Succession & Inheritance Disputes in Pakistan Succession & Inheritance Case Procedure in Pakistan

Succession & Inheritance Disputes in Pakistan

When a Muslim died, his legal heirs became owners of his estate at the very moment of his death to the extent of their shares as determined by shariah.

Violating the law of inheritance, which in the case of Muslims is the shariah, and exploiting the most vulnerable members of society is wholly unacceptable.

An heir inherits property to the extent of his/her share the very moment his/her predecessor passes away.

Succession & Inheritance Disputes in Pakistan:

The registration and sanctioning of mutation of inheritance is mere formality to update the official record whereas all legal heirs of a deceased become owners of the property to the extent of their respective share until and unless they themselves legally alienate their said share/right further and they also become joint owners in the estate having constructive possession over their share and no limitation runs against the inheritance matters.

The Constitution of the Islamic Republic of Pakistan safeguards property (including inherited property) under Article 24(1) of the Constitution and protection of women and children is guaranteed by Article 25(3) of the Constitution.
The Constitution sets out the goals which the people of Pakistan have set out for themselves in the “Principles of Policy”, which include the protection of mother and the child (Article 35) and require the “promotion of social justice and eradication of social evils” (Article 37).
Depriving a mother and her child from their inheritance does not protect them but preys on them. Such conduct is a prevalent social evil and inherently unjust.
It is expected that the organ and authority of the State will act in accordance with the Principles of Policy as provided by Article 29(1) of the Constitution and the claims by orphans and widows alleging that they have been deprived of their inheritance must be expeditiously decided by the concerned organ and authority of the State including the courts.
The revenue authorities must also be extra vigilant when purported gifts are made to deprive daughters and widows from what would have constituted their shares in the inheritance of an estate.
The concerned officers must fully satisfy themselves as to the identity of the purported donor/transferee and strict compliance must be ensured with the applicable laws.
Purported gifts and other tools used to deprive female family members, including daughters and widows, are contrary to law (shariah in such cases), the Constitution and public policy.
Often male members of a family deprive their female relatives of their legal entitlement to inheritance and in doing so shariah and law is violated. Vulnerable women are also sometimes compelled to relinquish their entitlement to inheritance in favour of their male relations. “Relinquishment” by female members of the family was contrary to public policy and contrary to shariah.
It would be useful to reproduce the following portion from the decision of the Honorable Supreme Court of Pakistan:
“Here in the light of the Islamic point of view, the so-called “relinquishment” by a woman of her inheritance has taken place, is undoubtedly opposed to “public policy” as understood in the Islamic sense with reference to Islamic jurisprudence. In addition it may be mentioned that Islam visualised many modes of circulation of wealth of certain types under certain strict conditions. And when commenting on one of the many methods of achieving this object, almost all commentators on Islamic System agree with variance of degree only, that the strict enforcement of laws of inheritance is an important accepted method in Islam for achieving circulation of wealth. That being so, it is an additional object of public policy. In other words, the disputed relinquishment of the right of inheritance, relied upon from the petitioner’s side, even if proved against the respondent, has to be found against public policy. Accordingly, the respondent’s action in agreeing to the relinquishment (though denied by her) being against public policy the very act of agreement and contract constituting the relinquishment, was void.”
As per Article 227 the Constitution of the Islamic Republic of Pakistan, 1973, the principles of Quran and Sunnah are declared as supreme law of this country and all provisions, rules, regulations are to be legislated and framed within the precincts of Islamic principles.
For reference Article 227 of the Constitution of Islamic Republic of Pakistan is reproduced as under:-
227. Provisions relating to the Holy Quran and Sunnah.-(I) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions.
[Explanation.-In the application of this clause to the personal law of any Muslim sect, the expression “Quran and Sunnah” shall mean the Quran and Sunnah as interpreted by that sect.]
(2) Effect shall be given to the provisions of clause (I) only in the manner provided in this Part
(3) Nothing in this Part shall affect the personal law of non-Muslim citizens or their status as citizens.

