SUPREME COURT OF PAKISTAN (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑ Leave to appeal has been sought by the defendants' side; against the dismissal by the High Court, of their Civil Revision. The three petitioners are the sons of Ghulam Ahmed Shah and the respondent admittedly is his daughter and their sister. Ghulam Ahmed Shah died in or about 1903. He left landed property in different estates. Mutations were entered and sanctioned properly in other estates except one wherefor the mutation of inheritance No. 1231 was sanctioned on 20th July, 1963. The property involved therein, it is stated, was not much as compared to the remaining land which was duly mutated in favour of the Islamic heirs including the respondent/daughter. Her share in the land under mutation No. 1231 is stated to be only 7 kanals and 12 marlas. Her name was omitted from the pedigree‑table, made on this mutation. Accordingly she not having been treated as heir, was deprived of her Islamic share in her father's property covered by this mutation. According to learned counsel the petitioners' explanation for this discriminatory treatment of respondent's share only in one mutation, was based on the fact that the petitioners had spent nearly about Rs. 1,00,000 (one lac) on two marriages arranged by them for their sister‑ ‑there was intervening divorce. They also spent about Rs. 10,000 in a murder case wherein they were involved on account of said divorce. They further claimed some amount for maintaining her for about rive years. They have thus claimed that for these considerations the respondent relinquished her claim in the inheritance of her father in so far as it related to one estate only. Be that as it may, the suit flied by the respondent seeking her share in the land covered under the disputed mutation was dismissed by the trial Court, amongst others, on the ground of relinquishment. This finding of fact was set aside on appeal filed by her. The petitioners Civil Revision challenging the appellate order‑having been dismissed they have now sought leave to appeal. Learned counsel has raised the main contentions: that the petitioners have a strong moral claim to the suit property; that the findings of relinquishment rendered by the trial Court with implication of estoppel and waiver were wrongly set aside by the appellate Court by misreading and non‑consideration of evidence; that adverse possession/title matured in petitioners' favour; that the consideration going in favour of respondent based on co‑sharer-ship was not available to her, on account of her successful ouster; that the suit was badly time‑barred; and lastly that the land having been sold by the petitioners to third parties, their interest was involved in the case‑‑ they not having been impleaded, the respondent's suit should have been dismissed. The questions of limitation, adverse possession and ouster may, in one way, be disposed of with reference to recent decisions of this Court. The main argument of the learned counsel in this behalf is that the mutation sanctioned in 1903 against the respondent and her failure to challenge it for a long period would constitute such a conduct which would render the petitioners' possession as adverse to her. In answer to the query that she having become a co‑sharer immediately on the death of her father the plea of adverse possession against such a co‑sharer would not be available to the petitioners, learned counsel 'further contended that the mutation which was sanctioned against her interest together with her conduct of not challenging the same for a very long term, would constitute her ouster and that being so the plea of co -sharership in this behalf would stand repelled. This controversy now stands finally settled by a recent judgment of this Court. It was held in 'Haji v. Khuda Yar' (PLD 1987 Supreme Court 453) that a similar adverse entry and non‑participation in the profits of the property would not amount to an ouster. While taking note of the earlier case of Anwar Muhammad and others v. Sharif Din and others' (1983 S C M R 626) in extenso it was observed that "wrong mutation conferred no right in property as revenue record is maintained only for purposes of ensuring realization of land revenue". The suit in the said case was treated as having been "based on title and not for correction of revenue record". Accordingly it was not held to be a case of adverse possession and the suit was found to be within limitation. In the case of Anwar Muhammad the defendants in an inheritance case of similar nature, having failed in the High Court their plea of adverse possession and limitation was repelled by this Court with the following statement of facts, observations and findings:‑ The inheritance of Lakhwera was in dispute between the parties who are descendants from the same common ancestor. The plaintiff‑respondents claimed that as heirs they were, entitled to a particular share in this estate of Lakhwera and the mutations attested in 1907 and 1908 with regard to the devolution of his estate were not in accordance with the law. The petitioners resisted the claim not on the ground that the plaintiffs were not heirs of Lakhwera according to Shariat or that their shares were different from those claimed by them but on the ground that a suit for declaration was not competent as they were in possession of the suit land, and that it was hopelessly barred by time. A number of issues were framed and the two Courts dismissed the claim of the plaintiffs- respondents but in second appeal it was held that the plaintiffs- respondents admittedly held the land jointly with the petitioners and that their possession over the land was through their co‑sharers and the declaration of the property could be obtained by them and the Revenue record had to be consequently corrected to reflect it. The learned counsel for the petitioners has reiterated the points taken up earlier. His insistence is that in the Bahawalpur State before the enforcement of the Land Revenue Act, as the Settlement record shows, the settlement with regard to the payment of land revenue was made with those persons who were in cultivating possession over the land excluding altogether others who were out of such possession. It is contended that when Lakhwera died the petitioners were in possession of the land and were so recorded excluding the plaintiffs‑respondents. This the learned counsel for the petitioners wants to transform into principle of inheritance. Such a claim is based neither on custom nor on Shariat What law prevails in the matter of preparation of Revenue record o what practice is followed by the officers cannot be determinative of the devolution