altogether. The Islamic law of
inheritance cannot be irrational and inequitable.

 What is the Islamic justification for excluding grandchildren as heirs when one of their
agnatic uncles remain alive at the time of the death of the propositus or to put this
another way when their father has died, contrary to the normal course of events, before
his father?
The exclusion of the grandchildren from representational succession is not based on the
Qur’an but rather the opposite by-product of a classical interpretation of a hadith in
which the Prophet is reported to have said:
“Pay the fixed shares of inheritance to persons entitled to them. What remains thereafter
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is for the nearest male person.”
It follows from this report that a grandchild cannot succeed to his grandfather’s property
when his own father is alive, the father being nearer to his father than his son. This
argument does not necessarily apply to the grandchild’s uncle.

II. Federal Shariat Court cannot strike down laws or provisions repugnant to
injunctions of Islam

4
Al-Quran [4:11]
5
Muhammad b. Isma’il Al-Bukhari, Sahih, hadith no. 6732. The text of the hadith is: ‫قال النب علیه الصالة‬
,‫ باب میراث الىلد من أبیه وأمه‬/‫ ألحقىا الفرائض بأهلها فما بق فألولى رجل ذكر۔ أخرجه البخاري ف الفرائض‬:‫) والسالم‬

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 According to section 203D (1A) of the Constitution of Pakistan 1973, if Federal Shariat
Court finds any repugnancy of any law or provisions of law with injunctions of Islam, it
shall cause to the (Federal / Provincial) Government to be given notice specifying
particular provision that appears to be so repugnant and afford to such Government
adequate opportunity to have its point of view placed before the court.

 According to proviso of section 203D (2) of the Constitution of Pakistan 1973, the
decision of Federal Shariat Court shall not be deemed to take effect before expiration of
the period within which an appeal therefrom may be preferred to the Supreme Court or
where an appeal has been so preferred before the disposal of such appeal.

 In Allah Rakha and others v. Federation of Pakistan and others 6, in which section 4 has
been declared repugnant to Islam by this hon’ble court, the appeal is still pending in
Shariat Bench of Supreme Court. Hence the provision still continues to have same
affect unless such appeal is disposed of by the Shariat Bench of Supreme Court.

 In Muhammad Ali and others v. Muhammad Ramzan and others 7, the case of Allah
Rakha was considered and the Supreme Court held:
“Appeal against the judgment passed by Federal Shariat Court was pending
adjudication before Supreme Court, the decision of the Federal Shariat Court would not
be attracted till the disposal of the appeal”.
Leave to appeal was refused. Thus any suit challenging section 4 of Muslim Family
Laws Ordinance is dismissed by the hon’ble Supreme Court in appeals.

 In Fazeelat Jan and others v. Sikandar through his Legal Heirs and others 8, grandson,
under the traditional Muslim Law of Inheritance was not excluded from the inheritance of
his grandfather due to absence of his own father. Provision of S.4, Muslim Family Laws
Ordinance, 1961 clearly entitles the grandson for receiving the share which his father
would have inherited, had he been alive.
Supreme Court held that:

6
PLD 2000 FSC 1
7
(2002 S C M R 426)
8
(P L D 2003 SC 475)

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 “No doubt, the theory of Mahjub-ul-Irs has been revived by the Federal Shariat Court
and section 4 of Muslim Family Laws Ordinance has been declared as repugnant to the
Islamic Shariat yet such verdict has been challenged before the Supreme Court of
Pakistan and thereby the operation of the verdict stands suspended automatically till the
disposal of III as provided under Article 203D of the Constitution of Pakistan, 1973.
The grandson, therefore, can inherit the share of his predeceased father from his
grandfather.”

 In Bashir Ahmad and 2 others v. Atta Muhammad Khan and 20 others 9, sons of pre-
deceased daughter (plaintiffs) claimed share in legacy left by her father. Relationship
of pre-deceased daughter with her father was proved by plaintiffs through witnesses.
Such relationship was admitted by one defendant in his statement before Court.
Inheritance mutation attested in year 1967 indicated that father had died after
promulgation of Muslim Family Laws Ordinance, 1961. Plaintiffs, in circumstances,
were entitled to inherit share of their mother by virtue of S.4 of Ordinance, 1961 as
held by Supreme Court.

