Hiba beto ko |Hiba beto ko | A sister (who was the plaintiff) was evicted from the property, while her brothers claimed that their father, Muhammad Yar, had committed verbal abuse in their favour. The Supreme Court rejected this claim and decided to restore the sister's inheritance rights. CIVIL PETITION NO. 957 OF 2020
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| ایک بہن (جو مدعی تھی) کو جائیداد سے نکال دیا گیا تھا، جبکہ اس کے بھائیوں نے دعویٰ کیا کہ ان کے والد، محمد یار، نے ان کے حق میں زبانی ہبہ کیا تھا۔ سپریم کورٹ نے اس دعوے کو مسترد کرتے ہوئے بہن کے وراثتی حقوق کی بحالی کا فیصلہ کیا۔ CIVIL PETITION NO. 957 OF 2020 |
یہاں کیس کے اہم نکات پوائنٹس کی شکل میں بیان کیے گئے ہیں:
1. مدعا: غلام قاسم اور دیگر نے لاہور ہائی کورٹ کے ملتان بینچ کے فیصلے کے خلاف سپریم کورٹ میں درخواست دائر کی۔
2. وراثت کا دعوی: مدعا علیہہ، مستانہ رضیہ بیگم، نے اپنے والد محمد یار کی وراثت میں حق کا دعویٰ کیا۔
3. وفات کی تاریخ: محمد یار کا انتقال 15 مئی 1986 کو ہوا۔
4. تحفہ کا دعوی: مدعا علیہہ کا کہنا تھا کہ اس کے والد نے اپنے بھائیوں کو جائیداد کا تحفہ دیا، جو کہ فوت ہونے سے پہلے دیا گیا تھا۔
5. درخواست گزاروں کا دعوی: درخواست گزاروں نے دعویٰ کیا کہ ان کے والد زندہ تھے جب تحفہ دیا گیا تھا اور جائیداد کی منتقلی وقت پر ہوئی تھی۔
6. عدالت کا فیصلہ: سپریم کورٹ نے قرار دیا کہ محمد یار کی موت کے بعد اس کی وراثت خودبخود قانونی ورثاء کو منتقل ہو گئی تھی۔
7. تحفہ کا ثبوت: عدالت نے یہ بیان کیا کہ تحفہ کے دعوے کا درست طور پر ثابت ہونا ضروری تھا، لیکن درخواست گزار اپنے دعوے میں ناکام رہے۔
8. اسلامی وراثت کے قوانین: عدالت نے یہ واضح کیا کہ خواتین کو وراثت میں ان کے حق سے محروم کرنا غلط ہے۔
9. حکم: سپریم کورٹ نے وراثت کے حقوق کو فوری طور پر بحال کرنے کا حکم دیا۔
10. وراثتی میوٹیشن: عدالت نے درخواست گزاروں کے خلاف فیصلہ دیا اور قانونی ورثاء کو ان کے حقوق فراہم کرنے کے لیے وراثتی میوٹیشن کو فوری طور پر تیار کرنے کا حکم دیا۔
یہ نکات کیس کی اہم تفصیلات اور فیصلے کو مختصر انداز میں پیش کرتے ہیں۔
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
MR. JUSTICE QAZI FAEZ ISA
MR. JUSTICE YAHYA AFRIDI
CIVIL PETITION NO. 957 OF 2020
(Against the judgment dated 22.01.2020
passed by Lahore High Court, Multan Bench,
Multan in CR No.481/2012)
Ghulam Qasim and others
…Petitioners
Versus
Mst. Razia Begum and others
…Respondents
For the petitioners:
Mr. Aftab Alam Yasir, ASC
Syed Rifaqat Hussain Shah, AOR
For the respondents:
Malik M. Latif Khokhar, ASC
For the respondents No. 2-3: Not represented
Date of hearing:
25.06.2021
ORDER
Qazi Faez Isa, J. This petition challenges the judgment of the
Multan Bench of the Lahore High Court whereby the learned Single
Judge set aside the concurrent judgments of the Subordinate
Courts and decreed the suit of the respondent No. 1, who had
claimed her inheritance as per Islamic law of inheritance, Shari’ah,
in the estate of her father, the late Muhammad Yar. The learned
counsel for the petitioners submits that the concurrent judgments
were lightly set aside by the High Court in exercise of the court’s
revisional powers without appreciating the evidence on record and
the fact that the suit was not maintainable because it was timebarred and respondent No. 1 was relying on a document, showing
the purported date of death of Muhammad Yar as 15 May 1986,
which document did not form part of her pleadings and was
produced in evidence. He further states that Muhammad Yar was
alive when the gift was made on 27 July 1986 and died on 28 May
1999; and refers to paragraphs (ii) and (v) of the plaint wherein the
Civil Petition No. 957 of 2020
2
respondent No. 1 did not assert that her father was already dead
when the gift was made in favour of her brothers, the petitioner
Nos. 1 and 2.
