Islamic Law

It is incumbent upon the State under the Constitution and the clear injunctions of Islam, to ensure the effective and unfettered realization of women's right to inheritance

This right is not a concession granted by human law but a divinely ordained command, explicitly declared in the Holy Quran

Any denial or obstruction of this right is, therefore, not merely unlawful but transgression against Divine Will

Cultural or societal practices that deprive women of their rightful inheritance are rooted neither in faith nor in justice, they are remnants of ignorance which the message of Islam came to abolish

The State bears a sacred constitutional duty to uproot such practices by ensuring that every woman is informed of, and enabled to claim, her rightful share in inheritance without delay, fear or dependence on lengthy litigation

It must establish a proactive and accessible mechanism through which women can be identified, reached out to, and assisting in securing their lawful entitlements

Furthermore, those who, through coercion, deceit, or undue influence deprive women of this divinely bestowed right must be held accountable under the law and made answerable

A society, that turns a blind eye to deprivation of inheritance rights to its women defies the spirit of Constitution and express Command of Almighty Allah

The strength of a nation lies in the protection of its most vulnerable classes

A State that fails to safeguard the inheritance rights to its women fails in its duty to uphold the principles of equity, faith and justice.

The right of inheritance vested in every legalheir, male or female, is a divine right that cannot be curtailed, directly or indirectly

The practice of depriving legal heirs, particularly women of their inheritance is a social evil and contrary to the public policy

The violation of inheritance laws under sharia amounts to the exploitation of vulnerable family members, particularly women, and it is wholly impermissible

The estate of a deceased vests automatically and immediately in the heirs upon death without the intervention of any authority

This principle is firmly embedded in the public policy of Islamic law.

The possession of one co-sharer is deemed to be for the benefit of all co-sharers, and delay in asserting a right or challenging a mutation does not extinguish that right

The doctrines of waiver, estoppel, relinquishment, or adverse possession do not apply amongst co-heirs

Even when a gift is pleaded, the donee bears a heavy onus to prove that the donor made a valid offer, that it was accepted, and that possession was delivered

The donor must also establish the date, time and place of the offer and acceptance

Failure to do so, renders such a plea untenable.

If a woman is unaware of being deprived of her right during the lifetime of her predecessor-in-interest, there would not be a requirement to have filed a suit earlier

In such circumstances, the cause of action would arise only when her rightful share in the property of her predecessor-in-interest was denied.

Burden to prove a purported gift deed brought forward by the brothers in order to deprive sisters from the share in inheritance would lie on the person who produces it.

Generally in matter involving inheritance dispute, limitation is not taken into consideration to make such issue crucial for the dismissal of a suit especially of women folks and other fragile persons in the society when an element of fraud is involved and those in which a parda nasheen lady applies for her share in her lifetime.

Whenever the question of relocation or shifting of a grave arises, the matter must be decided in accordance with the personal law of the deceased.

The sanctity and the necessity of prompt burial of the deceased are emphasized in Islam and imposition of any administrative condition would cause delay or complicates the process of burial and same is contrary to injunctions of Islam

The principles of Islam (Quran and Sunnah) have embosomed universal and eternal guidance in every walk of life for all the generations to come and Islam does not differentiate between residents, non-residents, caste, colour and divergent fiscal status in matters of religious rites, especially regarding the burial of a Muslim

Denial of burial of non-residents is not only unjust in legal terms but also violative to the moral and ethical foundations laid down in the Shariah.

Applicants/defendants took a plea the a will deed had been executed in favour of their father qua the whole inherited property

Trial decreed the suit while cancelling the will deed and referring the matter to revenue hierarchy for partition

Appellate court upheld the findings of the trial court

Validity

Muslim may validly bequeath only up to one-third of his estate, and such bequest in favour of a legal heir shall not take effect without the consent of the remaining heirs after the death of the testator

Right to execute a will cannot be exercised to the detriment or exclusion of other legal heirs, as such a disposition would directly infringe upon their vested rights of inheritance

Co-owner or co-sharer cannot alienate or transfer more than his own entitlement in a joint property

Other legal heirs neither assented to the will nor accepted its validity, thus, the estate of the deceased was rightly ordered by the courts below to devolve upon all heirs under the principles of inheritance, rendering the alleged will deed ineffective in law beyond one-third of the property

Trial court had already referred the matter to revenue authorities for effecting partition of the property in accordance with law, thus, once the jurisdiction of the revenue hierarchy had already been invoked through the judgment of the Trial Court, there remained no necessity for High Court to render any further findings on the question of jurisdiction or partition

Civil revision was dismissed, in circumstances.

