2022 PLP 367 (YLR)

CH. MUHAMMAD IQBAL, J.

Through this civil revision, the petitioners have challenged the judgment and decree dated 17.05.2017, passed by the learned Civil Judge, Multan whereby the suit for declaration filed by the respondents was decreed and the judgment and decree dated 08.01.2019, passed by the learned Additional District Judge, Multan who dismissed the appeal of the petitioners.

2. Brief facts of the case are that Mst. Amreen Mai daughter of Sahib Yar and Muhammad Abbas son of Haq Nawaz, respondents/plaintiffs, filed a suit for declaration against the petitioners/ defendants alleging therein that their father Sahib Yar son of Elahi Bukhsh was resident of Moza Tatepur Tehsil and District Multan, died in 1943 leaving behind Mst. Siani Mai, widow, one daughter Amreen Mai (plaintiff) and two sons namely Ghulam Shabbir, defendant No.2 and Allah Ditta, defendant No.1. Sahib Yar was owner of land measuring 744 Kanal 19 Marla, fully described in headnote of the plaint. The defendants Nos.1 and 2 deprived the respondents/ plaintiffs from her legal inheritance and recorded mutation No.307 dated 17.12.1943 by concealing the rights of Mst. Siani Mai, widow as well as the plaintiffs and entire property of Sahib Yar deceased was got transferred in equal share in favour of his two sons/ defendants. The petitioners/defendants filed contested written statement and contended that as per customary law, the legacy of Sahib Yar deceased was transferred in their favour, as such, the impugned mutation was rightly entered. The learned trial Court framed issues, recorded pro and contra evidence of the parties and finally decreed the suit vide judgment and decree dated 17.05.2017. The petitioners filed an appeal which was dismissed by the learned appellate Court vide judgment and decree dated 08.01.2019. Hence, this civil revision.

3. I have heard the arguments of learned counsel for the parties and have gone through the record with their able assistance.

4. As per record, Sahib Yar deceased was the owner of the suit land. Mst. Ameeran Mai, respondent/plaintiff, is real daughter of Sahib Yar deceased but she was deprived from her share in the estate of her father mere on the basis of some Customs prevailing at that time, she was not given share from the legacy of Sahib Yar. Admittedly the parties to lis are Muslims by faith and followers of Quran and Sunnah. As per the Constitution of the Islamic Republic of Pakistan, 1973, the principles of Quran and Sunnah are declared as supreme law of this country and all provisions, rules, regulations are to be legislated and framed within the precincts of Islamic principles. For reference Article 227 of the Constitution of Islamic Republic of Pakistan is reproduced as under:--

227. Provisions relating to the Holy Quran and Sunnah.

(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions. 1[Explanation.-In the application of this clause to the personal law of any Muslim sect, the expression "Quran and Sunnah" shall mean the Quran and Sunnah as interpreted by that sect] (2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part. (3) Nothing in this Part shall affect the personal laws of non-Muslim citizens or their status as citizens. Admittedly the predecessor-in-interest of the parties of the lis as well as the parties themselves are Muslims and principles of Quran and Sunnah are manifestly applicable and shares of each and every inheritor has conclusive and universally been prescribed therein. Allah Almighty has ordained the Muslims to decide their dispute as per Quran (Shariah) as described in following verses: The rights or shares of each and every Muslim inheritor in the estate of his/ her deceased propositus is absolutely, conclusively and finally described/ determined in the Holy Quran which shares are definite in nature. It is expedient to take guidance from the Holy Quran, particularly from Surah tul Nisa Ayat Nos.7 to 11, English and Urdu translation whereof (by Marmaduke Pickthall) is reproduced as under:-

7. Unto the men (of a family) belongeth a share of that which parents and near kindred leave, and unto the women a share of that which parents and near kindred leave, whether it be little or much. A legal share.

8. And when kinsfolk and orphans and the needy are present at the division (of the heritage), bestow on them therefrom and speak kindly unto them.

9. And let those fear (in their behaviour toward orphans) who if they left behind them weak offspring would be afraid for them. So let them mind their duty to Allah, and speak justly.

10. Lo! Those who devour the wealth of orphans wrongfully, they do but swallow fire into their bellies. And they will be exposed to burning flame.