of the estate of a deceased person. It appears that‑ the plaintiffs‑respondents were the heirs of Lakhwera and entitled to inherit in the same manner as the petitioners. The land being joint there was no question of their remaining out of possession or the suit being time -barred. The possession of the one co‑sharer is for the benefit of all the other co‑sharers and a co‑sharer is deemed to be in possession through his other co‑sharers. Simply because the mutations were attested in 1907 or 1908 does not bless the transaction with sanctity. These mutations conferred no right in the property and are at best arrangements made on the fiscal side for ensuring realization of land revenue and ensuring the correctness of the Revenue record for that purpose." To the similar effect is the decision in 'Najabat and others v. Saba Bibi and others' (PLD 1982 Supreme Court 187). It was held in the circumstances of that case that the co‑sharers/co‑owners were not at all obliged to file a suit to seek a declaration to the effect that a mutation had wrongly been sanctioned ‑ It was also held that a suit filed, due to denial of rights of the plaintiff/co‑sharer, for declaration would be within time and the Revenue authorities on success of such suit would be required by law to correct the wrong mutation entries. As against this learned counsel has relied on an unreported judgment of this Court dated 22‑11‑1969 (Mst. Maqbool Jan alias Mst. Manzara v. Faqir Mohammad‑-Civil Petition for Leave to Appeal No. 37‑P of 1969 in which n o doubt a somewhat different view was taken with regard to the value of a mutation entry. The last owner in the, said case had died in 1932 and a mutation of inheritance based on custom was attested in the same year. The challenge to the same by a co‑sharer/successor failed amongst others on the limitation. There are distinguishable features‑particularly one that the said inheritance was under customary law. It is also doubtful whether in the circumstances of that case the decision was intended to operate as a law declared; and in any case, the law declared in the subsequent decisions of this Court al ready noticed, will govern the present case. As the question involved in this case relates to the claim of adverse possession and ouster by brothers against a sister, some more features of the legal controversy are to be examined, vis‑a‑vis, Islamic Law, Holy, Prophet (P.B.U.H.) in the Khitab at Hajjat-ul-Wada clearly declared some important rights of female, vis‑a‑vis, male. It is against the spirit of those rights, to hold that a brother can legally claim "adverse possession" against his sister and much less ouster". Under the new dispensation in Pakistan such a claim may not be entertainable at all without encountering jurisprudential hurdles. It is not for the first time that it is being, so held. Even earlier commentators on Islamic Law (its inheritance branch in particular) have indicated the same approach with reference to some decided cases. The heir in possession was considered to be in constructive possession of the property on behalf of all the heirs in Spite of his exclusive possession, e.g., the possession of the brothers would be taken to be the possession of their sisters, unless there was an express repudiation of the claims of the sisters by the brothers. Hyder Khan v. Chanda Khan (5011 C 691 (All). While dealing with express repudiation and ouster, it was observed that:" There cannot be ouster without a demand and a refusal, or without a clear declaration brought home to the knowledge of the co‑sharers that lesser profits were being paid because the others were being ousted from the remainder of the share A mere omission to pay profits does not in itself constitute ouster and still less so, when something, though not the whole, is paid. The mere partition among the males without reference to the female heirs does not mean‑much in the shape of ousting them from their rights. Circumstances may exist in which an inference of knowledge can be drawn, or in which the lachies or negligence of the co‑owners is so great that knowledge will be presumed but a case of that type would have to be exceptional. The law does not penalise a co‑owner who relies on the honesty of his co‑sharer, and therefore ordinarily the mere fact that he does not take the trouble to assert his rights as he may be entitled to, would not justify an inference of ouster." (Mohammad Aminuddin v. Md. Abdur Rahman 1941 N.L.J. 467). Dealing particularly with females it is to be noticed that: Where one is concerned with pardanashin Muslim females, different considerations apply from those that apply between adult males even as regards adverse possession. In the latter case if the possession is neither obtained by force nor by fraud nor in secret, it does not matter that it is in fact not known to the person against whom adverse possession is alleged. The law is satisfied if that person would have known had he been acquainted with what was going on in the world. In their case it is necessary to find not mere adverse possession but ouster. (Mt. Fardosjahan Begam v. Kazi Shafiuddin 1942 Nag 75, supra). It is again to be emphasised that on principle, in Islamic law it is not possible to accept the claims of co‑owners/inheritors when they are males and females together, the former seeking a right on the basis of adverse possession and ouster against the latter. The comments and precedents referred to above are only illustrative of a principle; which has to be restated more clearly. The main points, of the controversy in this behalf get resolved on the touchstone‑ of Islamic law of inheritance. As soon as an owner dies, succession to his, property opens. There is no State intervention or clergy's intervention needed for the passing of the title immediately, to the heirs. Thus it is obvious that a Muslim's estates legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. It is so notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic law. It is only when the property has thus vested in the heir after the succession opens, that he or she can alienate it in a lawful manner. There is enough comment and case‑law on this point which stands accepted. Reverting to the vesting of the property in a Muslim heir, as a corollary to what has already been said, it is further to be held that if the State, the Court, the clergy, the executor, the administrator does not intervene, no other body intervenes on any other principle, authority, or relationship ‑‑ even of kinship. Thus the brother, the father, husband, son or vice versa, does not or cannot intervenue as an intermediary. Here we arc dealing with the brother trying though