Will, according to various schools of thought, is indeed a recognized instrument through which a person expresses his intention regarding the disposition of his property, however, such intention and disposition are not absolute in nature but are subject to certain legal limitations prescribed by the law, therefore, while interpreting or relying upon a will deed, it must be examined strictly within the framework of the legal and religious parameters governing testamentary disposition.

Islamic law (Shariah) and statutory provisions clearly guarantee inheritance rights and any attempt to deprive legal heirs of what is rightfully theirs must be viewed with strict scrutiny

Regrettably, a disturbing practice has developed where parties, in defiance of Shariah and the law, resort to nefarious and frivolous pleas to deprive rightful heirs of their shares, which calls for the Courts to vigilantly safeguard the inheritance rights of women and other vulnerable heirs.

Objection of the female [two nieces]('the Objectors') was that they would also join in shares claiming half of the share as compared to male

Validity

Under Para-61 Principles of Muhammadan Law, there are three classes of heirs, namely; (1) "Sharers" are those who are entitled to a prescribed share of the inheritance (2) "Residuaries" are those who take no prescribed share but succeeded to the "residue" after the claims of the sharers are satisfied and (3) "Distant Kindred" are all those relations by blood who are neither Sharers nor Residuaries

The first step in the distribution of the estate of a deceased Muhammadan, after payment of his funeral expenses, debts and legacies is to allot their respective shares to such relations as being to the class of sharers and are entitled to a share

The next step is to divide the residue (if any) among such of the residuaries as are entitled to the residue

If there are no sharers, the residuaries will succeed to the whole inheritance

If there be neither sharers nor residuaries, the inheritance will be divided among such of the distant kindred as are entitled to succeed thereto

The distant kindred are not entitled to succeed so long as there is any heir belonging to the class of sharers or residuaries

There are two fundamental principles of the Islamic Law of 'inheritance accepted by the Sunni Fiqah: the first principle is that the Qur'anic Sharers are to be given their prescribed shares unless a Qur'anic sharer is excluded by another heir according to the Rules of Exclusion prescribed in the Qur'an and Sunnah and elaborated upon by Islamic Jurisprudence (Sharia); the second principles is that after the Qur'anic Sharers have been given their shares the rest of the estate is divided amongst the nearest male agnates of the deceased as Residuaries

The agnates are the persons related to the deceased through a male link

Consequently, the son of a deceased brother is a male agnate

In the present case, admittedly, the parties belonged to the Hanafi Fiqqah and according to the Hanafi Law of inheritance mentioned under Paras 63, 65 and 67 in the Principles of Muhammadan Law, which contained a detailed lists of Sharers, Residuaries and the Distant Kindred, wife of the deceased, fell within the class of Sharers, who were entitled to a prescribed share of inheritance and one minor daughter of the deceased also fell within the class of Sharers in absence of son

As far as two nephews of the deceased were concerned, they fell within the category of Residuaries

Whereas, the deceased's two nieces (the Objectors) fell within the class of Distant Kindred, who were not entitled to any share according to the Hanafi Law in presence of Sharer and the Residuaries

Moreso, a fatawa had been obtained and filed by the petitioner which also showed that the nieces of the deceased would not be entitled for the share of any of the properties, left behind by the deceased, except the two nephews, who were mentioned in the Family Registration Certificate

Consequently, in the present case, the widow and the daughter would be entitled to get their shares as Sharers and the sons of the brother of the deceased were entitled to get their residuary shares by virtue of being male relatives on the father's side and it should be divided equally among them as Residuaries

The Objectors (nieces of the deceased) would not be entitled to get any thing because they were not among the male relatives on the father's side

Thus, the objections of the Objectors being misconceived were rejected

Since the objections had been rejected, as such, there appeared no impediment

Succession Miscellaneous Application was allowed, in circumstances.

Making of a nominee cannot give right to a nominator at his choice to change the law of succession which otherwise is applicable in case of death of a policy holder

Death claim filed by with regard to deceased policy-holder falls in the ambit of Tarka which will be inherited amongst the applicants

The nominee is a mere trustee and was duty bound to receive money and distribute it amongst the legal heirs of deceased in accordance with their respective shares

Tarka means what a deceased left at the time of his death in the shape of moveable and immoveable properties

Since, the claim money shall be distributed amongst the legal heirs of deceased/policy holder, therefore, it falls in the definition of Tarka.

After the death of second wife appellant / plaintiff claimed her right on the plea that the gift was with condition to use the house during lifetime only

Validity

Gift of a property with limiting condition of a life interest only takes effect as an absolute gift and the condition limiting the gift to be for the life of the donee only is void under Islamic law

Suit house constituted sole exclusive property of second wife by virtue of valid gift under Islamic law free from limiting condition of life estate

Appellant / plaintiff had become stranger to suit property and carried no locus standi to challenge validity of transaction of sale of suit house to respondent / defendant

In absence of any reversionary interest in suit house vesting in her or other heirs of deceased owner of suit house, merits of challenging the transaction documents for sale of suit house as fabricated withered away

Suit filed by appellant / plaintiff claiming inheritance share in suit house also failed

Appeal was dismissed, in circumstances.

