Inheritance

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 case aroses from a family inheritance dispute concerning immovable property owned by the parties' deceased father, who passed away in 2002 leaving behind several heirs, including the petitioner and respondent No.1

In 2015, respondent No.1 instituted a suit for declaration, partition, recovery of mesne profits, and injunction regarding the said property

The trial court decreed the suit, holding all heirs entitled to their respective shares, and the first appellate court and the High Court upheld this decision by dismissing the petitioner's appeals

The petitioner thereafter filed the present civil petition before the Supreme Court challenging the High Court's judgment

Held: Petitioner (defendant No. 6) neither produced the attesting witnesses nor adduced trustworthy and confidence-inspiring evidence to establish the document in his favor as genuine

The Trial Court, as such, rightly noted that the Iqrar Nama relied upon by the petitioner lacked the particulars of witnesses such as their addresses and CNIC numbers, rendering it "dubious and unreliable"

Similarly, the purported certificate of possession remained unproven

It was undisputed that the predecessor-in-interest continued to exercise possessory rights over the property during his lifetime and that utility connections remained in his name

The concurrent findings of the courts below required no interference nor did any question of law arise for consideration by the Supreme Court

Leave to appeal was refused and the petition was dismissed.

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.

Supreme Court has persistently deprecated the common practice of depriving female legal heirs from their Shari shares on one or another pretext

Female legal heirs are ,in addition to their Shari shares , also entitled to mesne profits.

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.

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.

Once the claim was denied by a co-owner, the applicants were under a legal obligation to approach the competent court and assert their claim against respondent/plaintiff, and their failure to do so raised serious questions about the credibility and maintainability of their stance

Such inaction reflected gross negligence and demonstrated a lack of bona fide intent, especially in matters relating to partition of joint property and enforcement of alleged sale agreements

Benefit of any equitable relief cannot be extended to those who have failed to act within the legal framework and prescribed time limits

If a valid and lawful sale had truly occurred, it would have been duly reflected in the revenue record and appropriate legal formalities such as registration of the sale deed and mutation would have been completed

Absence of these essential steps undermined the credibility of their claim

Mere attestation of agreement to sell does not establish the valid execution or consent of all co-sharers, especially in the absence of independent and consistent corroborative evidence

Overall evidence presented by the applicants lacked coherence, consistency and legal reliability

Contradiction between the statements of key witnesses cast serious doubt on the genuineness of the agreement to sell and reflected an attempt to create a false narrative

Mere production of a document could not affect the rightful claim of the respondent, whose existence as a legal heir was undisputed

Civil revision was dismissed, in circumstances.

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.

Group insurance is a type of insurance coverage provided by a group of people in a single contract typically issued by the employer, organization or association at a low cost of that individual insured while insurance policy is a legal contract between an insurer and the policy holder

The policy clearly states the terms, conditions, coverage, premium amounts and duration of the insurance agreement but in both the cases be it group insurance or individual insurance, the amount of insured money will be distributed according to the Muhammadan Law of Inheritance amongst the legal heirs of deceased

Deceased policy holder was survived by her three brothers (the petitioners) who were entitled to inherit from the insurance claim of policy holder according to their respective shares because respondents (Insurance Company) failed to produce convincing evidence in support of their assertions / stance; hence, the petitioners were entitled to receive the death claim

Insurance Tribunal decreed in favour of the petitioners and against the respondents (Insurance Company) to the tune of Rs.50,00,000/- with costs alongwith the liquidated damages

Insurance application was decreed accordingly.

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.

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

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.

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.

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;

When the plaint is barred by any law on the face of it, recording of evidence would be a futile exercise and would amount to encouraging the abuse

Where on the plain reading of the plaint, it can be clearly seen that the suit is patently barred by limitation, no evidence is required

To plead that a plaint cannot be rejected because of the suit being barred by limitation/law, without recording evidence, is to plead against the mandate of law as contained in O. VII, R. 11 C.P.C., which essentially requires the court to reject the plaint which appears from its contents to be barred by limitation

Aggrieved person has to pursue his legal remedies with diligence and if a suit is beyond limitation, the delay of each and every day consumed for approaching the court beyond the period of limitation has to be explained

In the instant case the plaint on the face of it failed to explain the delay of a period of 34 years

The contents of the plaint failed to set up a case in a manner which rendered the question of limitation as a mixed question of law and fact

