daughters rights on father's property Supreme Court decisions

Supreme Court order on daughters rights on father's property

Zair e nazar Judgement Sisters (bhaino) ko Warasati property se mehroom karne ke bare main hai.

Hiba ke zareea se bhaio ko or 2nd wife ko jaidad hibba ki gai or 5 bhaino ko Warasati jaidad main hissa nahi dia

Or bhaino ne warsati jaidad ke liye or intqal ko challenge kia

Civil court ne case dismiss kar dia .

Jiss ke baad appeal main district judge ne civil court ke order setaside kar diye or dawa decree kar dia

High court ne district judge ke faisla ko barqar rakha.

Jiss ke baad zair nazar Judgement main Supreme Court ne High Court ke faisla ko barqar rakha or leave to appeal kharaj kar di.

Zair nazar case main warasat main bhino ka haq or hiba ko bht ache se discuss kia gia or bht sari judgements quote ki gain by Supreme court.

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Judgement of Supreme court on inheritance Rights of daughters

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:

Mr. Justice Qazi Faez Isa

Mr. Justice Amin-ud-Din Khan

Civil Petition No. 659 of 2019

(Against the judgment dated 10.01.2019 of

the Lahore High Court, Rawalpindi Bench

passed in C.R.No.532-D/2012)

Atta Mohammad and others.

…

Petitioners

Versus

Mst. Munir Sultan (deceased) through

her L.Rs and others.

…

Respondents

For the Petitioners:

Mr. Muhammad Siddique Awan, ASC.

Syed Rifaqat Hussain Shah, AOR.

For the Respondents:

Not represented.

Date of Hearing:

10.12.2020.

ORDER

Qazi Faez Isa, J. Fateh Khan and Mst. Noor Bari were married and had

a daughter, namely, Mst. Munir Sultan; the couple subsequently

divorced. On the death of her father Mst. Munir Sultan filed a suit

seeking her inheritance as per shariah from the estate of Fateh Khan

and challenged three gift mutations (Nos. 449, 451 and 452, all attested

on 11 March 1998) whereby Fateh Khan was shown to have gifted his

entire land to his second wife and two sons from her, respectively Mst.

Naik Bakht (petitioner No. 3), Atta Mohammad (petitioner No. 1) and

Mohammad Akram (petitioner No. 2). In the plaint Mst. Munir Sultan

also arrayed her four step-sisters (daughters of Fateh Khan and Mst.

Naik Bakht), however, they had not been gifted any land. The suit was

initially dismissed, however, the learned Additional District Judge,

Jand, District Attock allowed Mst. Munir Sultan’s appeal and decreed

her suit and the Rawalpindi Bench of the Lahore High Court upheld the

appellate court’s judgment and decree; it is against these two

concurrent judgments that this petition for leave to appeal is filed.

Civil Petition No. 659 of 2019

The learned counsel states that the learned trial court Judge had

rightly dismissed the suit of the respondents; that the petitioners had

established the gifts made in their favour, and in this regard referred to

the copies of the gift mutations and the roznamcha waqiati (daily diary

the petitioners, which further confirms the making of and acceptance of

the gifts.

With the assistance of the learned counsel we examined the

referred documents and heard him. Fateh Khan at the time of his death

was over ninety years of age and the purported gifts were made a few

months before he passed away. The gift mutations show that Fateh

Khan himself reported that he had gifted the lands but the mutations

do not mention when and where he had made the said gifts nor as to

when and where the same were accepted by the petitioners. Not a single

one of the documents referred to by the learned counsel were signed or

thumb impressed by Fateh Khan. The particulars of the gift were also

not mentioned in the written statement filed by the petitioners to the

plaint. The witnesses to the gifts were Sher Ahmed Khan, who testified

as DW-3, and Mohammad Afzal, who did not testify.