Questions of inheritance are not defeated by limitation and no limitation period runs against the assertion of inheritance rights.

A Muslim male may validly contract marriage with a Christian woman (being from the Ahl al-Kitab).

After termination of status as limited owner the property occupied by Muslim female would be considered as a property of last male owner and same would revert back to his legal heirs and any sale made by her would be effective only to the extent of her own share

Facts in brevity were that the respondent No.1/plaintiff, daughter of the deceased filed a suit for declaration seeking her legal share in her deceased father's property

The defendant Nos. 2 to 9, (legal heirs of deceased's brother)disputed her claim alleging she was not his daughter and that deceased died issueless

However, defendant No.4 (stepbrother of respondent No.1/plaintiff) supported her claim through his written statement and oral evidence, confirming her status as deceased's daughter and he also appeared as PW-3 and his testimony remained un-shattered

The Trial Court, appellate court and High Court concurrently accepted respondent No.1's (plaintiff/daughter) claim

The petitioners, legal heirs of defendant No.10, who had purchased the property from widow of deceased (mother of plaintiff/respondent No.1) challenged the concurrent findings through civil revision, which was dismissed

Validity

Held: Defendant No. 10 (predecessor of the petitioners) purchased the share of widow of deceased/mother of plaintiff (the property inherited by her as widow of deceased)

This was the property of mother of respondent No.1/plaintiff's which was received by her from the inheritance of her deceased husband (father of respondent No.1) as limited owner and her status as limited owner was terminated under section 3 of the Muslim Personal Law (Shariat) Application Act, 1962

After termination of her status as limited owner the property occupied by her was considered as the property of last male owner and in the present case the last male owner was her last husband (father of respondent No.1/plaintiff) and according to the Act of 1962 the property had to be reverted back to his legal heirs

The record established the fact that the plaintiff as daughter of deceased, defendant No.1 as widow and remaining brother of the deceased (as deceased had no male issue) were entitled to inherit the legacy of the deceased predecessor of respondent No.1/plaintiff and this very status of the parties as declared by three courts below had attained finality

The predecessor of the petitioner, defendant No.10, legally stepped into the shoes of defendant No.1/widow of deceased as he purchased the property from her and could ask only for the share which was received by her after promulgation of the Act of 1962 and the rest had to go to the other legal heirs of the deceased predecessor

Hence, the sale made by defendant No. 1 (mother of plaintiff / respondent No. 1 and widow of deceased predecessor) was only effective to the extent of her own share and that it was invalid, void and ineffective to the extent of rights of plaintiff (respondent No.1) and brother of the deceased

Since the actual defendants (respondent Nos. 3-9) accepted the decrees in favour of plaintiff (respondent No.1) the status of defendant No.1 (predecessor of the petitioners) was simply that of a purchaser who legally could not challenge / question the legal and sharia status of respondent No.1/plaintiff or the other respondents

The petitioners for that matter had no locus standi and cause of action to challenge the same

Present petition, petitioners' appeal before the District Court and civil revision before the High Court were not maintainable

Concurrent findings of facts recorded by three courts could not be questions in absence of any misreading or non-reading of material evidence or any other material irregularity or illegality

Present petition being meritless was dismissed and leave was refused, in circumstances.

It is also obligatory that donor divests and dissociates himself from dominion and ownership over property of gift and puts into words his categorical intention to convey ownership to donee distinctly and unambiguously with delivery of possession of property and ensure that donee has secured physical ascendency over property to constitute delivery of possession.

Father of the parties died about eleven years ago and when the sisters of the petitioner sought their share in his inheritance on 11 October 2021 only then did the petitioner (brother) file a suit for partition, declaration, specific performance and permanent injunction two months thereafter

Pendency of the said suit had no effect on the estate of the deceased nor could exclude the legal heirs from their inheritance

Property of a deceased Muslim vested in his legal heirs immediately upon his death

Inheritance rights of the vulnerable members of society, which include females, must be protected

Unfortunately, a practice has developed whereby those defying shariah and the law, facilitated by some lawyers, adopt various nefarious means, including taking the plea of pending litigation in depriving legal heirs from what is rightfully theirs

Filing of present frivolous petition and the dishonest tactics employed by the petitioner justified the dismissal of present petition with costs in the sum of three hundred thousand rupees, which the petitioner was directed to pay equally to the respondents who had been deprived of their legal shares

Said respondents would also be justified to claim mesne profits for all the days that the petitioner did not abide by his 'Consent/Joint Statement' whereby he agreed to have the property evaluated and pay the legal heirs their respective shares as per shariah.