illegally, as if a guardian‑in‑inheritance‑so‑called, of a sui juris sister, on allegedly "moral" basis, to oust her. It is clearly prohibited by Islam. The, females cannot be treated so in our system. And we cannot in the presently, constitutional and legal system import or apply any foreign system or so‑called common law, or law of nature in preference to our own. (See Haji Nizma's case PLD 1976 Lahore 930); as approved in Mohammad Bashir's case (PLD 1982 Supreme Court 139). In this behalf, it would be of advantage to quote here the views, even of some non‑Muslims, on two subjects of Islamic system: (a) Law of inheritance; and (b) females position in it. Islamic Law of Inheritance: The Muslim Law of Succession, Ilm‑ul‑Faraiz, which has been derived from the rules of succession to be found in the Quran" (See the Text of the Quran at p. 98‑101 of the 2nd Edition of Muslim Law by Saksena), "or in the Traditions, as well as from such of the Pre‑Islamic customs, as were approved of by the Prophet (P.B.U.H.)is a great achievement of the Muslim jurists. As coherence and logic have imparted perfection to the system, it deserves our admiration". F.B. Tyabji observes, "The Muslim law of inheritance has always been admired for its completeness as well as the success with which it has achieved the ambitious scheme of providing not merely for the selection of a single individual or homogenous group of individuals, on whom the estate of the deceased should devolve by universal succession, but for adjusting the competitive claims of all the nearest relations." As to the excellence of the system, in a formal sense, Sir William Jones has observed: "I am strongly disposed to believe that no possible question could occur on the Muslim Law of succession which might not be rapidly and correctly answered." (Jones Works, VIII, 204). S. Visey‑Fitz Gerald's remark (S. V. Fitz Gerald, Muslim Law p. 20) in this connection is also very instructive, "In all systems of law, the doctrine of succession is, it has been said, the touchstone of the lawyer; the legal mind delights in its inevitable intricacies, the layman is repelled; and it is this truth of legal education of, rather than any calculation of, material advantage, which is enshrined, in the 'Hadis':‑‑ 'Learn the laws of inheritance and teach them to the people, for they are one‑half of useful knowledge.' To Muslims the Sharia law of inheritance is ideally perfect; founded on the sure rock of divine revelation and worked out in the utmost detail by that mental ingenuity which God gave man for the purpose of understanding revelation. The logical strength of the system is beyond question; and, the fact that the results are sometimes impracticable does not in the Muslim eyes detract from its divine character. Human ingenuity admittedly cannot always carry out the fine distinctions of divine justice; and the system is reverenced as a matter of theological dogma even by those Muslims who, as a matter of custom, do not follow it." The claims of near relations have been rightly and justly adjudicated upon and in the words of Macnaghten: "In these provisions we find ample attention paid to the interests of all those whom nature places in the first rank of our affections; and indeed it is difficult to conceive any system containing rules more strictly just and equitable." (Macnaghten's preliminary remarks in i 'Principles and Precedents of Muslim Law). The tribute paid to the system by Rumsey is no less exalted. He observes: "The Mohammedan Law of inheritance comprises beyond question the most P refined and elaborate system of rules for the devolution of property that is known to the civilised world." (Preface, p. 1). [See Saksefia, Third Edition, on "Muslim Law" Chapter‑ XV Section 1 for these and other observations]. Females' Position in Muslim Law. "We shall deal briefly with the rights of females to inheritance as given in the Quran. The Prophet lays down in effect, that blood relationship is the cause of title to succession. Then the Quran goes on to describe the rights of females to succession. "Covet not the grace by which God hath preferred some of you to others; unto men there is a portion of what they have earned, and unto women the portion of what they have earned." "Men ought to have the portion of what their parents and kindred leave, women a part of what their parents and kindred leave, whether it be little or much, let them have a determinable portion." "With regard to children, God commandeth you (to give) the male portion of two females, and if there be females more than two, they shall have 2/3rd of that which the deceased leaves; and if there be only one, she shall have a half." "Half of what, your wives leave, shall be yours, if they leave no issues, but if they leave issues, then a fourth of what they leave shall be yours. And your wives shall have a fourth part of what you leave if you have no issues, but if you have issues, they shall have ah eighth (1/8th) part of what you leave after paying the bequests and debts". "In short, Quranic heirs called sharers" consist of those relations who were previously excluded in favour of the customary heirs, but whose claim on the score of proximity was not inferior to them. They may be grouped under the following heads:‑‑ (1) husband or wife, (2) female agnatic descendants, (3) ancestors, including female ancestors, who are not customary heirs, (4) collaterals, such as full and consanguine sisters and uterine sisters and brothers". Position of females in Roman Law: "Originally a female, under Roman Law, had very little of personal and proprietary independence, but gradually she extracted herself out of it, as is evident from the observations of Sir Henry Maine. He says: "Anciently, there were three modes in which marriage might be contracted according to Roman usage; one involving a religious solemnity, the other two‑observance of certain secular formalities. By the religious marriage or Confarreatio, by the higher form of civil marriage, which was called Coemptio, and by the lower form which was termed usus, the husband acquired a number of rights over the person and property of his wife, which were on the whole in excess of such as are conferred on him in any system of modern jurisprudence. But in what capacity did he acquire them? Not as husband but as father. By the Confarreatio, Coemptio, and usus, the woman passed in manum viri, that is, in law, she became the daughter of her husband. She was included in his patria potestas. She incurred all the liabilities springing out of it while it subsisted and surviving it when it expired. All her property became absolutely his, and she was retained in tutelage after his