2.
We have heard the learned counsel and with their assistance
examined the documents on record. It is not disputed that the
respondent No. 1 is a daughter of Muhammad Yar. However, the
date of death of Muhammad Yar is disputed; the date is relevant
and important because respondent No. 1 had alleged that her
father was dead on the date that he is supposed to have made the
gift. As regards the purported gift asserted by her brothers and
their reliance on the gift mutation No. 88 dated 27 July 1986, both
witnesses thereof produced by them testified that they had no
knowledge of the gift and also admitted that Muhammad Yar had
never attended the offices of the concerned revenue department to
record his statement. They had also contradicted themselves with
regard to the gift mutation document as they testified that
Muhammad Yar had thumb impressed it and mentioned the
number of his national identity card thereon, but the said
mutation document contained neither. The witnesses did not
assert that Muhammad Yar had gifted the property in his lifetime.
As per the said mutation, the gift was made at the time of the gift
mutation, that is when Muhammad Yar allegedly presented himself
before the revenue authority. The purported donees of the gift were
required to establish that Muhammad Yar had gifted the land in
their favour and on this score they failed. However, since the
learned counsel representing them had also argued the matter of
the date of death of Muhammad Yar and contended that the suit
was time-barred, we proceed to consider these points too.
3.
The respondent No.1, through her counsel, produced
Muhammad Yar’s death certificate (exhibit P-4) which was issued
by the concerned Union Council. The petitioners did not object to
her counsel producing the death certificate. On the other hand, the
petitioners Nos. 1 and 2 orally asserted that their father had died
on 28 May 1999. Whether the document was properly exhibited
Civil Petition No. 957 of 2020
3
remains a moot question. The record of the Union Council was not
summoned and the petitioners did not produce a contrary death
certificate to exhibit P-4, which mentioned that Muhammad Yar
died on 15 May 1986. Their oral assertion that Muhammad Yar
died on 28 May 1999 was simply that and it was not so stated in
the written statement and no documentary proof was tendered to
support this date. There is no reason not to accept that
Muhammad Yar passed away on 15 May 1986. Therefore, the said
gift mutation dated 27 July 1986 was made after his death, and
needless to state, Muhammad Yar could not have gifted the
property after his death.
4.
Immediately on the death of a person, his/her legal heirs
become owners of his estate under Muslim law. In the case of
Ghulam Ali v Mst. Ghulam Sarwar Naqvi1 it was held that:
The main points of the controversy in this behalf get
resolved on the touchstone of Islamic law of inheritance.
As soon as an owner dies, succession to his property
opens. There is no State intervention or clergy’s
intervention needed for the passing of the title
immediately, to the heirs. Thus, it is obvious that a
Muslim’s estate legally and juridically vests immediately
on his death in his or her heirs and their rights
respectively come into separate existence forthwith. The
theory of representation of the estate by an intermediary
is unknown to Islamic Law of inheritance as compared
to other systems. Thus there being no vesting of the
estate of the deceased for an interregnum in any one
like an executor or administrator, it devolves on the
heirs automatically, and immediately in definite shares
and fraction.