An attempt to deprive the widows of the deceased from their inheritance was made through two gift mutations purportedly made by their husband

Petitioners (alleged donees) made an attempt to show that the respondent (one of the widows) had given up her claim/right to inheritance by preparing an undated Razi Nama (agreement), which commenced by stating that it was being executed on behalf of the other widow through her special attorney, namely, "MF", but the same was not signed by him

A fingerprint or thumb impression purporting to be that of respondent (widow) was affixed on it

However, no consideration was given to respondent or received by her for executing the Razi Nama and giving up the claim to her inheritance

For the sake of argument, if it be assumed that respondent had executed the Razi Nama it was wholly without consideration which would make it inconsequential

However, it was tendered to the Court and the Judge without ensuring that respondent had executed it with knowledge of its contents assumed that all of a sudden she had surrendered her rights for which she had filed a suit

On its part the High Court did not attend to the main issue, which was the denial of inheritance, and instead concerned itself with peripheral matters

It was now the twenty-fifth year since respondent, a widow, had been struggling to get her inheritance

Bogus gift mutations were made and dated just before the death of her husband and then the bogus Razi Nama emerged

Unfortunately, and all too often, females continue to be deprived of their inheritance by employing various nefarious tactics, bogus documentation, fraudulent statements with the facilitation of Revenue department officials and some advocates

Courts too at times are not vigilant enough to protect inheritance rights, particularly of females and other vulnerable members of society

And, simple cases such as the present one are not expeditiously decided, and when they do get decided the decision is assailed

Practice of depriving females of their inheritance must be put a stop to, and those who do so must be made to pay substantial costs and not be permitted to benefit from procedural technicalities

Petition was converted into appeal and allowed, impugned judgment and the orders passed by the High Court were set aside, and judgment and decree passed by First Appellate Court was restored with the direction that petitioners (alleged donees) shall pay five hundred thousand rupees as costs to the respondent within three months, failing which the said amount shall be recovered from them as arrears of land revenue.

Under Islamic jurisprudence, a woman retains full ownership and control over her property, earnings, and financial affairs, irrespective of her marital status

Any presumption that a married woman becomes financially dependent on her husband is not only legally untenable but also religiously unfounded, and contrary to egalitarian spirit of Islamic law.

Donee has to plead and prove as to what were the circumstances and incidents that the propositus, despite being a Muslim, proceeded to deprive his legal heirs/sons and gifted out his property to donee

Proving of such facts is necessary and sine qua non for a valid gift.

In case of gift of immovable property by husband to wife, the fact that husband continues to live in the house gifted or receives rents after the date of gift do not invalidate the gift

Presumption is that rents are collected by husband as a rent collector on behalf of the wife and not on his own accord.

Under Islamic jurisprudence, a woman retains full ownership and control over her property, earnings, and financial affairs, irrespective of her marital status

Any presumption that a married woman becomes financially dependent on her husband is not only legally untenable but also religiously unfounded, and contrary to egalitarian spirit of Islamic law.

Settlement Officer set-aside gift-mutation accepting application of the donor filed by him in his life ('the gift mutation-in-question') which findings were maintained upto the Board of Revenue

Validity

To constitute a valid gift under Para 149 of Principles of Muhammadan Law, delivery of possession of the subject of the gift by the donor to the donee is one of three essential ingredients (i.e. declaration, acceptance and delivery of possession of gift)

Under Para 167 of Principles of Muhammadan Law, the donor can opt revocation of gift before delivery of possession or where gift property has not been delivered to the donee

In the present case, the recital in the mutation of the gift mutation-in-question did not state that the purported subject matter of the gift was handed over to the donees

Therefore, it could not be concluded that the gift of the property-in-question was delivered to the donees

No illegality had been noticed in the impugned gift-mutation cancelling orders passed by revenue authorities

Constitutional petition was dismissed, in circumstances.