Mere reading of the contents of the plaint made it abundantly clear that it was statute barred and was liable to be dismissed in terms of O. VII, R. 11, C.P.C without employing valuable judicial resources and time of the Trial Court

By specifically incorporating the provision in terms of O. VII, R. 11, C.P.C, the legislature has empowered the court with an independent suo motu and sua sponte power to examine the plaint by using its wisdom

The courts always nip a frivolous suit in the bud, by rejecting such frivolous, fictitious and untenable claims in order to retain courts' docket and time for more serious claims

Non-actionable plaint or suit is a non-starter and in the interest of administration of justice and good judicial governance, it is best if such plaints are dismissed at the earliest

Keeping in view the mandatory provision of S. 3 of the Limitation Act, 1908, it is duty of every court and forum itself to look into the question of limitation irrespective of the fact whether any objection in this regard has been raised or not

Limitation runs even against a void order and a void order too has to be challenged within limitation

In the instant case, there was no justification at the outset merely by considering the averments of the plaint to overlook the delay of 34 years

When Mst. "SB" did not challenge the impugned gift deed in her life time despite third party transfers through registered deeds, petitioner/plaintiff had no right to claim inheritance of Mst. "SB"

Under Art. 100 of Qanun-e-Shahadat, 1984 a presumption was attached to the impugned gift deed which was 34 years old document at the time of its challenge before the Trial Court

In the instant case, predecessor in interest of the petitioner/plaintiff (Mst. "SB") never voiced any grievance against the Impugned mutation; even on her demise in 2009, her legal heirs kept a mum for almost six years despite being resident of same village, and suddenly woke up from slumber and filed the suit in November 2015, which was not permissible under the law

There was no substance in the petition which 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.

In our society there has been an unstoppable bent to invent grotesque devices conceived to deprive daughters, sisters, mothers, widows, orphans etc of their share of inheritance; the 'Oral Gift' being the most fancied of all, employed by unscrupulous male members of the family

It is for this reason that there is overwhelming settled jurisprudence in this country to arrest all such emblems of frauds, forgery, impersonations and uncalled for persuasions, nevertheless, the menace continues

The threshold tests of such transactions are now etched in our jurisprudence as tablet of stone, hardly requiring any further quest, however, if one needs reiteration, following principles be strictly adhered to, particularly in the context of the case in hand: (i) Beneficiary of the impugned transaction of gift/transfer of immovable property(s) bears the heavy onus to prove the transaction; (ii) The beneficiary of a gift has to plead and prove three mandatory ingredients of gift i.e. declaration/offer by the donor, acceptance of gift by the donee; and, delivery of possession under the gift; (iii) The possession of immovable property by one of the siblings/LRs to the exclusion of others will be treated as constructive possession on behalf of all others, unless proved otherwise ; (iv) In case of oral transactions, it is mandatory for a beneficiary of oral transaction to prove the same through positive evidence by supplying mandatory material particulars in the pleadings i.e. the time and date, the venue, and the persons/witnesses in whose presence the alleged transaction was brought about; (v) The oral transaction of transfer of immovable property, be it sale, gift/tamleek, surrender or will etc. has to be proved separately from its incorporation/attestation in revenue record by way of sanctioning of the mutation since a mutation cannot by itself be considered a document of title; (vi) Where a gift, which excluded a legal heir, irrespective of whether such transaction is evidenced by registered deed, the donee is required to prove original transaction and must justify the disinheritance of a legal heir from the estate; (vii) Parties are bound by their pleadings; no amount of evidence can be led beyond the scope of pleadings; and in case any such evidence is brought on record, the Court cannot consider and rely upon the same and has to discard it; (viii) Mere efflux of time does not extinguish the right of inheritance, thus, the question of limitation in case of inheritance and fraud is not attracted and becomes insignificant.

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.

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.

Whether the plaintiffs/appellants, being children of deceased son of predecessor, were entitled to get a share from the property of predecessor or not?

Though one of the defendants admitted the claim of the plaintiffs but the Courts below had rightly observed that if said defendant had accepted the claim of the plaintiffs they might transfer the suit land in their names from him through any recognized mode and merely on the basis of admission of said defendant the plaintiffs could not be declared owners of the land

No misreading and non-reading of evidence or violation of any settled law had been noticed in the impugned judgments passed by both the Courts below

Second appeal filed by plaintiffs, being merit-less, was dismissed, in circumstance.

