A SUCCESSION PROBLEM: IBRAHIIM V. NEHMAT BI1

A SUCCESSION PROBLEM: IBRAHIIM V <!--[if gte mso 10]> A SUCCESSION PROBLEM: IBRAHIIM V. NEHMAT BI1 By Lucy Carroll* A succession case recently decided by a single Judge of the Lahore High Court, Ibrahim v. Nehmat Bi, [1] is intriguing because the two revenue officials and three Courts (including the High Court) by which the matter was considered reached five different conclusions regarding the manner in which the property should be distributed among the claimants. The property in contention originally belonged to Ilam bin, who died .in 1947. Members of the family are detailed in the diagram below, which has been adapted from that given in the judgment. [2] The parties are presumed to be Hanafis. Nizam Din (d. pre-1947) | _______________________________________________________________________________________________ |________________________________________________________________________________________________ | | | Mst. Sammo Mirza Ilam Din---Mst. Nehmat Bi (d.1954) (d.1944) (d.1947) (d.1987) | | | | Sardar Khan Mst. Fatima Bi | (d.1942) ____________|________ | | | | | | | | | Muhammad Mst. Fazal Mst. Said 4 sons Fazil Begum Begum (d.post-1954) (d.pre-1954) | | | | 1 son 2 sons Under the customary law then in force, on the death Of Ilam Din his widow, Nehmat Bi, took a life interest in the property, which she continued to enjoy until the coming into force of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. The 1962 Act declared Muslim Personal Law applicable to Muslims in all questions regarding inter alia succession notwithstanding any contrary custom or usage (section 2); terminated the limited estates then held by Muslim females under customary law (section 3); and provided for the distribution of the property held by Muslim women under customary * Center for Asian Studies, University of Texas, Austin, Texas, U.S.A. 78712. law among the heirs of the last full owner (section 5). The relevant provisions of section 5 read:-‑ The life estate terminated under section 3.... shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) Act upon the death of the last full owner ..` 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.... By virtue of the 1962 Act, the limited estate held by Nehmat Bi terminated on 31 December 1962, and the property fell to be distributed as if the last full owner (her husband, Ilam Din) had died on this date. The Act of 1962 protected the interests of any individual who would otherwise have been an heir to the last full owner but who had died prior to the opening of succession on the termination of the intervening limited estate held by a female. Meanwhile, in 1961, the Muslim Family Laws Ordinance had been promulgated; section 4 significantly altered the law of succession applicable to Muslims by securing to the 'orphaned grandchild' of the propositus the share which the grandchild's parent would have taken if alive at the time of the death of the propositus. Section 4 of the 1961 Ordinance reads: In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive. The major claimants to the estate of Ilam Din were:-‑ (a) his widow (Mst. Nehmat Bi);. (b) four grandsons (sons of his predeceased daughter, Mst. Fatima Bi); [3] (c) the heirs of his agnatic sister (Mst. Sammo), who although deceased when succession opened in 1962, had been alive at the time of her brother's death in 1947; [4] and (d) a son (Sardar Khan) of a pre-deceased brother (Mirza). [5] The first" step is to identify those persons Who (or whose legal heirs) are entitled to participate in the distribution of the estate and their respective shares. The shares allocated to the various claimants by revenue officers and Courts who successively dealt with the dispute are set out below in tabular form, to which is appended my solution. widow Predeceased Sister Brother's daughter's - son Revenue Officer 1/4 0 1/2 1/4 Collector 1/2 1/4 0 Trial Court 1/8 7/16 7/16 0 District Court 0 1/2 1/4 High Court 1/8 7/16 7/16 0 Present author 1/8 1/2 3/8 0 The distribution ordered by the Revenue Officer and the District Court is correct on the assumption that section 4 of the Muslim Family Laws Ordinance did not apply to .the situation. As the succession opened when the limited estate terminated in 1962 and at a time when the Ordinance was in force, and as the 1962 Act expressly states that the application of Muslim Personal Law (Shariat) shall be 'subject to the provisions of any enactment for the time being in force, [6] there is little scope for contending that the Ordinance of 1961 is not applicable. The Collector, the trial Court, and the High Court all correctly recognised that the children of the peg deceased daughter were entitled to some share in the estate of the