death by the guardian whom he had appointed by will. These three ancient forms of marriage fell, however, gradually into disuse, so that at the most splendid period of Roman greatness, they had almost entirely given place to a fashion of wedlock, old apparently, but not hitherto considered reputable‑‑ which was founded on a modification of the lower form of civil marriage. Without explaining 7 the technical mechanism of this institution now generally popular, I may describe it as amounting in law to a title more than a temporary deposit of the woman by her family. The rights of the family remained unimpaired, and the lady continued in the tutelage of guardians whom her parents had appointed and whose privileges of control override in material respects the inferior authority of her husband. The consequence was that the situation of the Roman female, whether married or unmarried, became one of great personal and proprietary independence." Position of a Married Woman under English Law: "It was the influence of that Canon Law that introduced the notion of the unity of the personalities of a husband and wife, and that she had no separate legal existence which rendered her incapable of holding separate properties. So neither the husband could make any grant in her favour nor could she bring any action for redress against anybody without his consent, as both the acts involved an idea of her separate existence. The disabilities were subsequently modified by the Court of Equity and the Married Women's Property Act. Sir Henry Maine has nicely given the state of the pure English Common Law in these words: "I do not know the operation and nature of the ancient patria potestas, can be brought so vividly before the mind‑as by reflecting on the prerogatives attached to the husband by the pure English Common Law and by recalling the rigorous consistency with which the view of a complete legal subjection on the part of the wife is carried by it, where it is untouched by Equity or statutes, through every department of rights, duties and remedies." Status of Female under Hindu Law: "The position of a female in Hindu Law is that of perpetual tutelage as Manu (Manu Smriti, IX, 7) has laid down: "While young, she remains under the control of her father, after marriage, under the control of her husband; on his death, under the control of her sons; she does not deserve complete independence at any time." "There are different sorts of Stridhan properties in Hindu Law; broadly speaking, one over which a female has absolute right of ownership and which she can use, give, or sell quite independently of her husband's control, the other over which her powers are subject to her husband's consent. The latter class of property is unknown to the Muslim system of law where properties are primarily and naturally individual; there is no difference between the position of a male or female as regards proprietary rights. So any property, which a female gets from. a relation, a friend or a stranger or inherits from her deceased relation, whether during maidenhood or converture or widowhood, is her absolute property and can be said to be her Stridhan. So the Islamic system has given full and unimpaired proprietary rights to females, and her position remains quite independent and distinct in the eye of law." A wife's position in Islamic law: .,On her marriage, her individuality is not lost and she remains a distinct member of the society; her existence or personality is not merged into that of her husband. The contract of marriage gives no power over her person beyond what the law defines, and none whatever upon her goods and property. Her proper remains hers in her absolute individual right: the doctrine of coverture is not recognised in Islam. She can sue or be sued by her debtors or claimants without joining a next friend, or under her husband's name. After she has passed from her father's house into her husband's home, she continues to exercise all the rights and privileges which the law allows. She can alienate or transfer her property in; any way she pleases without any extraneous control of her husband; she can act as an administratrix or executrix or be appointed a Mutawalliah. She has a distinct lien upon her husband's estate for ante‑nuptial or post‑nuptial settlements. She can enter into binding contracts with her husband and proceed against him in law Courts, if necessary. Her earnings acquired by her personal exertions cannot be touched by her husband. Nor can she be treated with impunity She can receive property without the intervention of the trustees. It is not by way of courtesy that she enjoys, this unique position and legal status. but it is due to the injunctions of the Book of God." (Underlining is ours with the note that it is within a wife's right under certain conditions to utilize her husband's earnings for specified purposes though as observed above in the underlined portion, the vice versa is not possible). Comparison with other systems of law: "It would, therefore, not be far from truth to say that under the Islamic law a woman occupies a superior legal position in comparison to her English or Hindu sister. Thus it is apparent hat she occupies the best position as regards her legal status, and no other system of law stands any comparison to the Islamic system in this respect." Conclusion: "Mohammad (P.B.U.H.) effected a complete change of the legal status of females, from that of complete dependence and servitude to that of complete independence and enjoyment of full legal rights and privileges so much so that he placed them on a footing of perfect equality with men in the exercise of all legal powers and functions. which stand in bold relief when compared with the state of law amongst ancient Arabs of the pre‑Islamic days," See Saksena on Muslim Law P. 136 to 139. (3rd Edition). After the foregoing survey it has become simple and easy to further analyse, deal with and answer the questions raised by the learned counsel with reference to Islamic law and principles, without however infringing any existing provision of Statute law. This much at least, if not more has always been, not only permissible, but also, essential under our constitutional dispensation as held in the cases of Mohammad Bashir and Haji Nizam referred to earlier. The addition of Art. 2‑A in the Constitution also strengthens and supports it; notwithstanding, what it further implies or accomplishes otherwise, in this behalf. It has already been held that the devolution of property through Islamic inheritance takes place immediately without any other intervention; therefore, in this case the respondents‑petitioners' sister, became the owner of