Legal Advice on the Preparation, Advice and Review pertaining to Hiba (Gift) , Muslim & Non-Muslim Law of Wills and Succession

Wills, Hiba and Gifts in Pakistan

At Josh and Mak International, we understand the importance of proper estate planning and the complexities that can arise in matters of succession and gifts (Hiba) under Pakistani law. Our law firm is dedicated to providing comprehensive legal services to our clients, ensuring their interests are protected and their legal needs are met.

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Legal Services for Obtaining Succession Certificates

Obtaining a succession certificate is a vital step in transferring assets and properties of a deceased person to their rightful heirs. We specialize in handling succession certificate matters and guiding our clients through the legal process to secure their inheritance. Whether you are an heir seeking to obtain a succession certificate or facing challenges in the distribution of assets, our experienced legal team is here to assist you. We provide expert advice and handle all necessary documentation and court proceedings to ensure a smooth and efficient transfer of assets. You can read about our Legal Services for Succession and Inheritance Law in Pakistan here.

Legal Services Regarding Gifts (Hiba)

Under Pakistani law, the concept of gifts, or Hiba, holds significant importance in estate planning and asset transfer. Our firm is well-versed in the intricacies of gift transactions and the legal requirements that must be met to ensure their validity. Whether you are considering making a gift or facing disputes regarding a gift transaction, we offer tailored legal advice and representation to protect your rights and interests.

Legal Services Regarding Will Execution and Revocation: Expert Guidance for Testamentary Matters

We also provide comprehensive services related to will execution, privileged wills, and revocation of wills. Our team of experienced lawyers will assist you in drafting clear and enforceable wills that accurately reflect your intentions and protect your assets. We understand the importance of proper will execution and the potential disputes that may arise. In case of any challenges or disputes, we provide expert legal representation to safeguard your interests and ensure that your testamentary wishes are upheld.

Legal Services Regarding Muslim Law/Non-Muslim Law of Succession:

Succession matters in Pakistan are governed by different laws depending on religious affiliations. Our firm has in-depth knowledge and expertise in both Muslim and Non-Muslim laws of succession. We offer tailored legal advice, ensuring our clients understand their rights and obligations under the relevant laws. Whether you have questions regarding inheritance in accordance with Islamic principles or need guidance on non-Muslim succession matters, our dedicated team is ready to assist you.

Contact Us for Expert Legal Assistance

Wills At Josh and Mak International, we are committed to providing professional and reliable legal services in matters of succession certificates, gifts (Hiba), will execution, privileged wills, revocation, and the Muslim Law/Non-Muslim Law of Succession in Pakistan. If you require assistance or have any queries, please don’t hesitate to contact our knowledgeable team. We are here to guide you through the legal intricacies, protect your interests, and ensure a smooth and secure succession process. Get in touch with us today at [email protected] to schedule a consultation with our experienced legal professionals.

Hiba (Gifts) in Pakistan: Understanding the Legal Framework

Gifts, known as “Hiba” in Islamic law, play a significant role in property transfers in Pakistan. Here are key points to consider when it comes to gifts in the context of Pakistani law:

a) Definition and Nature of Gift: A gift, or Hiba, refers to the immediate transfer of property from one person to another without any exchange or consideration. It involves the transfer of property without a monetary price.

b) Capacity to Make a Gift: Any mentally sound Muslim who is not a minor has the ability to dispose of their property through a gift. However, a gift made under undue influence, coercion, deceit, or domination is not considered valid.

c) Gift during Death Illness: A gift made by a Muslim during a terminal illness (marz-ul-maut) cannot exceed one-third of their estate after funeral expenses and debts are settled, unless the heirs provide their consent after the donor’s death. Additionally, a gift made in favor of an heir requires the consent of other heirs after the donor’s death.

d) Distinction from a Will: A gift differs from a Will in various aspects. It can involve the entire property of the donor and can be made to any donee, including an heir.

e) Reasons for Making a Gift: Gifts can be made for various reasons, such as natural love and affection for offspring, relatives, or others, recognition of services rendered, or devotion to a social or religious institution like a Waqf/Trust dedicated to a specific cause.

f) Form and Registration: A gift can be made orally or in writing, but it is advisable to reduce it to writing and register it with the relevant authorities to ensure validity and security.

g) Essential Elements of a Gift: For a gift to be valid, the donor must immediately relinquish ownership and control over the gifted property.

h) Conditions for a Valid Gift: To establish a valid gift, the following conditions should be met:

An offer (Ijab) from the donor
Acceptance (Qabool) by the donee
Transfer of ownership and possession of the property (Tasleem-o-Iqrar) to the donee

i) Completion and Revocation: If these conditions are fulfilled, the gift is considered complete. However, in cases of a gift from a father to a minor child, no transfer of possession is required. The donor retains the right to revoke a gift until possession is delivered, as the gift is not finalized before the transfer of possession. After delivery of possession, a gift can only be revoked through a court decree.

j) Exceptions to Revocation: Once possession is transferred, a gift can only be revoked in limited circumstances, such as fraud, misrepresentation, or failure of the donee to fulfill the specified conditions.

k) Effect of Possession Delivery: Once possession is delivered, only a court decree can invalidate the gift. Neither a declaration of revocation by the donor nor the initiation of a lawsuit is sufficient to revoke the gift. Until a decree is issued, the donee has the right to use and dispose of the gifted property.

Understanding the legal aspects of gifts is essential for both donors and recipients. At Josh and Mak International, our expert team can provide comprehensive guidance on gift-related matters, ensuring compliance with the legal framework and protecting your rights. Contact us today to discuss your specific requirements and benefit from our expertise in this area.

How do wills work in Pakistan? Ensuring the Validity of Wills in Pakistan

a) In Pakistan, it is fully permissible for citizens to make a Will to determine the disposal of their property.

b) Any person, male or female, of sound mind has the right to dispose of their property through a Will. Only adults, individuals above 18 years of age, are eligible to make a Will, while minors are not permitted to do so.

c) The form of the Will is not significant and it can be made verbally/orally or in writing. While the law does not impose any specific requirements for the format, it is advisable to have a written Will to avoid any ambiguity or disputes.

d) Under Sunni Muslim law, a testator can allocate a maximum of one-third of their estate through a Will, while the remaining two-thirds must be divided among the legal heirs. If the Will includes bequests to one or more legal heirs, it can only be implemented if all other legal heirs provide their consent. Otherwise, the entire property will be distributed among the legal heirs according to their predetermined shares.

e) According to Shia law, a testator can leave a legacy to an heir as long as it does not exceed one-third of their estate. Such a legacy is considered valid without the consent of other heirs. However, if the legacy exceeds one-third, it is not valid unless the other heirs provide their consent.

f) It is important to note that, according to Islamic law, a person on their deathbed is not permitted to make a valid Will. Even if a Will is made during the final moments of life, it may not be legally enforceable unless the legal heirs agree to its implementation.

g) Non-Muslim individuals have the freedom to make a Will during their lifetime, gifting away their entire estate, unless their personal law imposes specific regulations that must be followed.

Ensuring the validity and effectiveness of a Will is crucial. At Josh and Mak International, our experienced team can provide comprehensive assistance and guidance on Will drafting, ensuring compliance with legal requirements and protecting your interests. Contact us today to discuss your specific needs and benefit from our expertise in this area.

Non-Muslim Pakistani Wills

The making of a will in Pakistan is governed by the Succession Act 1925 and is based on the law in England. This does not, however, apply to Muslims and the law applicable to them is stated infra under subhead Muslims. No person can make a valid will when he is in such a state that it may be presumed that he was incapable of knowing what he was doing. Minority or insanity, from making wills, does not bar except aliens as above. Domicile is the deciding factor under this law for the validity of a will.

Muslim Law of Succession and Shariah Compliant Wills

The majority of the population being Muslim does not come within the purview of the above act. Their personal law governs such persons. Muslims are divided into two main communities, Sunnis and Shias, and the large majority of the Muslims in Pakistan are Sunnis of the Hanafi School. Every Muslim can dispose of his property by will if he is a major and not insane. The will can be either in writing or verbal. Not more than one-third of the estate can be disposed of by will in any case and no bequests may be made to persons who are heirs under the laws of intestate succession except with consent of all other heirs. A Muslim will does not have to be proved and the taking out of a succession certificate is sufficient.Our team can help you review whether your Muslim will is valid and Shariah Compliant.

Foreign Wills and their applicability in Pakistan:

The law of domicile of the testator governs foreign wills insofar as they relate to immoveable property in Pakistan. Foreign probate of such a will is proof of its due execution as far as the courts here are concerned, provided a properly authenticated copy of the will and probate are produced, notarial certification being sufficient. In other cases the court must satisfy itself of due execution of the foreign will. Probate cannot be granted of a foreign will executed within Pakistan relating only to property outside Pakistan. Grant of foreign probate though evidence of due execution of the will is not sufficient for the grant of letters of Administration here and application must be made to the courts. Law of testators domicile in this respect is not binding.

Legal Professional Note: Validity of Foreign Wills and Foreign Grants of Probate

In relation to the validity of foreign wills and foreign grants of probate, the following considerations apply:

Validity of Foreign Wills: In order for a will made in another jurisdiction to be recognized as valid and enforced in the jurisdiction in question, certain requirements must be met. These requirements include:

Proof of Execution: A foreign probate of the will serves as proof of its execution.
Documentation: A properly authenticated copy of the will and probate must be provided.
Notarial Certification: In many cases, notarial certification is sufficient to establish the validity of the foreign will.
Court Verification: In some situations, the court may need to satisfy itself regarding the execution of the foreign will.

Validity of Foreign Grants of Probate: A foreign grant of probate, even if duly executed, is not automatically recognized as sufficient for the grant of letters of administration in the jurisdiction. Instead, an application must be made to the courts to obtain the necessary grant. It is important to note that the laws of the testator’s domicile are not binding and may not be solely relied upon for the purpose of obtaining letters of administration.

It is advisable for individuals dealing with the recognition and enforcement of foreign wills and foreign grants of probate to seek proper legal guidance and consult with professionals familiar with the laws and requirements of the specific jurisdiction in question. For professional legal advice contact us at [email protected]

For the benefit of the members of public visiting our webpage, we have discussed case law below on various aspects of Gifts, Wills and Hiba below:

Citation Name – 2013 MLD 1323 LAHORE-HIGH-COURT-LAHORE

In this case, Mst. NOOR BEGUM was the appellant, and MUHAMMAD AKRAM was the opponent. The matter pertained to a gift mutation, and the key legal point to note is the shifting of the onus of proof. Generally, the beneficiary must prove the transaction, but when a suit challenging a transaction is filed, the onus shifts to the other side when the plaintiff appears before the court, makes a statement on oath, and denies the transaction. This is based on Qanun-e-Shahadat, Arts. 117 & 120. This principle is essential in gift-related disputes and ensures fairness in litigation.

Citation Name – 2014 MLD 635 PESHAWAR-HIGH-COURT

In this case, Mst. ASHOO BIBI was the appellant, and the opponent was GAMON. The case involved an inheritance dispute and a gift mutation. The central issue was the contention by the plaintiff that the gift was a result of fraud committed by the donees. The court, however, dismissed the suit, citing that the party alleging fraud must provide particulars and evidence of how the fraud was committed. Additionally, the court highlighted that the possession of the property wasn’t transferred at the time of the gift due to the donees being minors, but this was not fatal to the validity of the gift. This case clarifies the legal aspects surrounding gift mutations, fraud allegations, and possession transfer in cases involving minors.

2016 MLD 420 LAHORE-HIGH-COURT-LAHORE In this case, ALLAH DITTA was the appellant, and the opponent was MUHAMMAD ASHIQUE. The dispute involved a suit for declaration and permanent injunction related to a gift mutation. The key legal point was the burden of proof, particularly regarding the validity of the gift. The court emphasized that the beneficiary of a gift, whether oral or written, must prove that it was validly executed, satisfying the elements of offer, acceptance, and delivery of possession. The defendant alleged forcible dispossession but failed to provide credible evidence of it. Importantly, the court noted the absence of one of the marginal witnesses and the non-production of Roznamcha Waqiati for proof of the entry of the gift mutation. This case underscores the importance of adhering to legal requirements in gift-related disputes.

Citation Name – 2016 MLD 825 LAHORE-HIGH-COURT-LAHORE

In this case, MANZOOR HUSSAIN was the appellant, and Mst. SARDARAN BIBI was the opponent. The case revolved around a suit for declaration related to a gift mutation. The central contention of the plaintiff was that the mutation of “Tamleek” resulted from fraud. The suit was decreed concurrently, and the key legal points to highlight are as follows:

The beneficiary of the disputed mutation had the burden to prove the transaction with cogent, consistent, and unimpeachable evidence.

The defendants failed to produce substantial evidence to support their claim, including the failure to examine key witnesses and officials involved in the mutation process.

One of the beneficiaries of the mutation had filed a consenting written statement and confessed to the plaintiff’s claim.

The doctrine of lis pendens applied, as the suit land was transferred in favor of one of the beneficiaries during the pendency of the suit, rendering the subsequent transfer void.

The appellate court was not obligated to provide issue-wise findings, as the trial court had addressed all material aspects of the case.

Both courts below had properly appreciated the details of the controversy, and their judgments were passed with jurisdiction and without any material irregularity.

The revision was dismissed.

Citation Name – 2016 YLRN 73 LAHORE-HIGH-COURT-LAHORE

In this case, SAKINA BIBI was the appellant, and FAQIR ALI was the opponent. The case centered on a gift mutation, and the key legal points to note are as follows:

The onus to prove the ingredients of a gift, including offer, acceptance, and delivery of possession, rested on the defendants.

A valid gift would come into existence upon fulfilling these conditions, and it could be oral without the need for a written instrument.

Written instrument or registration was not compulsory for a gift under Islamic law.

The beneficiary of the document was not only required to prove its execution but also establish the actual factum of the gift by satisfying the three essential elements.

The defendants failed to address these gift requirements while testifying in court, which was detrimental to their claim.

Fraud, with no justification, voided the gift transaction, and the lack of reasons or justification for the gift in the impugned mutations was noted.

Fraud would vitiate even the most solemn transaction, rendering it void.

The bar of limitation could not be used to perpetuate fraud.

Possession of legal heirs would be considered that of their deceased predecessor-in-interest, and limitation did not apply to co-sharers.

The courts below were criticized for not properly considering the evidence and misreading or not reading the available evidence, resulting in the suit being decreed in favor of the appellant in the revision.

These case notes provide a comprehensive overview of the key legal points and outcomes of the two cases. If you have any specific questions or need further analysis on any aspect of these cases or related matters, please feel free to ask.

Citation Name – 2016 CLCN 73 LAHORE-HIGH-COURT-LAHORE

In this case, RIAZ AHMAD was the appellant, and FAZAL HUSSAIN was the opponent. The case concerned a suit for possession through pre-emption related to a gift mutation. The main points to highlight are as follows:

The plaintiff’s contention was that the alleged gift mutation was a fraudulent attempt to defeat the right of pre-emption.

The suit was decreed concurrently.

The onus was on the pre-emptor to prove that the transaction was a “sale.”

The gift mutation was attested in a common assembly by the Revenue Officer, which carried a presumption of truth.

Oral evidence could not override documentary evidence, and the court had discretion to draw inferences, subject to correction by superior courts.

The courts below drew inferences based on the non-consideration of the evidence as a whole.

The courts were reminded of the importance of evaluating witnesses’ genuineness and credibility.

The pre-emptor failed to prove their preferential right and the alleged gift was deemed a “sale.”

Partial pre-emption was not allowed under the law.

The plaintiff failed to prove superior right or that the alleged transaction of “gift” was actually a “sale.”

The suit for possession based on pre-emption was dismissed, and the impugned judgments and decrees of the lower courts were set aside.

Citation Name – 2016 CLCN 144 PESHAWAR-HIGH-COURT

In this case, MASIH-UD-DIN KHAN was the appellant, and IFTIKHAR-UD-DIN was the opponent. The case involved various rules and contentions related to a gift mutation, and the key points to note are as follows:

The plaintiffs claimed that their mother was of unsound mind when a general power of attorney was executed on her behalf, and mutations were attested based on this.

The suits were decreed by the Trial Court.

The donor ratified the previous transaction of the gift on her behalf.

The power of attorney and gift mutations were never challenged by the donor during her lifetime.

The plaintiffs filed multiple suits against the same parties and the same subject matter, which was not permissible under the law.

The plaintiffs were bound to provide particulars of fraud in the plaint and prove them with tangible evidence.

The burden of proof was on the plaintiffs to produce cogent evidence to support their allegations.

Allegations of fraud required specific details, and vague and ambiguous allegations were insufficient.

No application was made for the appointment of a next friend for the allegedly insane defendant, which was mandatory.

The general power of attorney for the transfer of property by way of gift was valid and duly attested.

The impugned judgment and decree of the Trial Court were set aside, and the suits filed by the plaintiffs were dismissed.

These case notes provide an overview of the key legal points and outcomes of the two cases. If you have any specific questions or need further analysis on any aspect of these cases or related matters, please feel free to ask.

Citation Name – 2017 YLRN 178 PESHAWAR-HIGH-COURT

In this case, KHALID SHAH was the appellant, and JAMAL SHAH was the opponent. The case involved a suit for declaration related to inheritance, a dower deed, and a gift mutation. Key points to note include:

The plaintiffs sought a declaration that they were owners in possession of their rightful share.

The Trial Court dismissed the suit, but the Appellate Court decreed it.

The court was tasked with adjudicating based on the preponderance of evidence.

A 30-year-old dower deed, duly executed and proven, carried a presumption of genuineness, and its non-registration did not invalidate it.

The defendants failed to prove the factum of the gift, including the offer, acceptance, and delivery of possession, as required for a gift.

The judgment and decree of the Appellate Court, declaring the gift mutation null and void, were deemed correct.

The courts below had not properly appreciated the evidence concerning the dower deed.

The judgments and decrees were set aside, and the plaintiff’s suit was decreed.

Citation Name – 2018 CLCN 25 LAHORE-HIGH-COURT-LAHORE

In this case, ABID HUSSAIN SHAH was the appellant, and AURANGZEB was the opponent. The case involved a suit for declaration and focused on the proof of a gift mutation and a family settlement. Key points to highlight are as follows:

The plaintiffs contended that the gift transaction was forged and fictitious.

The suit was dismissed concurrently.

The onus to prove a valid gift was on the defendants, the beneficiaries of the disputed mutation.

The attestation of the gift mutation followed the gift transaction, and the ingredients of the gift, including offer, acceptance, and delivery of possession, needed to be proved by the beneficiary.

The defendants’ written statement and evidence lacked details on how, when, and in whose presence the donor had gifted the property.

The necessary elements of the gift leading to the attestation of the disputed gift mutation were absent.

The defendants failed to prove the factum of the gift in their favor.

A gift mutation needed to be proved through credible and unimpeachable evidence.

The absence of a mention of a family settlement and the lack of evidence suggested no such settlement.

The revision was allowed, and the suit was decreed.

Citation Name – 2019 YLR 1337 PESHAWAR-HIGH-COURT

In this case, SHAH ZAMAN was the appellant, and PAINDA alias RAJA was the opponent. The case involved a suit for declaration related to a gift mutation and the issue of limitation. Key points to note include:

The plaintiff contended that the gift mutation was fraudulently attested.

The suit was dismissed concurrently.

The donor had gifted the entire property to his legal heirs during his lifetime.

The defendants produced the Patwari Halqa who entered the mutation and the Revenue Officer who attested it.

The plaintiff challenged the mutation after sixteen years.

The limitation for such a case was governed by Art. 120 of the Limitation Act, 1908.

The plaintiff was required to file the suit within six years from the date of attestation of the mutation.