Allah Almighty has ordained the Muslims to decide their disputes according to the principles of Quran (Shariah). The rights or shares of each and every Muslim inheritor in the estate of his/her
deceased propositus is absolutely, conclusively and finally described /determined in the Holy Quran which shares are definite in nature.
In this regard it is expedient to take guidance from the Holy Quran, particularly from Surah al-Nisa Ayat Nos.7 to 11, English and Urdu translation whereof (by Marmaduke Pickthall) is reproduced as under:-
Verse 7. Unto the men (of a family) belongeth a share of that which parents and near kindred leave, and unto the women a share of that which parents and near kindred leave, whether it be little or much. A legal share.
Verse 8. And when kinsfolk and orphans and the needy are present at the division (of the heritage), bestow on them therefrom and speak kindly unto them.
Verse 9. And let those fear (in their behaviour toward orphans)\ who if they left behind them weak offspring would be afraid for them. So let them mind their duty to Allah, and speak justly.

Verse 10. Lo! Those who devour the wealth of orphans wrongfully, they do but swallow fire into their bellies. And they will be exposed to burning flame.
Verse 11. Allah commands you concerning (the provision for) your children; to the male the equivalent of the portion of two females, and if there be only women more than two, then theirs is two-thirds of the inheritance, and if there be one (only) then for her is the half. And to each of his parents a sixth of the inheritance, if he have a son; and if he have no son and his parents are his heirs, then to his mother appertaineth the third; but if he have brethren, then to his mother appertaineth the sixth, after any legacy he may have bequeathed, or debt (hath been paid). Your parents and your children: Ye know not which of them is nearer unto you in usefulness. It is an injunction from Allah. Lo! Allah is knower, Wise.

Almighty Allah also commands:
“And come not nigh [near] to the orphan’s property, except to improve it”.
(Verse 152 of surah (6) Al-Anam of the Holy Qur’an, translation by Abdullah Yusuf Ali, ‘The Holy Qur’an Translation and Commentary’.)
Even after the establishment of British Rule over the Subcontinent the laws relating to a community were safeguarded. The Punjab Laws Act, 1872 was promulgated under Section 5 whereof it was maintained that the rule of decision shall be Muhammadan Law where the parties are Mohammaden.

For ready reference, Section 5 of the Punjab Laws Act, 1872 is reproduced-as under:
5. Decision in certain cases to be according to Native law.- In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption guardianship, minority, bastardy, family relations, wills, legacies, gifts partitions, or any religious usage or institution, the rule of decision shall be-
(a) any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority;
(b) the Muhammadan law, in cases where the parties are Muhammadans and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to.”
Moreover according to Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, the Shariat Laws were made applicable where the parties were Muslims. Section 2 of the Act ibid is reproduced as under:
2. Application of Personal Law to Muslim.—Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubarat maintenance, dower, guardianship, gills, trusts and trust properties, and wakfs other than charities and charitable institutions and charitable and religious endowments the rule of decisions in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)
Section of 3 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948 in this regard is also reproduced “as under:
“3. In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any such person before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat);
Provided that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last owner, shall devolve on her if she loses her limited interest in the property on account of her marriage or re-marriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death.”
It is settled law that the beneficiary of any transaction involving parda nasheen and illiterate women has to prove that it is executed with free consent and will of the lady; she was aware of the meaning, scope and implications of the document that she was executing. She was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her.

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Limitation to File Case:

In the case of claiming the right of inheritance, it is well settled that the claimant becomes co-owner/co-sharer of the property left by the predecessor along with others the moment the predecessor dies and entry of mutations of inheritance is only meant for updating the revenue record and for fiscal purposes.
If a person feels aggrieved by such entries, he can file a suit for declaration within six years of such wrong entries or knowledge.
Any such repetition of the said entries in the revenue record would again give him a fresh cause of action or when the rights of anyone in the property are denied it would also give fresh cause of action.
Similarly, it is again settled by now that no limitation would run against the co-sharer.
However in cases of fraud, the limitation would start from the date of knowledge and not from the date of fraud, therefore, the dismissal of the suit involving the dispute relating to the right in respect of inherited property on the ground of limitation, would not be proper as the mere delay in claiming the share in the inherited property, would not defeat the right of a person in inheritance and if he is non-suited on such technical ground, his right of inheritance would definitely be defeated.