 There are several more cases in which Supreme Court has employed section of the
Muslim Family Laws Ordinance 1961 and continues to do so. For instance, two
conflicting decisions of the Peshawar High Court 10 and the Lahore High Court 11 on the
interpretation of section 4 of Muslim Family Laws Ordinance 1961, Farid v.
Manzooran12, Sardar v. Nehmat Bi13, Bhaggay Bibi v. Razia Bibi14, Bashir Ahmad and 2
others v. Atta Muhammad Khan and 20 others 15, Fazeelat Jan and others v. Sikandar
through his Legal Heirs and others 16, Muhammad Ali and others v. Muhammad Ramzan
and others 17.
CASE LAWS
 In Zarina Jan v. Akbar Jan (PLD 1975 Peshawar 252 at 253), the propositus, Shah
Zaman was survived by son’s daughter (Zarina Jan) and daughter (Akbar Jan).
9
(2005 S C M R 1271)
10
Zarina Jan v. Akbar Jan (PLD 1975 Peshawar 252 at 253)
11
Kamal Khan v. Zainab (PLD 1983 Lahore 546)
12
PLD 1990 SC 511
13
(NLR 1992 Civil.)
14
(2005 S C M R 1595)
15
(2005 S C M R 1271)
16
(P L D 2003 SC 475)
17
(2002 S C M R 426)

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 Under section 4, Zarina Jan would get 2/3 and Akbar Jan would have got 1/3. However,
the lower appellate court gave Zarina Jan one half of the two-thirds of the property to
which her predeceased father was entitled and the other half was given to daughter
Akbar Jan. Thus, in total she got 1/3 as her actual share plus 1/3 returned to her from
Zarina Jan. The Court held:
Section 4 of the Muslim Family Laws Ordinance, 1961 has given a right to the heirs of a
pre-deceased son to inherit the share of their father in the property of their grand-father.
This section has not ousted the application of Shariat in other matters of inheritance. In
my opinion Shariat will apply to the inheritance of Mir Afzal, father of Zarina Jan.
Case Appealed in Peshawar High Court:
The Peshawar High Court reversed the decision and gave the son’s daughter, Zarina
Jan, 2/3 and the aunt 1/3.
The High Court held:
Under the Ordinance Zarina, daughter of Mir Afzal, is entitled to inherit the same share
to which her father Mir Afzal was entitled in the inheritance of his father Shah Zaman.
The reason is that the Ordinance by adopting the principles of per stirpes distribution of
inheritance meant to keep intact the share of predeceased son or daughter to be
inherited by his son or daughter i.e. according to it, the heirs of the pre-deceased issue
will inherit from propositus what their predecessor-in-interest would have inherited …
The impugned interpretation militates against the letter and spirit of section 4 of the
Ordinance which could not be the intention of the Law Makers.

 In Kamal Khan v. Zainab (PLD 1983 Lahore 546.), Sufaid Khan, the deceased
grandfather was survived by son’s daughter Zainab and brother’s son, Kamal Khan.
Honourable Justice Zafruallah of the Lahore High Court observed that section 4 “was
meant to remedy the discrimination which was believed to exist against a grandchild
whose parent had died before the succession opened.” So it provided that the parent of
such children would be deemed to be alive for the purpose of succession. But the
legislature never intended to give greater benefit to the grandchildren than would have
been their due if the parent was alive when the succession opened. Therefore, the
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 Lahore High Court laid down the principle for distribution of the estate under section 4
as follows:
The starting point is, that notionally the off-spring of the propositus is deemed to be alive
for the purpose of succession, at the time of the death of the propositus, and the
succession of the grandchild is to be calculated again notionally as if the parent of the
grandchild died after the death of the original propositus.”
Under this scheme the predeceased son (Rajoo) would inherit the entire estate of
Propositus as being his only son. Zainab would inherit half of Rajoo’s estate and the
remaining 1/2 would revert to the nearest agnate Kamal Khan. According to the
Peshawar High Court decision, Zainab would have inherited the entire estate.

 The Supreme Court of Pakistan considered the two conflicting decisions of the
Peshawar High Court and the Lahore High Court on the interpretation of section 4 of
MFLO.
On the one hand there was a conflict between the decisions of two High Courts
regarding the true interpretation of section 4 and on the other hand Zainab also
appealed to the Supreme Court against the decision and order of the Lahore High
Court. The issue framed before the Supreme Court was:
Whether it was not the intention of law-maker in section 4 of the Family Laws
Ordinance, 1961, to provide an opportunity of obtaining only Islamic Law shares, to the
children of pre-deceased son or daughter of the propositus and that intention was not to
increase their Islamic Law shares.
Honourable Justice Abdul Qadeer Chaudhry ruled for the Divisional Bench of the
Supreme Court that the decision of the Lahore High Court in Kamal Khan v. Zainab was
based on correct interpretation of section 4 and that legislation will operate fairly, justly
and equitably and not unreasonably. Therefore, its interpretation should be beneficial to
the widest maximum extent. The Court observed that Section 4 was enacted to meet the
needs of orphaned grandchildren and to remove their suffering but it cannot be
interpreted to decrease the shares of other heirs of the deceased or exclude them from
their share of inheritance. The Supreme Court rejected the contention of the appellant
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 [Zainab] that she would inherit the entire share of the her father being the sole surviving
child and observed that “she would get whatever she would be entitled to get on the
death of her father.” The Court put it this way:
The principle of Muslim Law of Inheritance was that the near in degree would exclude
the remotest. Before the introduction of section 4, the children of predeceased son were
deprived of any share. The intention of section 4 is to safeguard the interest of the
children of predeceased son and not to deprive the other heirs of the propositus of their
due. Thus, section 4 cannot be interpreted in a way so as to exclude the other legal
heirs of the deceased Sufaid Khan
Thus, the Supreme Court endorsed Kamal Khan v. Zainab and ruled that section 4
could not be construed against the interest of other heirs of the deceased who were
entitled to share the inheritance under the rules of Muslim Family Law.