Whether the plaintiffs/appellants, being children of deceased son of predecessor, were entitled to get a share from the property of their predecessor or not?

Admittedly, the predecessor-in-interest had four sons and it is also not denied by the plaintiffs that their father (son of predecessor) died in the lifetime of predecessor, hence after the death of the predecessor, the mutation was attested in favour of three sons, as father of plaintiffs died in the lifetime of his father, hence the plaintiffs cannot claim a share from his(predecessor's) inheritance

No misreading and non-reading of evidence or violation of any settled law had been noticed in the impugned judgments passed by both the Courts below

Second appeal filed by plaintiffs, being merit-less, was dismissed, in circumstance.

While approving the inheritance mutation-in-question, the Revenue Officer transferred the whole share of pre-deceased son to his daughter (granddaughter of deceased/predecessor)

Whether said granddaughter was entitled to half share (1/2) or full share (7/8) of her pre-deceased father?

Held, that mutation-in-question was passed to decide the inheritance of predecessor of the parties while at the time of his (predecessor') death, two of his children (one son and one daughter) had already died; hence S. 4 of the Muslim Family Law Ordinance, 1961 ('the Ordinance 1961') was attracted

Section 4 of Muslim Family Law Ordinance (VIII of 1961) lays down the principles for succession of pre-deceased person

Principle of succession in such a case is not inheritance "per capita" rather it is inheritance "per stripes" i.e. in accordance with the root to which the grandchild belongs; which means that, in the present case the grand daughter would only get the share to which she was entitled had her father not died before her grandfather

The provision of S. 4 of the Ordinance, 1961 is a special provision which should not be implemented to increase the share of grandchild beyond normal or decrease the shares of other descendants

In the present case, according to Shajra Nasab, pre-deceased son had no son and he had only one daughter

It was also admitted that the parties were followers of Sunni Law

Therefore, daughter of the said pre-deceased son had to inherit only her due share out of legacy of the deceased /predecessor (grandfather) in place of her father i.e. ½, but it was not done through the inheritance mutation-in-question and whole share of pre-deceased son was given to his daughter

Thus, Addl. Commissioner Revenue while passing the impugned order ignored such important fact of the present case and arrived at a wrong and unfair conclusion which made the impugned order defective in the eyes of law

Member, Board of Revenue set aside the impugned order passed by the Addl. Commissioner (Revenue) and the concerned Revenue Officer was directed to re-enter the mutation of inheritance of deceased (predecessor /grandfather) in accordance with the principle that the granddaughter was entitled to only ½ share of the property which her father would have been entitled to at the time of death of deceased (predecessor /grandfather)

Revision petition was accepted accordingly.

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.

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.

Principle stated.

Estate of a Muslim, on his death, is transferred to his legal heirs by operation of law, with each heir having constructive possession of his share in the estate till the partition of the entire estate or transfer of his share under the law.

In the case of denial of the inheritance to an heir, the cause of action to sue accrues to him, when the co-sharer[s]/legal heir[s] in actual possession of the inherited property denies (actually) or is interested to deny (threatens) the share of the claimant legal heir in the inherited property

Actual denial of right of a co-sharer by the other co-sharer may occur, when the latter does something explicit in denial of the rights of former, such as by making a fraudulent sale or gift deed

Transfer of property to a third party, be it through sale or gift, constitutes an actual denial of rights

In contrast, a simple annotation in the revenue records is regarded as a threatened or apprehended denial of rights.

Given the obligatory nature of the right of inheritance which carves out no room for refusal, inheritors may distribute their respective shares in an amicable manner

In the process, an inheritor may agree to take a specific portion or kind of the inherited property and give a part or other kind to other inheritors

Having stepped down, such an inheritor stands excluded

This is called takharuj

In this perspective, the exclusion amounts to compromise (sulh) and takharuj becomes tasaluh.

In Islamic Law of inheritance, takharuj could be understood as tasaluh (sulh or compromise on something)

Takharuj as tasaluh comes into play in a situation where one of the legal heirs of a propositus voluntarily agrees on something specific from the pool of the inherited property and does not press for his/her whole share

Takharuj assumes the status of a gift in two ways

Firstly, the property from which one inheritor will stand excluded will be that of a gift of his/her remaining property to other inheritors

Takhuruj has to take place at the time of distribution by means of partition of the entire legacy, so that each inheritor is able to get possession of his/her due share first

Gift of an undivided property (musha'a) is not valid as delivery of possession is one of its essential elements.