Property Owned by Woman:

Historical discrimination faced by married women with respect to ownership of property in Europe and United States of America.
The old European and American concepts at times permeate into the thinking even of judges in Pakistan.
The doctrine of ‘coverture’ subsumed a married woman’s identity. Sir William Blackstone described the doctrine of coverture:
“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme covert”.
In her comprehensively researched book Amy Louise Erickson writes,
“Under common law a woman’s legal identity during marriage was eclipsed, literally covered by her husband. As a ‘feme covert’, she could not contract, neither could she sue nor be sued independently of her husband. The property a woman brought to marriage – her dowry or portion – all came under the immediate control of her husband”.
It was only on the passing of the Married Women’s Property Act, 1882 that in England a married woman became, “capable of acquiring, holding, and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee”
The situation in the United States of America of married women was no better, they had no legal existence apart from their husbands. The reason for a married woman’s servile status was sought to be explained by the Supreme Court of Illinois,
“It is simply impossible that a married woman should be able to control and enjoy her property as if she were sole, without practically leaving her at liberty to annul the marriage”.
The unjustness of the laws was severely criticized. Elizabeth Cady Stanton listed in the Declaration of Sentiments;
“the injuries and usurpations on the part of man toward woman”- “He has made her, if married, in the eye of the law, civilly dead. He has taken from her all right in property, even to the wages she earns the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands”.
Harriet Beecher Stowe was another campaigner for women’s rights, observing that,
“The position of a married woman is, in many respects, precisely similar to that of the negro slave. She can make no contract and hold no property; whatever she inherits or earns becomes at that moment the property of her husband. In English common law a married woman is nothing at all. She passed out of legal existence.”
Discrimination against women pervaded in other areas too. It was only in 1960 that women in America could open bank accounts without their husband’s permission and this right was acquired by women in the United Kingdom as late as 1975.
The professions were also barred to women. Mrs. Myra Colby Bradwell had passed the bar examinations but was not allowed to practice law; she asserted her right to practice but in 1873 the United States Supreme Court held that;
“denying Mrs. Bradwell the right to practice law violated no provision of the federal Constitution” and added, “That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth”
The position of women in Islam is different.
“Men shall have the benefit of what they earn and women shall have the benefit of what they earn”.
The Holy Qur’an also prohibits taking another’s property –
“Do not eat up (or consume) one another’s property”.
Women’s share in inheritance are also precisely ordained. What a woman inherits is hers and hers alone; neither her husband, father, brother or son has any entitlement to it; a woman also does not need permission to dispose of her property or to acquire property.
The bridal gifts given at the time of marriage are also the wife’s property, these can be added to but not subtracted by the husband. It is also recommended that husbands make wills to provide for their wives.
A husband and wife, who were both Government servants, had challenged an office memorandum of the Government which did not treat husband and wife alike. The Federal Shariat Court comprehensively attended to the question of discrimination and the status of a married woman in Islam and after referring to a number of verses of the Holy Qur’an held:
“These Verses clearly confirm the right of earning, owning and possessing by male and female – all in the like manner – and emphasizes again and again that no one can be deprived of his/her due share for any reason. Both are equally entitled to their own individual shares on the basis of their services, duties and functions performed by each one. Each one is at par with the other in this respect, without any discrimination. The rights of each one accrued thus in no manner could be infringed, curtailed or diminished.”
The Federal Shariat Court held that,
“one of the principles which is the hallmark of Islamic injunctions is the principle of equality before law and equal protection of law for all people, irrespective of their gender, colour or creed”34.
Elaborating further the Court observed that,
“This fraternity and equality is all pervading and is not only a matter of form but is indeed a matter of substance. It emphasizes equality before law and equal protection of law. In this respect, Sharia does not make any distinction between the citizens of an Islamic State. Here we find no concept of discrimination in the administration of justice between one person and another on any basis. In social and legal perspectives, no human being can be denied or deprived of any fundamental right, nor any juridical right can be reserved for any particular group on the external consideration of his wealth, status, caste or colour or any other ground. It clearly shows that equality before law and equal protection of law is the cardinal principle which runs like a golden chord in all Injunctions of Islam.”
A chasm existed between a woman’s position in Islam to that which prevailed till a century ago in Europe and America where upon marriage a wife stood deprived of her property, which became that of her husband to do with it as he pleased.
However, in the Muslim world the situation was altogether different and this has been the position since over fourteen hundred years. Prophet Muhammad (peace be upon him) was employed by lady Khadijah bint Khuwaylid (may Allah be pleased with her), the first convert to Islam, who spent abundantly from her personal wealth in the cause of Islam; she retained her properties and wealth after her marriage to the Prophet (peace be upon him).
In Islamic societies Muslim ladies not only retained their properties but also their identities after marriage.
The noble lady Ayesha (may Allah be pleased with her) on becoming a widow on the death of the Prophet (peace be upon him) was not cloistered but became one the greatest narrators of hadith and between three to four thousand recorded in the six main hadith collections cite her as their source; she was also a teacher, a great scholar and made her presence felt on the battlefield.
British rule and Colonization of the subcontinent disrupted Muslim society’s links with the past but without completely severing ties with shariah.
To restore the privileges and status of women in Islam a number of laws were enacted, including the Dissolution of Muslim Marriages Act, 1939.
The importance of a Muslim married woman’s right to property can be gauged from the fact that, if her husband, “disposes of her property or prevents her from exercising her legal rights over it”, she could obtain dissolution of her marriage because it constituted “cruelty”.
The Fundamental Rights in the Constitution include the “right to acquire, hold and dispose of property” and “no person shall be compulsorily deprived of his property save in accordance with law”; these provisions do not distinguish between men and women.
Therefore, unless a married woman elects to gift, sell or otherwise dispose of her property neither her husband nor any male relative has any right over it.