 In Farid v. Manzooran. Date of hearing 21-01-1992. Interestingly, the leave to appeal

order of this case is reported as PLD 1990 SC 511 but the final decision is not reported.
At the time of opening of the inheritance of Daulan her predeceased daughter Lalan
would be taken as living under section 4 and resultantly she would get 1/3 of the
inheritance, 2/3 going to Daulan’s son Farid.
The question before the court was whether or not Lalan’s daughter Manzooran would
get the whole of the estate of Lalan.
According to the Lahore High Court interpretation in Kamal Khan v. Zainab, Manzooran
will get one half of the estate, the other half going to the reversionaries including Farid
but according to the decision of the Peshawar High Court in Zarina Jan v. Akbar Jan34,
she will take the whole of the estate of her deceased mother.
The Supreme Court ruled that Manzooran will get one half of 1/3rd i.e. 1/6th and not the
whole of the share of Lalan. Rest of the ½ of the estate of Lalan would go to the
reversionaries.
The Court observed that the controversy regarding the interpretation of section 4 has
been resolved by this Court in Mst. Zainab v. Kamal Khan. The Court reproduced the
relevant paragraphs of Kamal Khan case:
“[S]ection 4 of the Muslim Family Laws Ordinance could not be construed against the
interest of the heirs of the deceased who were entitled to share the inheritance in
accordance with Muslim Law of Inheritance as such the grand-child is not entitled to

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 more share than what could be inherited from the parents according to Islamic law. The
estate would be divided in proportion of the respective shares of their parents.”

 In Sardar v. Nehmat Bi, etc (NLR 1992 Civil.) the appellant, Sardar Khan was the
nephew, i.e. son of the brother of the propositus, Ilam Din who had died in 1947. In his
appeal to the Supreme Court against the decision of the Lahore High Court he
contended that on the death of the propositus (Ilam Din) the property was to devolve
upon persons who would have been entitled to succession under the West Pakistan
Muslim Personal Law (Shariat) Act, 1962. Section 2 of this Act states:
Notwithstanding any custom or usage, in all questions regarding succession (whether
testate or intestate), special property of females, betrothal, marriage, divorce, dower,
adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies,
gifts, religious usages or institutions including waqfs, trusts and trusts properties, the
rule of decision, subject to the provision of any enactment for the time being in force,
shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims.
The appellant argued that the property would devolve on Ilam Din’s widow Nehmat Bi,
his sister Samoo and the residue was to go to him (the appellant). Pre-deceased
daughter of Ilam Din, Fatima Bi who died in 1942 or her four sons would not be entitled
to inherit anything in the estate.
It was argued by the respondents (Fatima Bi’s children and Nehmat Bi)’s counsel that
the earlier death of their mother who was the granddaughter of the propositus, Ilam Din,
her children shall get the share of the their mother under section 4 of the MFLO, 1961.
The Supreme Court observed that Muslim Personal Law (Shariat) Application Act 1962
is a general statute and it includes all laws relating to personal matters of Muslims
including MFLO 1961. The Court ruled that section 3 of the MFLO provides that “the
provisions of this Ordinance shall have effect notwithstanding any law, custom or
usage.” The Supreme Court therefore upheld the decision of the Lahore High Court
which had excluded the appellant (Sardar) from the estate and had given the
grandchildren their share under section 4 of the MFLO

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 In Bhaggay Bibi v. Razia Bibi (2005 S C M R 1595), a Full Bench of the Supreme
Court endorsed Zainab v. Kamal Khan about the interpretation of section 4 by Lahore
High Court. The Court observed that the purpose of section 4 “was to cater the need of
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
[the] law of Shariah.”
Review of Supreme Court judgment---Shares of legal heirs of predeceased son
Petitioners sought review of the judgment on the ground that the property of father of
predeceased son was not distributed among his legal heirs as per law of Shariah
SC held:
Law of Shariah was not overridden by S.4 of Muslim Family Laws Ordinance, 1961, and
consequently the parties would not get more than their shares in the property in
accordance with law of Shariah---Widows and daughters of predeceased son would get
what they were entitled on the death of predeceased son, after opening of succession of
father of the predeceased son---Purpose of enacting S.4 in Muslim Family Laws
Ordinance, 1961, was to cater the need of grandchildren to remove their sufferings but
this provision could not be interpreted in a manner affecting the shares of other
descendants in the property in accordance with law of Shariah---Heirs of predeceased
children, according to law of Shariah, would inherit what their father or mother would
have inherited during their life time on the opening of succession---Supreme Court did
not find any error in the judgment under review---Petition was dismissed.