grandfather. A difference of opinion is apparent between the Collector on the one hand, and the trial and High Courts on the other, over the question of whether the resurrected child affects the share taken by the surviving spouse. The Collector allowed the widow the full 1/4 share that would fall to her in the absence of child or agnatic grandchild; the trial Court and the High Court awarded the widow only the 1/8 share which she would take in the presence of a child. Much more curious is the allocation of the remaining portion of the estate between the (resurrected) daughter and the agnatic sister. The Collector gave the daughter her lull Quranic share of 112, with the residue going to the agnatic sister; since he gave the widow a share of 1/4, the residue remaining was 1/4. (If the widow had been_ given 1/8, the residue available for the sister to claim would have been 3/8.) Both the trial Court and the High Court gave the resurrected daughter and the agnatic sister each one-half of what remained after deducting the widow's share of 1/8. Thus the daughter was awarded 7/16 instead of her Quranic share of 1/2 (8116). No explanation of this calculation is provided in the reported judgment, and I would submit that it is incorrect. The presence .of an agnatic sister does not operate to reduce the Quranic entitlement of a, female agnatic descendant, When she in present (on her own and unaccompanied by her male counterpart) with a daughter or son's daughter, the agnatic sister participates in the' inheritance as if she were a brother of equal blood (i.e. as an agnatic heir entitled to claim any residue remaining after the Quranic shares have been awarded), rather than as a Quranic heir entitled to a specified share. In her capacity as female agnatic heir, the sister ousts any male agnate whom her brother would have excluded (e.g., in the present situation, she excludes the brother's son). Since in the Present case the. Quranic shares of the widow and daughter total 5/8, the residue available for the sister to take is 3/8. [7] The next step concerns the distribution of the share allotted to the sister, who had died in 1954, i.e. after the death of Ilam Din but before succession to the property opened. According to section 5 of the 1962 Act, her share devolves in accordance with Muslim Personal Law on such persons as would have succeeded her, if she had died immediately. after the termination of the life estate held by Met. Nehmat Bi. [8] The relatives of Mst. Sammo who were alive in 1962 when succession opened were her daughter (Mat. Said Begum), two grandsons through a predeceased daughter (Mst. Fazal Begum), and (possibly) a son (Muhammad Fazil). Muhammad Fazil survived his mother but died subsequently on a date unspecified, whether before or after 1982 being unclear; however, given the terms of the Muslim Family Laws Ordinance and the fact that he left a child (a son, Gul Muhammad), the actual date of his death is not material. As he was apparently alive at the time of the decisions of the trial and District Courts, [9] he is treated as alive for purposes of the present discussion. The shares allocated to the heirs of Mst. Sammo by the revenue officers and Courts are set out below in tabular form, to which is appended my solution. Share allocated to Mst. Sammo Division of Mst. Sammo's share (expressed as share of total estate of Ilam Din) Son daughter predeceased daughter's sons Revenue Officer 1/2 could be decided in favour of her level heirs Collector 1/4 ditto Trial Court 7/18 14/48 7/48 0 District Court 1/2 1/4 1/8 1/8 High Court 7/16 14/64 7/64 7/64 present author 3/8 6/32 3/32 3/32 Ironically, although the trial Court held that the Muslim Family Laws Ordinance entitled the children of the predeceased daughter of Ilam Din to share in his estate, it obviously did not consider the Ordinance in distributing the share that fell to Met. Sammo among her heirs and failed to allow the children of her predeceased-daughter to participate in their grandmother's estate. By the terms of the Act of 1962, succession to that portion of Mst. Sammo's estate comprising her share in the property of Ilam Din opened in 1962, at which time the 1961 Ordinance was in force. Section 4 of the Ordinance applies to the property passing to Mst Sammo on the termination of the limited estate held, by Mst. Nehmat Bi no less than to the estate of Ilam Din itself. The differences between the results as calculated by the District Court and the High Court are a function of their earlier disagreement concerning the share allotted to the sister. Finally, Ilam Din's widow, Mst. Nehmat Bi, died in 1987 and her shade of her husband's estate fell to be distributed. Given the date of her death, this question was only raised before the High