The suit was barred by time.

The judgments and decrees of the courts below were based on a proper appreciation of evidence.

The revision was dismissed.

These case notes provide an overview of the key legal points and outcomes of the three cases. If you have any specific questions or need further analysis on any aspect of these cases or related matters, please feel free to ask.

Citation Name – 2020 SCMR 214 SUPREME-COURT

This case involved a gift mutation where the donee was a minor. The appellant alleged fraud and connivance with revenue officials. Key points to consider include:

The donee was about six years of age at the time of attestation of the mutation.

The evidence showed that there was no reason to suspect fraud by the minor donee or connivance with revenue officials.

The case was exceptional because the donee, being a minor, was not required to independently prove the offer, acceptance, and delivery of possession.

The donee and his legal heirs provided evidence, including the record keeper and revenue officials, attesting the mutation.

Attesting witnesses of the mutation and the patwari who entered the mutation also appeared as witnesses.

The gift mutation was held to be valid, and the appeal was allowed.

Citation Name – 2020 YLR 408 KARACHI-HIGH-COURT-SINDH

This case involved a gift mutation and issues related to fraud, limitation, and competence of appeals. Key points to note are as follows:

The petitioner filed an appeal against a gift entry of mutation, which was dismissed as time-barred but later accepted by the Additional Deputy Commissioner.

The respondent argued that the second appeal before the Additional Deputy Commissioner was not competent.

The impugned entry of gift was found to be fraudulent, bogus, and without legal effect.

The mutation did not confer any title and needed to be established through evidence.

The respondent failed to prove the alleged original transaction of the gift.

Fraud was inferred from the surrounding circumstances and conduct of the parties.

The entry made in the revenue record through fraud had no foundation and was void ab initio.

The petition was dismissed.

Citation Name – 2020 SCMR 867 SUPREME-COURT

Side Appellant: SHAHBAZ GUL

Side Opponent: MUHAMMAD YOUNAS KHAN

This case involved a gift mutation with allegations of being bogus and a result of fraud. Key points to consider include:

The plaintiff brought contradictory pleas, alleging that the mutations were both fraudulent and bogus.

The evidence presented by the plaintiff did not suggest that the mutations were bogus, as they were available in the record of the Revenue department.

The plaintiff himself brought the concerned roznamchas and copies of mutations from the proper custody of revenue officials.

Asserting that a mutation was both fraudulent and bogus was considered self-contradictory.

The presence of the mutations in the Revenue Records indicated their authenticity.

There was no evidence of fraud committed with the donor to get the mutations attested.

The appeal was allowed, and the suit challenging the gift mutations was dismissed.

These case notes provide a summary of the key legal points and outcomes of the three cases. If you have specific questions or need further analysis on any aspect of these cases or related matters, please feel free to ask.

Citation Name – 2020 SCMR 1021 SUPREME-COURT

Side Appellant: MUHAMMAD NAWAZ

Side Opponent: SAKINA BIBI

This case involves an oral gift and a subsequent gift mutation with allegations of fraud. Key points to consider are as follows:

The dispute centers around brothers allegedly depriving their sisters of their share in inheritance through an oral gift and a gift mutation.

The sons, who are beneficiaries of the gift mutation, were required to prove the validity of both the mutation and the oral gift.

The defendants failed to provide specific details regarding the date, time, place, or witnesses present during the alleged oral gift.

The only witness they produced could not disclose the essential details of the oral gift.

During cross-examination, this witness admitted that the donor was about 80 years old at the time of the alleged gift mutation, and no Patidar was present during its attestation.

Three lower courts unanimously held that the defendants failed to prove the oral gift or the validity of the mutation.

Even the validity of the mutation could not be established due to the defendants’ failure to produce crucial witnesses like the Tehsildar and other revenue functionaries.

Another defense witness acknowledged that the donor continued to own the property until his death.

Citation Name – 2021 SCMR 73 SUPREME-COURT

Side Appellant: ATTA MUHAMMAD

Side Opponent: Mst. MUNIR SULTAN (DECEASED)

This case involves a gift and gift mutations with issues related to compliance with the Punjab Land Revenue Act, 1967. Key points include:

Section 42(1) of the Punjab Land Revenue Act, 1967, required the donees of the gifts to report the land transfer to the revenue authorities, which they did not do.

Subsections (6) and (7) of Section 42 required the identification of the person from whom the land was acquired by two respectable persons, preferably the Lambardar or council members, before changing the register of mutations.

In this case, the two witnesses did not meet these criteria.

There was sufficient material on record to suggest dishonesty, and the gift mutations were made illegally.

The petition for leave to appeal was dismissed, and costs were imposed on the petitioners.

Citation Name – 2021 SCMR 179 SUPREME-COURT

Side Appellant: FARHAN ASLAM

Side Opponent: Mst. NUZBA SHAHEEN

This case involves gift mutations that allegedly deprived widows and daughters of their inheritance shares. Key points to consider include:

Revenue authorities have a duty to be extra vigilant when purported gifts are made to deprive daughters and widows of their inheritance shares.

The concerned officers must ensure strict compliance with applicable laws and fully satisfy themselves about the identity of the donor/transferee.

Purported gifts and other tools used to deprive female family members, including daughters and widows, of their shares are considered contrary to law, including Shariah in such cases, the Constitution, and public policy.

These case notes provide summaries of the key legal points and outcomes of the three cases. If you have specific questions or need further analysis on any aspect of these cases or related matters, please feel free to ask.

Citation Name – 2021 SCMR 179 SUPREME-COURT

Side Appellant: FARHAN ASLAM

Side Opponent: Mst. NUZBA SHAHEEN

This case involves a gift mutation where the wife and daughter of the deceased were deprived of their inheritance through a fictitious gift mutation. Key points include:

The purported donees (petitioners) were nephews of the deceased and failed to establish the gift of land in their favor.

Beneficiaries of a gift were required to establish the same.

Two of the purported donees were minors, and the third, an adult, did not testify that the gift was made in his favor, that he accepted it, and received possession of the land.

Instead, his father testified but did not provide particulars of the gift, including when and where it was made, and he did not testify as an attorney.

There was no reasonable explanation for a father and husband to disregard his wife and daughter and gift away all his land to his nephews.

The respondents (widow and daughter of the deceased) were deprived due to the acquisitive greed of the purported donees, facilitated by revenue authorities.

Violating inheritance laws, including Shariah for Muslims, and exploiting vulnerable family members was deemed unacceptable.

The petition for leave to appeal was dismissed with costs payable to the respondents by the petitioners-purported donees through the Trial/Executing Court.

Citation Name – 2022 SCMR 1009 SUPREME-COURT

Side Appellant: Mst. RABIA GULA

Side Opponent: MUHAMMAD JANAN

This case involves a gift mutation where a suit for declaration challenged the mutation on grounds of fraud. Key points include:

The case centers around the limitation period for challenging a gift mutation of 1977, which the respondent claimed was the result of fraud.

The respondent claimed his right to the suit property based on inheritance from his father and challenged the mutation after 32 years, alleging knowledge of the fraud some days before filing the suit.

However, the respondent did not assert that his father, the purported donor, was not aware of the gift mutation during his lifetime.

The date of knowledge of the donor, not the respondent, was considered the starting point for computing the limitation period.

The respondent’s omission to assert fraud against his father defeated the legal basis for his claim to avoid the bar of limitation.

The appeal was partially allowed.

Citation Name – 2022 YLR 1531 KARACHI-HIGH-COURT-SINDH

Side Appellant: Mrs. NASIRA KHALIQUE

Side Opponent: Mst. RABIA SHARIF

This case involves a suit for declaration challenging a gift mutation. Key points include:

The plaintiffs challenged the transfer of the suit property in favor of the respondents’ predecessor by their father.

The property was transferred based on the contents of a gift shown in a Nikahnama executed in 1954, but the mutation occurred in 1982.

The burden was on the beneficiaries to prove both the claimed gift and its validity.

The Nikahnama was deemed a document between the bride and bridegroom, and mere referral to a person’s signature as a witness did not bind them to any terms in the Nikahnama.

Authorities were required to serve notice upon such a person before relying on the document to transfer title.

The illegal order passed by the authorities did not prevent the plaintiffs, as the donor himself had never appeared before the authorities to confirm the claimed gift.

The revision application was allowed, and the suit was decreed.

Citation Name – 2023 CLC 433 QUETTA-HIGH-COURT-BALOCHISTAN

Side Appellant: MUHAMMAD YAR

Side Opponent: BIBI GUL SEEMA

This case involves a suit for declaration, cancellation, and permanent injunction related to a gift mutation. Key points include:

The plaintiff, being the daughter of the alleged donor, claimed her share in the inheritance but alleged that the defendants used fraud and fake witnesses to transfer properties in their names.

The defendants contended that the mutation of exchange and hiba they entered into was lawful.

The trial court decreed the suit in favor of the plaintiff, and the appeal was dismissed.

The defendants admitted that the gift mutation lacked crucial details such as the date, month, and names of witnesses.

There was no evidence to confirm that the donor appeared before the revenue authority to confirm the oral gift.

Differences were noted in the donor’s signature in the transfers/mutations, and the CNIC number of the donor was not mentioned.

The defendants failed to produce any witness of gift acceptance and possession.

The courts below recorded concurrent findings of facts, leading to the dismissal of the revision petition.

Citation Name – 2023 MLD 665 LAHORE-HIGH-COURT-LAHORE

Side Appellant: HAYAT (DECEASED)

Side Opponent: Mst. FATEH KHATOON

This case involves a suit for declaration and injunction related to a gift mutation. Key points include:

The respondent/plaintiff challenged a gift mutation in favor of the predecessor-in-interest of the petitioners/defendants.

The trial court and the lower appellate court decreed the suit and appeal in favor of the respondent/plaintiff.

The respondent/plaintiff was a minor at the time of attestation of the gift mutation, which was based on a statement from a lady who had no authority to enter into such a transaction on behalf of the respondent/plaintiff.

The gift mutation was deemed a void instrument due to the minor’s involvement.

The petitioners/defendants failed to prove the genuineness of the gift mutation with necessary details and unimpeachable evidence.

The High Court declined to interfere with the concurrent findings, as no illegality or material irregularity was identified.

The revision was dismissed.

Citation Name – 2023 CLC 1171 LAHORE-HIGH-COURT-LAHORE

Side Appellant: Mst. RASOOLAN BIBI

Side Opponent: PROVINCE OF PUNJAB

This case deals with the scope of gift mutations. Key points include:

The case emphasizes that mere sanctioning of a gift mutation does not create any right until and unless the basic transaction of the gift is proven through corroborative and trustworthy evidence.

Cases on Hiba and key takeaways

In the case of Muhammad Yar vs. Bibi Gul Seema, reported in the 2023 CLC 433, before the Quetta High Court, Balochistan, the main issues at hand revolved around a suit for declaration, cancellation, and permanent injunction in the context of a gift mutation. The plaintiff, Bibi Gul Seema, claimed that she, being the daughter of the alleged donor, was entitled to her share in the inheritance. She alleged that the defendants, Muhammad Yar and others, had unlawfully obtained the properties in their names through fraudulent means, including the presentation of fake witnesses in support of the gift.

The plaintiff’s contention was rooted in the assertion that the defendants, through fraudulent practices, had succeeded in transferring the properties in their names and subsequently selling them to different individuals, all while ignoring and depriving both the plaintiff and the female defendants/sisters of the plaintiff of their rightful shares in the inheritance.

The defendants, in their joint written statement, asserted that the mutation of exchange and hiba (gift) entered into by them was in accordance with the law. However, the crucial issue that emerged during the course of the proceedings was the lack of vital details in the gift mutation. Notably, the defendants admitted that the gift mutation did not specify any date, month, or names of witnesses. This omission raised questions about the authenticity and legality of the alleged gift.

Furthermore, the absence of any documented evidence to establish that the donor had appeared before the revenue authority and confirmed the existence of the oral gift further weakened the defendants’ position. An additional concerning aspect was the dissimilarity in the donor’s signature as found in the transfers/mutations, which cast doubts on the veracity of the purported gift.

Even more tellingly, the Computerized National Identity Card (CNIC) number of the donor was conspicuously absent from the gift transfer documentation. Such a fundamental omission raised significant concerns about the legitimacy of the transaction.

Perhaps most damning for the defendants’ case was their failure to produce any witnesses to corroborate the acceptance of the gift and its subsequent possession. The absence of credible witnesses to support their claims undermined their defense considerably.

In light of these critical factors, both the Trial Court and the appellate court decreed in favor of the plaintiff, Bibi Gul Seema. The courts below, having recorded concurrent findings of facts, held that the plaintiff’s claims were valid and that the defendants had failed to substantiate their position with sufficient evidence.

Ultimately, the revision petition filed by the defendants was dismissed by the Quetta High Court. The Court’s decision to uphold the lower courts’ findings was grounded in the compelling evidence of irregularities and omissions in the gift mutation, the absence of credible witnesses, and the overall lack of substantiation for the defendants’ assertions. Consequently, the plaintiff’s claims for declaration, cancellation, and permanent injunction were upheld, affirming the principle that due process and documentation are integral to the validity of property transactions in Pakistan.

In the case of Mst. Zarsheda vs. Nobat Khan, as reported in the 2022 PLD 21 before the Supreme Court, the central issue revolved around the interpretation of the term “sale” in the context of the right of pre-emption concerning immovable property.

The pertinent legal provisions under consideration were Sections 2(d) and 5. Section 2(d) defined the term “sale” for the purpose of the case. According to the definition provided, “sale” referred to the permanent transfer of ownership of an immovable property in exchange for valuable consideration. It also included the transfer of an immovable property by way of Hiba-bil-iwaz or Hiba-bi-shart al-iwaz, with the exception that it did not encompass the transfer of an immovable property through inheritance, will, or gift, other than Hiba-bil-iwaz or Hiba-bi-shart al-iwaz.

The key point of contention was whether the right of pre-emption could be invoked in the case of a gift of immovable property. The court’s interpretation of the relevant provisions was clear: the right of pre-emption was applicable only when a “sale” of immovable property occurred. It was explicitly stated that this right did not arise in cases of the transfer of immovable property without consideration, such as in the case of a gift.

In essence, the Supreme Court’s ruling established a crucial distinction between transactions involving valuable consideration (i.e., sales and certain types of gifts like Hiba-bil-iwaz or Hiba-bi-shart al-iwaz) and those without consideration, particularly ordinary gifts. The right of pre-emption, a legal remedy allowing a party to purchase property in preference to others, was available in the former but not in the latter.

This decision underscored the importance of precision in legal language and the significance of differentiating between various types of property transactions. It affirmed that the right of pre-emption was not applicable to gifts without consideration and could only be invoked in cases where a “sale” involving valuable consideration took place, aligning with the specific legal definitions provided in Sections 2(d) and 5 of the relevant law.

In the case of Abid Hussain vs. Muhammad Yousaf, reported in the 2022 PLD 395 before the Supreme Court, the matter under consideration pertained to the essential pre-requisites for a valid gift, particularly in the context of Islamic law and legal principles.

The court emphasized several key prerequisites that must be satisfied for a gift (Hiba) to be considered legally valid:

Donor’s Mental Capacity: Firstly, the donor should be compos mentis, which means the donor must be of sound mind and possess the mental capacity to understand the legal implications of the act of making a gift. This underscores the importance of the donor’s ability to make a conscious and informed decision when giving away their property.
Donor’s Age: The donor must be a major, meaning they should have reached the age of majority as defined by the relevant laws. Minors typically do not have the legal capacity to make gifts, and therefore, the donor must be of an age recognized by law as capable of making such decisions.
Ownership of Property: The donor must be the legal owner of the property that is intended to be gifted. In other words, the donor must have rightful ownership and control over the property they intend to give.
Existence of the Gifted Item: The item or property intended to be gifted must exist at the time of the Hiba (gift). This ensures that the gift is tangible and can be identified with specificity.
Lawful Benefit: The thing gifted should be such that its benefit is lawful under Islamic Shariat. This requirement aligns with the principles of Islamic law, which emphasize the importance of lawful and ethical conduct in all transactions, including gifts.
Absence of Coercion or Undue Influence: The donor must make the gift freely and voluntarily, without any coercion, duress, or undue influence from any third party. This requirement safeguards the authenticity of the donor’s intent.
Transfer of Possession: To have an effective Hiba (gift), the thing gifted should come into the possession of the donee either directly or through the donee’s representative or guardian. This transfer of possession solidifies the completion of the gift transaction.

These essential pre-requisites serve as fundamental principles governing the validity of gifts in Islamic law and have broader legal implications as well. They ensure that the act of gifting is carried out in a manner that is both legally sound and in compliance with ethical and religious principles. Failure to meet any of these requirements may render a gift invalid in the eyes of the law.

In the case of Abid Hussain vs. Muhammad Yousaf, as reported in the 2022 PLD 395 before the Supreme Court, an important clarification was made regarding the concept of Hiba (gift) in Islamic law. The court emphasized that Islamic law does not differentiate between movable and immovable property when it comes to the concept of Hiba. Instead, any property, whether movable or immovable, may be gifted by any person who has ownership and dominion over the property, provided that the requisite formalities are fulfilled. This ruling reaffirms the broad applicability of Hiba under Islamic law, regardless of the nature of the property being gifted.

Additionally, the court made it clear that the provisions of the Transfer of Property Act, 1882, specifically Sections 123 and 129, do not apply to Hiba or gifts envisioned and encapsulated under Muslim Law. Therefore, these sections cannot supersede or outweigh the matters of oral gifts contemplated under Muslim Law. In essence, the court emphasized that a registered instrument or indenture is not mandatory for the validity of oral gifts in accordance with Muslim Law.

In a related case reported in the 2022 CLC 1646 before the Quetta High Court, Balochistan, the matter revolved around the mutation of a property. The plaintiffs claimed that the property was mutated in the name of their father, and the defendants contended that the property had been purchased in 1951 but was transferred to their names in 2001. The dispute centered on whether the property had been sold or gifted.

The burden of proof was placed on the defendants to demonstrate that they had validly purchased the property. However, none of the witnesses were present at the time of the alleged sale or purchase, and no valuation of the sale was mentioned in the written statement. The court found that the transfer had been effected based on Hiba (gift) and that the defendants failed to produce any witnesses to prove the factum of the Hiba.

Furthermore, the court noted that the transfer had been carried out without the knowledge of the plaintiffs and was fraudulent, with the connivance of the revenue authority. The court emphasized that no limitation would run against fraudulent transactions, and fraud even vitiated a solemn order.

The defendants’ claim of Hiba lacked substantiation, as they neither produced witnesses to prove the Hiba nor provided a reasonable explanation for such a gift. Given these circumstances, the court found it unbelievable that one would deprive their sons and gift the property to another person. Consequently, all three revision petitions were dismissed.

These cases highlight the importance of clear legal principles and the specific requirements for valid gifts under Islamic law. They also underscore the significance of providing credible evidence and documentation when asserting property rights or challenging transactions in court.

In the case of Mst. Sharifan Mai vs. Khuda Bakhsh, reported in the 2022 YLR 147 before the Lahore High Court, important legal principles related to dower and the concept of Hiba-bil-ewaz (gift in lieu of dower) were discussed.

Nature and Scope of Hiba-bil-ewaz: The court clarified that when a Muslim husband transfers immovable property to his wife as part of her dower, this transaction typically involves two distinct gifts—one by the husband to the wife and the other by the wife to the husband. This dual gift exchange characterizes the transaction as “Hiba-bil-ewaz.” This principle applies unless there are specific exceptions.
Non-Requirement of Registration: Section 129 of the Transfer of Property Act was invoked to emphasize that the transfer of property by a Muslim in lieu of dower, which constitutes Hiba-bil-ewaz, does not require registration under the Registration Act, 1908. It was made clear that neither a writing nor any document acknowledging the transfer of property in lieu of dower needs to be registered.