the suit property immediately on the death of her father. She is said to have relinquished her share in inheritance in petitioners (brothers) favour and accordingly as asserted by them a mutation of inheritance was sanctioned in their favour. It is interesting to note that she was not only deprived of inheritance but also her ‑name was not mentioned in the pedigree‑table showing her as one of the heirs he claim of relinquishment of her property was asserted so strongly and accepted so readily that even her existence as a daughter, though that not otherwise denied, was not acknowledged in the documentation regarding inheritance; namely, in the mutation register and other connected documents. It is not a stray case of its nature. It has happened with female heirs for ages and is continuing even under the Islamic dispensation. It is to be seen whether such treatment of a female's right to inherit and the so‑called relinquishment, of accrued inheritance, by her is permissible or even recognized in Islam. The last Khutaba of the Holy Prophet (P.B.U.H.) which contains several injunctions‑most of them of juridical import ‑‑has already been referred generally, in another connection. In the present context it needs somewhat detailed study as a part of 4 exclusively deals with the women, their rights and duties and status. One injunction clearly prescribed that men have rights qua women and they have similar rights qua men. The translation in Vernacular and commentary on this subject by Muhammad Mian Siddiqui Research Fellow Islamic Research Institute of International Islamic University, Islamabad, in a recently published Book 'Khutabat‑e‑Rasool' in relevant parts, is as follows: After leaving out some injunctions regarding women which are not relevant here it is further stated as follows:_ This was reiteration of Quranic injunction S. 4 V. 7 which when translated reads as follows:‑‑ Another injunction from the Khutaba with regard to the protection of the rights of women particularly regarding inheritance would be rightly understood if the background in this behalf is kept in view. The author of the 'Khutabat‑e‑Rasul at Page 176 of the Book stated the background as follows‑ It is, inter alia, in this connection that another part of the Khutaba regarding the women, needs to be quoted here:‑‑ No doubt in our urban society woman is not only asserting her rights but also is believed in some quarters as able to protect herself and her rights. In other social sectors she still is highly dependent upon the good‑will of men around her; and, in the rural areas due to the reasons, which would be presently noted; the conditions under which she is living in this 20th Century, can in the present context, be compared with those prevailing before the advent of Islam and t which reference has already been made. It is not out of place here to mention that the position of woman and her disabilities regarding protection of her own rights was recognized consistently, without reference to Islamic injunctions, purely as interpretation of the provisions of Contract Act (Section 16 and others), even by the Privy Council when dealing with the contracts by and acts of Parda Nasheen ladies. This was also on account of general principles that strict rules were laid down by it (the Privy Council) for the protection of their rights which if infringed, the contracts were rendered void. The Rules of English Court of Chancery for protection of the rights of 'the weak , 'the ignorant', and 'the infirm and those of the expectant heirs' under the English Law are analogous and to be further studied in this behalf. The view of Sir W, Rattingan to the contrary mentioned in Mullah's Work (1985 Edition Pakistan) expressed in an unreported old Calcutta case, with respect, is not correct. Be that as it may, in the present day dispensation in Pakistan, the interpretation of laws under the light of Islamic Jurisprudence with particular reference to status of women and inheritance, leads us to a different conclusion. It lies in the reply' to a question; whether, the recognition and enforcement of law of inheritance by the State agencies including the Courts, vis-a‑vis, the female heirs, is a matter of "public policy" in Islam. The answer is in the affirmative. That being so with what effect? For the limited discussion on this subject in the present case the reference, to the Last Khutaba of the Holy Prophet (P.B.U.H.) at the Hajjat-ul- Wada seems enough. However, in the same book (Khutabat‑e‑Rasul) cited earlier there are many other injunctions, relied upon in the commentary relating to the last Khutaba, which deal with the status and rights of women; of course, alongwith the obligations. For further study of similar questions reference ma be made to the Sunnah injunctions contained in the "Sayings of Mohammad (P.B.U.H.) edited and translated by Mirza Abu'l‑Fadl and recently published by the National Hijra Centenary Committee with an illuminating detailed Foreword by late Mr. A.K. Brohi; together with a meaningful introduction. All the relevant index headings relating to females particularly the sub‑beading "Women' can be referred to with advantage. The numbering of Ahadis under the heading "Women" in the Index does not seem to be correct. When reading under this sub-heading the correct numbering thereof, may be taken as follows:‑‑‑ 19 to 24, 139, 167, 179 to 184, 224 to 229, 473 to 492, 581 to 586, 612, 716, 815, 951,1000 to 1003, 1029 to 1041, 1046 to 1056, 1063. It is not necessary to discuss here the genera) subject of treatment and rights of women. Suffice it to refer only to Ahadis Nos. 612 and 1056 which convey two elements ‑‑ for perfection as a Momin it is a necessary qualification that he should be "best among them to his women folk (in treatment). And when calling her "crystal" in No. 1056, the Prophet (P.B.U.H.) amongst others, wanted to give, a measure of the best treatment. 