The burden of proof to establish the gifts was on the beneficiaries

of the gifts, not the donees. However, two of the donees, namely,

Mohammad Akram and Mst. Naik Bakht did not testify and only Atta

Mohammad testified, but he did not testify as an attorney of the other

two donees. The material particulars of the gifts, including when and

where the lands were gifted, accepted and possession of the lands

delivered was not mentioned in the gift mutations, in the roznamcha

waqiati (daily diary register), in the written statement or any other

document. The burden to prove the gifts was on the petitioners who

failed to discharge such burden. The gifts were also extremely suspect,

having purportedly been made by an extremely old gentleman of over

Civil Petition No. 659 of 2019

mind serious questions had been raised. It is also inexplicable why he

would want to deprive five of his daughters from his inheritance.

As regards the learned counsel’s contention that the petitioners’

possession of the land confirms the purported gifts we cannot bring

ourselves to agree with it. Merely because step-brothers and stepmother of the plaintiff (and the brothers and mother of four codefendants) were in possession of the land does not mean, let alone

establish, that the land was gifted to them. However, it does confirm

that they took advantage of their gender and position. It also shows

that they disregarded two concurrent judgments given by two courts

against them. It has become all too common to keep legal heirs deprived

and to disobey judgments on the pretext that a higher forum has been

approached even when the operation of the impugned order/judgment

has not been suspended. Needless to state merely challenging an

order/judgment does not suspend its operation. Probably the

petitioners will now await the execution of the decree against them and

file untenable objections therein, and if their objections are dismissed to

commence another round of litigation assailing such order. Judgments

and decrees of courts of competent jurisdiction must be abided by.

Section 42(1) of the Land Revenue Act, 1967 (‘the Act’) requires

the person in whose favour the land has been transferred/alienated to

report the same to the revenue authorities, which in the present case

would have been the donees of the gifts but they did not do so. And,

subsections (6) and (7) of section 42 of the Act require that before

passing an order sanctioning change in the register of mutations in

respect of any right which has been acquired the person from whom it

is acquired should be identified by ‘two respectable persons, preferably

the Lambardar or members of Zila Council, Tehsil Council or Town

Council or Union Council’ but the two said witnesses were not such

persons. In the present case an extremely old man is stated to have

gifted his property by excluding his five daughters. These unusual

circumstances should have alerted the Revenue staff to be more

cautious and before sanctioning the gift mutations they should have

Civil Petition No. 659 of 2019

ensured the identity of the donor, should have obtained a copy of his

identity card, should have obtained his signature and/or thumb

impression, should on account of his advanced age and frail state of

mind ensured that the donor knew that he was making the said gifts. In

the circumstances it would also have been prudent to have issued

notices to the donor’s daughters to bring it to their knowledge that their

father was gifting away all his lands. The burden of proof to establish

that the gifts lay on the petitioners, which they did not discharge. On

the contrary there was sufficient material on record to suggest that the

petitioners had acted dishonestly and gift mutations Nos. 449, 451 and

452 were illegally made in their favour.

Therefore, for the aforesaid reasons leave to appeal is declined

and consequently this petition is dismissed. Since the petitioners

deprived the other heirs of Fateh Khan from their share in inheritance

for 22 years costs throughout are imposed on the petitioners. We expect

the petitioners will now be remorseful and abide by the laws of

inheritance rather than subject the respondents to further deprivation

and act to minimize what may be visited upon in the Hereafter.

Mst. Munir Sultan died before she could enjoy what she had

inherited from her father and now it is her legal heirs who are arrayed

before us as respondents. Cases like the present one in which female

heirs of a family are deprived of their legal inheritance come up before

us far too frequently. Recently in the case of Farhan Aslam v Mst. Nuzba

Shaheen (Civil Petition No. 4459/2018) this Court held:

5. … Violating the law of inheritance, which in the case of

Muslims is the shariah, and exploiting the most vulnerable

members of society is wholly unacceptable. An heir inherits

property to the extent of his/her share the very moment

his/her predecessor passes away. But, the petitioners have

audaciously managed to deprive the respondents of their

inheritance from Mansab Khan.

Almighty Allah commands:

‘Let those (disposing of an estate) have the

same fear in their minds as they would have

for their own if they had left a helpless family

Civil Petition No. 659 of 2019

behind; Let them fear Allah, and speak words

of appropriate (comfort).’