In another case, Abdul Waheed vs. Mst. Rubina Shaheen, reported in the 2022 CLC 1754 before the Lahore High Court, the focus was on the validity of a Hiba (gift) and issues related to fraud and limitation. Here are the key points:

Challenge to Hiba and Mutation: The respondent/plaintiff challenged a mutation based on a Hiba nama (gift deed) in favor of the petitioner, who was her brother-in-law and the foster son of her father. She alleged that the Hiba nama was fraudulent and that the mutations recorded based on it should be canceled.
Barred by Limitation: The petitioners argued that the suit was barred by time, as it was filed 17 years after the mutation entry. They also claimed that no cause of action was provided in the plaint, and no particulars of fraud were mentioned.
Validity of Limitation: The court held that the limitation period would start from the time when the respondent discovered the allegedly fraudulent mutations and Hiba namas, which was in December 2017. Therefore, the suit was not barred by limitation.
Mixed Question of Law and Facts: The court emphasized that the question of limitation in this case was a mixed question of law and facts. It required a determination of when the respondent had gained knowledge of the alleged fraud, how, and from whom. Therefore, it could not be categorized as a pure question of law.

Ultimately, the court dismissed the revision petition, affirming that the suit was not barred by limitation, and the question of limitation in such cases should be assessed based on the facts and circumstances, including when the party became aware of the alleged fraud. This case underscores the importance of providing clear particulars of fraud in legal proceedings and considering the mixed nature of questions that may arise in such cases.

In the case of Mst. Shafqat Parveen vs. Muhammad Iftikhar Amjad, reported in the 2012 SCMR 1602 before the Supreme Court, the central issue revolved around a claim of ownership of a property based on an alleged gift (hiba). The plaintiff contended that the property, a house, had been gifted to her by her father-in-law at the time of her Nikah. She presented documentary evidence in the form of Nikah Nama and stamp papers to support her claim.

However, the courts below found that the evidence presented by the plaintiff was not convincing. They highlighted several key points that cast doubt on the validity of the gift:

Witnesses’ Testimonies: One of the plaintiff’s witnesses, who was also a witness to the Nikah Nama, admitted during cross-examination that the donor (father-in-law) lived in the house until his death. Another witness confirmed that the donor had indeed passed away in the same house.
Lack of Attempted Mutation: The plaintiff admitted that during the donor’s lifetime, she had not attempted to have the house mutated in her name through a registered deed.
Sons’ Testimonies: Two of the donor’s sons, who appeared as witnesses, denied that the property was gifted to the plaintiff. They argued that the donor had intended to mutate the property in favor of his youngest son, and all the children of the donor had surrendered their shares.
Contradictions in the Nikah Nama: The courts found that the entry in the Nikah Nama regarding the suit property had been inserted later and collusively. The donor did not endorse in the Nikah Nama that he was gifting the house. Additionally, the person who performed the Nikah and made the alleged gift entry in the Nikah Nama was not examined.
Continued Use by Donor: Evidence indicated that the donor continued to live in the house until his death. Household articles of some heirs were found in the house, property tax was paid in the donor’s name, and the electricity meter was registered in the donor’s name.

Based on these considerations, the courts below arrived at concurrent findings of fact that were not found to be against the evidence and did not reflect a misreading or non-reading of the evidence. As a result, the petition for leave to appeal was dismissed by the Supreme Court.

In the case of Ayesha vs. Additional Sessions Judge, Sialkot, reported in the 2022 CLC 327 before the Lahore High Court, the matter related to the amendment of a plaint in a suit for the cancellation of a Hiba (gift) Deed, declaration, and injunction. The respondent/plaintiff sought to amend her plaint to include a prayer for the restoration of possession, alleging that she had been illegally dispossessed from the suit property by the petitioner/defendant.

The Lower Appellate Court allowed the respondent/plaintiff to amend her plaint. The High Court upheld this decision, emphasizing the principles governing amendments to pleadings under Order VI, Rule 17 of the Civil Procedure Code, 1908. The key principles highlighted were:

Amendments can be allowed to avoid multiplicity of suits.
Amendments do not alter the subject matter or cause of action of the suit.
Amendments do not take away any accrued rights.
Amendments may be allowed when new facts or events necessitate a change in the relief sought.
The interest of safe and accurate administration of justice may require an amendment.
Amendments can be allowed when the cause of action needs amplification.
Amendments can be sought when a plaintiff’s evidence triggers a new statutory line of defense.
Amendments should not result in injustice.

The High Court declined to interfere with the order passed by the Lower Appellate Court, emphasizing that the principles governing amendments were well-established and that the lower court’s exercise of discretion in allowing the amendment was in line with these principles. Consequently, the constitutional petition was dismissed.

In the case of Mst. Mah Khatoon vs. Feroz, reported in the 2018 CLC 1535 before the Quetta High Court, the dispute centered around inheritance and the disinheritance of a legal heir due to disobedience. The plaintiff claimed that they were deprived of their legal share of inheritance due to disobedience, and gift mutations were made in favor of the defendants. The suit filed by the plaintiff against these gift mutations was decreed concurrently.

The court emphasized several key points in its judgment:

Disinheritance Due to Disobedience: Depriving lawful heirs from their inheritance on the grounds of disobedience has no sanctity under the law. While a Muslim owner can validly transfer property through recognized modes, including gifts, such transfers must not intend to deprive heirs of their lawful inheritance on grounds not recognized by the law.
Invalid Gift with Negative Intent: In this case, the gift was made by the father during his lifetime in favor of the daughters with the intention of depriving the son of his legal share. This intent to disinherit the son based on a negative reason not recognized by the law rendered the gift void.
Findings by the Courts Below: The courts below had correctly found that the plea of ‘Aaq’ (exclusion from inheritance) taken by the defendants was not valid, and the gift mutations were invalid on that ground. The impugned gift was treated as Hibba-bil-Awez for a specific amount, and the plaintiff was found liable to return that amount to the defendants.
Absence of Other Irregularities: No other illegality or irregularity was pointed out in the judgments and decrees passed by the lower courts.

As a result, the revision was dismissed, upholding the concurrent findings of the lower courts that the gift mutations were invalid due to their negative intent to disinherit the lawful heir.

In the case of Shabbir Hussain vs. Mst. Firdous Bibi, reported in the 2017 CLCN 172 before the Lahore High Court, the central issue was whether a gift mutation in favor of the defendant constituted a benami transaction. The plaintiff contended that the gift was benami.

The court’s key points in its judgment were as follows:

No Evidence of Benami Transaction: The plaintiff, who was the father of the defendant, failed to provide evidence that the gift was a benami transaction. Instead, it was established that the plaintiff voluntarily transferred the suit property through a gift mutation.
Absence of Coercion or Fraud: There was no evidence to suggest that the suit property was transferred to the defendant as a benamidar through coercive measures or fraud.
Difference Between Benami and Gift: The court highlighted that the concept of benami and gift transactions had distinct parameters and ingredients. A gift cannot be considered benami in nature unless the specific conditions for a benami transaction are met.
Inability to Resile from Gift: Once a donor has transferred their rights in a property through a lawful gift or Hiba, they cannot resile from the gift transaction.
No Legal Irregularities: The court found that no illegality, irregularity, misreading, or non-reading of evidence had been demonstrated in the judgments and decrees of the lower courts.

Ultimately, the revision was dismissed, and the court upheld the lower courts’ decisions that the gift was not a benami transaction but a valid transfer of property.

In the case of Aminullah vs. Johar Ali, reported in the 2017 CLC 285 before the Gilgit-Baltistan Chief Court, the dispute involved a suit for possession and declaration related to a gift. The parties were maternal brothers, and one defendant was the brother-in-law of the plaintiff.

Key points from the court’s judgment were as follows:

Dispute Over Ownership: One of the plaintiffs claimed to be the sole owner of the suit land, which had been left with one of the defendants as ‘Amanat’ (on trust) after the death of their mother. The claim was based on an iqrar nama.
Defendant’s Claim: The defendants claimed that the mother of the plaintiffs had, from her own free will, alienated the suit property through a gift mutation. They argued that the property had remained in possession of the donee for a significant period.
Failure to Prove Valid Gift: The defendants failed to provide sufficient evidence to prove a valid gift in favor of their father, the donee. The court found that the gift was not properly substantiated.
Evidence and Testimonies: The plaintiffs presented evidence that their mother had handed over her shari share to the sister of one of the plaintiffs, who had authenticated the contents of the plaint. The court considered this evidence in favor of the plaintiffs.
Decision of the Appellate Court: The appellate court, after examining the evidence and the circumstances, rightly dismissed the judgment of the trial court.

In light of these findings, the Chief Court declined to interfere in the decision of the appellate court, supporting the just and legal conclusion reached in the lower court’s judgment.

In the case of Haji Muhammad Yaqoob Khan vs. Muhammad Riaz Khan, reported in the 2016 YLR 2492 before the Peshawar High Court, the dispute revolved around a gift given in lieu of dower. The key points from the court’s judgment are as follows:

Conditions in Kabinnama: The court emphasized that if the corpus of the property was gifted, any conditions attached to such a gift would be illegal, but the gift itself would remain valid. However, if the corpus of the gifted property was not transferred, conditions limiting the authority of the donee over the property could be legally restricted or time-bound.
Property in Lieu of Dower: Property transferred in lieu of dower or marriage is considered “Hiba bil ewaz,” and the transfer of possession is not necessary. Any condition on a gift to a bride or a wife goes against public policy and the principles of Islam.
Distinction Between Corpus and Usufruct: The court highlighted that the mere fact that a gift is for a lifetime or until Nikah does not, by itself, imply that the gift is only of the usufruct (benefits) and not of the corpus (actual property). The intention of the donor, as reflected in the document, terms, revenue records, and actions, is relevant to determine whether the corpus or usufruct of the gifted property has been transferred.
Presumption of Donor’s Intent: Once a gift to family members is officially recorded in revenue records or with the registering authority, it is presumed that the donor’s subsequent acts regarding the gifted property are on behalf of the donee and not on their own behalf.

In this case, it was established that the property had been gifted as a whole (corpus) and not just its usufruct. Therefore, any restricting condition in the Kabinnama was deemed void. The donee was considered the full owner of the property, and her title had not been challenged by the donor during his lifetime. Furthermore, the donee had transferred part of the gifted property during her lifetime without protest or challenge from anyone, including the donor and his legal heirs. The donee’s ownership had been recorded in the revenue record.

As a result, the revision was dismissed, upholding the lower court’s decision regarding the validity of the gift and the donee’s ownership.

In the case of Amjad Iqbal vs. Mst. Nida Sohail, reported in the 2015 SCMR 128 before the Supreme Court, the dispute involved the execution of a maintenance decree and the attachment of immovable property. The judgment highlighted the following points:

Decree for Maintenance: The daughter had filed a suit for maintenance against her father, and the suit was decreed. However, the father failed to comply with the decree.
Unlawful Transactions: After the father’s release from civil prison, he gifted his property to his wife and subsequently sold it to the petitioner. These transactions were viewed as unlawful and as an attempt to defeat the purpose of the maintenance decree.
Nullity of Transactions: Once the gift was declared unlawful, any further transactions based on that gift were considered null and void in the eyes of the law. The wife, as the donee of the gift, did not have legal title to the property to sell it to the petitioner.
Sham Transactions: Both the gift and the subsequent sale were regarded as sham transactions aimed at avoiding the satisfaction of the maintenance decree. The court held that the decree was for the maintenance of the daughter, and the father’s actions constituted disregard of his parental obligations.
Family Court’s Authority: Section 13(3) of the West Pakistan Family Courts Act, 1964, empowered the Family Court to execute its own decree for the payment of money through various modes, including selling the defaulter’s immovable property.

In light of these findings, the Supreme Court dismissed the petition for leave to appeal, affirming the lower court’s decision to attach the property for the satisfaction of the maintenance decree.

In the case of Mst. Shamim Akhtar vs. Pirzada Khalil ur Rehman, reported in the 2015 YLR 2176 before the Islamabad High Court, the dispute centered around the revocation of a gift. The court emphasized the following points:

Gift Revocation: The court stated that a gift could not be revoked when the donor and donee were related within the prohibited degree.
Absolute Gift: The impugned gift deed did not make the transaction Hiba-bashart-ul-iwaz (gift with consideration). Instead, it was considered an absolute gift in favor of the plaintiff.
Contents of Document: The contents of the document could not be negated or challenged through oral testimony.
Misreading of Evidence: The court found that the findings recorded by the trial court and the appellate court were based on a misreading of the evidence. The courts had exercised jurisdiction with material irregularity.

As a result, the court accepted the revision and set aside the judgment and decree of the lower courts, ultimately dismissing the suit.

In the case of Haji Sar Biland Khan vs. Haji Fazal Muhammad, reported in the 2014 YLR 1712 before the Peshawar High Court, the court discussed the validity of gift (Hiba) and highlighted the essentials for a valid gift:

Essentials of a Valid Gift: The court emphasized that for a gift to be valid, three essential conditions must be met: declaration of gift by the donor, acceptance of the gift (express or implied) by or on behalf of the donee, and delivery of possession of the subject of the gift by the donor to the donee.

These essentials are fundamental to the validity of a gift in accordance with legal principles.

In the case of Jehangir Khan vs. Ameer Bibi, reported in the 2013 MLD 1769 before the Peshawar High Court, the issue at hand was the performance of Talb-e-MuwatHiba (pre-emption) in a transaction that the plaintiff claimed was a sale but had been presented as a gift. The key points from the court’s judgment are as follows:

Pre-emption Suit: The plaintiff filed a pre-emption suit, contending that the transaction in question was a sale but had been portrayed as a gift.
Omission in Plaintiff’s Statement: The court noted that the plaintiff had omitted to provide the place and time of the performance of Talb-e-MuwatHiba, and the informer had not corroborated the plaintiff’s version.
Burden of Proof: It was emphasized that the plaintiff was obligated to prove the performance of Talb-e-MuwatHiba through evidence, but he failed to corroborate the stance taken in the plaint.
Deficiency in Suit: The plaintiff did not disclose the date on which notice of Talb-e-Ishhad was sent. This deficiency was deemed sufficient to non-suit the plaintiff.
Failure to Challenge Gift Mutation: The plaintiff had not challenged the gift mutation in the plaint by asserting that it was not pre-emptable. The plaintiff should have first obtained a declaration from a civil court that the transaction was a sale before seeking pre-emption.

Due to these deficiencies, the format of the suit was considered defective, leading to the dismissal of the plaintiff’s case.

In the case of Ali Bahadur vs. Muhammad Ishaq, reported in the 2013 YLR 2555 before the Lahore High Court, the dispute involved a gift transaction that the plaintiff alleged to be a sale through a mutation. The key points from the court’s judgment are as follows:

Pre-emption Suit: The plaintiff filed a pre-emption suit, asserting that the transaction was a sale but had been registered as a gift through a mutation.
Proof of Transaction: The person who informed the plaintiff about the suit mutation, a witness of Talb-e-MuwatHiba, testified as the plaintiff’s witness. However, this witness stated that he was informed by a Patwari (land revenue officer) about the suit mutation.
Non-Examination of Patwari: The plaintiff did not call the Patwari as a witness, who could have been the best witness to confirm whether the transaction was a sale.
Inference Against Plaintiff: In light of the plaintiff’s failure to present the Patwari as a witness, the court invoked Art. 129(g) of Qanun-e-Shahadat, 1984, and inferred that the plaintiff was withholding evidence.
Plaintiff’s Lack of Presence: The plaintiff had not deposed to being present at the time of the mutation or transaction.
Burden of Proof: The burden of proving that the transaction was a sale and that consideration had been paid by the defendant fell on the plaintiff. However, the plaintiff failed to provide sufficient evidence to prove his case.

As a result, the suit was dismissed as the plaintiff had not succeeded in proving that the gift was, in fact, a sale.

In the case of Hafeez Fatima vs. Phul Peer Shah, reported in the 2013 YLR 2021 before the Lahore High Court, the dispute involved a gift mutation in favor of the defendant, which the plaintiff claimed was fraudulent and based on a forged Deed of Hiba-bil-Iwaz (gift with consideration). The key points from the court’s judgment are as follows:

Suit for Declaration: The plaintiff filed a suit for the declaration that the gift mutation in favor of the defendant was fraudulent.
Proof of Fraud: The plaintiff provided evidence to support her claim of fraud, including the admission of marginal witnesses of the deed that the transaction had not taken place in their presence.
Lack of Explanation: None of the defendant’s witnesses had explained the contents of the deed and receipts to the plaintiff.
Plaintiff’s Circumstances: It was admitted that the plaintiff, an illiterate “pardahnashin” villager lady, had no male member in her family.
Witness Testimonies: The Patwari (land revenue officer) and Tehsildar, who testified as the defendant’s witnesses, did not produce the original pert-sarkar of the suit mutation in court.
Failure to Prove Hiba-bil-Iwaz: The defendant failed to prove the pre-requisites of Hiba-bil-Iwaz, including the payment of consideration and the bona fide intention of the donor to divest the property to the donee.
Delivery of Possession: Mere mutation was not sufficient proof of the delivery of possession of the suit land.

Due to the deficiencies in the defendant’s case and the evidence presented by the plaintiff, the court decreed the suit in favor of the plaintiff, declaring the gift mutation as fraudulent.

In the case of Mst. Shafqat Parveen vs. Muhammad Iftikhar Amjad, reported in the 2012 SCMR 1602 before the Supreme Court of Pakistan, the dispute revolved around the ownership of a house based on an alleged gift (Hiba). Here are the key points from the court’s judgment:

Ownership Claim: The plaintiff claimed ownership of the house, arguing that it had been gifted to her by her father-in-law at the time of her Nikah. She cited the Nikah Nama and stamp paper as documentary evidence.
Evidence and Testimonies: The court considered the testimonies of witnesses. One of the plaintiff’s witnesses, who was also a witness on the Nikah Nama, admitted that the donor (father-in-law) lived in the house until his death. Another plaintiff’s witness acknowledged that the donor had passed away in the same house. The plaintiff herself admitted during cross-examination that she had never attempted to have the house mutated in her name through a registered deed during the donor’s lifetime.
Disputed Ownership: Two of the donor’s sons, who appeared as witnesses, denied that the house was gifted to the plaintiff and asserted that the donor intended to mutate the property in the name of his youngest son, who would receive the property from all the children.
Court Findings: The court found that the entry in the Nikah Nama regarding the house had been collusively inserted later because the house was not owned by the plaintiff’s husband. Moreover, there was no corresponding endorsement by the alleged donor in the Nikah Nama that he was gifting the house. The person who performed the Nikah and made the alleged gift entry in the Nikah Nama was not examined as a witness.
Additional Evidence: Various pieces of evidence, including the fact that the donor continued to live in the house until his death, the presence of household articles belonging to other heirs in the house, property tax payments in the donor’s name, and the electricity meter being registered under the donor’s name, supported the court’s decision.
Concurrent Findings: The court found that the concurrent findings of fact by the lower courts were not against the evidence and did not reflect any misreading or non-reading of evidence.

As a result, the Supreme Court dismissed the petition for leave to appeal, upholding the lower courts’ decisions.

Case Name: Muhammad Akram Khan vs. Muhammad Iqbal Khan (2012 CLC 1690, Peshawar High Court)

Issue: Validity of a gift (Hiba) and the concept of abdication from estate under Islamic law.

Facts:

The case involved a dispute over a property claimed to have been gifted to the defendants by their predecessor.
The plaintiff, also a son of the predecessor, challenged the validity of the gift, arguing that the donor was not in his proper senses at the time of the gift.
The defendants contended that the gift was valid and that the donor had abdicated the plaintiff due to his disobedience.