11. Allah commands you concerning (the provision for) your children; to the male the equivalent of the portion of two females, and if there be only women more than two, then theirs is two-thirds of the inheritance, and if there be one (only) then for her is the half. And to each of his parents a sixth of the inheritance, if he have a son; and if he have no son and his parents are his heirs, then to his mother appertaineth the third; but if he have brethren, then to his mother appertaineth the sixth, after any legacy he may have bequeathed, or debt (hath been paid). Your parents and your children: Ye know not which of them. is nearer unto you in usefulness. It is an injunction from Allah. Lo! Allah is knower, Wise. Further in Surah tul Nisa, it has been ordered as under:-- Further in Sahi Bukhari Sharif Vol.III, relevant at Page No.606 Chapter No.922 the shares of the legal heirs have also been described as under:- Moreover according to section 2 of the Muslim Personal Law Shariat Application Act, 1937, the Shariat Laws were made applicable where the parties are/were Muslims. Section 2 of the Act ibid is reproduced as under:

2. Application of Personal Law to Muslim.

Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubarat maintenance, dower, guardian-ship, gifts, trusts and trust properties, and wakfs other than charities and charitable institutions and charitable and religious endowments the rule of decisions in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)

5. Admittedly, the suit land was owned by Sahib Yar deceased and Mst. Ameeran Mai, being real daughter of Sahib Yar, is entitled to receive her share in the estate of her deceased father. Sahib Yar was Muslim and his property was liable to be devolved upon his legal heirs as ordained by Allah Almighty in Holy Quran but the petitioners/defendants in contravention of commandments of Allah as well as the law on the subject illegally deprived Mst. Ameeran Mai from her accrued share in the estate of her father.

6. The practice of depriving of the females from their accrued right of inheritance has seriously been deprecated by the Hon'ble Supreme Court of Pakistan in a landmark judgment, cited as Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Relevant part of the judgment (supra) is reproduced as under: " ..As is discussed in the case of Haji Nizam (approved in Mohammad Bashir's case) which was also a case of clash of Islamic principles against those of other systems-a widowed daughter-in-law, seeking main-tenance for her minor child against the grandfather, it is the duty of the Courts within the permissible fields, as specified therein, to enforce Islamic law and principles. This case also required similar, if not better, treatment. The scope of rights of inheritance of females (daughter in this case) is so wide and their thrust so strong that it is the duty of the Courts to protect and enforce them, even if the legislative action for this purpose of protection in accordance with Islamic Jurisprudence, is yet to take its own time. In the rural areas where 80% of the female population resides, the inheritance rights of the females are not as protected and enforced, as Islam requires. Cases similar to this do come up even to Supreme Court. In a very large majority of them the Courts act rightly and follow the correct rules. But it is a wide guess as to how many females take the courage of initiation or continuing the legal battle with their close one in matters of inheritance, when they are being deprived. The percentage is very low indeed. Neither the Courts nor the law as at present it stands interpreted, are to be blamed. The social organizations including those in the legal field are yet to show up in the rural area. They are mostly managed by Urban volunteers. When will they be able to move out of mostly managed by Urban volunteers. When will they be able to move out of sophisticated methods of American speech/ seminar system and all that goes with it, in the enlightened urban society? It is a pity that while an ubranised brother, who is labourer in a neighbouring Mill, has the protection of such mass of Labour Laws; which sometimes even Courts find it difficult properly to count-right from the definition of 'rights', up to the enforcement' even in homes, through 'Social Security' Laws, with web of network of 'Inspectorates' etc. who are supposed to be helping him at every step, his unfortunate sister, who is deprived of her most valuable rights of inheritance even today by her own kith and kin-sometimes by the urbanized brother himself, is not even cognizant of all this. She is not being educated enough about her rights. Nearly four decades have passed. A new set up is needed in this behalf. Social Organizations run by women have not succeeded in rural field. They may continue for the urban areas where their utility might also be improved and upgraded. At the same time they need to be equipped with more vigorous training in the field of Islamic learning and teachings. They should provide the bulk of research in Islamic Law and principles dealing with women. It is not the reinterpretation alone which is the need of the day but a genuine effort by them for the reconstruction of the Islamic concepts in this field. It cannot be achieved by the use of alien manner or method alone." The above said principle has been reiterated by the Hon'ble Supreme Court of Pakistan in a recent judgment cited as Farhan Aslam and others v. Mst. Nuzba Shaheen and another (2021 SCMR 179), as under:-- "5. ... Violating the law of inheritance, which in the case of Muslims is the shariah, and exploiting the most vulnerable members of society is wholly unacceptable. An heir inherits property to the extent of his/her share the very moment his/her predecessor passes away. But, the petitioners have audaciously managed to deprive the respondents of their inheritance from Mansab Khan.