‘Those who unjustly eat up the property of

orphans, eat up a fire into their own bodies:

They will soon be enduring a Blazing Fire.’

(Respectively verses 9 and 10 of surah AnNisa (4), translated by Abdullah Yusuf Ali,

‘The Holy Qur’an,

Translation and

Commentary’.)

In the present case a widow and an orphan (‘yatama’

in Arabic) were deprived of their inheritance for over sixteen

years which must have been excruciatingly painful for them.

The petitioners did not abide by the aforesaid verses and

forgot what had been made incumbent:

‘And come not nigh [near] to the orphan’s

property, except to improve it’.

(Verse 152 of surah (6) Al-Anam of the Holy

Qur’an, translation by Abdullah Yusuf Ali,

‘The Holy

Qur’an Translation and

Commentary’.)

If the petitioners had remembered that they too will face

Ultimate Justice they may have acted better.

The Constitution of the Islamic Republic of Pakistan

(the ‘Constitution’) safeguards property (including inherited

property) under Article 24(1) of the Constitution and

protection of women and children is guaranteed by Article

25(3) of the Constitution. The Constitution sets out the goals

which the people of Pakistan have set out for themselves in

the ‘Principles of Policy’, which include the protection of

‘mother and the child’ (Article 35) and require the ‘promotion

of social justice and eradication of social evils’ (Article 37).

Depriving a mother and her child from their inheritance does

not protect them but preys on them. Such conduct is a

prevalent social evil and inherently unjust. It is expected

that the organ and authority of the State will act in

accordance with the Principles of Policy as provided by

Article 29(1) of the Constitution. Therefore, claims by

orphans and widows alleging that they have been deprived of

their inheritance must be expeditiously decided by the

concerned organ and authority of the State, including the

courts.

The revenue authorities must also be extra vigilant

when purported gifts are made to deprive daughters and

widows from what would have constituted their shares in the

inheritance of an estate. The concerned officers must fully

Civil Petition No. 659 of 2019

satisfy themselves as to the identity of the purported

donor/transferee and strict compliance must be ensured

with the applicable laws, as repeatedly held by this Court,

including in the cases of Islam-ud-din v Noor Jahan (2016

SCMR 986) and Khalida Azhar v Viqar Rustan Bakhshi (2018

SCMR 30). Purported gifts and other tools used to deprive

female family members, including daughters and widows, are

contrary to law (shariah in such cases), the Constitution and

public policy. In Abid Baig v Zahid Sabir (2020 SCMR 601)

this Court reiterated what it had held thirty years earlier in

the case of Ghulam Ali v Mst. Ghulam Sarwar Naqvi (PLD

1990 Supreme Court 1), as under:

11. We cannot be unmindful of the fact that

often times male members of a family deprive

their female relatives of their legal entitlement to

inheritance and in doing so shariah and law is

violated. Vulnerable women are also sometimes

compelled to relinquish their entitlement to

inheritance in favour of their male relations. This

Court in the case of Ghulam Ali8 had observed

that 'relinquishment' by female members of the

family was contrary to public policy and contrary

to shariah. It would be useful to reproduce the

following portion from the decision of this Court:

"Here in the light of the foregoing

discussion on the Islamic point of view, the

so-called "relinquishment" by a female of

her inheritance as has taken place in this

case, is undoubtedly opposed to "public

policy" as understood in the Islamic sense

with reference to Islamic jurisprudence. In

addition it may be mentioned that Islam

visualised many modes of circulation of

wealth of certain types under certain strict

conditions. And when commenting on one

of the many methods of achieving this

object, almost all commentators on Islamic

System agree with variance of degree only,

that the strict enforcement of laws of

inheritance is an important accepted

method in Islam for achieving circulation of

wealth. That being so, it is an additional

object of public policy. In other words, the

disputed relinquishment of right of

inheritance, relied upon from the

petitioner's side, even if proved against

respondent, has to be found against public

policy. Accordingly the respondent's action

in agreeing to the relinquishment (though

denied by her) being against public policy

Civil Petition No. 659 of 2019

the very act of agreement and contract

constituting the relinquishment, was void."

What this Court had stated in the case of Farhan Aslam v Mst.