Predecessor-in-interest of the respondents being the surviving legal heir of his deceased brother instituted the suit against the petitioners, who on the basis of a false and fabricated Sharai fatwa got mutated the properties left by the deceased in their names and further sold out a portion to third person (respondent No.6) by depriving respondents of their right of inheritance

Suit was dismissed by the Trial Court, however, the Appellate Court accepted the appeal of the respondents and decreed the suit

Contention of the petitioners was that they being legal and lawful heirs of deceased were the only ones entitled to the legacy of the deceased and predecessor of respondents being distant kindred was not entitled to legacy of his deceased brother

Validity

According to D.F. Mullah's principle of Mohammadan Law under Para-63, the wife and daughter (petitioners) were "sharers" and were entitled to "one-eighth share" and "one-half" of inheritance, respectively

Brother of the deceased i.e. predecessor of respondents came within the category of residuaries, which was in Para-65 of D.F. Mullah's principle of Mohammadan Law

After payment of the deceased's funeral expenses, and debt (if any), the petitioners being widow and daughter of the deceased were sharers and were entitled as per their respective shares, while predecessor of respondents being brother came within the category of residuaries, thus was entitled to a share in the legacy of his deceased brother

Petitioners had sold out a piece of land from the rest of the property through a sale deed in favour of another respondent, which was also not disputed by the parties

As the share of predecessor of respondents would not be affected, thus, the Appellate Court's findings to the extent of cancellation of registered sale deed were held to be legally incorrect, however, the findings of the Appellate Court to the extent of determination of shares of the parties were held to be correct

Civil revision was dismissed, in circumstances.

One of the witnesses produced by the respondent/plaintiff stated that he led the Janaza (funeral) prayer of deceased as per Shia sect

One of the witnesses of the petitioners/defendants (DW-1) stated that two funeral prayers of the deceased were offered; one, as pre Shia sect, and the other, as per Sunni sect led by a Maulvi (prayer leader)

On the request of said witness, prayer leader was summoned but he was abandoned

Subsequently, the prayer leader was examined as a Court Witness (CW-1), who stated in his statement that the deceased was follower of Shia sect and that he (prayer leader) had not led his Janaza (funeral) prayer

Two of the (six) witnesses of respondent/plaintiff admitted in their cross-examination that by birth the deceased was Sunni but that he (deceased) later on adopted Shia sect

Under Para 31 of Chapter 3 of Principles of Muhammadan Law, a Muhammadan male or female who has attained the age of puberty, may renounce the doctrines of the sect or sub-sect to which he or she belongs and adopt the tenets of the other sect or any other sub-sect and he or she will thenceforth be subject to the law of the new sect or sub-sect

Respondent/plaintiff had proved on record that her father was follower of Shia sect and he validly scribed the will-deed

No mis-reading, non-reading or unlawful exercise of jurisdiction had been pointed out and both the Courts below had passed the impugned judgments/decrees after proper appreciation of the record/evidence, thereof the concurrent finding could not be interfered with

Revision petition, being meritless, was dismissed in limine, in circumstances.

Shia Law of inheritance divides heirs into two groups, namely, (1) heirs by consanguinity, that is, blood relation, and (2) heirs by marriage, that is, husband and wife

Heirs by consanguinity are divided into three classes and each class is sub-divided into two sections

Para 88 of Chapter 8 of the principles of Muhammadan Law provided three classes of heirs;

Relevant revenue record exhibited by one of the witnesses of plaintiff /respondent revealed that the deceased (father of respondent/lady-plaintiff) was the owner of the property-in-question

Respondent/plaintiff not only produced/exhibited the will-deed but also produced the scribe and marginal witnesses of the same (will-deed) as her witnesses

In said will-deed the deceased disclosed that he was follower of Shia sect and directed to conduct his funeral ceremony according to Shia sect and to burry him in a shia graveyard; he further directed that the respondent/plaintiff is his sole legal heir and his legacy will be devolved according to Shia sect

Petitioners/defendants were not able to shatter the evidence qua writing of the will-deed

As many as six witnesses produced by the respondent/plaintiff, including one who led the funeral prayer of deceased, remained consistent to the effect that the deceased was follower of Shia sect till his death

Respondent/plaintiff had proved on record that her father was follower of Shia sect and he validly scribed the will-deed

No mis-reading, non-reading or unlawful exercise of jurisdiction could be pointed out and both the Courts below had passed the impugned judgments/decrees after proper appreciation of the record/evidence, thereof the concurrent finding could be interfered with

Revision petition, being meritless, was dismissed in limine, in circumstances.

Conflicting views expressed in text books on Muslim Law (such as Hedaya, Fatawai-i-Alamgiri, Radd-ul-Mukhtar, Muhammadan Law by Sayyed Amir Ali, etc.)

Question as to how the Courts shall determine which view is correct?

Held that where there is no Quranic or traditional text or an Ijma' on a point of law, and if there is a difference of views between A'imma and Faqihs, a Court may form its own opinion on a point of law.

Hizanat is regulated through Muslim Personal Law of the parties; under the Shia Law mother is entitled to the custody of male child until he attains the age of two years and if female child until she attains the age of seven years.

After the child has attained the abovementioned age, the custody belongs to the father

Under Shafei Law the mother is entitled to the custody of her daughter even after she has attained puberty and until she is married.

