The Shia law of inheritance in Pakistan has been the subject of numerous cases that have been adjudicated by various courts across the country.
The first set of cases cited below from the Pakistan Law Journal (PLJ) shed light on the intricacies of this legal area, especially in situations involving the deceased or heirs from the Shia sect.
- PLJ 2021 Lahore High Court 182: In the case of Amina Khatoon vs. Member (Judicial-III), Board of Revenue, Punjab and 7 others, the court reinforced the supremacy of Islamic principles in the Constitution of Pakistan. A crucial point was highlighted that, under the Constitution, Islam is the state religion, and principles from the Quran and Sunnah are considered the supreme law. In this case, the revenue authorities’ orders depriving a widow from inheriting from her deceased husband were held in violation of these Islamic principles. The decision reaffirms the importance of adhering to the Quranic and Sunnah principles when determining inheritance rights, especially for widows under Shia law. This case cites the principles laid down in previous decisions, including PLD 2016 Lahore 865 and PLD 1972 SC 346.
- PLJ 2018 Lahore High Court 829: Here, Tahira Bibi vs. Muhammad Khan, etc. revolves around a transaction of gift being challenged based on alleged fraud and misrepresentation. The key question was determining the religious faith of the deceased—whether he adhered to Shia or Sunni practices. This case underscores the complexities in establishing one’s religious beliefs posthumously and the need for clear evidence, especially in matters of inheritance.
- PLJ 2016 Lahore High Court 977: This case, Khalida Shamim Akhtar vs. Ghulam Jaffar & another, delves into the rights of a childless widow under the Shia Fiqa-e-Jafariya. Notably, while a childless widow from the Shia sect might not have a share in her husband’s land, she is entitled to one-fourth of his other assets. The case calls for legislative measures to codify the rights of childless Shia widows, ensuring they receive their due inheritance.
- PLJ 2011 Lahore High Court 585: In the case of Muhammad Hussain and 2 others vs. Ghulam Qadir and 9 others, it is explicitly stated that, under Shia law, a widow without children is not entitled to any share in the immovable property of the deceased.
- PLJ 2003 Lahore High Court 995: This case, involving Mst. Aisha Bibi (deceased) through Legal heirs and others vs. Muhammad Malik and others, centres on the determination of a deceased Muslim’s sect for inheritance purposes. The case highlights that documentary evidence isn’t always necessary to establish one’s faith, particularly when ample circumstantial evidence is present.
- PLJ 2008 Lahore High Court 696: The case Nazar Muhammad vs. Ayesha Bibi (Widow) and 3 others clarifies that, in Shia Fiqh, a childless widow is excluded only from the landed property and not from the other movable assets of her deceased husband.
- PLJ 2008 Karachi High Court 7: The case of Mst. Yaqoobi Begum and another vs. Syed Afsheen Fatima and another from the Karachi High Court sheds light on the entitlement of service benefits under the Shia law of inheritance. It is established that the widow and children of the deceased are not excluded from the estate, with both parents also entitled to their shares in the deceased’s property.
Below is a further review of judgements of high courts and supreme court on the above-mentioned subject matter :
2022 SCMR 399 SUPREME-COURT
In the case of Abdul Rehman vs. Mst. Allah Wasai, the central dispute revolved around the faith/sect of the deceased. The mother of the deceased initially did not claim her son’s affiliation with the Shia sect. Only after the inheritance mutation in her favour was set aside did she assert that her son was a Shia Muslim. This claim was refuted by evidence showing that her husband’s estate was divided according to the Hanfi Sunni law of inheritance, not the Shia law. The Supreme Court, on the weight of the evidence, supported the sisters’ claim that their deceased brother was Sunni. The Court thus concluded that the mother failed to prove her son’s Shia affiliation and upheld the presumption that he belonged to the Sunni sect. As a result, the sister’s suit for declaration was decreed.
2016 PLD 865 LAHORE-HIGH-COURT-LAHORE
Khalida Shamim Akhtar vs. Ghulam Jaffar dealt with the share of an “issueless/childless widow” under Shia law of inheritance. The Lahore High Court observed that neither the Judiciary had previously adjudicated upon the competence of a childless widow from Fiqa-e-Jafriya, nor had the Legislature codified it into law. The Court, referencing Ayat No.12 of Sura Al-Nisa from the Holy Qur’an, declared that a childless widow from Fiqa-e-Jafariya is entitled to 1/4th share from her husband’s leftover estate. The Court also expressed hope that the Federal Ministry of Law would legislate on the matter to safeguard the rights of Ahl-e-Tashih childless widows.