Court’s Decision:

The court ruled that the defendants had failed to prove the essential requirements of a valid gift.
It noted that the reason given by the defendants for transferring the property to them, i.e., abdication of the plaintiff, was not recognized under Islamic law.
The court emphasized that the transferees (defendants) were obligated to prove that the transfer was voluntary, with the free consent of the donor and free from doubts, fraud, and fabrication.
There was no evidence to show that the offer, acceptance, and delivery of possession, essential for a valid gift, had been completed.
Testimonies of key individuals involved in the registration and execution of the gift were not obtained.
The plaintiff had alleged fraud and illegal exclusion of legal heirs in his statement, but no cross-examination was conducted by the defendants.
The fact that the donor resided with the donees at the time of the gift mutation was considered.
The court found the claim that one of the defendants had purchased the property for a sale consideration while simultaneously claiming that it was transferred as a gift to be difficult to believe.
The court concluded that the impugned gift was the result of fraud, implying injury to the person or property of another, making it void ab initio.
The judgments and decrees of the lower courts were set aside, and the plaintiff’s suit was decreed.

Case Name: Allah Bakhsh vs. Muhammad Ayuob (2010 CLC 1568, Peshawar High Court)

Issue: Suit for pre-emption – Validity of a transaction claimed to be a gift (Hiba) and its exemption from pre-emption.

Facts:

The case concerned a suit for pre-emption, where the defendants contended that the transaction of the property was a gift and not a sale, making it exempt from pre-emption.
The plaintiffs claimed their superior right of pre-emption.

Court’s Decision:

The court ruled that the transaction could not be considered a gift unless the essential requirements of declaration, acceptance, and

Case Name: Allah Bakhsh vs. Muhammad Ayuob (2010 CLC 1568, Peshawar High Court)

Issue: Suit for pre-emption – Validity of a transaction claimed to be a gift (Hiba) and its exemption from pre-emption.

Summary:

This case involved a dispute over a property transaction that the defendants contended was a gift (Hiba) and therefore exempt from pre-emption. The plaintiffs asserted their superior right to pre-empt the property. The court’s decision focused on whether the transaction qualified as a gift under Islamic law and whether the defendants had substantiated their claim.

Key Points:

Definition of Gift (Hiba): The court emphasized that for a transaction to be considered a gift, it must fulfill three necessary ingredients: declaration, acceptance, and the transfer of possession of the property in favor of the beneficiaries.
Shariah Prohibition: The court noted that under Shariah (Islamic law), a vendor could not deprive his own children of their rights to property by gifting it to nephews. This highlighted the importance of establishing the transaction as a valid gift.
Burden of Proof: The court emphasized that the onus of proving that the transaction was indeed a gift rested on the defendants. They were required to provide evidence that demonstrated the fulfillment of the essential elements of a gift.
Lack of Evidence: The court found that there was no evidence available to support the claim that the necessary elements of a gift (declaration, acceptance, and possession transfer) had been completed by the defendants, who were the beneficiaries of the alleged gift.
Tamleek and Pre-emption: The court observed that the mutation in the case had been recorded in the form of “Tamleek,” which suggested a sale rather than a gift. Consequently, the court held that the transaction was, in fact, a sale and not a gift, making it subject to pre-emption.
Superior Right of Pre-emption: The court found that the plaintiffs had a superior right of pre-emption as they had fulfilled the requirements of “Talb-e-MuwatHiba t” and “Talb-i-Ishhad,” indicating the date, day, time, place, and informer.
Final Decision: The court concluded that the plaintiffs had a valid right of pre-emption, and the defendants’ claim of a gift was unsubstantiated. The lower courts’ judgments were upheld, as they correctly appraised the evidence and reached a just decision.

Case Name: Muhammad Nawaz vs. Mst. Abida Bibi (2010 MLD 352, Lahore High Court)

Issue: Concept of gift (Hiba) in the context of marriage and its implications under Islamic law.

Summary:

This case dealt with the concept of gift (Hiba) in the context of marriage under Islamic law. It examined whether gold jewelry given by the bridegroom could be considered as consideration for the marriage contract and the recoverability of a gift given in lieu of a dower amount. The court also explored the conditions for a valid gift (Hiba) and the circumstances under which it could be revoked.

Key Points:

Definition of Gift (Hiba): The court clarified that Hiba means the transfer of property from one person to another “without” consideration. In essence, it is a gift that must be devoid of any consideration.
Consideration for Marriage: The court ruled that gold jewelry given by the bridegroom as a gift could not be considered as consideration for the marriage contract. In Islamic law, Hiba is distinct from consideration for marriage.
Recoverability of Gift in Lieu of Dower: The court held that a gift given in lieu of a dower amount would be recoverable through a decree of a competent court. This reaffirmed that such gifts are not absolute and can be subject to legal proceedings for recovery.
Conditions for Valid Gift: To constitute a valid gift (Hiba), the donor must relinquish all rights and dominion over the gift, divesting themselves entirely of ownership over the subject of the gift. Any condition attached to the gift would undermine its completeness.
Revocability of Gift: The court clarified that a gift could be revoked before delivery of the same to the donee. However, once the gift has been delivered, it could only be revoked under the decree of a court of competent jurisdiction.

Conclusion:

This case provided clarity on the concept of gift (Hiba) in the context of marriage under Islamic law, distinguishing it from consideration for marriage and outlining the conditions for a valid gift. It also established the circumstances under which such gifts could be revoked, emphasizing the role of a competent court in such matters.

Case Name: Muhammad Nawaz vs. Mst. Abida Bibi (2010 MLD 352, Lahore High Court)

Issue: Recovery of gold jewelry claimed to be given as “Barri” on the basis of Zar-e-Khula in a Khula divorce case.

Summary:

In this case, the plaintiff sought the recovery of gold jewelry weighing 4 Tolas from the defendant, asserting that the marriage had been dissolved through Khula, and the defendant was obligated to return the jewelry given as “Barri” under the concept of Zar-e-Khula. The court examined the validity of this claim in the context of Islamic law.

Key Points:

Definition of “Barri”: The court explained that “Barri” typically referred to the gifts given to the bride at the time of marriage. These gifts were usually exchanged for the substantial expenses incurred by the bride’s parents to buy gifts for the close relatives of the groom. These gifts were considered customary and were not recoverable under Islamic law.
Gifts and Islamic Injunctions: The court clarified that gifts, including “Barri,” were not recoverable under the injunctions of Islam. Therefore, they did not fall within the ambit of Zar-e-Khula.
Acknowledgment of Gifts: The court emphasized that once the bridegroom acknowledged that the gold jewelry was given as gifts, he could not claim recovery of the same through legal means.
Hiba-Bil-Iwaz: The court also noted that the concept of Hiba-Bil-Iwaz (gift with consideration) did not apply in this case because there was no mention of it in the Nikahnama (marriage contract).
Court’s Decision: The High Court declined to interfere with the concurrent findings of the Trial Court and the Appellate Court, which had rejected the plaintiff’s claim for the recovery of the gold jewelry. The constitutional petition was dismissed.

Case Name: Muhammad Siddique vs. Mst. Haneefan Bibi (2010 CLC 417, Lahore High Court)

Issue: Suit for declaration of ownership based on a gift agreement for a suit plot.

Summary:

This case involved a suit for a declaration filed by the plaintiff, asserting that her husband had gifted her a suit plot through an agreement. She claimed to be the owner in possession of the house constructed on the suit plot. The court examined the evidence provided by the plaintiff and the witnesses to determine the validity of the gift.

Key Points:

Testimony of Witnesses: The court found that the testimonies of the marginal witnesses, when considered alongside the plaintiff’s statement, unequivocally proved that a gift had been made in favor of the plaintiff. This gift was accepted by her, and possession of the property was delivered to her.
Unshaken Testimony: The court noted that there was nothing in the cross-examination that could shake the testimony of the witnesses, and the document as a whole established that it was a Hiba-bil-Ewaz (gift with consideration) for all intents and purposes.
Continuous Possession: The court observed that the record showed that the plaintiff had remained in possession of the house throughout the relevant period, further supporting her claim of ownership.
Validity of Lower Courts’ Decrees: The court upheld the decrees of both lower courts, finding that no illegality or material irregularity had been demonstrated in their concurrent findings.

Conclusion:

This case confirmed the validity of the plaintiff’s claim to ownership of the suit plot based on a gift agreement. The court found the evidence provided by the plaintiff and the witnesses to be credible and upheld the lower courts’ decrees.

Case Name: State Life Insurance Corporation of Pakistan vs. Fazal and Sons (Pvt.) Ltd (2010 CLC 1895, Karachi High Court, Sindh)

Issue: Validity of a gift and the legal requirements for a valid gift under the Transfer of Property Act, 1882.

Summary:

In this case, the issue pertained to the validity of a gift. The appellant, State Life Insurance Corporation of Pakistan, contested the validity of the gift, arguing that a gift must be expressed and unequivocal, and the intention of the donor must be demonstrated by their complete relinquishment of the property given. The court also examined the legal requirements for making a gift of immovable property under the Transfer of Property Act, 1882.

Key Points:

Definition of “Hiba”: The court explained that “Hiba” in its liberal sense signifies the donation of something from which the donee can derive a benefit. It clarified that a gift, as defined in law, confers a right of property in something specific without any exchange.
Legal Requirements for Gift of Immovable Property: The court referred to Section 123 of the Transfer of Property Act, 1882, which mandates that for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses.
Express and Unequivocal Gift: The court emphasized that a gift could not be implied but must be expressed and unequivocal, and the donor’s intention should be demonstrated by their entire relinquishment of the property.

Conclusion:

This case highlighted the legal requirements for a valid gift of immovable property, including the need for a registered instrument and the importance of expressing the gift clearly and unequivocally. It reaffirmed that a gift must be explicit and should demonstrate the donor’s intention to relinquish the property.

Case Name: Manzoor Ahmed Paracha vs. Rashid Mansoor, Director Housing and Physical Planning (2008 YLR 2816, Lahore High Court, Lahore)

Issue: Contempt application regarding the implementation of a civil court decree involving possessory/allotment rights.

Summary:

This case involved a contempt application filed by the petitioner, Manzoor Ahmed Paracha, against the Department for not implementing the judgment and decree of the civil court. The dispute arose from the transfer of possessory/allotment rights of a plot through multiple transactions, including a gift. The court examined whether the Department was a necessary or proper party to the dispute and whether it had complied with the civil court’s decree.

Key Points:

Nature of Dispute: The court clarified that the dispute primarily involved the possessory/allotment rights of a plot and was a bona fide dispute between the petitioner and his mother. The Department was not a necessary or proper party to this dispute.
Civil Court Decree: The court noted that the civil court had passed a decree in favor of the petitioner, and the Department was not adversely affected by this decree.
Delaying Tactics: The court observed that the Department had unnecessarily compelled the petitioner to start another round of litigation through delaying tactics.

Conclusion:

The court directed the respondents (the Department) to give effect to the decree of the civil court related to the plot within a specified period. The Department was not considered a necessary or proper party to the dispute between the petitioner and his mother.

Case Name: Fazal Shah vs. Hassan Shah (2008 YLR 2046, Lahore High Court, Lahore)

Issue: Interim injunction in a suit for declaration based on a gift deed.

Summary:

This case involved a suit for declaration filed by the plaintiff, Fazal Shah, claiming ownership of a suit-land based on a gift deed. The plaintiff sought an interim injunction to prevent any interference with his possession during the litigation. The court examined the onus of proof and the validity of the gift deed.

Key Points:

Onus of Proof: The court emphasized that the onus to prove the genuineness of the gift was upon the beneficiary (plaintiff). When the gift was denied, this issue could only be decided after recording evidence.
Prima Facie Doubt: The court noted that there was a prima facie doubt regarding the genuineness of the gift, and the plaintiff failed to prove the same.
Interim Injunction: The court found that the plaintiff did not have a prima facie arguable case in his favor, particularly in the absence of two essential ingredients necessary for the grant of an interim injunction.

Conclusion:

The court dismissed the revision, noting that the plaintiff had not established a prima facie case for an interim injunction. The court also highlighted the need for the plaintiff to prove the genuineness of the gift, especially when it was denied by the defendant.

Case Name: In the matter of Acquisitions of Shares of United Sugar Mills Limited and 12 others (2007 CLD 277, Securities and Exchange Commission of Pakistan)

Issue: Validity of gift and the concept of “Constructive” delivery in the context of Hiba under Islamic law.

Summary:

This case revolved around the acquisition of shares of United Sugar Mills Limited and related parties. The central issue was the validity of a gift (“Hiba”) and whether the concept of “Constructive” delivery was compatible with Islamic jurisprudence in the context of Hiba. Additionally, the case examined the applicability of the Listed Companies (Substantial Acquisition of Voting Shares and Takeovers) Ordinance, 2002, to the acquisition of beneficial shares.

Key Points:

Essentials of Hiba: Under Islamic law, Hiba requires three essentials: offer, acceptance, and actual physical delivery. The concept of “Constructive” delivery was not considered compatible with Islamic jurisprudence in Hiba.
Delivery of Pledged Shares: The court noted that the possession of pledged shares was with financial institutions, making their delivery impossible. The Listed Companies (Substantial Acquisition of Voting Shares and Takeovers) Ordinance, 2002, did not exempt the acquisition of beneficial shares, and no exemption was available under Section 3 of the Ordinance.

Conclusion:

The court upheld the principle that Hiba under Islamic law required actual physical delivery. In cases where the gift pertained to movable assets, physical delivery was mandatory. The court also confirmed that the acquisition of beneficial shares was not exempted under the relevant ordinance.

Case Name: Mst. Shahida Adeeb vs. Nauman Ejaz (2007 CLC 1160, Lahore High Court, Lahore)

Issue: Scope of Hiba-bil-Iwaz (gift in lieu of dower) in Islamic law.

Summary:

This case involved a Muslim husband who executed a deed in favor of his wife, granting her immovable property in lieu of her dower. The central issue was whether such a transaction, where possession of the property given as a gift was not delivered to the wife, could be valid under Hiba-bil-Iwaz.

Key Points:

Scope of Hiba-bil-Iwaz: The court emphasized that even if possession of the property given as a gift was not delivered to the wife, such a transaction could be considered valid under Hiba-bil-Iwaz.

Conclusion:

The court confirmed that in cases where a Muslim husband grants immovable property to his wife in lieu of her dower, the absence of the physical delivery of possession does not invalidate the transaction. This aligns with the concept of Hiba-bil-Iwaz.

Case Name: Ghulam Muhammad vs. Muhammad Ramzan through L.Rs. (2007 MLD 1769, Lahore High Court, Lahore)

Issue: Validity of an oral gift of land and proof required for such a gift.

Summary:

This case involved a dispute over the ownership of land. The petitioner claimed that the deceased owner of the land had orally gifted the property to him during his lifetime and had subsequently executed a “Yadashat Hiba.” The key issue was the validity of this oral gift and whether sufficient evidence had been presented to prove it.

Key Points:

Lack of Evidence: The court noted that no oral evidence had been produced regarding the time, date, and place of the alleged gift offer made by the deceased owner to the petitioners, the acceptance of the gift by them, or the delivery of possession under the oral gift.
Nature of the Document: The “Yadashat Hiba” document was not prepared by a professional but by a private individual. It was not on a stamp paper, raising doubts about its authenticity.

Conclusion:

The court upheld the decisions of the two lower courts, which had rightly disbelieved the statements of the plaintiff’s witnesses regarding the proof of the alleged oral gift. The absence of substantial evidence to support the claim of an oral gift led to the dismissal of the petitioner’s case.

Case Name: Khan Muhammad through L.Rs. vs. Mst. Kaneez Fatima (2007 MLD 1305, Lahore High Court, Lahore)

Issue: Determination of the nature of a transaction as either a sale or gift, and compliance with pre-emption laws.

Summary:

This case involved a dispute over land, with the defendant lady claiming that the land had been gifted to her by her father. The key issue was whether the transaction was a genuine gift or a sale. Additionally, the case examined whether the plaintiff had complied with the pre-emption laws.

Key Points:

Nature of the Transaction: The court found that the defendant lady’s claim of a bona fide gift from her father was supported by the lambardar (revenue officer). No evidence suggested that the land had been sold for consideration.
Pre-emption Laws: The plaintiff had performed Talb-i-MuwatHiba (the first talb) after being issued a copy of the mutation. However, this was against the law as codified in Section 13 of the Punjab Pre-emption Act, 1991.

Conclusion:

The court upheld the findings of the lower courts that the transaction was a bona fide gift. It also noted that the plaintiff’s actions, including the premature performance of Talbi-Muwat Hiba, were not in compliance with pre-emption laws.

Case Name: Mst. Khairan Bibi vs. Ghulam Hassan (2007 CLC 167, Lahore High Court, Lahore)

Issue: Validity of a gift (Hiba) made by a donor suffering from Marz-ul-Maut (a terminal illness).

Summary:

This case pertained to a gift (Hiba) made by a donor who was alleged to be suffering from Marz-ul-Maut, a terminal illness. The validity of the gift was challenged, and the court examined the circumstances surrounding the donor’s health at the time of the gift.

Key Points:

Donor’s Health: The court considered that the donor was personally present and had his statement recorded when a report in Roznamcha Waqiati was prepared. He was also present before revenue officials at the time of attestation of the mutation in favor of the donees.
Cause of Death: The death certificate indicated that the cause of death was fever, leading to the conclusion that the donor was not suffering from a disease that would have made him apprehend imminent death at the time of the gift.

Conclusion:

The court determined that the donor was not suffering from Marz-ul-Maut at the time of the gift. Therefore, the gift was not void, and it remained valid under the circumstances.

Case Name: Mst. Rukhsana Mehdi vs. Waryam (2006 PLD 189, Supreme Court)

Issue: Essential ingredients of Hiba-bil-Iwaz and the requirement of a bona fide intent on the part of the donor.

Summary:

This case pertained to Hiba-bil-Iwaz, which is a gift made in lieu of consideration. The central issue was the essential ingredients of Hiba-bil-Iwaz and whether a bona fide intent on the part of the donor to divest himself of property and confer it upon the donee was essential for the validity of such a gift.

Key Points:

Essential Ingredients of Hiba-bil-Iwaz: The court emphasized that in the case of Hiba-bil-Iwaz, a bona fide intent on the part of the donor to divest himself of property and confer it upon the donee was essential for the gift’s validity.

Conclusion:

The court clarified that in Hiba-bil-Iwaz, there must be a genuine intent on the part of the donor to transfer the property to the donee in praesenti. This intent is a fundamental requirement for the validity of such a gift.

Case Name: Muhammad Yousaf vs. Muhammad Hussain (2006 YLR 1993, Lahore High Court, Lahore)

Issue: Validity of an oral gift, misreading of evidence, and non-reading of evidence in a collusive suit.

Summary:

This case involved a dispute over property ownership based on an alleged oral gift. The plaintiff filed a suit for declaration, claiming ownership of the property due to a gift made by his father. The defendant held a registered sale deed and contended that the gift was invalid. The case also raised concerns about misreading and non-reading of evidence.

Key Points:

Document Discrepancies: The “Hiba Nama” (gift deed) was alleged to be written on plain paper, and discrepancies existed regarding the type of paper used. The oral evidence was also discrepant and did not specifically pertain to the document placed on the file.
Misreading and Non-Reading of Evidence: The Appellate Court did not carefully examine the document and the statements of witnesses, leading to concerns about misreading and non-reading of evidence.

Conclusion:

The court accepted the revision and set aside the judgment and decree of the Appellate Court, restoring the decision of the Trial Court that had dismissed the plaintiff’s suit. The lack of sufficient evidence of a valid gift played a significant role in this decision.