There is difference between Walayat (Guardianship) and Hizanat (Custody); in Muslim Law, as in almost every other system of law, the father is the natural guardian of the person and property of his minor child but Islam recognizes the mother as having prior right of custody, obvious reason is the nourishment, sustenance, patronage and upbringing of a human child so as to make him/her a useful human being

Mother keeps a caring instinct, therefore, is the suitable person for such task; that is the reason, for custody, the term 'Hizanat' has been used

Word “Hizanat” is derived from the Arabic word “Hizan” which means 'lap of the mother', it denotes giving a child to the mother's lap for caring and rearing; which signifies love, care and affection directly and constantly needed by a male child up to the age of seven years and female child till she attains puberty

Care, love and affection play a vibrant and vital role in developing the nature and character of a person and as such Hizanat can safely be termed as a tribute and privilege of a minor assigned and vested in the mother

Woman who holds the custody is called “Hizana” and she loses the right of hizanat in certain circumstances suggested in the law

As per Para 352 of Muhammadan Law, mother is entitled to custody of male child until he has completed the age of seven years and her female child until she has attained puberty

Such right continues even if she is divorced by the father of the child; however, if she marries a second husband, stranger to child, in which case custody belongs to the father but subject to determination by Guardian Court

There are certain conditions which disqualify females for custody

Para 354 of Muhammadan Law says that a female, including the mother, who is otherwise entitled to the custody of a child, loses the right of custody in certain situations

Under the law mother has a preferential right for custody of a minor till the prescribed age

Even if divorce has become effective between the spouses, mother does not lose her right of hizanat except in the situations mentioned in Para 354 of Muhammadan Law subject to determination by Guardian Court

In the present case, the circumstances warranted that minor being of tender age required the lap of mother; therefore, interim custody of minor was regulated in favour of petitioner/mother who shall be bound to produce him before the Gurdian Court where the proceedings were pending, yet subject to final determination by the Guardian Court as to the rights of parties for custody and visitation of minor

Constitutional petition, filed by mother of minor, was disposed of.

Testator can bequest his entire property to a non-heir through a will in the following cases i.e. where subject to the provision of any law for the time being in force, such excess is permitted by a valid custom; where there are no heirs of the testator; where the heirs existing at the time of the testator's death consent to such bequest after his death, and where the only heir is husband or wife and bequest of such excess does not effect his or her share

Consent given by heirs may be express or implied, it may be oral or in writing and it can also be implied from conduct

Where testator makes a bequest and on his death, other heirs help legatee in affecting a mutation in name or allow the legatee to take exclusive possession of property, it is proof of the heir's consent

There was no illegality, irregularity and mis-reading or non-reading of evidence on the part of two Courts below while passing judgments and decrees

Both the courts below while passing judgments and decrees considered every piece of evidence, oral as well as documentary, produced before them and nothing from the record was shown to have been overlooked by them from their judicious consideration

High Court in exercise of revisional jurisdiction declined to interfere in judgments and decree passed by two Courts below as their findings on question of facts and law were based upon proper appreciation of oral as well as documentary evidence produced in the suit and were not liable to be reviewed or substituted by the Court

Revision was dismissed, in circumstances.

Respondents/plaintiffs assailed mutation of inheritance attested in favour of petitioners/defendants on the plea of change of faith

Suit and appeal were concurrently decided in favour of respondents/ plaintiffs

Validity

Canon of the Quran and Sunnah were applicable to inheritance of estate of deceased Muslim

Non-Muslim was not entitled to inherit any share from the estate of his Muslim relative as successor or predecessor

Predecessor-in-interest of petitioners/ defendants was Qadiani at the time of incorporation of inheritance mutation whereas his father who was owner of suit land was a Muslim

Predecessor-in-interest of petitioners/defendants was not entitled to inherit from the estate of his Muslim father

Trial Court rightly decreed suit of respondents/plaintiffs which decision was lawfully upheld by Lower Appellate Court

High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of facts by two Courts below, as the petitioners/defendants could not point out any illegality or material irregularity in judgments and decrees passed by two Courts below, neither there was any jurisdictional defect

Revision was dismissed, in circumstances.

Advantageous familial positions cannot be used to extract implied consent from vulnerable females to relinquish their inheritance share

Inheritance rights of female heirs must be jealously guarded

In the present case the plaintiff's/petitioner's entitlement in her father's estate was a common ground; being a female in a muslim household, it was her due, conferred by Divine Law, recognized by the law of the land; it was so ordained in Sura Al-Nisa (4/10)

Given the preponderance of conferment, such a right, rooted into personal law, has to be jealously guarded, therefore, a heavy onus is cast upon the claimant to demonstrate that a female legatee had parted with her entitlement by choice and for considerations, consciously, without duress or uncalled for persuasions by those placed qua her in advantageous positions

Male heirs frequently resorted to fraud and other tactics to deprive female heirs from their share of inheritance

Such deprivation caused suffering to those deprived, and it also unnecessarily taxed the judicial system of the country, resulting in needless waste of resources

Each and every day that a male heir deprived a female heir was also an abomination because it contravened what has been ordained by Almighty Allah

Civil revision was allowed and suit filed by petitioner/plaintiff (female heir) was decreed.