Nuzba Shaheen is equally applicable to the instant case.

In many cases dealt by us we painfully observe the deterioration

and decline in the performance of the Revenue department, absence of

proper record keeping and the erosion of a system of checks and

balances. Suspect transactions are easily recorded and by disregarding

the stipulated legal requirements. Even in cases where the Revenue

staff has been complicit generally no consequences are visited upon

them by the competent authority. The prevailing state of affairs is far

from satisfactory. Bad, insufficient and/or easily manipulated records

cause unnecessary litigation. Such litigation would be avoided if the

Revenue department did its work properly. In the present case the

inheritance matter of a person who died 22 years ago has come to this

Court, the fourth court, because of the Revenue staffs’ complicity, not

following the law, not remaining vigilant and/or being careless. Time

and resources of litigants, witnesses, counsel and the courts have been

wasted. Time and resources which could have been put to more fruitful

pursuits. Procrastinated litigation with questionable Revenue records

often result in heightened tensions and parties have been known to

resort to violence.

10.

The Revenue department is a revenue generating department;

it collects land revenue, taxes and charges fees, but has failed to

provide to the public reliable and accurate record keeping. We can say

from our own experience that entries in the Revenue records are

difficult, if not impossible to read; are not clearly and legibly written;

entries under different columns are squeezed or extend to other

columns because insufficiently sized paper is used; and written on poor

quality paper which easily fragments/tears. The use of reinforced paper

has been discontinued and property records get damaged or destroyed

by heavy rains, fires, vermin and riots because they are not safely

stored in reinforced (fire-resistant) cupboards and apparently there is

Civil Petition No. 659 of 2019

no electronic backup in case of loss, damage or destruction. It may also

be a step in the right direction if the name and designation of the

concerned revenue official/officer making the entry is written and his

stamp affixed under his signature. There also appears to be abject

refusal to use technology in the twenty-first century, such as

finger/thumb verification of the person divesting ownership and

photographing those present, such technology cost is now very

affordable. The record-keeping by the Revenue department needs to be

improved to safeguard the valuable property rights of the people.

11.

In the present case Punjab’s Revenue department made wrong

entries in the Revenue record, the Auqaf and Religious Affairs

department failed to ensure Almighty Allah’s command to protect the

rights of yatama and the Human Rights and Minorities Affairs

department did not protect the rights of vulnerable females (five

daughters/sisters). This brings into question the billions of rupees

spent on these departments. The Government of Punjab’s ‘Annual

Budget Statement for 2020-2021’ has earmarked an amount of about

1,737 million rupees for the Revenue department (Board of Revenue

and Punjab Revenue Authority), an amount of about 579 million rupees

for Auqaf and Religious Affairs department and an amount of about 200

million rupees for Human Rights and Minorities Affairs department. The

very purpose of these departments is to serve the people, and not to

become a self-serving and perpetuating bureaucracy.

12.

The reason which has prompted us to highlight this issue is

that there must be many other cases where rights, particularly of the

weaker members of society (daughters and widows, the yatama,) are

denied but who may not have the wherewithal to access a court of law

or having failed in the first round (as in the present case when Mst.

Munir Sultan’s suit was dismissed) give up and/or may be faced with a

formidable foe. Muslims must abide by God’s law set out in the Holy

Qur’an and Sunnah which gives a special status to ‘yatama’ (orphans

and widows), a duty which is also cast upon the State

Civil Petition No. 659 of 2019

13.

Copies of the order passed today to be sent to the respondents

and to the trial/executing Court to ensure that the execution

proceedings, if pending or when filed, are promptly disposed of. Copies

be also sent to the Chief Secretary, Government of the Punjab, Senior

Member Board of Revue, Secretary Revenue department, Secretary

Auqaf and Religious Affairs department, Secretary Human Rights and

Minorities Affairs department and to the Advocate-General Punjab for

information and with the expectation that they will rise to serve the

people by attending to the noted shortcomings of the said departments

and enact measures which will prevent such and other fraudulent

entries to be made in the Revenue records.

Judge

Bench-IV

Islamabad

10.12.2020

Approved for Reporting

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