The above-noted principle has been continuously affirmed,
including in the cases of Mst. Reshman Bibi v Amir,2 Mirza Abid
Baig v Zahid Sabir,3 and Farhan Aslam v Mst. Nuzba Shaheen.4
5.
Therefore, the contention that the possession of the land was
with the petitioners and the suit filed in the year 2008 could not
1 PLD 1990 SC 1, pg 12 I.
2 2004 SCMR 392, para 4.
3 2020 SCMR 601, para 8.
4 2021 SCMR 179, para 5.
Civil Petition No. 957 of 2020
4
challenge the gift mutation stated to have been made in the year
1986, as it was beyond the limitation period, will not in itself make
the suit time-barred. This is because the possession by an heir is
considered to be constructive possession on behalf of all the heirs.
In this regard reference may be made to the case of Ghulam Ali v
Mst. Ghulam Sarwar Naqvi5 where it was held that:
The heir in possession was considered to be in
constructive possession of the property on behalf of all
the heirs in spite of his exclusive possession, e.g., the
possession of the brothers would be taken to be the
possession of their sisters, unless there was an express
repudiation of the claims of the sisters by the brothers.
9
Circumstances may exist in which an inference of
knowledge can be drawn, or in which the laches or
negligence of the co-owners is so great that knowledge
will be presumed but a case of that type would have to
be exceptional. The law does not penalise a co-owner
who relies on the honesty of his co-sharer, and therefore
ordinarily the mere fact that he does not take the
trouble to assert his rights as he may be entitled to,
would not justify an inference of ouster.
The above-mentioned two-member Bench decision of this
Court was also followed by a three-member Bench decision in the
case of Khair Din v Salaman.6 Therefore, the cause of action would
only accrue when the respondent was denied her rights, and it
would be from such date that the time would start to run, the
burden to establish this lay on the petitioners which they had also
failed to establish. However, as observed in Mst. Grana v. Sahib
Kamala Bibi,7 the law of limitation would be relevant when the
conduct of the claimant demonstrates acquiescence and
particularly when third party interest is created in the inherited
property.
6.
It is extremely regrettable that in the Islamic Republic of
Pakistan, male heirs continue to deprive female heirs of their
5 PLD 1990 SC 1, pg 11 E & F.
6 PLD 2002 SC 677, para 6 A.
7
PLD 2014 SC 167 per Nasir-Ul-Mulk J. See also Muhammad Rustam v. Mst.
Makhan Jan, 2013 SCMR 299; Lal Khan v. Muhammad Yousaf, PLD 2011 SC
657; Atta Muhammad v. Maula Bakhsh, 2007 SCMR 1446; Aslam v. Mst.
Kamalzai, PLD 1974 SC 207
Civil Petition No. 957 of 2020
5
inheritance by resorting to different tactics and by employing
dubious devices as was done in the instant case. The shares in the
property of a deceased Muslim are prescribed in the Holy Qur’an
and Shari’ah. Allah Almighty commands in the Holy Qur’an:
From what is left by parents and those nearest related
there is a share for men and a share for women,
whether the property be small or large – a determinate
share.8
Allah (thus) directs you as regards your children’s
(Inheritance): to the male, a portion equal to that of
two females; if only daughters, two or more, their
share is two-thirds of the inheritance; if only one, her
share is a half. For parents, a sixth share of the
inheritance to each, if the deceased left children; if no
children, and the parents are the (only) heirs, the
mother has a third; if the deceased left brothers (or
sisters) the mother has a sixth.9
To deny an heir his/her share in the property left by the
deceased is disobedience to Almighty Allah’s decree and those who
do so, while they may obtain a temporary benefit in this world,
leave themselves accountable to divine punishment in the
Hereafter. The verses dealing with the laws of inheritance are
followed by two verses, the first which gives good tidings to those
who abide by the ‘limits set by Allah’
10 followed by the verse
prescribing the torment of Hell for those who disobey: ‘But those
who disobey Allah and His Apostle and transgress His limits will be
admitted to a fire, to abide therein: And they shall have a
humiliating punishment.’