'Crystalloid' conveys a lot more than what appears on ordinary reading. In the present context, these injunctions, when read together, enjoin upon men the protection of their rights in every field. Inheritance is not an exception. In this context. Surah 4, Verse 34 also has to be interpreted in a liberal and beneficial manner vis‑a‑vis 'women's rights and their protection. Late Moulana Abu‑ul‑Ala Moudoodi explained the word and when used in it as follows:‑‑ Same subject has been dealt with in The Khutabat‑i‑Rasul in the commentary on the last Khutaba, as follows:‑‑ The combined effect of all this, amongst others, lead us to assume that in case of need a woman can claim' as of right, her maintenance and protection by her menfolk. But more important than this is the guarantee and enforcement of all the rights of women including that of inheritance which, as demonstrated find special place in the injunctions of Islam. This part of Islamic law from its background and nature is a matter of public policy of high importance. This amongst others is one field wherein a Muslim woman has more rights than man. Her treatment, status, rights and enforcement thereof, under Islam was a, complete departure from what existed earlier or elsewhere. Unless it was given State protection, the change could not have been effective. It has already been noted that due to discernible reasons the conditions relating to women's rights, status and property‑wise, in the Sub‑Continent at the eve of Independence were not different than those prevailing in the pre‑Islamic era; particularly in the rural areas. The emphasis then on the Islamic Law and Principles on these subjects, was not commensurate with the need but that does not mean that it should not find its due place even now. The relevant laws therefore need to be reinterpreted under this new light. Section 23 of the Contract Act provided, inter alia, that the consideration or object of an agreement is lawful, unless‑it is forbidden by law or ‑‑‑‑‑‑‑‑‑‑ ‑ "the Court regards it as immoral, or opposed to public policy." "In each of these cases the consideration or object of an agreement is said to be unlawful, Every agreement of which the object or consideration is unlawful is void." The question of immorality which has also been raised by the learned counsel for the petitioners as if, in the circumstances of this case, it favours the petitioners would be dealt with separately. 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 circulation of wealth of certain types tinder 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. Although on the subject of public policy there has been some controversy on two questions ‑‑one, technical relating to pleadings; and the other, substantial relating to availability of bar of public policy, in cases other than enumerated in the Contract Act, it has now been set at rest. In the case of Atlas Industrial and Trading Corporation Karachi and another v. Dr. Jalil Asghar (PLD 1970 Kar.241) the objection that plea of public policy was not taken at proper time, was overruled and a new, subject of public policy; namely, contracts relating to corruption in public offices, was recognized as proper subject to be dealt with under section

23. However, seemingly different view was taken by the same High Court in the case of Sultan Textile Mills (Karachi) Ltd., Karachi v. Muhammad Yousuf Shamsi (PLD 1972 Kar. 226). But, with respect, it may be mentioned that there was not much justification for taking a view different from what was in Atlas Industrial and Trading Corporation on the above‑referred two questions. Be that as it may, the Supreme Court in its two judgments reported in 1964, one in the well‑known case of EA. Evans PLD 1964 SC 536 and the other similarly well‑known case of Syed Sibtain Fazli PLD 1964 SC 337 took up and examined a plea relating to public policy, Which was not raised at earlier stage in one case and seemed to have been abandoned in the other. It also introduced new subjects of public policy for treatment under section 23‑‑ one of them being the enforcement of agreements relating to tent, vis‑a‑vis, the application of the newly-introduced Rent Restriction Laws much later in, time, than the enactment of the, Contract Act. The theory, that only the rules of common law of England, ‑vis‑a‑vis, public policy, were relevant as they were codified in the pro‑visions following Section 23 of the Contract Act; therefore, only they were, brought under the umbrella of Section 2‑3, was never accepted consistently and was given up, long ago by this Court. A further reason may be added that in Pakistan s Constitutional set up, with the Objectives Resolution being its part, new situations with new principles of public policy with Islamic Ethos/spirit would have to be defined and applied. Another possible objection that although the relinquishment has been found without consideration, yet this case is covered under section 25. of the Contract Act, has yet to be disposed of. Section 25 declares all those agreements void which are without consideration except for the exceptions created by the law itself. Amongst the exceptions it is provided ‑that whenever the agreement is expressed in writing and is registered and is made on account of natural love and affection between the parties standing in a near relation to each other or whenever it is promised to compensate‑ wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compelled to do, in such like cases the, agreement would be enforcible contract. Firstly, the contract which has been, declared void under section 23 of the Contract Act cannot be revived and given, life, merely because it suffered from another serious infirmity‑, and which, other infirmity could, be overcome by a resort to the aforementioned exceptions. Secondly, it might be very rare that a male co‑heir would relinquish his right for a female heir. Experience, shows that it has always been the reverse. The flow of love cannot be so unnatural. Therefore, the, rules devised by the Privy Council for the, Parda Nasheen ladies as contracting patties and the one referred to above emanating from the public policy, would lead to another principle‑ that in cases like the present one, there will be, a presumption otherwise; namely, that it was not on account of natural love but on account of social constraints which would be‑ presently referred to, that relinquishment has taken place. Similarly in the light of the entire discussion the second exception would also be not attracted as the presumption Would be that inch easy devices are always coined to justify relinquishment by females in favour of males. In the present case it appears to be jugglery that the, petitioners claimed that the relinquishment by the respondent was in consideration of what they claim to have done in her two marriages as also for her maintenance. And in addition, what again could be only a jest, that they spent some money on a criminal case which they had to right on account of respondent being divorced by her first husband. All these claims are against the teachings of Islam‑‑injunctions in the Holy Quran and the Sayings of the Holy Prophet (P.B.U.H,), wherein emphasis has 'been laid again and again on the best possible concern for and treatment of female relations. Even on this, particular subject of the treatment of a divorcee relation one rinds enough material to show that if none else the parental home, which, would, this