Mst. BIBI KASHAF vs Syed PIR AMEER ALI SHAH S — 2026 CLC 851 BOARD-OF-REVENUE-SINDH

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Mst. BIBI KASHAF VS Syed PIR AMEER ALI SHAH S. 4---Sindh Land Revenue Act (XVII of 1967), S.42---Constitution of Pakistan, Arts. 189 & 201---Inheritance---Children of a predeceased son or daughter of propositus---Entitlement of per stirpes share---Scope---Cancellation of mutation entries including those of inheritance---Revenue authorities, powers / responsibilities of---Scope---Children of predeceased son and daughter were aggrieved of cancellation of multiple inheritance mutations and ordering of fresh fotikhata---Validity---Section 4 of Muslim Family Laws Ordinance, 1961 (MFLO 1961) is a benevolent reform that engrafts representation for children of a predeceased son or daughter to take per stirpes the share their parent would have taken if alive when succession opened; the Supreme Court in Mst. Fazeelat Jan v. Sikandar (PLD 2003 SC 475) reaffirmed that S.4 remains operative (pending decision of the Shariat Appellate Bench on the Federal Shariat Court's earlier view) and governs succession accordingly---Earlier, in Kamal Khan v. Mst. Zainab (PLD 1990 SC 1051), the Supreme Court recognized the legislative policy underlying Section 4 and addressed how the representational share is to be worked per stirpes so that the orphaned grandchildren do not exceed the quantum their predeceased parent would have obtained---Most recently, the Supreme Court in Kalsoom Begum v. Peran Ditta and others (2022 SCMR 1352) clarified two points of continuing relevance: (i) Section 4 continues to be the subsisting law of Pakistan unless and until the Shariat Appellate Bench holds otherwise, and (ii) the doctrine of representation does not extend beyond grandchildren (i.e., great-grandchildren are not covered by S.4)---Said pronouncements are binding under Art.189 of the Constitution; and High Court decisions declaring/implementing these principles bind revenue authorities within the province under Art.201---Revenue forums cannot ignore or whittle down the effect of such judgments---It is well established law of inheritance in Sharia that the succession opens at the time of death of propositus---In the present case, when the propositus died (more than eight years ago on 17-01-2017); one of his predeceased sons could not inherit; but his children (including the present applicant) inherit per stirpes under S.4---By contrast, the widow of the said predeceased son ,not being a "child" within S.4, does not inherit directly from the propositus---Likewise, one predeceased daughter of the propositus will not inherit, but her children would inherit per stirpes---It is trite that mutation entries are fiscal in nature; they neither create nor extinguish title; they exist to keep land revenue records in line with pre-existing rights, usually established under personal law or by competent civil court orders---Therefore, wholesale cancellation of inheritance mutations, without pinpointing a specific legal infirmity and without conforming them to declared rights, is impermissible---Section 42 of the Sindh Land Revenue Act, 1967 provides the procedural mechanism for making/altering entries on proof of acquisition of rights (including fotikhata); which provision does not authorize ignoring binding judicial determinations or statutory entitlements such as S.4 of MFLO, 1961; it requires the revenue officer to record the correct legal succession---Even assuming that revisional/oversight jurisdiction could be invoked to correct a mutation, such jurisdiction must be exercised judiciously, lawfully, and with cogent reasons---Section 4 of (MFLO) 1961, being special statute having overriding effect over general law, is the controlling law in matters of inheritance---Member Board of Revenue set-aside the impugned order passed by the Additional Commissioner being not sustainable and having been predicated upon an incorrect premise overlooking the representation rights of a predeceased child, and ordering a "fresh fotikhata" without reference to S.4 of the MFLO by misdirecting himself in law and exceeding his jurisdiction---Consequently, children of predeceased son and daughter of propositus were held entitled for per stirpes share of predecessor (propositus)---Appeal, filed by daughter of predeceased son of propositus, was allowed accordingly.

Mst. BIBI KASHAF vs Syed PIR AMEER ALI SHAH S — 2026 CLC 851 BOARD-OF-REVENUE-SINDH

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