2000 PLP 2580 (YLR)

Date of hearing: 29th May, 2000. The petitioner is widow of Muhammad Akbar having no issue from him. Apparently, the parties are governed by Fiqa Jafaria. The petitioner feels aggrieved of her exclusion from the estate of Said Muhammad Akbar which admittedly comprises of agricultural land.

2. Learned counsel for the petitioner contends that there is no law that warrants exclusion of the petitioner from inheriting agricultural land belonging to late husband. Also relies on Articles 4 and 25 of the Constitution in support of this writ petition. Learned counsel for the respondents, on the other hand, argues that under the Fiqa Jafaria a childless widow does not inherit agricultural land.

3. The matter has been brought to rest in the case of Syed Muhammad Munir (represented by 10 heirs) and another v. Abu Nasar, Member (Judicial), Board of Revenue, Punjab, Lahore and 7 others (PLD 1972 SC 346). In the said case, inter alia, the Supreme Court of Pakistan dealt with following contention raised on behalf of the widow :- "Learned counsel for the respondents also contend that the Shia Rule of inheritance relied upon by the appellants for the exclusion of a 'childless widow' should not be accepted, as it is not in conformity with the text of the Holy Qur'an."

4. After reference to some decide cases, particularly the case of Faiz Rab Khatoon Bibi and othres (ILR 25 All. 29 Mst. Asloo v. Mst. Umdutoonnissa (120 V 297) and the original text of Shia schola particularly Syed Amir Ali, the Supreme Court observed as follows:‑‑‑ "In view of this difference in interpretation of the Qur'anic itself, we feel that it would not proper on our part at this state attempt to put our own construct: in opposition to the express ruling commentators of such great antiquity and high authority. To depart from a rule of succession which the Shia community has universally been following ever since the days of Imam Jafar Sadek, as evidenced by the unanimous opinions of the Shia Jurists on this point, would be wrong. It is not open to us to change a settled rule of succession, having the force of 1jma behind it at this late stage. If a change is desired to be made this work should be undertaken by the Legislature itself after consulting the Shia Community. We can only point out that the Urdu translation given by Allama Mufti Syed Tyeb Agha Musavi Jazairi does not tally with the English translation given by S.V. Mir Ahmed Ali, another eminent/Shia Scholar. This rule has, it appears, also been consistently followed by the Courts in this . sub‑continent since the decision of the Calcutta High Court in Mst. Asloo v. Mst. Umdutoonnissa. It was affirmed by the Privy Council in 1897 in the case of Aga Muhammad Jaffer Bindaneem v. Koolsom Bee Bee. The Allahabad, Madras and Patna High Courts have also followed it in Umardraz Ali Khan v. Wilayat Ali ILR 19 Al1.169, Durga Das v. Nawab Ali ILR 48 All. 557, Mir Ali Hussain v. Sajuda Begum ILR 21 Mad. 27 and Syed Ali Zamin v. Syed Muhammad Akbar Ali Khan ILR 7 Pat.

426. Indeed no decision to the contrary has been brought to our notice." In view of the said legal position emanating from the said judgment of the apex Court of I the country I do not find that the impugned mutations suffer from any legal or jurisdictional defects. This writ petition is accordingly dismissed leaving the parties to bear their own costs. Q.M.H./M.A.K./S‑57/L Petition dismissed.