Court. Prior to her marriage with Ilam Din, Mst. Nehmat Bi had been married to another man; [10] she had a son by this former marriage, Gul Muhammad. In regard to the distribution of Mst. Nehmat Bits estate, the High Court declared without further explanation: 'Gul Muhammad, as her only surviving son, succeeded to the property left by her.' [11] But Mst. Nehmat Bi left, in addition to her son, her grandsons by her predeceased `daughter, who are entitled under the 1961 Ordinance to a share of their grandmother's estate. Thus Gut Muhammad, as the son of Mst. Nehmat Bi, is entitled to 2/3 of her estate, with the remaining 1/3 divided equally among her four grandsons. In each case, of course, the shares are to be added to those already taken from the estate of Ilam Din, Note that in all three circumstances in which section 4 of the Muslim Family Laws Ordinance applied in the context' off this case, The predeceased child (the predeceased daughter of flaw Din, the predeceased daughter of Mst. Sammo, and the predeceased, daughter' of Mst. Nehmat Bi) had left a son. Thus it might appear that there was no occasion for the Court to consider the conflicting interpretations of that section found in Mst. Zarina Jan v. Mst. Akbar Jan [12] and Kemal Khan v. Mst. Zainab, [13] and no opportunity for the Lahore Court to reconsider its ruling in the latter case. [14] However, although the point was apparently not argued, it might be observed that if the (to my wind, erroneous [15] method of distribution adopted by the Lahore High Court in Kamal Khan v. Mst. Zainab were applied to the facets of the case, Mst. Nehmat Bi, as the mother of Fatima Bi, would have taken 1/6 of the share nominally awarded to her daughters'. In none of the three decisions, in which the applicability of section 4 of the Ordinance to the situation was recognised, was such a calculation undertaken. The result of applying the Khamal Khan interpretation of section 4 of the Ordinance to the distribution of Ilam Din s estate would have been to increase Mst. Nehmat Bi s share to 5/24 (assuming she were originally given 1/8, as per the trial Court), or to 1/3 (assuming she were originally given 1/4, as per the Collector). It is remarkable that the dispute behind the Ibrahim v. Behmat Bi litigation continued for a decade and a half; that two revenue authorities and three Courts gave decisions in the matter; that no two decisions coincide; and that the final decision is not totally satisfactory. Law teachers might find in this real-life drama a challenging problem assignment for their students. [1] P L D 1988 Lah. 186. [2] Ibid., p.188. [3] S. 4, Muslim Family laws Ordinance, 1961. [4] S. 5, West Pakistan Muslim Personal Caw (Shariat) Application Act, 1962. [5] The brother had died in 1944, predeceasing Ilam Din. Thus, he would not have been an heir at the time of Ilam Din's death and had no claim to the estate under the 1962 Act. The 1961 Ordinance only protects the interests of descendants of predeceased 'children, not those of descendants of any predeceased collateral relation. The brother's son could only succeed as the nearest male agnatic heir and would take nothing if ousted by the agnatic sister functioning as an agnatic heir in the presence of the resurrected daughter. Thus, he could only succeed if S.4 of the Muslim Family Laws Ordinance were held inapplicable. [6] Section 2. [7 For a discussion of Hanafi intestate succession see Lucy Carroll, "The anafi Law of Intestate Succession: A Simplified Approach," (1983) 17 Modern Asian Studies 629-670. See also Lacy Carroll, "The Ithna Ashari Law of Intestate Succession: An introduction to Shia Law Applicable in South Asia," (1985) 19 Modern Asian Studies 85-124. [8 Contrary to the situation regarding heirs of the last full owner, there is no provision in the 1962 Act saving the interests of any individual who would' have been an heir to an heir of the last full owner at the time of that heir's death but who died prior to the opening of succession. [9] Or was at least treated as if he were alive; reference might have been made to the date of Mst. Samo's death in 1954, rather than to the opening of succession in 1962. [10] None other than Muhammad Fazil son of Mst. Sammo; Mst. Nehmat Bi was the mother of Muhammad Fazil's son who is shown on the genealogical table. [11] Supra note I. p. 190. [12] P L D 1175 Pesh. 252. [13] P L D 1983 Lah. 546. [14] In both these earlier eases the competition was between the daughter of a predeceased child and a collateral who would have been an heir to the predeceased child in the absence of a son of that child. [15] See Lucy Carroll, 'Succession of Orphaned Grandchildren in Pakistan: Conflicting Judgments of the Method of Calculation,' (1984) 4 Is. C.L.Q. 247-250. ***