Petitioners assailed mutations of inheritance of their predecessors-in-interest who died issueless and respondents received their share on the principle of Return (Radd)

Validity

On death of a Muslim, his estate devolves upon his heirs [sharers, residuary and/or distant kindred]

If deceased has no residuary, then under the principle termed as Return (Radd) such share returns to the sharers

Predecessors-in-interest of parties died issueless and left no male sharer alive

Respondents were sons of paternal uncle who inherited from the respective estates of deceased owners after satisfaction of shares of sharers

Revenue hierarchy rightly granted due shares to respondents from the estate of deceased owners

High Court declined to interfere in mutations of inheritance, as petitioners were not able to point out any illegality or material irregularity, nor there was any jurisdictional defect

Constitutional petition was dismissed, in circumstances.

After the death of father of spinster his mother married the brother of her husband ('R') and out of the wedlock petitioner was born

Upon death of spinster, inheritance mutation was made in favour of her uterine brother (petitioner)

R's other sons from a different wife (respondents Nos.1 & 2) instituted a suit for declaration, claiming that they were also entitled to inherit from spinster as R's sons

Petitioner also filed a suit claiming that he was sole heir of spinster

Suit of the petitioner was dismissed, whereas the one instituted by respondents Nos.1 and 2 was decreed

Petitioner preferred an appeal, which was also dismissed

Validity

Petitioner was real uterine brother of spinster and under Islamic law when a real brother of a deceased issueless spinster lady is alive, he is entitled to inherit the entire estate of the deceased and the paternal uncle or his successors were not entitled to inherit any share

Evidence produced by the respondents was in the statement of their counsel, thus, the same was inadmissible

Decision of fora below on issues Nos.1 to 3 suffered from blatant misreading and non-reading of evidence as well as mis-application of law, thus, High Court in exercise of its revisional jurisdiction under S.115, C.P.C. reversed the concurrent findings of the lower fora

Civil revision was allowed, in circumstances.

Rights or shares of each and every Muslim heir in the estate of his/her deceased propositus are absolutely, conclusively and finally described/determined in the Holy Quran, and such shares are definite in nature.

In matters regarding inherited property, the question of limitation does not arise.

Obligation of the father to maintain his adult son who has not yet accomplished basic education, enabling him to earn his livelihood, may be considered by the court in an appropriate case, a factor falling within the exception to the general rule

Education is the necessary qualification which is required by a person to enable him to earn bread and butter, however, it does not include higher studies and studies abroad.

Right of maintenance is not limited only to food, clothing and lodging, but also entails all other necessary expenses for the mental and physical wellbeing of the recipient.

There is a presumption of marriage based on continued and prolonged cohabitation unless the same is dislodged by cogent reason.

Appellants had acquired the subject property against whom and the other respondents, the respondent No. 1, initiated proceedings for claiming his right of pre-emption

Said proceedings were decreed by the Trial Court which was upheld by the first appellate Court

Validity

Record showed that a witness said to have been present at the time of first Talb though had died, but the claimant of the pre-emption preferred never to bring any secondary evidence in that regard

In the cross-examination, the appellant and the seller both had stated that no first Talab was made and irrespective of the contentions raised in the written statement, which were apparently never confronted to the witness, the material in record did not show that the respondent No.1 was able to prove that the first Talb was ever made

In the said circumstances the decree of preemption was not available

Revision was allowed, in circumstances.

Appellants had acquired the subject property against whom and the other respondents, the respondent No. 1, initiated proceedings for claiming his right of pre-emption

Said proceedings were decreed by the Trial Court which was upheld by the first appellate Court

Validity

In the present case, record showed that the Trial Court had preferred to keep the price as was up in 1987 which could never be entertained as inflation was an ever visible element and the amount required to be deposited in year 2013 could not by any stretch of imagination be considered as adjustable amount that was paid in 1987

Revision was allowed, in circumstances.

In other words, the right of pre-emption is to be personal to a preemptor until a decree is passed in his favour and, during that interregnum, said right is neither transferable nor in heritable

In such a situation if the preemptor dies before obtaining a decree in his favour in the Trial Court or the appellate or Revisional Court, his right of preemption shall remain exclusively personal and shall not survive to his heirs

But no sooner a decree is passed in favour of the pre-emptor than the right becomes a proprietary one and is capable of not only being transferred but also inheritable as well.