case include the brothers, remains responsible for the maintenance of a needy divorcee or widow. The Holy Prophet (P.B.U.H) was eager to explain again and again the rights of daughters and the way their fulfilment takes one to the heights of piety. The Quranic Verse S IV V. .34 declaring men, as "protectors and maintainers" (See A. Youaf Ali); one of the injunctions in this behalf, has already been referred to. It is unimaginable that a daughter enjoying protection and maintenance" with the father till she is married, when is married and divorced, would lose this right‑‑this of course is subject to some conditions. It can clearly be spelt out from the afore cited injunctions that it Would be her right to be treated by the father in the best possible manner in all these circumstances. And if beyond the bare necessity he does anything concerning the daughter, it has to be treated as gift and not something which would have to be returned by the daughter by compensating the father in the tangible property. The rights of a sister, in cases like the present case, will have to be equated with that of a daughter, with all the necessary consequences. Even if there is some difference of opinion with regard to these injunctions the subject of the rights of close relations vis‑a‑vis, maintenance against well‑to‑do relations has been fully discussed in the case of Haji Nizam; wherein it was held with reference to many other injunctions of Islam, that a needy close relations has a right of maintenance against another relation which in proper circumstances might be enforcible in law Courts. Therefore, all these considerations Which have been pleaded in this case cannot at all be made basis of any relief to the petitioners or for that matter for validating At this stage the argument of the petitioners that "they have a strong moral claim to the suit property can also be dealt with briefly though it is so unfounded that it can be ignored With contempt. The treatment of women in Islam particularly those who are close relations like daughters, sisters, wives, mothers and others similarly placed, if one studies carefully, as already discussed, has to be self‑enforcing, The foregoing discussion highlights a moral claim in favour of the respondent‑sister rather than in favour of the petitioners. They would be condemned in any Court of morality even on making a claim. The test has to be Islamic teachings. On this, view also the petitioners' case would be Covered by Section 23 of the Contract Act and their claim being immoral on the touchstone of Islamic principles, cannot be granted. (See also Miss Benazir Bhutto's case (PLD 1988 SC 416). The pleas of estoppel, waiver and adverse possession tan also be now easily repelled in the light of the foregoing discussion of the Islamic principles. The petitioners being the brothers of the respondent were required by the Islamic law to protect the property rights of their sister if ever they came into‑possession of the land in any capacity, Here admittedly they alleged voluntary relinquishment, therefore, even otherwise the well‑known rules for establishing adverse possession, particularly the one relating to hostility, would not be established. But as stated earlier one who is enjoined with the protection of 'the other's property cannot lay claim adverse to the interests and rights of that other one who owns it. The Saying of the Holy Prophet (P.B.U.H.) has been quoted which enjoins upon the menfolk to protect property rights of their womenfolk. Under the Islamic dispensation, therefore, in the present case there could be no claim of adverse possession. Same would apply to the estoppel and waiver. More so on account of rule of public policy and the principle of devolution of the property in respondent's favour immediately on the death of her father (regardless of the fact whether she did any other act to exercise control over it) would negate the plea of estoppel or waiver. The plea of ouster, to say the least, is untenable; because, its essential component, the plea of adverse possession, is obviously not available against a sister what to talk of her ouster. The question of limitation has already been decided against the petitioners. No further comment is necessary in this behalf with reference to Islamic law and principles. The last argument of the learned counsel related to rights and interests of the subsequent alienees from the petitioners. They have not come before this Court nor they have been impleaded as respondents by the petitioners. It appears only the kith and kin; namely the brothers want to fight against the sister -respondent. Moreover this question having been settled by the lower Court the subsequent alienees did not raise any grievance before the higher Court‑‑ Nor as stated above have they come to this Court. On questions of public policy, morality (Section 23), lack of consideration (Section 25) and undue influence (Section 16) vis‑a‑vis Parda Nasheen ladies it has to be reiterated and recapitulated that: Firstly the relinquishment by' the respondent, if any, is against public policy and morality, which concepts are to be decided on the basis of Islamic teachings and principles. The respondent could not opt or contract out of this protection. Hence the act of relinquishment was void and ineffective. Her inheritance, having accrued in her favour on her father's death remained intact at all the relevant times. Secondly the question of lack of consideration loses much of its relevance on account of the firstly above. But had it been not so, the so‑called exceptions in Section 25 not being applicable in the context of Islamic rules and would not have saved the disputed relinquishment. Thirdly the relinquishment as such having been annulled, the same could not in this case operate as an ordinary alienation under the existing law for two amongst others, reasons: One the so‑called relinquishment of accrued inheritance is neither recognised in Islamic‑law of Transfers nor is it treated as a "transfer" under the Transfer of Property Act. If at all the nearest form being of 'gift', none of its essential conditions are satisfied in a "relinquishment", so‑called. If it is intended to be a gift, the latter's essentials would have to be gone through on principle and also as legal necessity. It cannot be by way of 'relinquishment' simpliciter. Another form of alienation in this context would be by way of family settlement/arrangement; which it might be argued is permissible in Islam. It is a very important aspect of the controversy, but a very vital condition regarding existence of a bona fide family dispute to be resolved, or bona fide difficulty to be surmounted