2016 MLD 185 LAHORE-HIGH-COURT-LAHORE
In Sher Muhammad vs. Mst. Fatima, the matter at hand was the determination of the deceased’s faith and the subsequent inheritance distribution. The plaintiff did not offer herself as a witness and relied on secondary witnesses, which did not adequately support her claim. The Court observed that the faith of the deceased is determined by his conduct during his lifetime and not by the way his funeral was conducted. The Court held that the mutation of inheritance was valid and that the suit, filed 33 years after the mutation, was time-barred. The High Court set aside the judgments of the lower courts and accepted the revision petition.
2014 YLR 1628 LAHORE-HIGH-COURT-LAHORE
In the case of Mst. Daulan Bibi vs. Mst. Aisha Bibi, the central issue was the validity of an award made by an arbitrator regarding the deceased’s sect. The arbitrator had declared the deceased as Sunni, but the revenue authorities had previously recorded him as Shia. The High Court found that the arbitrator had overstepped his authority and did not decide the dispute justly, leading to a dismissal of the revision.
2014 MLD 1262 ISLAMABAD
In Ashiq Hussain Shah vs. Mst. Sarwar Jan, the plaintiff claimed ownership of land on the basis that she was the sole legal heir under Shia law. The High Court observed that the paternal uncle of the plaintiff was not a legal heir as per Shia law. The mutations of inheritance were deemed illegal, and the plaintiff was declared the actual owner of the disputed land.
2013 YLR 1055 LAHORE-HIGH-COURT-LAHORE
In the case of Mst. Azim Khatoon vs. Mst. Jindan, the plaintiff sought ownership of land asserting she was the sole legal heir under Shia law. However, the plaintiff did not appear to support her claims, and existing mutations indicated her mother was of the Sunni sect. The revision was dismissed based on the evidence.
2012 SCMR 695 SUPREME-COURT
In Qamar Sultan vs. Mst. Bibi Sufaidan, the issue concerned the sect of the deceased who left behind a mother and sister. The mother’s claim of her son being a Shia was dismissed as it appeared self-serving to benefit her daughter.
2022 CLC 675 LAHORE-HIGH-COURT-LAHORE
This case touches upon the principle that the inheritance mutation cannot be solely based on a deceased’s faith. Here, the plaintiffs contested a mutation made on the presumption that the deceased was of the Shia faith. The evidence weighed against this presumption, including that the marriage of the deceased was solemnised by a Sunni Maulana and that the deceased had opted for the deduction of Zakat. Furthermore, the defendant couldn’t prove that the inheritance mutation was with the plaintiff’s consent and knowledge. The court highlighted that a widow, being issueless, is not entitled to land according to Shia Law. Thus, any transfer or alienation by her was against the rights of the plaintiff.
2011 PLD 232 KARACHI-HIGH-COURT-SINDH
The case stipulates that under both Hanafi and Shia Law, a step-brother is not entitled to a share in inheritance when the deceased leaves behind a real son.
2010 SCMR 1915 SUPREME-COURT
This case delves deep into the evidence used to determine the faith of the deceased. The court found that the manner in which the deceased’s funeral prayers (Namaz-e-Janaza) were conducted can be a significant indicator of his faith. Specifically, the court observed that a Sunni Imam had led the funeral prayer for the deceased, which is unusual if the deceased were Shia. This factor, combined with other pieces of evidence, led the court to declare the deceased as Sunni.
2022 CLC 298 LAHORE-HIGH-COURT-LAHORE
The central issue here pertains to the rights of an issueless Shia widow concerning her deceased husband’s immovable property. According to Shia law, such a widow would not inherit any share from the immovable assets of her deceased husband but would only get a share in his personal estate, which includes household effects, trees, and buildings.
2012 CLC 298 LAHORE-HIGH-COURT-LAHORE
A key theme in this case was the Shia law of inheritance, where an issueless widow is not entitled to inherit the estate of her deceased husband. The inheritance mutation, in this case, was contested, with the court ruling in favour of the plaintiff, who was the brother of the deceased and thereby the rightful heir according to Shia law.
2013 YLR 1055 LAHORE-HIGH-COURT-LAHORE
This case reiterates the principle that, in the event of a dispute regarding inheritance, the faith of the deceased is pivotal. The plaintiff failed to provide sufficient evidence to prove that her mother professed the Shia faith.
2014 MLD 1262 ISLAMABAD
Again, the focus was on the faith of the deceased and the implications it has on inheritance. In this case, the court ruled that the deceased’s property should be transferred to the plaintiff’s name under Shia law after establishing that the deceased was indeed Shia.
2020 SCMR 254 SUPREME-COURT
This case emphasises the importance of tangible evidence in determining the faith of the deceased. The court leaned on the presence of the ‘Alam’ of Hazrat Abbas and the hosting of ‘Majlis’ as strong indications of the deceased’s Shia faith.