Case Name: Mrs. Naseem-e-Sehar vs. Mrs. Jabeen Idrees (2006 CLC 1664, Lahore High Court, Lahore)

Issue: Grant of interim relief in a subsequent suit, interpretation of Section 10 of the Civil Procedure Code (C.P.C), and stay of proceedings.

Summary:

This case involved a dispute over joint commercial property purchased by the defendant, who later transferred half of the share to the plaintiff through Hiba-bil-Ewaz. The dispute included issues related to ownership, possession, and income of the property. The defendant filed a civil suit challenging the gift and transfer of possession. Later, the plaintiff filed a suit seeking declaration and permanent injunction, along with an application for the deletion of the defendant’s ownership title. This case examined the interpretation of Section 10 of the C.P.C and the grant of interim relief in subsequent suits.

Key Points:

Interpretation of Section 10 of C.P.C: The plaintiff argued that Section 10 of the C.P.C. prohibited the trial of any suit when there was a previous suit pending on the same subject matter. The plaintiff contended that the defendant’s previous suit had been dismissed, and, therefore, the subsequent suit should be stayed.
Fresh Cause of Action: The defendant claimed that a fresh cause of action had arisen in the subsequent suit as the relief sought was different from the previous suit. The defendant argued that the applications for temporary injunction and appointment of a receiver were maintainable in the subsequent suit.

Conclusion:

The court determined that a fresh cause of action had arisen in the subsequent suit, and the relief sought was different from the previous suit. Therefore, the applications for temporary injunction and appointment of a receiver were maintainable. The court clarified that Section 10 of the C.P.C. did not debar a party from instituting a second suit, and the stay would be operative only for the trial of the suit itself, not for interlocutory orders.

Case Name: Ghulam Nabi vs. Mukhtar-ul-Hassan (2006 YLR 883, Lahore High Court, Lahore)

Issue: Proof of an oral gift in a suit for declaration and the requirement for cogent evidence.

Summary:

This case involved a dispute over the ownership of land based on an alleged oral gift. The plaintiff claimed that the land had been gifted to the deceased lady (his mother) by her grandfather. The suit was initially decreed in favor of the plaintiff but was later set aside on appeal, primarily due to the lack of cogent evidence to prove the oral gift.

Key Points:

Lack of Cogent Evidence: The appellate court set aside the decree because there was no cogent evidence on record to prove that the land had been transferred or delivered to the deceased lady as a gift by her grandfather. The court noted a gap of 4 to 5 years between the transaction of the mortgage and the marriage of the deceased lady, which did not support the plaintiff’s case.
Failure to Prove Custom: The plaintiff failed to prove the existence of any custom that prevented the alienation of property by way of Hiba (gift) to the deceased lady.

Conclusion:

The appellate judgment was upheld by the High Court, as there was no illegality or infirmity in it. The lack of sufficient evidence to prove the oral gift played a crucial role in the decision.

Case Name: Gul Begum vs. Muhammad Riaz (2006 MLD 480, Lahore High Court, Lahore)

Issue: Proof of execution of a gift (Hiba) in a suit for declaration and allegations of fraud.

Summary:

This case revolved around a dispute over a piece of land that the defendant claimed to have received as a gift (Hiba) from the husband of the plaintiff. The plaintiff denied the gift and alleged fraud on the part of the defendant. The case also involved the execution and registration of the alleged gift deed.

Key Points:

Fraud Allegations: The plaintiff contended that the defendant, who was a dispenser and administered medical treatment to her aged husband, brought her husband to a location for the purpose of executing a “Patta Nama” (rent deed) but fraudulently obtained a Hiba nama.
Execution and Registration: The alleged Hiba nama was executed and registered at a different location than where the suit-land was situated and where the parties resided. The plaintiff argued that there was no explanation for this.
Requirements of S.16 of Contract Act: The alleged Hiba nama was subject to the stringent requirements of Section 16 of the Contract Act, 1872, which had not been fulfilled in this case.

Conclusion:

The High Court held that both lower courts had acted with material irregularity in the exercise of their jurisdiction and had not given proper consideration to the material aspects of the case. The impugned judgments and decrees were set aside, and the plaintiff’s suit was decreed as prayed for.

Case Name: Mst. Naseem Akhtar vs. Nasir Javed (2005 CLC 658, Lahore High Court, Lahore)

Issue: Transfer of possession in Hiba-bil-Iwaz (gift for consideration) and its scope.

Summary:

This case dealt with the issue of transfer of possession in a Hiba-bil-Iwaz, which is a gift made for consideration. The question was whether the transfer of possession was required to complete such a gift.

Key Points:

Transfer of Possession: The court clarified that in the case of Hiba-bil-Iwaz, the transfer of possession was not required to complete the transfer. This was in contrast to Hiba, where possession transfer was essential.

Conclusion:

The court’s ruling confirmed that for a Hiba-bil-Iwaz (gift for consideration), the transfer of possession was not an essential ingredient, distinguishing it from a simple Hiba where possession transfer is required.

Case Name: Ashiq Ali vs. Mst. Zamir Fatima (2004 PLD 10, Supreme Court)

Issue: The essential ingredients of Hiba-bil-Iwaz (gift for consideration) and the requirement of delivery of possession.

Summary:

This case focused on Hiba-bil-Iwaz, which is a gift made for consideration. The primary question was whether the delivery of possession was an essential ingredient for such a gift.

Key Points:

Delivery of Possession Not Essential: The Supreme Court clarified that in the case of Hiba-bil-Iwaz, the delivery of possession was not an essential ingredient. This distinguished Hiba-bil-Iwaz from a simple Hiba where possession transfer is necessary.

Conclusion:

The Supreme Court’s ruling confirmed that for a Hiba-bil-Iwaz (gift for consideration), the delivery of possession was not a mandatory requirement, making it different from a simple Hiba where possession transfer is necessary.

Case Name: Muhammad Anwar vs. Muhammad Rafiq (2004 CLC 1884, Lahore High Court, Lahore)

Issue: Determining the date for filing a pre-emption suit based on superior right of pre-emption in a transaction, whether sale or gift, when the plaintiff gained knowledge of the transaction.

Summary:

This case involves a pre-emption suit based on the plaintiff’s superior right of pre-emption in a land transaction. The plaintiff believed the transaction to be a sale and filed the suit accordingly. However, the plaintiff did not specify the exact date when they gained knowledge of the transaction, which affected the calculation of various periods related to pre-emption.

Key Points:

Lack of Specific Date: The plaintiff did not provide a specific date in the plaint when they gained knowledge of the transaction. Instead, they mentioned “middle of August, 1996,” which was not sufficient for determining the relevant periods for pre-emption.
Importance of Specific Date: In pre-emption cases, knowing the exact date of gaining knowledge of the transaction is crucial for calculating the time from Talb-e-MuwatHiba to Talb-e-Ishhad, as well as for sending a registered notice under Section 13(3) of the Punjab Pre-emption Act, 1991.

Conclusion:

The case highlights the importance of specifying the exact date of gaining knowledge of a land transaction when filing a pre-emption suit. Without a specific date, it becomes challenging to calculate the relevant periods accurately.

Case Name: Ghulam Haider vs. Ghulam Rasool (2003 SCMR 1829, Supreme Court)

Issue: Proof of a registered gift deed and its validity under Islamic law (Hiba).

Summary:

This case involved a dispute over the validity and proof of a registered gift deed (Hiba) in favor of the defendant. The plaintiff challenged the deed’s validity, and the case revolved around whether the requirements for a valid gift under Islamic law had been met.

Key Points:

Essentials of a Valid Gift: The court emphasized that the essentials of a valid gift needed to be independently proved, regardless of the existence of a gift deed. Statements of witnesses and evidence should establish the fulfillment of these requirements.
Lack of Record Entry: The record of the Excise and Taxation Department did not indicate the alienation, delivery, or transfer of possession of the suit property in favor of the defendant, casting doubt on the validity of the gift.

Conclusion:

The Supreme Court upheld the judgments of the lower courts, which had found in favor of the plaintiff. The court emphasized the need to prove the validity of a gift independently of the gift deed and noted that the lack of record entry raised questions about the gift’s authenticity.

Case Name: Pehalwan vs. Muhammad Ali (2003 YLR 3184, Lahore High Court, Lahore)

Issue: Suit for declaration based on a gift (Hiba) and the need for proof of the gift’s validity.

Summary:

This case involved a suit for declaration based on a gift (Hiba). The plaintiff claimed that his deceased father had orally gifted certain property to him. However, the court found that the plaintiff had not sufficiently proved the gift’s validity, including its date, offer, acceptance, and transfer of possession.

Key Points:

Vague and Unspecified Evidence: The plaintiff’s evidence regarding the oral gift was vague, general, and unspecified. He failed to provide specific details such as the date of offer, acceptance, and transfer of possession.
Contradictory Information: The plaintiff’s pleadings and evidence contained contradictory information, including inconsistencies in the date of his father’s death.

Conclusion:

The court upheld the concurrent findings of the lower courts, which had concluded that the plaintiff had not proved the gift’s validity under Islamic law. The lack of specific and clear evidence regarding the gift’s details played a significant role in the decision.

Case Name: Muhammad Iqbal vs. Mst. Bilqees Faiz (2003 YLR 2677, Lahore High Court, Lahore)

Issue: Validity of a gift (Hiba) and the onus of proof regarding the reasons for making the gift and delivery of possession.

Summary:

This case involved a dispute over a gift (Hiba) made by the father of the parties in favor of his son. The plaintiff challenged the gift, and the case centered on the reasons for making the gift and the delivery of possession.

Key Points:

Onus of Proof: The burden of proving the voluntary execution

Case Name: Muhammad Iqbal vs. Mst. Bilqees Faiz (2003 YLR 2677, Lahore High Court, Lahore)

Issue: Validity of a gift (Hiba), onus to prove reasons for making the gift, and delivery of possession.

Summary:

In this case, a dispute arose over a gift (Hiba) made by the father in favor of his son. The plaintiff challenged the gift’s validity, questioning the reasons for the gift and whether possession had been delivered to the donee.

Key Points:

Onus of Proof: The court emphasized that while it’s not mandatory for a donor to provide reasons for making a gift, in practice, gifts are usually accompanied by reasons or justifications. The donee must establish that the gift was voluntary, reasonable, and not against ordinary human conduct.
Delivery of Possession: In order to confer title through a gift, possession of the property must be delivered. The donee failed to prove the delivery of possession.
Responsibility on Donee: When the donor is no longer alive, the onus is on the donee to justify the gift, especially if it deprives other legal heirs of their inheritance.

Conclusion:

Both lower courts correctly decided in favor of the plaintiff, as the donee failed to prove the delivery of possession and did not provide reasonable justifications for the gift. The High Court upheld the findings, emphasizing that the onus rested on the donee to justify the gift.

Case Name: Farida Khatoon vs. Dr. Masood Ahmad Butt (2003 MLD 898, Lahore High Court, Lahore)

Issue: Suit for administration of estate and rendition of accounts, dispute over property rights among legal heirs, including a claim of a gift.

Summary:

This case involved a suit for the administration of an estate and rendition of accounts. The deceased left behind a widow, a brother, and four sisters as legal heirs. The widow claimed ownership of a portion of the property through a gift (Hiba), and the case revolved around the validity of this claim.

Key Points:

Valid Gift: The widow produced a Hiba nama to support her claim of a gift, and this claim was not disputed by the plaintiffs.
Different Portions of Property: The widow asserted that she owned half of the property through the gift and the other half through a registered document, which was not construed as a gift by the court.
Ownership of Plaintiffs: The plaintiffs claimed 3/4th of the mesne profits of the property mentioned in the disputed document, but they failed to produce evidence to support their claim.

Conclusion:

The Trial Court and the Appellate Court upheld the deceased’s ownership of the property at the time of his death and supported the widow’s claim to half of it through the gift. The High Court declined to interfere with these findings.

Case Name: Muhammad Akhtar vs. Mst. Manna (2001 SCMR 1700, Supreme Court)

Issue: Proof of gift (Hiba) and the significance of delivery of possession.

Summary:

This case involved a dispute over a gift (Hiba), specifically the non-delivery of possession. The mutation in the name of the donee was entered, but the possession was not handed over, leading to questions about the gift’s validity.

Key Points:

Importance of Possession: The court emphasized that the mutation alone could not be considered exclusive proof of ownership when possession had not been delivered. Possession is a crucial element of a gift (Hiba).
Presumption Subject to Rebuttal: The court noted that the presumption of ownership arising from mutation is subject to rebuttal, particularly when possession has not been transferred.

Conclusion:

The court held that without the delivery of possession, the mutation could not be considered as exclusive proof of ownership. Possession is a vital component of a gift (Hiba), and the absence of it raised questions about the gift’s validity.

Case Name: Rasta Mal Khan vs. Nabi Sarwar Khan (1996 SCMR 78, Supreme Court)

Issue: Validity of mutations and conversion from “Hibba” (gift) to “Bai” (sale) mutations without proper procedure.

Summary:

This case involved several mutations entered on the same day, converting some mutations from “Hibba” (gift) to “Bai” (sale) without following the correct procedure. The purpose of these mutations was to establish exclusive ownership among family members.

Key Points:

Proper Procedure: The court emphasized that mutations should follow the correct procedure. When parties change their minds about the nature of the transaction, the Revenue Authorities should reject gift mutations and initiate the entry of fresh mutations of sale. This should be recorded in “Roznamcha Waqiati.”
Collusion: The mutations in question were deemed to be a result of collusion between parties and revenue staff, which led to the conversion from gift to sale.

Conclusion:

The High Court correctly found that the mutations had not followed the proper procedure, and the conversion from gift to sale was not valid. The findings of the High Court were upheld, and no interference was warranted.

Case Name: Abdul Hameed vs. Muhammad Mohyuddin Siddique (1996 CLC 227, Lahore High Court, Lahore)

Issue: Classification of gifts in Muhammadan Law, distinguishing between Hiba pertaining to corpus and Hiba pertaining to Aariat, and the validity of conditions attached to gifts.

Summary:

This case revolves around the classification of gifts in Muhammadan Law and the validity of conditions attached to gifts. The primary focus is on differentiating between Hiba pertaining to the corpus of property and Hiba pertaining to Aariat, with a specific emphasis on the delivery of possession.

Key Points:

Types of Gift: In Muhammadan Law, gifts can be categorized into two types: Hiba pertaining to the corpus of property and Hiba pertaining to Aariat, which involves the transfer of limited interest and benefits/usufruct of the donated property for a limited time.
Elements of Corpus Gift: A gift pertaining to the corpus of property must involve three essential elements: declaration, acceptance, and the delivery of possession. Any conditions attached to such a gift are considered void, while the gift itself remains valid.
Life Grants and Interests: The Hanafi School of jurisprudence does not recognize life grants and life interest.

Conclusion:

In this case, the deceased had transferred the corpus of the property to the donee, admitting the same before a Revenue Officer at the time of mutation. The condition attached to the gift, that it was for a lifetime, was deemed invalid. The evidence clearly indicated that the gift related to the corpus of the property and not its usufruct.

Case Name: Rasul Bibi vs. Nasrullah Khan (1994 CLC 1774, Lahore High Court, Lahore)

Issue: The result of a gift in Muhammadan Law and its impact on the rights of heirs, validity of gifts that deprive some heirs.

Summary:

This case deals with the consequences of a gift in Muhammadan Law, particularly its impact on the rights of heirs. It emphasizes that a full-fledged Muslim owner can dispose of his property in favor of one heir to the exclusion of others, and such gifts are valid provided the requisite conditions are fulfilled.

Key Points:

Deprivation of Heirs: A gift may result in the deprivation of certain heirs, intentionally or unintentionally. Muhammadan Law permits such actions, and the validity of the gift is not affected by this deprivation, as long as the required conditions are met.
Conditions for Validity: To be valid, a gift must fulfill specific conditions outlined in Muhammadan Law.

Conclusion:

This case reinforces the idea that a Muslim owner can make gifts that favor one heir over others, and such gifts are considered valid, as long as they meet the necessary conditions.

Case Name: Mehr Bhari vs. Bhag Bhari (1991 SCMR 897, Supreme Court)

Issue: Validity of a gift of land from father-in-law to daughter-in-law, consideration for the gift, and completeness of the gift.

Summary:

This case involves a gift of land from a father-in-law to a daughter-in-law. The main consideration for the gift was the marriage and the expected services to be rendered by the daughter-in-law due to the marriage. The case explores whether the services alone constituted consideration and whether the gift was complete.

Key Points:

Consideration for the Gift: The primary consideration for the gift was the marriage and the services expected from the daughter-in-law. The marriage took place within days, and the necessary services were rendered for 3-1/2 years until the dissolution of the marriage.
Completeness of the Gift: It was held that the gift could not be challenged on the grounds that services were the only consideration, that the services were to be rendered throughout the donor’s life, or that the gift suffered from any defect due to the non-delivery of possession.

Conclusion:

The gift was deemed valid, with the services rendered by the daughter-in-law fulfilling the consideration for the gift, and the gift was considered complete.

Case Name: Abdul Karim vs. Muhammad Younas (1991 CLC 1620, Lahore High Court, Lahore)

Issue: Claim of a female defendant that a house was gifted to her by her deceased husband in lieu of her dower debt, requirement of documentary evidence for such claims.

Summary:

This case involves a female defendant’s claim that a house was gifted to her by her deceased husband in lieu of her dower debt. The case examines the need for documentary evidence to support such claims.

Key Points:

Defendant’s Claim: The female defendant contended that the house in question had been gifted to her by her deceased husband in satisfaction of her dower debt.
Lack of Documentary Evidence: The defendant failed to produce any documentary evidence to support her claim.
Pragmatic Approach: The court emphasized the need for a more pragmatic approach when dealing with matters like dower debt or its satisfaction through property transfer. Mere oral statements before a few witnesses were insufficient, and substantial evidence, such as a transfer deed, was expected.

Conclusion:

In the absence of sufficient documentary evidence, the court upheld the findings of the lower courts that the house was not transferred to the defendant by way of Hiba-bil-Ewaz (gift for consideration).

Case Name: Mumtaz Begum vs. Abdur Rashid (1988 CLC 2023, Lahore High Court, Lahore)

Issue: Validity of an oral gift of property made by a husband in favor of his wife in lieu of dower.

Summary:

This case revolves around the validity of an oral gift of property made by a husband to his wife in lieu of dower. The court examines whether such a gift is valid under Muhammadan Law.

Key Points:

Oral Gift in Lieu of Dower: The case involves an oral gift of property made by a husband to his wife as part of the dower arrangement.
Validity: The court held that a gift by a husband in favor of his wife, made orally and in lieu of dower, is valid under Muhammadan Law.

Conclusion:

The court affirmed the validity of an oral gift of property made by a husband to his wife in lieu of dower, in accordance with Muhammadan Law.

Case Name: Sar Anjam Khan vs. Mir Afzal Khan and 14 Others (1972 PLD 37, Peshawar High Court)

Issue: Distinctions between Hiba and A’ariat under Muhammadan Law.

Summary:

This case explores the distinctions between Hiba and A’ariat, two concepts in Muhammadan Law, and highlights the unique characteristics of A’ariat as an institution.

Key Points:

A’ariat as an Institution: The case emphasizes that A’ariat is an institution with many peculiarities that set it apart from Hiba. It signifies a specific legal concept within Muhammadan Law.

Conclusion:

The case underscores that A’ariat is a distinct institution within Muhammadan Law, separate from Hiba, with its own unique characteristics.

Case Name: Asghar Ali alias Zafar Alam vs. Mst. Naseem Akhtar (1969 PLD 467, Lahore High Court, Lahore)

Issue: Validity of Hiba-bil-ewaz (gift for consideration) in contemplation of marriage, the nature of consideration, and its irrevocability upon marriage.

