Law:

Section:

(a) Islamic law--- ----Inheritance---Sharer and residuary---Predecessors in interest of parties were four brothers (‘A’, ‘B’, ‘C’ and ‘D’)---Petitioners were successors of ‘A-1’ and ‘A-2’, who were sons of ‘A’ whereas the respondents were the successors of ‘B’---Inheritance of ‘A-3’ was devolved upon her mother ‘A-4’, her paternal uncle ‘B’, and her brothers ‘A-1’ and ‘A-2’ through impugned mutation---Petitioners filed suit challenging the said mutation to the extent of ‘B’ on the ground that the legacy of ‘A-3’ could not be devolved upon her paternal uncle ‘B’ in presence of her brothers ‘A-1’ and ‘A-2’; that alienation of property in favour of ‘B’ was against facts, laws and Sharia and inoperative upon their rights---Trial Court decreed the suit---District Court accepted the appeal of respondents on grounds that petitioners had not been able to prove that ‘A-1’ and ‘A-2’ were brothers of ‘A-3’ and that suit was barred by law---Validity---Name of ‘A-3’ had not specifically been mentioned in pedigree table being daughter of ‘A’, and her mother ‘A-4’ did not figure in inheritance mutation, but it did not mean that ‘A-3’ was not the daughter of ‘A-4’---Admittedly, controversy was in respect of the inheritance of ‘A-3’, therefore, the arguments of respondents that ‘A-3’ was not daughter of ‘A-4’ from her earlier husband and ‘A’ was not her real father had got no relevance as neither such fact was categorically mentioned in their written statement nor any such evidence was available on record---Factual aspect could not be allowed to be taken/asserted for the first time before High Court---It was undisputed that property of ‘A-3’ was in question and the fact that by whom she inherited the same was irrelevant---Once legal heirs of ‘B’ asserted that ‘B’ was paternal uncle of ‘A-3’ then they were estopped to say that ‘A’ was not real father of ‘A-3’ because ‘A’ and ‘B’ were real brothers and ‘B’ could only be the paternal uncle of ‘A-3’ if she was the daughter of ‘A’---One could not be allowed to approbate and reprobate as the respondents could not blow hot and cold in the same breath---When ‘A’, ‘B’, ‘C’ and ‘D’ along with ‘A-1’ and ‘A-2’ were named in the inheritance…

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