11
7.
This Court has repeatedly castigated attempts to deprive
female heirs of their right to inheritance. In the case of Atta
Muhammad v Mst. Munir Sultan12 this Court noted that depriving
female heirs of their inheritance has become ‘all too common’ and
directed the revenue authorities to be extra vigilant. In Islam-ud-
8 ‘The Holy Qur’an, Text Translation and Commentary’ by Abdullah Yusuf Ali,
Surah An-Nisa (4), verse 7.
9 Ibid, Surah An-Nisa (4), verse 11.
10 Ibid, Surah An-Nisa (4), verse 13.
11 Ibid, Surah An-Nisa (4), verse 14.
12 2021 SCMR 73, para 5.
Civil Petition No. 957 of 2020
6
Din v Mst Noor Jahan13 the suffering and agony imposed upon
female heirs was found to be most unfortunate. And, in Khair Din v
Mst Salaman14 it was held that no benefit could be derived by
those claiming rights against female heirs based on fraudulent
transactions.
8.
We sadly note that despite our repeatedly pointing out that
effective measures must be put in place to protect the rights of
inheritance of females, this has still not been done. Those few
ladies who have the independence, determination and resources to
take their brothers to court are left embroiled in slow grind
litigation, as in the present case, which started in the year 2008
and took thirteen years to culminate, having seen its way through
four courts. The adage prevention is the best medicine is equally
applicable when female rights are impaired. The State must ensure
the protection of rights which is far easier, cheaper and less
wasteful of public resources than restoring rights through the
courts, which is laborious, expensive and needlessly wasteful of
resources. In this case, a sister’s right to inheritance would have
been safeguarded if the revenue authorities had exercised due care
and caution, but this was not done. Either the revenue officials
were inept and negligent or else complicit and corrupt, in either
eventuality the system permitted the exploitation of the weak. This
is all the more disconcerting in an Islamic Republic, the
Constitution of which specifically protects property rights15 and
enables the making of ‘special provision for the protection of women
and children’.16
9.
The people through their elected representatives enacted the
Constitution of the Islamic Republic of Pakistan and in it set out
the course for the country to take by setting out therein the
Principles of Policy17 (‘Principles’). These include enabling Muslim
13 2016 SCMR 986, para 11.
14 PLD 2002 SC 677, para 6.
15 Constitution of the Islamic Republic of Pakistan, Articles 24 and 23.
16 Ibid, Article 25 (3).
17 Ibid, Part II Chapter II 2.
Civil Petition No. 957 of 2020
7
citizens to live their lives in accordance with Islam,
18 and
promoting ‘Islamic moral standards’.
19 Depriving females of their
inheritance prescribed by Shari’ah violates these Principles.
Denying females their inheritance also undermines their economic
independence, prevents a rise in their standard of living and
concentrates wealth in male descendants, which offends another
three Principles.
20 Economic deprivation of women prevents their
full participation ‘in all spheres of life’ which is another Principle21
which is violated. In Employees of Pakistan Law Commission v
Ministry of Works, this Court held that provisions relating to
Fundamental Rights ought to be interpreted harmoniously with the
Principles of Policy22 and this was reiterated in Lahore Development
Authority v Imrana Tiwana.
23 In Beena v Raja Muhammad it was
held that the Principles represent ‘the path and the destination that
the nation has set for itself’.24 A three-member Bench of the
Supreme Court in the case of Attiyya Bibi Khan v Federation of
Pakistan held that ‘Article 29 of the Constitution requires each organ
or authority of the State to act in accordance with those Principles’
25
and the same was echoed in Farhan Aslam v Nuzba Shaheen.26
10.