Counsel for the brothers submitted that then deceased had in his lifetime gifted some cash and gave dowry to his daughters, therefore, the daughters should have been excluded from the Inheritance Mutation and from inheriting the estate of the deceased

Validity

Such contention on behalf of the brothers was completely against the Shariah and the law of Pakistan

Present case was yet another classic case of brothers' depriving their sisters of their inheritance, and did so for decades

Frivolous litigation initiated by them was undoubtedly encouraged by the fact that substantial costs were not imposed on them for putting forward an untenable claim

And, because the revenue authorities were not directed to ensure that the shares of all the legal heirs were recorded and no legal heir was deprived of his/her share

Brothers deprived their sisters' share in the inheritance of their father and filed a baseless case and then dragged it out over decades, which had eventually come before the Supreme Court

Precious court time had been wasted

It was intolerable to deprive vulnerable persons and females of their legal rights

Present petition should never have been filed because it proposed to undo Shariah and law

Petitioners (brothers) had retained possession of the daughters' share in the subject land

Petition for leave to appeal was dismissed with costs in the sum of five hundred thousand rupees, to be paid by the petitioners, with the directions that they should deposit the same with the concerned revenue authority within three months and such authority shall distribute the same amongst those who had been deprived; that if the said amount was not deposited it shall be recovered as arrears of land revenue and distributed in like manner; that the revenue authorities shall ensure that the estate of deceased was distributed amongst all his legal heirs in accordance with their shares prescribed by Shariah.

Well-established principle of Muslim Law is that a de facto guardian of a minor has no power to transfer any right to or interest in the immovable property of the minor

Even the principle of estoppel is inapplicable in the case of a minor.

Deceased's son (respondent) sold part of the disputed property in which the daughter (appellant) had a 1/3rd inheritance share

Suit filed by the daughter was decreed, however the High Court directed the son to pay the daughter 1/3rd of the sale proceeds instead of 1/3rd share in the property

Legality

Legal heirs inherit property to the extent of his/ her share the very moment his/ her predecessor passes away

In the present case the inheritance mutation was procured in favour of the son (respondent) by fraud after the exclusion of the daughter (appellant) from the inherited property, with connivance of the revenue officials by concealing the fact of existence of the appellant

Hence, the son could not make out a case claiming ownership of the entire property of his late father to the exclusion of the daughter

Appellant being daughter of deceased, could not be deprived of her right in inherited property by any illegal mutation sanctioned at the behest of male heirs

High Court completely failed to apply the law and granted only 1/3rd share out of the sale price of Rs. 13,00,000/- to the daughter

Grant of 1/3rd share out of the sale price and exclusion of the daughter from the inheritance was against the law

Supreme Court cancelled the inheritance mutation and all subsequent mutations attested on the basis of the same, and gave directions that the revenue authorities shall mutate the entire property of late father of the parties afresh among his legal heirs i.e. son and the daughter, strictly in accordance with law, and that the property already sold out by the son shall be made part of his share while mutating the estate of the late father

Appeal was allowed.

Transfer of Property Act, 1882, has no application to the gift envisioned and encapsulated under the Muslim Law and for this reason, Sections 123 and 129 of the Transfer of Property Act can neither surpass nor outweigh or preponderate the matters of gifts contemplated under the Muslim Law

However, the donor should be of sound mind and understand the legal implications of making the gift, free from any coercion, duress, or undue influence

Under the Muslim Law, the constituents of a valid gift are tender, acceptance, and possession of property

Muslim can devolve his property under Muslim Law by means of inter vivos (gift) or through testamentary dispositions (will)

Islamic law does not make any distinction between movable or immovable property regarding the conception of gift, rather any property may be gifted by any person having ownership and dominion over the property intended to be gifted on fulfilling requisite formalities.

Doner should be compos mentis, meaning thereby a person who is of sound mind and has the mental capacity to understand the legal implications of his act of making a gift, and he must be of age and also the owner of the property intended to be gifted; the thing gifted should be in existence at the time of making hiba; the thing gifted should be such that benefitting from it is lawful under the Shariah; the donor must be free from any coercion/duress or undue influence while making a gift; the thing gifted should come into the possession of the donee himself or through his representative/guardian for an effective hiba

Under Muslim law, the constituents and components of a valid gift are tender, acceptance and possession of property

It is also obligatory that the donor divest and dissociate himself from the dominion and ownership over the property of the gift and put into words his categorical intention to convey the ownership to the donee distinctly and unambiguously with the delivery of possession of the property and ensure that donee has secured physical ascendency over the property to constitute the delivery of possession.