6. Almighty Allah commands: 'Let those (disposing of an estate) have the same fear in their minds as they would have for their own if they had left a helpless family behind; Let them fear Allah, and speak words of appropriate (comfort).' 'Those who unjustly eat up the property of orphans, eat up a fire into their own bodies: They will soon be enduring a Blazing Fire.' (Respectively verses 9 and 10 of surah An- Nisa (4), translated by Abdullah Yusuf Ali, 'The Holy Qur'an, Translation and Commentary'.)

7. In the present case a widow and an orphan ('yatama' in Arabic) were deprived of their inheritance for over sixteen years which must have been excruciatingly painful for them. The petitioners did not abide by the aforesaid verses and forgot what had been made incumbent: 'And come not nigh [near] to the orphan's property, except to improve it'. (Verse 152 of surah (6) Al-Anam of the Holy Qur'an, translation by Abdullah Yusuf Ali, 'The Holy Qur'an Translation and Commentary'.) If the petitioners had remembered that they too will face Ultimate Justice they may have acted better.

8. The Constitution of the Islamic Republic of Pakistan (the 'Constitution')' safeguards property (including inherited property) under Article 24(1) of the Constitution and protection of women and children is guaranteed by Article 25(3) of the Constitution. The Constitution sets out the goals which the people of Pakistan have set out for themselves in the 'Principles of Policy', which include the protection of 'mother and the child' (Article 35) and require the 'promotion of social justice and eradication of social evils' (Article 37). Depriving a mother and her child from their inheritance does not protect them but preys on them. Such conduct is a prevalent social evil and inherently unjust. It is expected that the organ and authority of the State will act in accordance with the Principles of Policy as provided by Article 29(1) of the Constitution. Therefore, claims by orphans and widows alleging that they have been deprived of their inheritance must be expeditiously decided by the concerned organ and authority of the State, including the courts.

9. The revenue authorities must also be extra vigilant when purported gifts are made to deprive daughters and widows from what would have constituted their shares in the inheritance of an estate. The concerned officers must fully satisfy themselves as to the identity of the purported donor/transferee and strict compliance must be ensured with the applicable laws, as repeatedly held by this Court, including in the cases of Islam-ud-Din v. Noor Jahan (2016 SCMR 986) and Khalida Azhar v. Viqar Rustan Bakhshi (2018 SCMR 30). Purported gifts and other tools used to deprive female family members, including daughters and widows, are contrary to law (shariah in such cases), the Constitution and public policy. In Abid Baig v. Zahid Sabir (2020 SCMR 601) this Court reiterated what it had held thirty years earlier in the case of Ghulam Ali v. Mst. Ghulam Sarwar Naqvi (PLD 1990 Supreme Court 1), as under:

11. We cannot be unmindful of the fact that often times male members of a family deprive their female relatives of their legal entitlement to inheritance and in doing so shariah and law is violated. Vulnerable women are also sometimes compelled to relinquish their entitlement to inheritance in favour of their male relations. This Court in the case of Ghulam Ali had observed that 'relinquishment' by female members of the family was contrary to public policy and contrary to shariah. It would be useful to reproduce the following portion from the decision of this Court: "Here in the light of the foregoing discussion on the Islamic point of view, the so-called "relinquishment" by a female of her inheritance as has taken place in this case, is undoubtedly opposed to "public policy" as understood in the Islamic sense with reference to Islamic jurisprudence. In addition it may be mentioned that Islam visualised many modes of Civil Petition No. 4459 of 2018 5 circulation of wealth of certain types under certain strict conditions. And when commenting on one of the many methods of achieving this object, almost all commentators on Islamic System agree with variance of degree only, that the strict enforcement of laws of inheritance is an important accepted method in Islam for achieving circulation of wealth. That being so, it is an additional object of public policy. In other words, the disputed relinquishment of right of inheritance, relied upon from the petitioner's side, even if proved against respondent, has to be found against public policy. Accordingly the respondent's action in agreeing to the relinquishment (though denied by her) being against public policy the very act of agreement and contract constituting the relinquishment, was void." Keeping in view the aforesaid facts and circumstances of the case, the learned trial Court rightly decreed the suit of the respondents/plaintiffs which decision was justly upheld by the learned appellate Court.

7. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity, misreading and non-reading of evidence in the impugned judgments and decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioners which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).

8. Resultantly, this civil revision being devoid of any merit is hereby dismissed with cost throughout. SA/A-84/L Petition dismissed.