P L D 1972 Supreme Court 337 (PLP)

Reading this along with the translation given by Shama Chnrnn Sircar, Mahmood, J. entered upon an elaborate examination of the Arabic texts in the case of Fazal Rab v. Khatun Bibi and others. It appears however, that the correctness of the translation given by Baillie was challenged much earlier before the Calcutta High Court by Syed Ameer Ali himself, who was then appearing for one of the parties. in the case of Mst. Asloo v. Mit. Umdutoonnissa (20 W R 297). and ultimately the translation given by the Official Translator of the Court was accepted as correct by all the parties. Mr. Syed Ameer Ali, in his book on "Muhammadan Law", Volume II, gives the following categorical opinion in para. 13 at page 113 of his Book:- "The husband takes a share in all kinds of property left by his deceased wife, and so does the widow when she has a child "born of her womb", or child's child. But when she has no child, or when a child was born to her, but died before the decease of her husband, then she is entitled to a fourth share in the personal estate only, including household effects trees, buildings, etc. She takes no interest in the landed property." The authorities cited were Jam'a-ush-Shittat and a number of cases in which this view has been taken. Though Tyabji in his book on "Muhammadan Law" has taken the view that the translation given by Baillie indicates a conflict of opinion, yet his own enunciation of the general principle appears to support the view of Syed Ameer Ali. The translation given by Syed Ameer Ali is also supported by the Urdu text of the Jame-ul-Ahkam at page

73. In fact, the English translation appears to have been made from this text for which also the authority cited is Jam'a-ush-Shittat. K. P. Saxena in his book on "Muslim Law" 3rd Edition, at page 862 has also taken the view that:- "Under the Shia law, claims of a childless wife, that is, of a wife who has had no child or when the child, was born and died in the lifetime of her husband, is not the same as that of a wife having a child. The childless wife 1% entitled to get one-fourth share in the personal estate of the deceased husband Including the value of household effects, building and trees, but cannot claim any share to the immovable property of her husband." N. J. Coulson in his book on "Succession in the Muslim Family" at page 113 also opines that: " "Childless' here means, according to the texts, that the surviving widow is without a child, alive or in embryo and subsequently born alive, at the time succession to the estate opens. A wife, therefore, suffers from this disability if she has had children by the prepositas who have died before the succession opens or if her only children are those of another marriage. The rule is clearly aimed at ensuring, to a large degree, that lands remain within the husband's family. A widow succeeds to a share in her husband's lands only when that share, or the greater part of it, will in the normal course of events be transmitted to the husband's issue upon her decease." The view taken by Syed Ameer Ali is also supported by the decision of the Judicial Committee of the Privy Council in the cases of Aga Mahamed Jaffer Bindaneem v. Koolsom Bee Bee (24IA 190) and Parbati v. Muzafar Ali Khan (I L R 34 All. 289), where the view was taken that, if the widow had not borne a daughter to her deceased husband who survived him, then she would take no title to any share in the properties of the deceased husband. The above analysis given by the learned authors indicates that the controversy has arisen as a result of the translations given by Baillie in his "Digest of Muhammadan Law" and by Shama Churun Sircar in his "Tagore Law Lectures". The correctness of Baillie's translation was dinectly in issue in the case of Mst. Asloo v. Mst. Umdutoonnissa and the Official Court Translator's version, which coincides with that given by Syed Ameer Ali in his book on 'Muhammadan Law", Volume II, was accepted. In the circumstances, the question arises as to whose translation should be preferred. If we have to make a choice between Syed Ameer Ali on the one hand and Baillie and Shama Churun Sircar, both non-Muslims, on the other, then we can have no hesitation in accepting the translation of Syed Ameer Ali, an eminent Shia Scholar himself, who, sub sequently, rose to b-.come a member of the Judicial Committee of the Privy Council. We see no reason to doubt the correctness of the translation given by Syed Ameer Ali of the 'Sharai-ul Islam', since it also conforms to the general principle enunciated by Tyabji in his book on 'Muhammadan Law' and Coulson in his book on 'Succession in the Muslim Family'. Coming now to the next point, we find, that learned counsel appearing for the respondents place strong reliance on the relevant text of the Holy Quran itself and urge that, where there is a variance between the text and the subsequent traditions, it is the text that must prevail. There can be no doubt about it that the highest authority must be attached to the text of the Holy Qur'an as the primary source of law. It is only after the text that the traditions of the Holy Prophet are to be ranked as the sources of law. The relevant text occurs in Ayat 12 of Sura An-Nisa which is quoted below:

The English translation of the above passage, as given 4Y S. V. Mir Ahmed Ali, according to the version of the Holy Ahlul-Bait is :

"And for them shall be a fourth of what ye leave if ye have no issue, and if ye have an issue then for them (shall be) the eighth of what ye leave after paying the bequest ye had bequeathed and the debt;" To the same effect is the translation given by Abdullah Yusuf Ali: "In what ye leave, Their share is a fourth, If ye leave no child; But if ye leave a child, They get an eighth; after payment Of legacies and debts." The translation of Marmaduke Pickthall reads as follows;- "And unto them belongeth the fourth of that which ye leave if ye have no child, but if ye have a child, then the eighth of that which ye leave, after any legacy ye may have bequeathed, or debt (you may have contracted), hath been paid." Maulvi Muhammad Ali's translation of the same text reads as follows:- "and they shall have the fourth of what you leave if you have no child, but if you have a child then they shall have the eighth of what you leave after (payment) of a bequest you may have bequeathed or a debt." The Urdu translation of the same text, as given by Hazrat Maulana Ashraf Ali Saheb Thanvi, is to the following effect; The translation given by Sahebzada Peer Muhammad Karam Shah Saheb, Sajjad-e-Nasheen Bhairah, in his Ziaul Qur'an is as follows:- It will be observed that in the translations, quoted above, there is hardly any difference and none of these translations appear to make any difference between a " childless " and a "childful" widow. Indeed, they seem to indicate that if the propositus dies issueless then widow gets a fourth after payments of debts and legacies. There is nothing in this text to indicate that the Holy Qur'an made a distinction between a "childless" and a "childful" widow. Learned counsel, appearing for the respondents, has also challenged the division of the assets of the deceased propositus into agricultural lands and other classes of properties. He maintains that the Holy Qur'an makes no such distinction and therefore the distinction sought to be drawn between various classes of properties by the Shia jurists for the exclusion of the widow from inheritance appears to be unwarranted. For this purpose he has also relied on the dictionary meaning of the word 'Tarkah' to show that no such distinction can be drawn. "Tarkah" includes both movable and immovable heritable properties. Hughes in his "Dictionary of Islam" defines "Tarkah" as "a legacy, a bequest and inheritance." The meaning given by Imam Raghib Ispahani and in Al-Manjid is to the same effect. Nevertheless, it appears that according to the Shia Fiqh the principle appears to be well-settled that a childless widow is deprived of her share of inheritance in the lands of the deceased. A Thus, in the "Bist Babi" of Jamia Abbasi at page 383, the 21st rule of exclusion mentioned is as follows :

In the Sharayeh-ul-Islam, Beirut Edition, page 191, the rule is stated as follows; The English translation of the above passage is as follows: "The fifth case is that of a wife having children by the deceased. She inherits oat of all of his property. If she has no children she shall not at all participate in land, and shall get her share out of the value of the utensils and buildings, and it is said by some that she is not debarred from anything except the houses and buildings. Murtaza gives a third report, that is, the land should be valued and her share given out of the value thereof. The first is most obvious (i. e., authority)." The rule laid down in "Durus" Book on Inheritance, "Jawahir ul-Kalam" and "Jami-ush-shattat", Book on Inheritance, is the same. All these texts will be found conveniently collected together with their proper translations in the case of Fazl Rab v. Khatun Bibi. They all uniformly indicate that the childless widow does not inherit in the land. Mahmood, J. of the Allababad High Court did not doubt the correctness of this rule though he was not satisfied with the meaning of the word "childless" as given by Syed Ameer Ali. The view of Murtaza is the solitary view which seems to indicate that, even though such a widow is not entitled to a share in the lands, yet a valuation should be made of the lands and a fourth of that value should be given to her. Other Shia jurists seem to differ from this and take the view that she is not entitled even to this share of the value. It seems that this question was raised sometime back in the West Pakistan Legislative Assembly but no amendment was made as it was opposed by the Shia community. In that connection, one Allama Mufti Syed Tyeb Agha Musavi Jazairi seriously controverted the argument that the Shia rule was against the text of the Holy Qur'an by maintaining in a pamphlet entitled "Beevi Ki Meeras" that the proper translation of the Arabic text of the Holy Qur'an quoted earlier, is as follows :