 BASHIR AHMAD and 2 others V. ATTA MUHAMMAD KHAN and 20 others (2005 S
C M R 1271)
S. 4---Succession---Sons of pre-deceased daughter (plaintiffs) claimed share in
legacy left by her father---Proof---Relationship of pre-deceased daughter with her
father was proved by plaintiffs through witnesses---Such relationship was admitted
by one defendant in his statement before Court---Inheritance mutation attested in

10
 year 1967 indicated that father had died after promulgation of Muslim Family Laws
Ordinance, 1961---Plaintiffs, in circumstances, were entitled to inherit share of their
mother by virtue of S.4 of Ordinance, 1961. 

 FAZEELAT JAN and others V. SIKANDAR through his Legal Heirs and others (P L
D 2003 SC 475)
S.4---Inheritance---Grandson, under the traditional Muslim Law of Inheritance was not
excluded from the inheritance of his grandfather due to absence of his own father---
Provision of S.4, Muslim Family Laws Ordinance, 1961 clearly entitles the grandson for
receiving the share which his father would have inherited, had he been alive---
Principles.
No doubt, the theory of Mahjub-ul-Irs has been revived by the Federal Shariat Court and
section 4 of Muslim Family Laws Ordinance has been declared as repugnant to the
Islamic Shariat yet such verdict has been challenged before the Supreme Court of
Pakistan and thereby the operation of the verdict stands suspended automatically till the
disposal of III as provided under Article 203D of the Constitution of Pakistan, 1973.
The grandson, therefore, can inherit the share of his predeceased father from his
grandfather. 
The claim under section 4 of Muslim Family Laws Ordinance, 1961, being besides the
point for the time being, the grandson in the prevailing succession that existed at the
time of opening of succession, independent of his father, was entitled to 18/48 share in
the inheritance of his grandfather in his capacity as residuary. The table of residuaries is
indicative of the fact that the grandson, as such, is placed at a higher degree than a
brother's son. In the circumstances, grandson is entitled to 18/48 or 9/24 or 3/8 share in
the inheritance of his grandfather being a residuary in his own right and also under
section 4 of the Muslim Family Laws Ordinance, 1961. 

 MUHAMMAD ALI and others v. MUHAMMAD RAMZAN and others (2002 S C M R

426)
S. 4---Constitution of Pakistan (1973), Art.185(3)---Inheritance--Children of predeceased
daughter---Principle settled by Federal Shariat Court in case titled Allah Rakha and
others v. Federation of Pakistan and others reported as PLD 2000 FSC
1---Applicability---Respondents were children of predeceased daughter of the deceased

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 predecessor-in-interest of the parties--Petitioners excluded the respondents from the
mutation of inheritance---Such mutation was assailed in civil suit which was decreed in
favour of the respondents---
Lower Appellate Court maintained the judgment passed by the Trial Court and revision
before High Court was also dismissed—
Petitioners played a fraud while getting the mutation sanctioned in their favour and they
intentionally and deliberately excluded the respondents--Validity---Where the provision
of S.4 of Muslim Family Laws Ordinance, 1961, was very much in the field at the time of
attestation of mutation, the principle laid down in the judgment of FSC would not be
applicable to the instant case as the judgment had to take effect from
31-3-2000---Petitioners deliberately and knowingly got the names of the respondents
omitted from the aforesaid mutation, such act on the part of the petitioners was not
appreciated by Supreme Court---
Held: Appeal against the judgment passed by Federal Shariat Court was pending
adjudication before Supreme Court, the decision of the Federal Shariat Court would not
be attracted till the disposal of the appeal---Leave to appeal was refused.
PRAYER

In light of the issues raised, arguments advanced and authorities cited, the counsels for
the Respondent humbly prays that the Hon’ble Court be pleased to adjudge, hold and
declare:
I. That if this honourable Court finds provision repugnant to the injunctions of Islam,
the notice / recommendations be made to the Federal Government, specifying the
extent of repugnancy and affording to the Government adequate opportunity of
representation before this Court.

II. That the petition be dismissed.

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