through such means, is lacking in this case. Moreover the case‑law on this point might require re‑examination on the touchstone of what has been discussed above. Two, even if all the conditions for a valid transfer under the existing set, and system of laws, after the due accrual of inheritance are satisfied, the protection afforded by Section 16 of the Contract Act against undue influence, to Parda Nashin ladies and others similarly placed parties and entrenched in the case‑law as also available under the Islamic law already discussed, would require so many conditions to be satisfied. Admittedly in such like cases the burden of proof is upon the alienee. The presumption exists regarding undue influence on prima facie satisfaction regarding inter se position of the parties and the state and status of the alienor. The discussion in this behalf in Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624) is instructive besides being valuable and useful. Had it been a case to be examined on that touchstone, the petitioners even then would have failed on account of undue influence, the presumptions regarding which in respondent's favour, have not been rebutted. This and other issues discussed and answered in this summarization will, it is clarified, in no way detract from the findings on the touchstone of Islamic principles, including those of public policy and morality, which would remain the main ratio in the case. In passing, it is relevant, at this stage, to comment upon the decadence which fell upon the prestigious position held in Islam by women and their rights as to status and property‑, as also, to think of some remedial measures. Although it is for the historians and the sociologists to examine the causes of the serious setback suffered by the rights of women their recognition, protection and enforcement during certain periods and places in the past; yet for the present discussion it is necessary to point out in this behalf a jurisprudential aspect relating to the South and South‑East Asia. Islamic law/culture had come in clash with a powerful entrenched and old culture which had the habit of absorbing what 00 came in contact with it, by many methods. Islam withstood the cultural attack, and it not only survived but also reversed the process of absorption gruesome fight for superiority, Muslims also suffered a small dent near about the end, in their adherence to the "Maroof' part of the Islamic norms. The Islamic laws were not changed but alien customs and customary laws were adopted mostly under the European force and umbrella, provided to the adversary in this field. The creation of Pakistan, where it is a manifestation of various other principles and realities is also a reaction to what has been stated above. Islam resisted absorption and Muslims overcame, by a democratic process, the weak bounds of some common customs and those of common history also. This case and few other cases and customs are the remnant of the influence of Hinud customs and laws, vis‑a‑vis, the rights of women Particularly in the field of inheritance. The superior Courts are reinterpreting existing laws/legal concepts with reference to Islamic juridical norms and in the process, a Pakistani jurisprudence has developed and is developing for the interregnum wherein a lot of shedding off of, the alien influences is taking place. In field of inheritance for example, customary law which prevailed for few centuries has been replaced by Islamic Laws. See Muzaffar Khan v. Mst. Roshan Jan and others (PLD 1984 S C 394) and the federation of Pakistan through Secretary, Law and Parliamentary Affairs, Islamabad v. Muhammad Ishaque and another (PLD 1983 SC 273) the later case was decided by Shariat Appellate Bench of this Court. How can we uphold the act of "relinquishment" by a Muslim Female. It is the customary remnant of a concept of Hindu Law in the Mitakshra families. 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 maintenance for her minor child against the grand father, 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 wide guess as to how many females take the courage of initiating or continuing the legal battle with their close one's 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 organization, 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 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 urbanised brother himself, is not even cognizant of all this, She in 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. A large number of members of the legal fraternity have live contacts with 11 the rural life from where the majority of them come. They also are aware of the': malady and many may be involved in the tragedy. They can carry this burden adequately. While the Bar always seeks the protection of its rights through legislation, an amendment therein to honour the honourable members thereof with the duty of the protection of the rights of (if not all the deprived classes of society) atleast the womenfolk of rural areas to start with, will not be out of place. There can be statutory committees for this purpose of the Pakistan and Provincial Bar Councils with the collaboration of the Local Bar Association. They can be headed by the Judges of the Superior judiciary as it is for the other existing committees and tribunals. A network can be created with the inclusion of the lawyers who belong to the respective localities as also the departmental representatives of education, health, labour, social welfare and revenue departments. They can also point out prospective and actual cases of infringement of rights - failure to do so might also incur penalty, even for the lawyer, before his domestic disciplinary tribunal, of the respective bar Council. The finances cannot be a problem. The Government, the legislature, the tax‑ payer and the Urban elite will not grudge his small facility for 80% of these have‑nots of the Social Sector, while 20% get all the other facilities of the urban paraphernalia, which includes amongst others, better facilities and services nearly all fields. Before closing this judgment we have to ‑note that the learned counsel appearing for the petitioners performed his duty as a, lawyer under the existing law and he did so diligently by bringing to out notice, all conceivable points which could go in favour of his clients. Any remarks with regard to the, conduct of the petitioners, vis‑a‑vis, Morality or public policy shall not go against the learned counsel who appears to have performed his duty in accordance with the existing rules governing his profession. In view of what has been held there is no force in this petition and the same is dismissed. M.BA./G‑235/S Petition dismissed.