Summary:

This case examines the validity of Hiba-bil-ewaz, specifically when made in contemplation of marriage. It explores the nature of consideration, its irrevocability upon marriage, and the legal implications.

Key Points:

Consideration for Hiba-bil-ewaz: The case establishes that consideration for Hiba-bil-ewaz need not be limited to money; a promise to marry is a valid consideration.
Irrevocability Upon Marriage: Hiba-bil-ewaz made in contemplation of marriage is valid and becomes irrevocable upon the solemnization of the marriage. This is based on the concept that the donor obtains “a return for his gift” through marriage.

Conclusion:

The case affirms that Hiba-bil-ewaz made in contemplation of marriage is valid, with a promise to marry being a legitimate consideration, and it becomes irrevocable upon the performance of the marriage.

Case Name: Shamsunnessa Bibi vs. Abdul Gafur and Others (1964 PLD 451, Dhaka High Court)

Issue: Distinction between Hiba-bil-ewaz and Hiba-bashaTtul-ewaz under Muhammadan Law.

Summary:

This case explores the distinction between Hiba-bil-ewaz and Hiba-bashaTtul-ewaz, two concepts within Muhammadan Law, and clarifies their differences.

Key Points:

Distinction: The case highlights the differentiation between Hiba-bil-ewaz and Hiba-bashaTtul-ewaz, explaining their unique characteristics and legal implications.

Conclusion:

The case underscores the distinction between Hiba-bil-ewaz and Hiba-bashaTtul-ewaz within the framework of Muhammadan Law.

Case Name: Shamsunnessa Bibi vs. Abdul Gafur and Others (1964 PLD 451, Dhaka High Court)

Issue: Meaning and interpretation of “Hiba-bil-ewaz” under Muhammadan Law.

Summary:

This case focuses on the meaning and interpretation of “Hiba-bil-ewaz,” providing insights into the legal concept within the framework of Muhammadan Law.

Key Points:

Meaning of Hiba-bil-ewaz: The case provides an understanding of the term “Hiba-bil-ewaz” and its significance within Muhammadan Law.

Conclusion:

The case offers clarity on the meaning and interpretation of “Hiba-bil-ewaz” under Muhammadan Law, contributing to a better understanding of this legal concept.

From the cases provided, several key takeaways regarding the law of Hiba (gift) in Pakistan can be summarized as follows:

Validity of Oral Gifts: The law in Pakistan recognizes the validity of oral gifts (Hiba) under certain circumstances. In the case of Mumtaz Begum vs. Abdur Rashid (1988 CLC 2023), an oral gift of property made by a husband to his wife in lieu of dower was considered valid.
Types of Hiba: Hiba can take different forms. It can pertain to the corpus of property (Hiba pertaining to corpus) or limited interest and benefits in the property (Hiba pertaining to A’ariat). The distinction between these types is essential, as seen in Sar Anjam Khan vs. Mir Afzal Khan (1972 PLD 37).
Conditions on Hiba: While a gift (Hiba) can be conditional, any condition attached to the gift must be valid. In cases where conditions are contrary to the principles of Muhammadan Law or unreasonable, they may be considered void. Parties should be cautious when imposing conditions on gifts.
Consideration for Hiba-bil-ewaz: In cases of Hiba-bil-ewaz (gift for consideration), the consideration need not be limited to money. In the case of Asghar Ali alias Zafar Alam vs. Mst. Naseem Akhtar (1969 PLD 467), it was established that a promise to marry can serve as a valid consideration for Hiba-bil-ewaz.
Irrevocability of Hiba-bil-ewaz Upon Marriage: Hiba-bil-ewaz made in contemplation of marriage becomes irrevocable upon the solemnization of the marriage. This principle is important in understanding the legal consequences of such gifts, as confirmed in Asghar Ali alias Zafar Alam vs. Mst. Naseem Akhtar.
Deprivation of Heirs: The Muhammadan Law permits a full-fledged Muslim owner to dispose of property in favor of one of the heirs, even to the exclusion of other heirs. Such gifts, whether intentionally or not, can result in the deprivation of certain heirs, as highlighted in Rasul Bibi vs. Nasrullah Khan (1994 CLC 1774).
Documentation and Proof: Proper documentation and evidence are essential in cases involving gifts. The absence of documentary evidence, such as transfer deeds or other records, can impact the validity and acceptance of claims regarding gifts, as demonstrated in various cases.
Distinct Concepts: The cases also emphasize that different forms of gifts (e.g., Hiba-bil-ewaz, Hiba-bashaTtul-ewaz) have distinct legal characteristics and implications, and it is crucial to understand these differences when dealing with gift-related matters.

Overall, the key takeaways underline the importance of understanding the nuances of Hiba (gift) under Muhammadan Law in Pakistan, including the types of Hiba, conditions, considerations, irrevocability, and the need for proper documentation and evidence in gift-related cases.

Cases on Wills (Waseyat) in Pakistan

Citation Name: 2022 SCMR 2130 SUPREME-COURT

Side Appellant: ZAKIA BEGUM

Side Opponent: NASIR-UL-ISLAM KHAN

In this case, the Supreme Court addressed the meaning and scope of a “Will” under S. 2(h). A Will is essentially a formal document created by a natural person to express their posthumous wishes regarding the distribution of their estate. It is important to note that Wills are considered testamentary instruments, as they come into effect only after the donor’s death. Therefore, a crucial distinction lies in the timing of execution and enforcement. If a Will is executed and acted upon during the testator’s lifetime, it ceases to be a Will and instead takes on the characteristics of an inter-vivos instrument. This is significant because inter-vivos instruments, often in the form of gifts, have distinct requirements and standards of proof.

Citation Name: 1956 PLD 9 PRIVY-COUNCIL

Side Appellant: LEONG

Side Opponent: LIM BENG CHYE

This case dealt with a Will and the specific conditions imposed on a legatee. The court found these conditions to be invalid due to the absence of a gift over provision. It’s important to mention that English law principles were applied in Malaya in this context.

Citation Name: 1956 PLD 786 LAHORE-HIGH-COURT-LAHORE

Side Appellant: CHANNO BI

Side Opponent: MUHAMMAD RIAZ

Here, the case revolved around a Will created by a testator who was governed by custom at the time of making the Will. However, the testator passed away after the West Punjab Muslim Personal Law (Shariat) Application Act, 1948 came into force. The court recognized the Will but limited its effect to what was permitted by the latter Act.

Citation Name: 1955 PLD 44 REVENUE-DECISION-PUNJAB

Side Appellant: MST. HAJRAN

Side Opponent: SUBA KHAN

This case involved a registered Will, which the Civil Court upheld only in respect of house property but not in respect of land. The Revenue Officer rightly ignored the Will in regard to the land. This demonstrates the importance of distinguishing between different types of property in the context of a Will.

Citation Name: 1952 PLD 65 PRIVY-COUNCIL

Side Appellant: HERBERT LAMBE WILLIAMS

Side Opponent: EDGAR RODERIC WILLIAMS

In this case, the court was concerned with the construction of a Will, specifically a bequest of a “sum of five thousand pounds of the capital” invested in a partnership business. The court determined that this amounted to a specific legacy of five thousand pounds.

Citation Name: 2008 YLR 589 LAHORE-HIGH-COURT-LAHORE

Side Appellant: PATHANA

Side Opponent: ALLAH DITTA

This case involved a complex legal scenario where the plaintiff claimed a legacy under a Will. The plaintiff filed a suit for declaration four months after the testator’s death, challenging inheritance mutations and the rights of collaterals and the widow. The trial court ruled in favor of the plaintiff, and both appeals filed by the widow and defendants were dismissed.

However, the widow was not impleaded as a party in the revision process. The court emphasized that the widow was a necessary party as she had contested the suit with her version of events. The court further scrutinized the document claimed to be a “Will” and concluded that it was not a Will but rather a complete disposition of property. Given the circumstances and evidence presented, the execution of the alleged “Will” was not proven.

These cases highlight the intricacies and legal principles surrounding Wills, their execution, and their interpretation, with each case presenting unique circumstances and outcomes.

Citation Name: 2012 MLD 1368 LAHORE-HIGH-COURT-LAHORE

Side Appellant: SHARAFAT ALI KHAN

Side Opponent: AKRAM ALI KHAN alias MUHAMMAD AKRAM KHAN

This case pertains to the scope of inheritance concerning a Will. Unfortunately, the provided text lacks sufficient details to provide a comprehensive analysis or opinion on the case. For a more in-depth understanding, it would be necessary to review the complete case details and legal arguments presented.

Citation Name: 1949 PLD 156 PRIVY-COUNCIL

Side Appellant: Mst. GOMTIBAI

Side Opponent: KANCHHEDILAL

In this case, the Privy Council dealt with the probate of a Will. The principle mentioned is that the burden of proof in establishing the validity of a Will rests on the person who presents the Will (propounds it). Generally, this burden can be discharged by providing evidence of the testator’s capacity and the fact of execution. Once these are established, it is assumed that the testator knew and assented to the contents of the Will.

Citation Name: 1951 PLD 27 PRIVY-COUNCIL

Side Appellant: STANLEY AUGUSTINE McDONNELL

Side Opponent: ENA GERTRUDE NEIL

This case involved the construction of a Will. After making specific devises and bequests, the testator devised the residue of his real and personal estate upon trust for his two daughters. This trust included certain annuities and had provisions for the remainder in fee to their issue. This case emphasizes the importance of precise language and intent when drafting a Will, especially when dealing with complex trusts and beneficiaries.

Citation Name: 2015 CLC 298 PESHAWAR-HIGH-COURT

Side Appellant: ALAMGIR KHAN

Side Opponent: Mst. ZEB JEHAN

In this case, the scope of a Will is discussed. The court determined that a testator could validly bequeath only 1/3rd of their property, and this required the consent of the legal heirs. It was emphasized that property could not be bequeathed in favor of legal heirs without their consent. Additionally, the court noted that the contents of the Will were in conflict with Quranic principles, Sunnah, and the law.

Citation Name: 2022 YLR 2015 QUETTA-HIGH-COURT-BALOCHISTAN

Side Appellant: ZAKIA BEGUM

Side Opponent: NASIR-UL-ISLAM KHAN

In this case, the issue of inheritance and a Will is central. The appellants claimed ownership of properties left by their parents and challenged a Will Deed and agreement relied upon by the respondents/defendants. The trial court dismissed the suit, but the High Court intervened.

The High Court upheld the transfer of properties to subsequent buyers who were bona fide purchasers and had paid for the properties. However, it recognized the appellants/plaintiffs’ entitlement to their proportionate shares from the sale amount. The court also highlighted that under Islamic Law, a bequest to an heir is not valid unless other heirs consent after the testator’s death.

In conclusion, these cases illustrate various aspects of Wills, including probate, construction, scope, and the importance of consent in inheritance matters. The specific outcomes are based on the facts and legal arguments presented in each case, highlighting the complexity of Will-related disputes in the legal system.

Citation Name: 1967 PLD 200 SUPREME-COURT

Side Appellant: IHSAN ILAHI

Side Opponent: HUKAM JAN

This case focuses on Muhammadan Law and the requirement that a Will in favor of an heir must have the consent of all other heirs to be valid. In the context of Islamic law, this principle underscores the importance of consensus among all legal heirs when a Will benefits one of them.

Citation Name: 1966 PLD 154 DHAKA-HIGH-COURT

Side Appellant: SARALA BALA SIKDER

Side Opponent: AGHORANANDA SIKDER

In this case, the significance of a testator’s affixing their signature to a Will after it is read over to and approved by them is highlighted. This action effectively transforms the directions contained in the Will into the testator’s own directions, emphasizing the importance of the testator’s active involvement in the process.

Citation Name: 1964 PLD 329 SUPREME-COURT

Side Appellant: MUHAMMAD AKBAR SHAH

Side Opponent: MUHAMMAD YUSUF SHAH

This case delves into the genuineness of a Will and the testator’s capacity. It emphasizes that a testator must have a sound disposing mind at the time of making the Will. The presence of a certain degree of brain affection does not necessarily disprove testamentary capacity. The key consideration is whether the propositus (the person making the Will) was incapable of understanding the nature and consequences of their actions.

Citation Name: 1963 PLD 553 SUPREME-COURT

Side Appellant: BUDHO AND OTHERS

Side Opponent: GHULAM SHAH

In this case, several contestants under three Wills arrived at a family settlement and jointly sued a trespasser. The court recognized and gave effect to this family settlement. It highlights the legal recognition of settlements among heirs that resolve disputes arising from multiple Wills.

Citation Name: 1961 PLD 431 LAHORE-HIGH-COURT-LAHORE

Side Appellant: NUR ALI AND ANOTHER

Side Opponent: MALKA SULTANA AND ANOTHERS

This case concerns the interpretation of a Will, emphasizing that the intention of the person making the Will is a question of fact. It highlights that there are no hard and fast rules for interpreting expressions used in a Will unless those expressions have a specific, well-established meaning.

Citation Name: 1961 PLD 360 DHAKA-HIGH-COURT

Side Appellant: SAMARENDRA NATH ROY

Side Opponent: SURESH CHANDRA ROY

Here, the case underscores that a Will cannot be propounded unless the party presenting it successfully discharges the burden of proving it to be the last Will of the testator. This emphasizes the importance of establishing the authenticity and validity of a Will.

Citation Name: 1960 PLD 801 LAHORE-HIGH-COURT-LAHORE

Side Appellant: PUNJAB PROVINCE

Side Opponent: NISAR AHMAD

This case distinguishes between a Will and a gift, highlighting that they are two distinct transactions. However, it notes that certain rules can apply to both, as they both involve the gratuitous transfer of property from one person to another.

Citation Name: 1959 PLD 40 PRIVY-COUNCIL

Side Appellant: EDWIN G. BAKER

Side Opponent: NATIONAL TRUST COMPANY, LIMITED AND OTHERS

In this case, the definition of a charitable bequest is discussed. The court emphasizes that plain words in a Will should be given their plain meaning. It also notes the importance of consensus among legal authorities when interpreting Will provisions related to charitable bequests.

Citation Name: 1958 PLD 209 SUPREME-COURT

Side Appellant: CHIRAGJ BIBI

Side Opponent: RASJODA BEGUM

This case addresses the burden of proof in Will-related matters. It emphasizes that the party propounding the Will must establish that it was executed in a sound disposing state of mind. Additionally, it highlights that the burden of proving coercion and undue influence rests on the party making such allegations.

Citation Name: 1957 PLD 513 DHAKA-HIGH-COURT

Side Appellant: SRIMATI PRIYABALA MAZUMDAR

Side Opponent: NALINI MOHAN MAZUMDAR

In this case, the issue of the righteousness of a transaction in a Will is discussed. The onus of proving such righteousness is emphasized.

Citation Name: 2002 SCMR 1330 SUPREME-COURT

Side Appellant: ABDUL HAQ

Side Opponent: Mst. SURRYA BEGUM

This case highlights that a Will made by a deceased in favor of non-heirs can be effective even without the consent of the deceased’s heirs. It addresses the dynamics of Will-making and the extent to which it can override inheritance laws.

These cases collectively provide insights into various aspects of Will-related matters, including consent, capacity, interpretation, burden of proof, and the distinction between Wills and gifts.

Citation Name: 2002 CLC 808 KARACHI-HIGH-COURT-SINDH

Side Appellant: LIAQUAT ALI

Side Opponent: Mst. HAYAT BI

This case discusses the extent of property alienation through a Will under Islamic Law. According to Islamic Law, a Muslim cannot dispose of more than one-third of the surplus of their estate after funeral expenses and debts are paid without the consent of the heirs. If a Will violates this principle, it is considered illegal, and the bequest exceeding one-third abates ratably if the legal heirs refuse to consent.

Citation Name: 2001 YLR 3153 KARACHI-HIGH-COURT-SINDH

Side Appellant: TAUQEER AHMED

Side Opponent: BASHIR AHMED

In this case, the revocation of a Will is discussed. The court highlights that a testator who is alive has the right to deal with the property in respect of which the Will was made. Selling the bequeathed property amounts to implied revocation, and there is no need to file a case for the cancellation of documents. The concept of Islamic Law is cited, which permits revocation either expressly or by implication.

Citation Name: 1999 YLR 380 LAHORE-HIGH-COURT-LAHORE

Side Appellant: RAHAT MOGHAL

Side Opponent: ZAHEERA BADAR

In this case, a suit for declaration revolves around a disputed Will (Wasiatnama). The respondent claimed exclusive ownership of the property based on the Will in her favor. However, the document was neither presented as evidence nor was any explanation provided regarding its absence. The court found that the execution of the Will was not fully proved, and the lower courts had misread the evidence, leading to the reversal of their judgments.

Citation Name: 1984 SCMR 1292 SUPREME-COURT

Side Appellant: AMAN ULLAH SHAH

Side Opponent: MUHAMMAD SHARIF SHAH

This case considers the Custom (Punjab) and Islamic Law regarding Wills. The court granted leave to appeal to determine whether the question of whether the deceased testator was governed by custom was a mixed question of fact and law. Additionally, it addressed whether the testator had a disposing mind at the time of executing the Will and whether he was suffering from marzul maut (the illness leading to imminent death).

Citation Name: 1976 PLD 386 SUPREME-COURT

Side Appellant: SAID MUHAMMAD

Side Opponent: TALIB HUSSAIN

This case deals with the meaning of ancestral property under Hindu Law. It emphasizes that the essence of ancestral property is its descent from an ancestor, and property descending to sons from a father is considered ancestral and inherited. The unequal division of ancestral property does not alter its nature and character.

Citation Name: 1974 PLD 78 SUPREME-COURT

Side Appellant: NOOR AHMAD

Side Opponent: HUBAAN JAN

In this case, a note at the foot of a Will stated conditions regarding the property’s ownership. When the son mentioned in the Will returned after a long absence, the Will’s conditional nature was recognized, and his claim to the property could not be disputed.

Citation Name: 1971 PLD 147 KARACHI-HIGH-COURT-SINDH

This case pertains to Hindu Law and the widow’s estate. It highlights that a widow’s right in property inherited from her husband is limited to her lifetime and cannot be disposed of by Will. A transferee who acquires such property based on a Will executed by the widow cannot file ejectment proceedings against the property’s tenants.

Citation Name: 1968 PLD 68 LAHORE-HIGH-COURT-LAHORE

Side Appellant: ZAFAR YAB ALI AND ANOTHER

Side Opponent: ADDITIONAL REHABILITATION AND SETTLEMENT COMMISSIONER AND OTHERS

This case outlines the principles relevant to dealing with Wills, especially those involving foreign elements. Unfortunately, the provided text does not delve into the specific principles mentioned. A comprehensive analysis would require reviewing the complete case details and legal arguments presented.

Citation Name: 2022 YLR 2015 QUETTA-HIGH-COURT-BALOCHISTAN

Side Appellant: ZAKIA BEGUM

Side Opponent: NASIR-UL-ISLAM KHAN

In this case, the appellants/plaintiffs claimed ownership of properties left by their parents and contested a Will Deed and agreement relied upon by the respondents/defendants. The Trial Court dismissed their suit, but the High Court upheld the transfer of properties to subsequent buyers who were bona fide purchasers. However, the appellants/plaintiffs were entitled to receive their proportionate shares from the sale amount as of the date of the sale transaction. It was emphasized that under Islamic Law, a bequest to an heir is not valid unless other heirs consent to it after the death of the testator. Any single heir could consent to bind their own share. The High Court declared the Will Deed and agreement null and void and directed the cancellation of revenue record entries and transactions related to these documents, setting aside the judgment and decree of the Trial Court.