This translation, it will be noticed, does not tally with the other translations which we have given above; but the learned author has also maintained that the rule excluding a childless widow from inheriting agricultural lands is based on the true traditions of Imam Jafar Sadek, the founder of the Shia School. Indeed, the learned author has cited as his authorities for this rule Muhammad Bin Muslim. Biyah Al-Zarti and Zajar Sayeb and also cites Abdul Malek as authority for the following tradition :

It is said that Imam Muhammad Baqir also summoned the Book of Hazrat Ali. This was brought by Imam Jafar Sadek and in it was found written that for widows there will not be any share in the lands of their deceased husbands. This was written in the hand of Hazrat Ali himself which was recognised by Imam Muhammad Baqir. But even according to these traditions it will be noticed that no distinction has been made between "childless" and "childful" widows. The denial is to all widows and the reason given for this rule is that, since the widow does not belong to the family of the deceased husband, she is excluded from inheritance in the lands in order to avoid disputes which are likely to occur if she remarries and thus introduces an outsider in the family. The Shias claim that the differences between Shias and Sunnis arise as a result of their different interpretations of some of the Quranic texts. The Sunnis, it is said, accept the interpreta tions given by the four Imams, namely; Imam Abu Hanifa, Imam Malek, Imam Ahmad and Imam Shafi'e whereas the Shias rely on the Interpretations of the Holy Qur'an given by only the Ahl-e-Bait (Members of the Household of the Holy Prophet) beginning with Hazrat Ali and ending with the last Imam and, as such, they claim that their interpretation is likely to be more correct. No one, they maintain, could have known the Holy Qur'an better than Hazrat Ali himself who in his Book had recorded these interpretations according to the instructions of the Holy Prophet himself. In view of this difference in the interpretation of the Quranic text itself, we feel that it would not be proper on our part at this stage to attempt to put our own construction in opposition to the express ruling of 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 Ijma' 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 subcontinent since the decision of the Calcutta High Court in Mst. Asloo v. Mst. Umdutoonnissa. It was affirmed by the Privy Council in1897 in the case of Aga Mohamed Jafer Bindaneem v. Koolsom Bee Bee. The Allahabad, Madras and Patna High Courts have also followed it in Umardaraz Ali Khan v. Wilayat Ali (ILR19All.169), Durga Das v. Nawab Ali (ILR48All.557), Mir Ali Hussain v. Sajuda Begum (I L R 21 Mad. 27) and Syed Ali Zamin v. Syed Muhammad Akbar Ali Khan (I L R 7 Pat. 426). Indeed no decision to the contrary has been brought to our notice. We would, therefore, allow this appeal, set aside the order of the High Court and declare that on the death of Mst. Fatima a childless widow, her life estate terminated and the bequest made by her in favour of Mst. Hassan Zamani in respect of the Niuzampur lands came to an end. According to the Shia Law, even after the termination of her limited estate under custom, she acquired no share in the landed properties obtained by her 9n lieu of her husband's estate left behind in India, according to the Shia Law. This decision will not, however, govern the lands in village Dafto, Tehsil Qasur, the mutation in respect whereof, has now become final. In view of the fact that as a result of this decision the respondents will not get any share in the lands of village Nizampur, we make no order as to the costs of this appeal. K. B. A. Appeal accepted.