The Principles especially protect the under-privileged and
aim at ameliorating the condition of the vulnerable and establish
the well-being of the powerless. Therefore, non-adherence to the
Principles affects those who are most in need of protection, those
at the mercy of predators. The Principles are ‘the conscience of the
Constitution and the basis of all executive and legislative action’ as
held by an eleven-member Bench of this Court in the case of
Benazir Bhutto v Federation of Pakistan.
27
18 Ibid, Article 31(1).
19 Ibid, Article 31(2)(b).
20 Ibid, Article 38 (a).
21 Ibid, Article 34.
22 1994 SCMR 1548, pg. 1552 (C).
23 2015 SCMR 1739, para 32.
24 PLD 2020 SC 508, para 11.
25 2001 SCMR 1161, para 9.
26 2021 SCMR 179, para 8.
27 PLD 1988 SC 416, pg. 489.
Civil Petition No. 957 of 2020
8
11.
Almost half a century has passed since the 1973
Constitution came into effect which stipulates that the State has
‘to act in accordance with those Principles’.
28 The President and
Governors are required to annually submit ‘a report on the
observance and implementation of the Principles of Policy’
29 but they
are not doing so. A three-member Bench of the Supreme Court in
the case of Jawad Beg v The State30 had also drawn attention to
this failure to comply with this constitutional provision. The
reports to be submitted by the President and Governors are a
‘mandatory duty’,
31 akin to a performance audit of the
Government.
32 When the required reports are not submitted by the
President and the Governors respectively to the Parliament and the
Provincial Assemblies, then these legislative bodies may not
possess information which would help them to legislate where
there are weaknesses and disparities. It is expected that the
President and the Governors shall fulfil their constitutional duty,
in this regard, under Article 29(3) of the Constitution.
12.
The learned Judge of the High Court had comprehensively
dealt with the purported gift and rightly concluded that both the
Subordinate Courts had completely misread the evidence and that
the making of the gift was not established. At this juncture, the
learned counsel for the petitioners brings forth another point. He
submits that in the plaint, the respondent No. 1 had claimed that
her share in the estate of Muhammad Yar was one-third but as
Muhammad Yar had two sons and two daughters (his widow had
pre-deceased him) the share of a son would be twice that of a
daughter and as such the respondent No. 1 would be entitled to
one-sixth share in Muhammad Yar’s estate. The learned counsel
representing the respondent No. 1 submits that the inheritance
mutation in respect of Muhammad Yar’s estate has as yet not been
prepared and that respondent No. 1 does not claim anything more
28 Ibid, Article 29(1).
29 Ibid, Article 29 (3).
30 1981 SCMR 341, para 21.
31 Nasreen Khetran v Government of Balochistan, PLD 2012 Balochistan 214, Civil Petition No. 957 of 2020
9
than what the Islamic law of inheritance applicable to those of the
Sunni Hanafi fiqh grants to her.
13.
Therefore, we uphold the decision of the learned Judge of the
High Court. Gift mutation No. 88, dated 27 July 1986, should be
cancelled immediately, if not done so already. We further direct the
concerned department to promptly prepare the inheritance
mutation of the late Muhammad Yar and record the rights of his
legal heirs in accordance with Sunni Hanafi fiqh of Muslim
personal law and to deliver possession to them as per their
respective shares without further loss of time as the respondent
No. 1 has already been deprived of her inheritance for far too long
and indisputably been made to suffer. Resultantly, subject to the
aforesaid clarification, leave to appeal is declined and this petition
is dismissed with costs throughout payable by petitioner Nos. 1
and 2 to the respondent No. 1. Copy of this order be sent to the
concerned revenue authority for information and compliance.
Judge
Judge
Islamabad
25.06.2021
Approved for Reporting
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