Whether predeceased daughter’s legal heirs, who died before the promulgation of Muslim Family Laws Ordinance, 1961, are entitled to inherit the estate of their grandfather who died after the promulgation of “Ordinance 1961” in terms of section 4 of the Ordinance, 1961.?

Undeniably, under the Islamic Sharia, predeceased children are not entitled to any inheritance as only the survivors to a deceased are entitled to inheritance. In the year 1961, the Muslim Family Laws Ordinance, 1961 was promulgated on 15.07.1961 and was commenced after issuance of Notification which was published in PLD 1961 Central Statutes at Page 337, wherein section 4 was introduced, by virtue of which, legal heirs of pre-deceased son or daughter of propositus would be entitled to inheritance on re-opening of the succession.

There is no cavil with the proposition that section 4 of the Ordinance, 1961 has no retrospective effect.

The words “In the event of death of any son or daughter of propositus before the opening of succession” appearing in Section 4 of the Ordinance, 1961 are very important.

Grandchildren are entitled to receive share equal to the share of their mother or father in view of section 4 of the Ordinance, 1961 irrespective of the fact their mother or father died before or after the promulgation of the Ordinance, 1961 and the only condition is that the succession should be open after the promulgation of the Ordinance, 1961.

Therefore, there is no doubt in my mind that it is not the requirement of Section 4 of the Muslim Family Law Ordinance, 1961 that the occurrence of death of the son or daughter of propositus as well as opening of succession should both take place subsequent to the promulgation of the Ordinance, 1961. The only requirement of section is that succession should open after the Ordinance is brought into effect. Section 4 is made applicable when succession of propositus opens and it is an established principle of Muslim Law that the succession of a Muslim opens the moment he dies.

It is settled law that no limitation runs against a wrong entry, mutation is also not a starting point of limitation. In a matter of inheritance, the limitation does not preclude a person to get his share from inheritance.

Civil Revision No.213-D of 2004.
Ghulam Farid, etc. Versus. Ahmad Khan, etc.