2018 MLD 1892 LAHORE-HIGH-COURT-LAHORE
This case emphasises the importance of establishing and proving the conversion of an individual from one sect to another. In this instance, the defendants could not establish that the deceased had converted from Sunni to Shia, leading to the court’s decision in favour of the plaintiffs.
2017 CLCN 196 LAHORE-HIGH-COURT-LAHORE
This case pertains to the intricacies of inheritance law in the context of Sunni and Shia practices in Pakistan, focusing on the entitlement of property to family members after a person’s demise.
Here, the court was presented with a situation wherein a mother, according to both Shia and Sunni inheritance laws, was the rightful inheritor of her deceased son’s entire estate, provided he passed away without any direct descendants and his father had predeceased him.
In the given scenario, “X” was identified as a step-brother to “Y.” This relationship made “X” ineligible to claim any share in “Y”‘s estate. This understanding is crucial as the revenue record correctly attested the inheritance mutation in favour of “Y”‘s mother. Post the attestation, she became the absolute owner of the land in her possession after 15-03-1948.
Interestingly, there was a consent decree passed in favour of “Y”‘s step-brother, “X.” However, this decree became in-executable under S. 2-A(b) of the Punjab Muslim Personal Law (Shariat) Application Act, 1948. As per this provision, the step-brother, “X,” was excluded from claiming any inheritance rights. The property that was in the mother’s possession post 15-03-1948 would then be transferred to her legal heirs upon her demise.
The consent decree, which was passed in 1946, was executed before the introduction of the Punjab Muslim Personal Law (Shariat) Application Act, 1948. Given this, it was considered a past and closed transaction and couldn’t be implemented in light of the new regulations.
Subsequently, the daughter of “Y”‘s mother became entitled to the property registered in her mother’s name after her mother’s passing. As a result, the court decreed in favour of the daughter for such property and dismissed the claim of the step-brother, “X.”
Conclusions
(1) The cases emphasise the significance of specific inheritance laws in Pakistan, especially when it comes to distinguishing between Sunni and Shia practices, and the subsequent rights of family members in the event of a person’s death.
(2) The determination of the deceased’s faith plays a pivotal role in inheritance disputes in Pakistan. The courts rely heavily on evidence, both direct and circumstantial, to ascertain the faith of the deceased, which then dictates how inheritance laws are applied. The cases you’ve provided underline the nuanced differences between Sunni and Shia inheritance laws and the complexities involved in proving one’s faith in court.
(3) Determining the faith of the deceased is often central to these disputes. The courts, while adjudicating, rely heavily on the credibility of evidence, timeliness of the legal challenge, and established legal precedents. At the same time, they also highlight areas where legislative intervention might be beneficial, ensuring that the inheritance rights of individuals, especially those from minority sects, are better protected and clarified.
(4) In many of these cases, the determination of the deceased’s sect was crucial to the distribution of inheritance. A recurring theme is the burden of proof placed on the party claiming the deceased was a Shia. Often, in the absence of concrete evidence, the courts operated on the presumption that the deceased was a Sunni, which is the majority sect in Pakistan.
(5) Courts frequently evaluated the credibility and reliability of the evidence presented. For instance, the testimony of a mother claiming her deceased son was Shia was discarded when it appeared self-serving. Similarly, the absence of primary witnesses and over-reliance on secondary or interested witnesses often weakened the claimant’s position.
(6) The attestation and validity of inheritance mutations in revenue records played a pivotal role in several cases. Mutations that had been in place for extended periods without challenge were often given weight, while discrepancies or late challenges to such mutations weakened the claimant’s case.
(7) The timeliness of the legal challenge was another significant factor. In some cases, suits were dismissed as being time-barred when they were filed long after the right to sue had accrued.
(8) In certain cases, the courts highlighted gaps in the existing legal framework. For instance, the Lahore High Court, while discussing the share of an “issueless/childless widow” under Shia law, pointed out that the matter had neither been adjudicated upon by the Judiciary nor codified by the Legislature. The Court made a recommendation for legislative measures to address this gap.
(9) In situations where parties sought arbitration, the conduct, decisions, and the scope of authority of arbitrators came under judicial scrutiny. Arbitrators were expected to act within the confines of their mandate, and any deviation was grounds for the courts to set aside the arbitration awards.
(10) The Shia law of inheritance, as interpreted by various judgments from the Lahore and Karachi High Courts, emphasises the unique rights and entitlements of family members, especially widows. These cases underscore the importance of adhering to Islamic principles while also highlighting the need for clarity and codification in the inheritance rights of Shia Muslims in Pakistan.