Limitation does not preclude a person to get his share from inheritance.

Grand children are entitled to receive share equal to the share of their mother or father in view of S. 4 of Muslim Family Laws Ordinance, 1961

Only condition to such entitlement is that succussion should open after promulgation of Muslim Family Laws Ordinance, 1961.

Fraud vitiates the most solemn proceedings and thus period of limitation would not be an embargo upon a justifiable claim directed against fraud, more particularly if same involves right of a person to inheritance of the property.

All moveable and immoveable properties owned and possessed by the deceased at the time of death, including property which is due to the deceased from any other person (though not received by the deceased during his life time, but the deceased was legally entitled to raise a claim in respect of the same in his life time), and distributable among his legal heirs as per their respective shares is called Tarka

Succession to the estate of a Muslim under the Muhammadan Law shall open the moment a person departs from this world and rest of the proceedings are mere formalities

Legal heirs, as per the Shariah, who are alive at that time, shall be entitled to inherit the estate.

Rights and shares of each and every Muslim heir in estate of his / her deceased propositus is absolutely conclusive and finally described / determined in the Holy Quran

Such shares are definite in nature.

Respondents / plaintiffs claimed to be legal heirs of their deceased predecessor-in-interest and had assailed mutation of inheritance in faovur of petitioners / defendants

Suit and appeal were concurrently decreed in favour of respondents / plaintiffs by two Courts below

Plea raised by petitioners / defendants was that the suit was barred by limitation

Validity

All legal heirs, after the closing of eyes by their predecessor-in-interest, had become absolute owners according to the principles of the Quran and Sunnah, to the extent of their respective shares in estate of the deceased without resorting to legal course of independent transaction

Such ownership could not be taken away by means of any unauthorized entry in revenue record

If any entry was made in clandestine manner with collusiveness of revenue staff, such entry was devoid of any legality and did not create any valid rights

Main object of registration and sanctioning of mutation of inheritance was mere formality to update official record

All legal heirs of deceased had become absolute owners of the property to the extent of their respective shares until and unless they themselves voluntarily and legally further alienated their such shares / rights and such legal heir by operation of law would become joint owner in the estate having constructive possession over their shares

No limitation runs against inheritance matters as well as against any patently void order / entry

High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of fact as there was no illegality or any other error of jurisdiction

Revision was dismissed, in circumstances.

Fraud vitiates the most solemn transaction and in such like position, when question of inheritance is involved, limitation does not run

When foundational transaction is based on fraud and mala fide, the subsequent superstructure built thereon cannot be allowed to stand and ultimately collapses.

Predecessor-in-interest of petitioners / plaintiffs was the only daughter of deceased owner of suit property, who claimed her father to be Shia by faith

Validity

Every Muslim in the sub-continent is presumed to belong to Sunni sect, unless 'good evidence' to the contrary is produced by the party contesting the same

Judicial determination of whether such presumption of faith of a party, positively stands rebutted, would be adjudged by the Court on the principle of preponderance of evidence produced by parties

No strict criteria can be set to determine faith of a person and therefore to pass any finding thereon

Courts are to consider surrounding circumstances i.e. way of life, parental faith and faith of other close relatives

Predecessor in interest of petitioners / plaintiffs failed to prove that deceased owner of suit property was professing Shia faith during his life time

Ultimate result would be that the deceased owner was Sunni by faith and the same was rightly determined and declared as such by the Courts below while passing judgments and decrees

Concurrent/coexisting possession of deceased predecessor-in-interest of petitioners/plaintiffs and after her demise, that of the petitioners/plaintiffs, her successors, would be considered

High Court declined to interfere in concurrent findings of facts by two Courts below as they had committed no illegality, irregularity and wrong exercise of jurisdiction, rather after evaluating evidence on record reached a just conclusion that defendants failed to prove their case through trustworthy and reliable evidence

Revision was dismissed, in circumstances.

Legal heir in possession has to be considered to be in constructive possession of the property on behalf of all the heirs in spite of his exclusive possession.