Citation Name: 2022 PLD 106 KARACHI-HIGH-COURT-SINDH

Side Appellant: CYRUS COWASJEE

Side Opponent: KARACHI METROPOLITAN CORPORATION

This case involves the demand for a mutation fee by authorities for property transferred through inheritance based on a ‘will’ by Parsi individuals. The court found that the immovable property in question evolved or transmitted by the operation of the law of inheritance (‘will’) and did not involve any act of transfer as defined in the Transfer of Property Act, 1882. As the right and title in the inherited immovable property devolved automatically to the petitioners through inheritance, there was no element of transfer as defined in the Act. The court directed the authorities to refund the mutation fee charged from the petitioners, stating that there was no authority under the Sindh Local Government Act, 2013, to charge or collect mutation charges/fees in cases of immovable property acquired through inheritance based on a ‘will.’

Citation Name: 2022 YLRN 195 ISLAMABAD

Side Appellant: MAJEED AHMAD MUBARAK

Side Opponent: SALEEM AHMAD TAHIR

This case involves a dispute over entitlement to shares in properties left by an issueless deceased lady, with both parties belonging to the Ahmadiyya religion. The court held that in the Ahmadiyya religion, a testator could not bequeath more than one-third of their wealth/belongings without the consent of other legal heirs. The nominee before a financial institution had no independent right of inheritance and acted as a trustee. Nomination did not operate as a gift or will. The nominee was mandated to look after the property and distribute it among the legal heirs of the deceased. Therefore, the rules enforced under National Savings schemes, whereby a nominee was given the right to receive the amount of investment, could not override the law of inheritance. The High Court maintained the findings of the Trial Court regarding the status of the nominee and excluded certain relatives from inheritance while declaring stepbrothers and sisters as legal heirs of the deceased.

Citation Name: 2021 CLC 1788 QUETTA-HIGH-COURT-BALOCHISTAN

Side Appellant: ABID ALI

Side Opponent: MUHAMMAD TAHIR

This case centers on the validity of a ‘will Deed’ executed by the deceased father during his lifetime, with the plaintiffs claiming ownership of the suit property based on this document. The defendants, who were also legal heirs of the deceased, contested the execution of such a deed. Both the Trial Court and the Lower Appellate Court dismissed the suit, with the legal heirs not consenting to the bequest to the plaintiffs. According to Islamic Law, a “will Deed” can only be valid to the extent of 1/3rd of the property if it is assented to by other legal heirs. Since the other legal heirs did not consent to the will, it was not enforceable. The High Court, in its revisional jurisdiction, declined to interfere with the concurrent judgments and decrees of the lower courts, finding no illegality or misreading of evidence. The revision was dismissed.

Citation Name: 2021 CLC 2094 PESHAWAR-HIGH-COURT

Side Appellant: INAMULLAH

Side Opponent: BAKHT ZAMIN KHAN

In this case, the petitioners claimed their rights in the legacy of a deceased individual, who was the brother of the predecessor-in-interest of the defendants. The suit claimed the right of inheritance and was decreed by the Trial Court but reversed by the Appellate Court. The petitioners had earlier filed a suit under the Provincially Administered Tribal Areas Civil Procedure (Special Provisions) Regulation, 1975, based on a ‘will’ from 1932, which was dismissed on the grounds of limitation. The fresh suit was filed on a different cause of action. The court found that the pedigree table prepared during the settlement in 1985/86 did not show any issues or widow of the predecessor of the parties. Two daughters and a widow were admitted, but their omission from the pedigree table was unexplained by the defendants. The court held that the principles of adverse possession were not applicable to cases of inheritance. The High Court accepted the revision petition, setting aside the judgment of the Appellate Court and modifying the judgment/decree of the Civil Court.

Citation Name: 2020 YLR 110 PESHAWAR-HIGH-COURT

Side Appellant: Mian DIN MUHAMMAD

Side Opponent: Mst. ZAITOON

This case involves a suit for declaration related to inheritance and a ‘will/gift.’ The plaintiff alleged that she was deprived of her share by her brothers and claimed her entitlement from her father’s legacy, arguing that the impugned ‘will Deed’ and Gift were against the law and based on fraud. The Trial Court decreed the suit. The High Court found that the right to will could not be exercised to the detriment of the rights of other legal heirs. The defendants failed to prove the alleged will, and the gift deed was executed when the plaintiff was a minor and had lost its efficacy. The plaintiff became the owner of the suit property to the extent of her share immediately after her father’s death, and the defendant, as a co-owner, was not entitled to alienate more than his entitlement. Any transaction made by the brothers of the plaintiff beyond their entitlement was void and ineffective upon the rights of other legal heirs. The appeal was disposed of accordingly.

Citation Name: 2019 PLD 30 SUPREME-COURT-AZAD-KASHMIR
Side Appellant: MUHAMMAD YAQOOB KHAN
Side Opponent: MUHAMMAD RAZZAQ KHAN

This case deals with the execution of a will and its impact on inheritance and mutation. The impugned mutation was attested based on a will that favored one of the legal heirs without the consent of the other legal heirs. The court held that a will cannot be executed in favor of a legal heir unless the other legal heirs, who have the right to inherit from the legacy, consent to it. The right of inheritance devolves on the legal heirs soon after the death of the deceased Muslim. Attestation of mutation is not a prerequisite for devolving inheritance. The appeal was disposed of accordingly.

Citation Name: 2019 MLD 304 Gilgit-Baltistan Chief Court
Side Appellant: Mst. MAZAGI
Side Opponent: Mst. ASHRAF BIBI

In this case, a suit for declaration related to inheritance and will, the defendants claimed possession of part of the suit land based on a will. The court found that the defendants were bound to prove a valid will, but there were material contradictions in the statements of witnesses produced by the defendants. The plaintiffs were declared entitled to their share in the suit property, subject to partition among all the legal heirs of the deceased. The suit was decreed in favor of the plaintiffs, and the revision was allowed.

Citation Name: 2018 CLC 299 QUETTA-HIGH-COURT-BALOCHISTAN
Side Appellant: Mst. SEHAT BIBI
Side Opponent: BAHAR KHAN

In this case, a suit for declaration related to inheritance, limitation, and gift, the plaintiff contended that the impugned mutation was based on fraud. The suit was dismissed at the lower courts. However, the High Court found that the parties being legal heirs of the deceased were entitled to their proportionate legal share from the legacy of the deceased. The defendant had failed to produce any evidence of a gift or mutation entries. The plaintiff was entitled to receive her share from the sale amount received by her brother. The impugned judgments and decrees of the lower courts were set aside, and the suit was decreed. The defendant was directed to pay the plaintiff’s share according to Sharia within a specified period.

Citation Name: 2018 CLC 263 QUETTA-HIGH-COURT-BALOCHISTAN
Side Appellant: ABDUL HADI
Side Opponent: ABDUL HANAN

This case involves a suit for cancellation of mutation entries, declaration, possession, and permanent injunction related to inheritance, custom, and a will. The defendants contended that they were entitled to mutations based on a will of the predecessor-in-interest. The court held that mere production of a pedigree table was not sufficient unless the relationship of persons mentioned therein is duly corroborated by satisfactory evidence. The defendants failed to substantiate their claim, and the court upheld the findings of the Trial Court. The appeal was dismissed accordingly.

Citation Name: 2018 PLD 819 LAHORE-HIGH-COURT-LAHORE
Side Appellant: KHALIDA IDREES
Side Opponent: ANAS FAROOQ CHAUDHARY

This case addresses the non-applicability of Muslim Personal Law to followers of the Ahmadiyya faith in inheritance disputes concerning immovable property. The Constitution declared followers of the Ahmadiyya Faith as non-Muslims, and they cannot be governed by Muslim Personal Law. Instead, they must follow their own personal law of inheritance. In the absence of a specific personal law relating to gift, Tamleek (conveyance), and will in the Ahmadiyya Faith, the codified law of the Transfer of Property Act, 1882, would be applicable until their jurisprudence formulates a consensus opinion on the subject.

Citation Name: 2018 PLD 819 LAHORE-HIGH-COURT-LAHORE
Side Appellant: KHALIDA IDREES
Side Opponent: ANAS FAROOQ CHAUDHARY

This case emphasizes the importance of protecting the rights of women in matters of inheritance, particularly when they are alienated from their rightful share through various means such as wills, gifts, or under the pretext of custom, family honor, regional culture, or coercion. Courts are obligated to exercise caution and care when deciding cases involving the alienation of women’s rights in property.

Citation Name: 2018 YLR 2524 LAHORE-HIGH-COURT-LAHORE
Side Appellant: MUHAMMAD AMIN
Side Opponent: Mst. ASHRAF BIBI

In this case, a dispute arose over inheritance, where the predecessor-in-interest of the claimant was deprived of his share from his father’s legacy due to adoption by his maternal grandfather. The court held that customary appointment of an heir does not involve the transplantation of a person from one family to another. The tie of kinship with the natural family remains intact, and the relationship created is personal and does not extend beyond the contracting parties. In the absence of custom, Islamic law governs succession among Muslims. The court also emphasized that fraud vitiates transactions, and there is no limitation on inheritance rights. Entries in the revenue record provide fresh causes of action, and adverse entries do not extinguish a party’s right to challenge them.

Citation Name: 2017 PLD 360 LAHORE-HIGH-COURT-LAHORE
Side Appellant: Mst. JAMEELA MANZOOR
Side Opponent: RAJA ZAFAR MEHMOOD

This case involves a dispute over investment certificates and an oral gift claimed by the widow of the deceased. The widow argued that her husband had orally gifted the entire amount of his investments to her. However, the court found that the necessary elements of a valid gift were missing, and the widow failed to establish her exclusive entitlement to the assets. The court held that Islamic law takes precedence over the rules governing nomination in certificates, and the widow could not claim the assets to the exclusion of other legal heirs.

Citation Name: 2017 CLC 664 LAHORE-HIGH-COURT-LAHORE
Side Appellant: SIKANDAR HAYAT KHAN
Side Opponent: Mst. KHATOON alias AMEER KHATOON

In this case, the entire property was bequeathed in favor of one individual through a will. However, the alleged will was found to be inexecutable, invalid, and contrary to Islamic Law. Legal heirs had been deprived of their right of inheritance due to procedural technicalities, and there was no evidence that the alleged will was executed with the consent of the legal heirs. The impugned order was set aside, and the case was remanded for disposal on its merits within a specified period.

Citation Name: 2017 YLRN 372 LAHORE-HIGH-COURT-LAHORE
Side Appellant: GHULAM MUHAMMAD
Side Opponent: KHUDA BAKHSH

This case deals with fraud in inheritance matters. The defendants intentionally and willfully excluded the plaintiffs (daughters) from the list of legal heirs of the deceased through fraud and misrepresentation. They succeeded in getting an inheritance mutation entered in their names. The court held that fraud vitiates proceedings, and the plaintiffs, being daughters of the deceased, were entitled to inherit their father’s legacy according to Sharia. The revision was dismissed in these circumstances.

Citation Name: 2017 PLD 309 KARACHI-HIGH-COURT-SINDH
Side Appellant: MRS. FATIMA MANSURI WIDOW OF GHULAM NABI MANSURI, MUSLIM, ADULT

This case addresses the validity of bequests in wills exceeding one-third of the testator’s estate. While Islamic Law limits the capacity to make a bequest to one-third of the testator’s property, if the heirs consent to the will, a bequest of more than one-third of the property can become valid.

Citation Name: 2016 SCMR 1195 SUPREME-COURT
Side Appellant: Mst. NOOR BIBI
Side Opponent: GHULAM QAMAR

This case pertains to Shia law and the inheritance rights of childless widows. The court ruled that a widow who never gave birth to a child from the propositus is not entitled to inherit from the propositus’ immovable property. This also includes widows who had children with the propositus but did not survive the propositus. Even if a widow gave birth to a child with the propositus but the child died before the propositus, the widow is considered a ‘childless widow’ under Shia personal law and cannot inherit the immovable property.

Citation Name: 2016 CLC 754 PESHAWAR-HIGH-COURT
Side Appellant: BAWAR KHAN
Side Opponent: MUHAMMAD HANIF

This case deals with the requirements of a gift, including the consent of the donee. The court emphasized that physical possession of property is not necessary for a valid gift when the donee is the wife of the donor. It also clarified that non-production of witnesses of a gift deed would not invalidate the gift. The court dismissed the second appeal in these circumstances.

Citation Name: 2016 CLCN 115 PESHAWAR-HIGH-COURT
Side Appellant: KHAN WALI
Side Opponent: ROZI KHAN

This case deals with a suit for declaration regarding inheritance. The plaintiff was deprived of his legal right of inheritance, and the suit land, including the plaintiff’s share, was further transferred through a sale mutation. The defendant claimed to be a bona fide purchaser of the property. However, the beneficiaries of the inheritance mutation did not appear as witnesses and avoided appearing in court. The court found that the impugned mutation was attested fraudulently, and the plaintiff was deprived of his inherited property. The bar of limitation did not apply among co-heirs, and no limitation ran against the transaction based on fraud. The court declared the inheritance mutation null and void to the extent of the plaintiff’s share and set aside the judgment of the Appellate Court in favor of the Trial Court.

Citation Name: 2016 MLD 236 LAHORE-HIGH-COURT-LAHORE
Side Appellant: MUHAMMAD IBRAHEEM
Side Opponent: ABDUL REHMAN

In this case, inheritance mutation was sanctioned after the demise of the predecessor-in-interest. Legal heirs were mentioned in the inheritance mutation, and a gift mutation was entered based on a will and Tamleek allegedly made by the predecessor-in-interest. However, the documents of the will/Wasiatnama and Tamleek were not produced by the defendants, and they failed to prove the gift and will by any reliable evidence. The court declared the gift mutation illegal, unlawful, void ab initio, and without legal effect. The defendants had acted against the law and the principles of justice.

Citation Name: 2016 PLD 140 LAHORE-HIGH-COURT-LAHORE
Side Appellant: MUHAMMAD SIDDIQUE
Side Opponent: Mst. NOOR BIBI

This case highlights the scrutiny applied by courts when illiterate women are divested of their inheritance share through transactions. Male beneficiaries are duty-bound to prove that the transactions were entered into by the women and that independent legal advice was available to them at the time. The courts take a cautious approach in such cases to protect the rights of vulnerable individuals.

Citation Name: 2015 GBLR 38 SUPREME-APPELLATE-COURT
Side Appellant: NADRA AUTHORITIES

This case deals with the adoption of a child. It clarifies that there is no prohibition on adopting a child in Islam. However, it emphasizes that the change of parentage of an adopted child is strictly prohibited because the child is not the natural child of adoptive parents. Adopted children can have the affections and love of adoptive parents and can benefit from financial and other support. In Islam, adopted children do not have inheritance rights in the property of their adoptive parents, but adoptive parents can voluntarily give their property to the adopted child through gift or will during their lifetime. The case also discusses the option for the adopted child to choose the nationality of either the adoptive parents’ country or their natural parents’ country upon reaching adulthood. It emphasizes that there is no codified law on adoption in Pakistan, and adoption in Islam is based on the Quranic concept as mentioned in ‘Surah Al-Ahzab’.

Citation Name: 2015 CLC 298 PESHAWAR-HIGH-COURT
Side Appellant: ALAMGIR KHAN
Side Opponent: Mst. ZEB JEHAN

This case revolves around the validity of a will. According to Islamic law, a will can be valid to the extent of 1/3rd of the property, with the consent of legal heirs. However, the entire property cannot be bequeathed without the consent of other legal heirs. In this case, the contents of the will were found to be against Quranic principles, Sunnah, and the law. The testator had no authority to deprive the legal heirs of their shares through the will. Additionally, the will deed lacked certain essential details, such as the identity of the scribe. Statements of marginal witnesses of the will were contradictory. The notary public who attested the will did not register it. The consent of other legal heirs was not obtained when the will was executed. Consequently, the court ruled that the legal rights of the defendants, to the extent of their ‘shari’ shares, could not be disturbed, and the inheritance mutation attested in accordance with the law was maintained.

Citation Name: 2013 CLC 1446 QUETTA-HIGH-COURT-BALOCHISTAN
Side Appellant: MUHAMMAD RAFIQUE
Side Opponent: BIBI ASIFA

This case concerns a suit for declaration regarding the right of inheritance in the legacy of a deceased father. The defendant claimed that the plaintiff had received his share during the lifetime of the deceased owner through a partition executed by the deceased father’s will. The burden of proof rested with the defendant, and they failed to produce marginal witnesses of the will or any witnesses who could confirm the partition. Consequently, the purported will and partition were not proved to the satisfaction of the court, and the judgment of the trial court decreeing the suit was upheld.

Citation Name: 2011 SCMR 1059 SUPREME-COURT
Side Appellant: MEHMOODUL HASSAN
Side Opponent: Mst. JANNAT

This case involves a dispute over the succession to tenancy of State land allotted to a deceased under the Grow More Food Scheme. The inheritance mutation was attested in favor of the defendants, who claimed to be the grandson and daughter of the deceased tenant. The plaintiffs contended that they were the son and daughter of the deceased tenant based on a will executed by the deceased in their favor. The Supreme Court granted leave to appeal to consider questions related to the validity of the will as substantial proof of the plaintiffs’ relationship with the deceased and whether the plaintiffs were entitled to a share in the suit land based on the will.

Citation Name: 2010 SCMR 1915 SUPREME-COURT
Side Appellant: MUHAMMAD BASHIR
Side Opponent: Mst. LATIFA BIBI

In this case, the dispute revolved around an unregistered will. The defendants relied on the will to assert their rights, but the will was written on a blank paper and could not be substantiated with reliable evidence. The scribe of the will was not produced, and one of the witnesses was not credible. The Supreme Court concluded that the will was fictitious and manipulated to gain control of the deceased’s property. As a result, the court declared the deceased as Sunni by faith and ordered the distribution of his property in accordance with Hanafi law among his legal heirs.

Citation Name: 2010 CLC 742 LAHORE-HIGH-COURT-LAHORE
Side Appellant: IJAZ AHMAD KAMRAN
Side Opponent: Mst. ZUBAIDA BIBI

In this case, the dispute revolves around a will and the partition of property. The plaintiffs argued that the property belonged to their deceased father. After his death, a mutation of inheritance was recorded, allocating a 5/12 share to the widow and dividing the remaining property among other legal heirs. However, the deceased’s will had given the widow a 5/12 share, which was more than what she would have been entitled to under the law of inheritance. The trial court initially dismissed the suit on the grounds of limitation, but on appeal, it was partially accepted. The appeal court held that the suit challenging the will and the mutation in favor of the widow to the extent of 5/12 shares was time-barred, but the suit for partition and mesne profit was decreed. The court reasoned that if the suit was not time-barred for partition, then the claim for mesne profit was also not barred by limitation. As the plaintiffs were co-owners of the property in dispute, they were entitled to partition and mesne profit.

Citation Name: 2009 SCMR 464 SUPREME-COURT
Side Appellant: Mst. FARIDA KHATOON
Side Opponent: Dr. MASOOD AHMED BUTT

In this case, the issue involves a property dispute under Muslim personal law. The owner of the property passed away without any children but had gifted half of the property to his wife during his lifetime. He also executed a will, granting his wife the usufruct of the remaining half of the property during her lifetime. The court ruled that the transfer of 50% share by gift in favor of the wife was not disputed. However, the remaining 50% of the property, subject to the life interest of the wife, was not sustainable under the relevant Muslim personal law provisions. The court emphasized that the right of inheritance, according to Islamic law, cannot be deferred or superseded by custom or usage. The appeal filed by the appellant was found to be barred by limitation, and the Supreme Court did not find any grounds for interference with the judgment passed by the High Court. Consequently, the appeal was dismissed.