In the present case, impugned inheritance mutation was attested on 5.4.1958 in favour of sons only to the exclusion of the daughter

Legal heirs of daughter challenged said mutation through a suit filed on 20.6.2005

Held, that law of limitation would be relevant when the conduct of the claimant (heir) demonstrates acquiescence and particularly when third party interest is created in the inherited property

In the instant case, there is nothing on the record to show that the daughter had either relinquished her interest in the disputed property or transferred it in favour of her brothers, therefore, the cause of action accrued when the appellants/defendants denied her right

As per averments of plaint, the plaintiffs (i.e. legal heirs of the daughter) came to know about the wrong entry for the first time on 22.12.2004 when they obtained copy of inheritance mutation of their maternal grandfather, therefore, the suit cannot be held as time barred

Appeal was disposed of.

No limitation runs against matters involving inheritance rights of a female where she has been defrauded of her right by her family

Where a person has been denied the right of inheritance that would give them cause of action

No limitation would run against a co-sharer.

Pedigree-table alone and by itself is not a proof of relationship unless such relationship is proved through witnesses or other independent evidence

Simple production of pedigree-table through a counsel without any corroborative evidence is not sufficient to conclude that a party was not related to the deceased.

Suit instituted by a female legal heir against her brother for declaration of her ownership rights as to the property left by her deceased father in his inheritance

Limitation

Period of limitation for filing such suit; the principles relating to accrual of right to sue and the criterion for determining the actual denial of female heir's rights as to joint property stated.

Appellants claimed to be great distant legal heirs of the deceased who was issueless; thus, they sought their due share in his pensionary benefits

Widow of deceased had also filed an application for similar relief

Trial Court dismissed the application filed by appellants and allowed that of the widow

Validity

Pension of a deceased was not heritable property i.e. it did not constitute 'tarka' of the deceased, and its distribution was governed under the statute/rules that provided for such pension

Appellants were not entitled to receive any share from the pensionary benefits of deceased

Orders passed by Trial Court did not suffer from any material illegality or irregularity to warrant interference by the High Court

Appeals were dismissed.

Appellants claimed to be great distant legal heirs of the deceased who was issueless; thus, they sought their due share in his pensionary benefits

Widow of deceased had also filed an application for similar relief

Trial Court dismissed the application filed by appellants and allowed that of the widow

Validity

Pension of a deceased was not heritable property i.e. it did not constitute 'tarka' of the deceased, and its distribution was governed under the statute/rules that provided for such pension

Appellants were not entitled to receive any share from the pensionary benefits of deceased

Orders passed by Trial Court did not suffer from any material illegality or irregularity to warrant interference by the High Court

Appeals were dismissed.

Land was mutated in favour of petitioner/defendant in year 1938 on death of predecessor-in-interest of parties excluding respondent/plaintiff from inheritance

Respondent/plaintiff filed suit for recovery of possession, declaration and injunction to the extent of her share in suit land

Suit was concurrently decreed by two Courts below

Contentions of petitioner/defendant were that amendment introduced to S. 59 of Punjab Tenancy Act, 1887, was not applicable retrospectively and he had been depositing compensation under S. 4 of Khyber Pakhtunkhwa Tenancy Act, 1952, therefore, he had acquired exclusive right over suit land

Validity

Not only heading of S. 59 of Punjab Tenancy Act, 1887, [as amended by Punjab Tenancy (Amendment) Act, 1951] but body of main section also aimed at providing a complete code for devolution of occupancy rights of deceased occupancy tenant

With the amendment brought in year 1951 the matter of devolution which had earlier been governed by customs was to be regulated by the law of Shariat

Right of occupancy had always been treated inheritable by law

Only difference that was made by Punjab Tenancy (Amendment) Act, 1951, was to the effect of substituting governing law and changing it from customs to Shariat

Right of occupancy tenancy was always inheritable

Matter of legacy of a Muslim occupancy tenant was governed by S. 59 of Punjab Tenancy Act, 1887, [as amended by Punjab Tenancy (Amendment) Act, 1951], even if deceased occupancy tenant had died before promulgation of Amending Act, because of its retrospective effect

Payment made by brother (petitioner/ defendant) was also deemed to be made on behalf of sister, who was plaintiff before Trial Court

High Court declined to interfere in concurrent judgments and decrees passed by two Courts below

Revision was dismissed accordingly.