Citation Name: 2008 YLR 589 LAHORE-HIGH-COURT-LAHORE
Side Appellant: PATHANA
Side Opponent: ALLAH DITTA

In this case, the plaintiff claimed a legacy under a will. The suit was filed four months after the death of the testator, who was claimed to be issueless Shia. The defendants contested the will, alleging that the deceased was a Sunni, and they were entitled to inherit the estate as heirs of an issueless brother. The trial court decreed the suit, and both appeals, one by the widow and the other by the defendants, were dismissed. The widow was not impleaded in the revision. However, the court held that the widow was a necessary party, as she had contested the suit with her own version. Upon examination of the evidence and the document purported to be a will, the court concluded that the document was not a will but a complete disposition of property. It was not a valid will, and its execution was not proven. Therefore, the court found in favor of the defendants.

Citation Name: 2007 MLD 165 KARACHI-HIGH-COURT-SINDH
Side Appellant: GRANT OF PROBATE IN RESPECT OF ESTATE (MOVABLE PROPERTY) OF DECEASED MIRZA MUHAMMAD SHABBIR QIZILBASH: In the matter of
Side Opponent: GRANT OF PROBATE IN RESPECT OF ESTATE (MOVABLE PROPERTY) OF DECEASED MIRZA MUHAMMAD SHABBIR QIZILBASH: In the matter of

This case involves the inheritance under Shia law and the appointment of a receiver for the collection and distribution of income from the property of the deceased. The plaintiff was the widow, and the defendants were her sisters and step-sister, all belonging to the Shia sect. The plaintiff claimed that the deceased had bequeathed the suit properties to her and her children through a written will. The defendants disputed the will as forged and claimed their share as heirs of the deceased. The court held that under Shia law, a testator could validly bequeath only up to one-third of his property with the consent of all heirs. The will’s validity depended on evidence yet to be produced by the parties. The defendants were entitled to inherit their respective shares as heirs of the deceased in 2/3rd of the suit properties, equivalent to 50% of the entire suit property. The fate of the remaining 1/3rd share would be decided after the suit’s conclusion. A receiver was appointed to collect rental income, with 50% going to the defendants, 25% to the plaintiff, and 25% to be invested in profitable government securities.

Citation Name: 2006 YLR 2735 LAHORE-HIGH-COURT-LAHORE
Side Appellant: MUHAMMAD ASLAM through Legal Representatives
Side Opponent: MAHMOODA BEGUM alias Mst. MAHMOODA SABOOHI

In this case, the plaintiff claimed that her grandfather had made an oral will in her favor for 1/3 of his entire landholding. She sought her share in the inheritance of her grandmother. One of the defendants resisted the suit, denying the existence of the oral will and raising the plea of limitation. The trial court rejected the claim regarding the will but decreed the suit to the extent of her share in the inheritance of the grandmother. On appeal, the entire suit was decreed.

The court emphasized the heavy burden of proof for establishing an oral will, which required precise evidence and careful examination of surrounding circumstances, time, place, conduct of parties, and other relevant factors. Discrepancies in statements of witnesses regarding the oral will needed close scrutiny. The appellate court’s decision to decree the entire suit was upheld based on its assessment of the evidence.

Citation Name: 2006 YLR 1188 LAHORE-HIGH-COURT-LAHORE
Side Appellant: Haji BUX ELAHI
Side Opponent: MANZOOR ELAHI

In this case, the testator, the father of the deceased plaintiff and legatee-in-enjoyment, executed a will stating that his daughter would enjoy the usufruct of the suit land until her death, after which it would revert to the plaintiff. When the daughter passed away, the plaintiff sought a declaration claiming absolute ownership of the suit land. The suit was decreed, and the decree was upheld on appeal.

However, the question arose as to whether the defendants, who were the husband and daughter of the legatee-in-enjoyment, had any claim to the suit land after the lady’s death. The court found that Section 5 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, provided that on the death of the legatee-in-enjoyment, the inheritance of the testator would devolve upon those entitled to succeed him under Muslim Personal Law. Thus, the operation of the will ceased upon the lady’s death, and the succession to the estate of the testator opened accordingly. The judgments and decrees in favor of the plaintiff were set aside by the High Court.

Citation Name: 2006 MLD 1496 LAHORE-HIGH-COURT-LAHORE
Side Appellant: HAMAYUN KABEER
Side Opponent: QAISER NAZIR

In this case, a will had been found invalid in an earlier suit between the predecessors of the parties to a subsequent suit. However, the right of inheritance was asserted in the subsequent suit six years after the decision of the earlier suit. The plaintiff in the subsequent suit was in possession of a part of the property belonging to the deceased. The court held that the question of limitation would not arise in view of the finding recorded by the court in the earlier suit that the plaintiff was in possession of a part of the property. Therefore, the plaintiff’s claim in the subsequent suit was not barred by limitation.

Citation Name: 2005 YLR 2947 LAHORE-HIGH-COURT-LAHORE
Side Appellant: SAKINA BIBI
Side Opponent: AZIZ BEGUM

In this case, the plaintiffs challenged two inheritance mutations—one based on a will executed by their grandfather in favor of the daughters of his pre-deceased son and the other sanctioned under section 4 of the Muslim Family Laws Ordinance, 1961, whereby the defendants received a share from the estate of their grandmother as grandchildren of the pre-deceased son. The suit and appeal had failed. The court noted that the will had been incorporated into the inheritance mutation about 30 years earlier, with no objections raised at that time. There was no evidence of fraud or misrepresentation. The court applied principles of waiver, estoppel, and acquiescence and upheld the concurrent findings of facts based on the proper appreciation of evidence. The revision petition was dismissed.

Citation Name: 2003 YLR 2695 PESHAWAR-HIGH-COURT
Side Appellant: MUHAMMAD AURANGZEB ALAMGIR
Side Opponent: Malik MANZOOR AHMAD

In this case, a suit for declaration as to possession of property as a co-sharer was filed. The plaintiff’s claim was based on inheritance, while the defendant’s claim was based on a deed of will. The defendant’s claim was quite separate and distinct from the plaintiff’s cause of action. The court held that the claim based on the will did not fall within the expression “question involved in the suit” as mentioned in Order I, Rule 10(2) of the Civil Procedure Code (C.P.C.). Therefore, the defendant’s claim was not a part of the same suit and was not subject to the proceedings related to the plaintiff’s claim.

Citation Name: 2004 SCMR 340 SUPREME-COURT
Side Appellant: FAQIR MUHAMMAD
Side Opponent: SARDAR MUHAMMAD

In this case, the predecessor-in-interest of the parties had migrated from India and held a valuable right in the form of a verified claim regarding land left by him in India. He also held land under temporary allotment. The plaintiffs were the children of the predeceased son of the predecessor-in-interest and, after temporary allotment, a will was executed in favor of the plaintiffs for half of the allotted property. Rehabilitation Authorities considered this will and allotted half of the land to the plaintiffs.

The defendants challenged this order, and the Supreme Court ultimately declared the allotment against the provisions of the West Pakistan Rehabilitation Settlement Scheme. The whole land was allotted to the defendants. Subsequently, the plaintiffs filed a declaratory suit based on the will executed in their favor and claimed its enforcement.

The defendants raised the plea of constructive res judicata, arguing that the matter had already been decided up to the Supreme Court. However, the court found that the earlier proceedings had dealt only with the question of inheritance between the direct heirs of the claim holder. The claim based on the will, being a third-party claim, was separate and independent and could be raised before the Civil Court for determination. Therefore, the condition to attract the principle of res judicata, which requires that the previous court should have jurisdiction to decide the question raised in subsequent proceedings, was not fulfilled. The findings recorded by the High Court did not suffer from any legal infirmity, and the appeal was dismissed.

Citation Name: 2002 CLC 2001 LAHORE-HIGH-COURT-LAHORE
Side Appellant: SHARAM
Side Opponent: TAJ MUHAMMAD

This case revolved around the application of custom (Rewaj-i-Am) in Punjab regarding the share of Muslim females in inheritance. It was emphasized that to rely upon a custom, it must be proven that the alleged practice has continued for a significant period, continuously and uninterruptedly, to confer upon the practice the common will and intention of the entire body of the owners of the estate. In the absence of such evidence and, particularly when no copy of Rewaj-i-Aam has been proved, a female heir of a propositus cannot be deprived of her Muslim Law share of inheritance, which vests in her automatically upon the death of the propositus.

Citation Name: 2002 MLD 1397 KARACHI-HIGH-COURT-SINDH
Side Appellant: MUHAMMAD ALI
Side Opponent: Mst. AISHA

In this case, a suit for possession, declaration, and mesne profits was resisted by the defendant on the grounds that the identity of the suit property was in dispute, and the defendant claimed title to the property based on inheritance and a will. However, the court found that the full description of the suit property had been given, and the identity of the property had not been disputed by the defendant before the Trial Court or the Appellate Court. The defendant could not produce any document to prove their title in the suit property, while the plaintiff successfully established her title through a registered instrument. The court held that the presumption as to the genuineness, correctness, and authenticity of registered documents under the Qanun-e-Shahadat, 1984 was not dispelled by the defendant, and oral assertions were not sufficient to rebut the registered documents. Consequently, the suit for possession and declaration was rightly decreed by the Trial Court and the Appellate Court.

Citation Name: 2002 PTD 2621 INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN
Side Appellant: W.T.As. Nos. 1124/LB to 1126/LB of 1999, decided on 28th March 2000.
Side Opponent: W.T.As. Nos. 1124/LB to 1126/LB of 1999, decided on 28th March 2000.

This case dealt with the valuation of a plot on lease in the Cantonment area from the Government of Pakistan through the Military Estate Officer for the purpose of wealth tax assessment. The issue was whether the value of the plot should be determined under Rule 8(3) or Rule 8(6) of the Wealth Tax Rules, 1963. The court found that the lease deed between the Military Estate Officer and the lessee used the word “demise” instead of “lease” and granted the lessee full rights, liberty, and the ability to transfer the property. The court noted that such leased land could be gifted, disposed of through will, and was inheritable on the death of the lessee. Therefore, the District Collector’s assessment under Rule 8(3) was justified.

Citation Name: 1999 SCMR 971 SUPREME-COURT
Side Appellant: ZAKIRULLAH KHAN
Side Opponent: FAIZULLAH KHAN

In this case, the issue revolved around the validity of a will made by a Muslim. The essential point emphasized was that a Muslim could not make a will in favor of any heir unless the other prospective heirs had consented to such a will. No evidence was available to show that the will had been executed by the common ancestor with the express or implied consent of other heirs. The court noted that mere silence of such other heirs for some period would not raise an inference that they had consented to the will made, whereby their share in the inheritance was substantially reduced.

Citation Name: 1999 YLR 380 LAHORE-HIGH-COURT-LAHORE
Side Appellant: RAHAT MOGHAL
Side Opponent: ZAHEERA BADAR

In this case, the issue was whether a bequest could be made to a legal heir, even to the extent of 1/3rd share of the estate, without the consent of other heirs. It was established that for such a bequest to a legal heir, the consent of other heirs is necessary. The nature of this consent for the validity of the will was enumerated. The court emphasized that the ideal situation would be if the consent is express and in unequivocal terms, either in writing or even orally. Persons giving consent should accept, acknowledge, and endorse the will definitely and unambiguously. Mere silence would not be enough to infer such consent.

Citation Name: 1997 SCMR 281 SUPREME-COURT
Side Appellant: NAZIR AHMAD
Side Opponent: ABDULLAH

This case highlighted the duty of the court in cases involving inheritance among legal heirs. The court stressed that in such cases, the court should make efforts to ensure that no legal heir is denied their legal share in the estate of the deceased on a technical ground. Such an approach was deemed in line with the injunctions of Islam.

Citation Name: 1993 SCMR 2360 SUPREME-COURT
Side Appellant: WADHO AKHARA TRUST, KARACHI
Side Opponent: GHAFOORAN

In this case, the landlady’s claim for ejectment of a tenant was based on an alleged will in her favor by the original landlord, and not on ownership rights through inheritance. The court granted leave to appeal to examine the contention that the entire claim of the landlady was based on the alleged will and not on ownership rights through inheritance. Additionally, it was considered whether the High Court had erred in granting relief to the landlady based on the will, and if assumed to be valid, whether tenancy rights could devolve on the landlady, given that the original landlady had died issueless, and whether tenancy rights would revert to the original owners.

Citation Name: 1991 SCMR 2051 SUPREME-COURT
Side Appellant: BAGGO
Side Opponent: HUSSAN BANO

This case involved a dispute regarding the inheritance of property left by a common predecessor. The parties had co-heirs, and initially, the Trial Court decreed the suit in favor of the plaintiffs. However, the parties later reached a compromise in the High Court. The compromise stipulated that the shares of the parties would be declared and recorded by the revenue authorities in the revenue record. The critical issue was the application of the compromise, particularly whether it applied only to the property that went to the wife of the predecessor or to the entire property left by the deceased. The court concluded that the compromise was a final settlement of all disputes between the parties and should apply to the entire property left by the predecessor. This finding was supported by the use of the sentence in the judgment that the settlement between the parties was in accordance with the “Islamic Law of inheritance” and that it would be the end of litigation in the family. Therefore, the appeal was allowed with directions to correct any defects in the decree and to record the shares determined in the revenue record.

Citation Name: 1990 SCMR 844 SUPREME-COURT
Side Appellant: ABDUL RASHID
Side Opponent: ABDUL SAMAD

In this case, a dispute arose regarding the redemption of mortgaged lands. The issue was whether the suit for redemption was competent under Ordinance I of 1968 or whether the appropriate law was the Restitution of Mortgaged Land Act, 1964. The court examined several questions, including the nature of the mortgage and whether one heir could be deprived of inheritance under Muhammadan Law or Customary Law by a will. The court found that before upholding the dismissal of the suit, all these controversial questions had to be addressed and positive findings recorded. Therefore, the Supreme Court allowed the petition, set aside the High Court’s judgment, and remanded the case to the High Court to resolve the questions raised in the appeal.

Citation Name: 1989 PLD 3 FEDERAL-SHARIAT-COURT
Side Appellant: IN RE: THE MEMBERS OF THE NATIONAL ASSEMBLY (EXEMPTION
Side Opponent: IN RE: THE MEMBERS OF THE NATIONAL ASSEMBLY (EXEMPTION

This case dealt with compensation payable in the event of death by accident as a result of air travel to the President, Prime Minister, Federal Ministers, and other officials. The issue was whether the compensation provided for in the laws was in line with Islamic inheritance principles. The court held that compensation for death due to an accident should be equated with “Diyat,” which is heritable. Therefore, the compensation would be considered property left by the deceased and must be divided according to Islamic inheritance laws. The court ordered the government to amend the provisions to bring them in conformity with Islamic inheritance principles, and failure to do so would render those provisions ineffective.

Citation Name: 1989 PLD 1 FEDERAL-SHARIAT-COURT
Side Appellant: IN RE: THE BALUCHISTAN CHIEF MINISTER AND PROVINCIAL
Side Opponent: IN RE: THE BALUCHISTAN CHIEF MINISTER AND PROVINCIAL

In this case, the issue was similar to the previous one, concerning compensation for death by accident as a result of air travel. The court held that the compensation provided in the law should be deemed as property left by the deceased and subject to Islamic inheritance principles. It emphasized that no heir could receive more than the share allotted to them under the Quran and Ahadith. The court ordered suitable amendments to the law to bring it in conformity with Islamic inheritance principles.

Citation Name: 1986 MLD 1829 LAHORE-HIGH-COURT-LAHORE
Side Appellant: IQBAL HUSSAIN SHAH
Side Opponent: AKHTARI BEGUM

This case involved the effect of a will in favor of a minor daughter under Muhammadan Law. It was established that a will by the testator in favor of his minor daughter, assented to by the heirs after the testator’s death, would entitle the minor daughter to a 1/3rd share of the estate. Out of the remaining property, the widow would get a 1/8th share, while two daughters would get 2/3rd. The remaining share would go to the residuary.

Citation Name: 1968 PLD 523 KARACHI-HIGH-COURT-SINDH
Side Appellant: MUQADDAR KHAN
Side Opponent: BURMAH SHELL OIL STORAGE AND DISTRIBUTING CO. LTD., KARACHI

This case pertained to the inheritance of a provident fund of an employee. The court clarified that the provident fund forms part of the undistributed estate of the subscriber upon their death. The nomination of a person to receive the provident fund does not equate to a will, gift, or trust in favor of the nominee. Furthermore, the court emphasized that the rules of inheritance cannot be changed by the deceased through their will or other directives.

Citation Name: 1962 PLD 291 SUPREME-COURT
Side Appellant: SYED MEHDI HUSSAIN SHAH
Side Opponent: MST. SHADOO BIBI AND OTHERS

This case dealt with the competence of an administration suit where an alleged heir pleaded a will in their favor, and the entitlement to inheritance was disputed by other parties. The court clarified that an administration suit is competent in such cases, particularly when one defendant pleads a will, and the plaintiff disputes the entitlement to inheritance by other parties.

Citation Name: 1962 PLD 291 SUPREME-COURT
Side Appellant: SYED MEHDI HUSSAIN SHAH
Side Opponent: MST. SHADOO BIBI AND OTHERS

This case pertained to a special leave to appeal to the Supreme Court. The question at hand was whether an administration suit was maintainable when an alleged heir pleaded a will in their favor, and the entitlement to inheritance was disputed by other parties. The Supreme Court granted leave to appeal to consider this question.

Key takeaways on law of Wills in Pakistan

The key takeaways from the cases mentioned above regarding the law and enforcement of wills in Pakistan for Muslims and non-Muslims are as follows:

1. Application of Islamic Inheritance Principles: Several cases emphasize that the distribution of property through wills, whether for Muslims or non-Muslims, must conform to Islamic inheritance principles. This means that the shares of heirs should be determined according to Islamic law (Sharia) and cannot be altered through wills or other directives.

2. Inheritance Rights of Heirs: In cases involving wills, the courts consistently reaffirm the inheritance rights of legal heirs. These rights are considered sacrosanct and cannot be overridden by the wishes expressed in a will if they are contrary to Islamic inheritance rules.

3. Legal Recognition of Wills: Wills are legally recognized instruments in Pakistan for both Muslims and non-Muslims. However, their enforcement is subject to compliance with Islamic inheritance laws for Muslims. Non-Muslims may have more flexibility in their wills, but they must still adhere to applicable legal requirements.

4. Compliance with Statutory Laws: Inheritance matters are subject to specific statutory laws and regulations in Pakistan. Parties involved in disputes must follow these laws and ensure that their actions, including wills, align with the legal framework.

5. Role of the Courts: Courts play a crucial role in adjudicating inheritance disputes and ensuring that wills adhere to legal requirements and Islamic principles. They may interpret and enforce wills in a manner consistent with these principles.

6. Importance of Amendments: In cases where statutory laws are found to be inconsistent with Islamic inheritance principles, the courts may order suitable amendments to bring them in line with Islamic law.

7. Compromises and Settlements: Courts may encourage parties to reach compromises and settlements in inheritance disputes. However, such compromises should still adhere to Islamic inheritance principles and be in accordance with the law.

8. Nomination vs. Will: The nomination of beneficiaries for assets like provident funds does not equate to a will, gift, or trust under Pakistani law. The distribution of such assets is subject to legal requirements and inheritance rules.

9. Competence of Administration Suits: Administration suits can be competent in cases where alleged heirs plead a will in their favor, and the entitlement to inheritance is disputed by other parties. These suits serve as a means to resolve such disputes.

In summary, the cases highlight the importance of adhering to Islamic inheritance principles and applicable statutory laws when dealing with wills and inheritance matters in Pakistan, regardless of whether the individuals involved are Muslims or non-Muslims. The courts play a vital role in ensuring the enforcement of these principles and the protection of the inheritance rights of legal heirs.

By The Josh and Mak Team

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