Inheritance in Hanafi School of Thought:

Under the Hanafi Law of inheritance, heirs can be divided into seven classes, three principal and four subsidiary classes.
The three principal classes are
● Sharers or Qur’anic heirs who are those heirs who have been named in the Holy Qur’an and have been assigned specific shares viz., husband, wife, father, true grandfather h.h.s., mother, true grandmother h.h.s., daughter, son’s daughter, his full sister, consanguine sister, uterine brother, and uterine sister,
● Residuaries or agnatic heirs who are all those persons for whom there are no specified shares and who take the residue after sharers have been satisfied or they take the whole estate if there is no sharer, and
● Distant Kindred or uterine heirs who are entitled to succeed only when there is no sharer or residuary.
The four subsidiary classes of heirs are
● successor by contract,
● acknowledged kinsman,
● universal legatee and
● the State.
According to Hanafi Law, in the first instance the property of the deceased goes to sharers, and if the estate is not exhausted by sharers, it goes to residuaries and if there is no sharer and/or residuary, the property is distributed amongst the distant kindred. It is to be noted that heirs nearer in degree excluded the more remote.
When there are Quranic heir or sharers and a residue of estate is left after allotting them their shares, or when there are no Quranic heir or sharers, then whatever is left in the former case, and the entire estate in the latter case, goes to the Agnatic heir or residuries.”
The Agnatic heirs may be classified into
(i) Agnatic Descendants,
(ii) Agnatic Ascendant and
(iii) Agnatic Collaterals (Father’s Agnatic descendants).
They may be depicted in tabular form, where full brother is at Serial No.5, as
Collateral Descendants of the father.

Full brother
(a) When there co-exists a full sister, he takes double portion (b) In absence of the sister, he takes the entire Residue.

Whereas, the consanguine brother is at Serial No.7, and as per rules of succession, the nearer in degree excludes the more remote.

Procedure of Succession Matters:

Rich jurisprudence has developed on Part-X, ibid, particularly sections 370 to 388. The following principles may be culled from the cases decided by the courts:4

(i) Succession Certificate can be prayed for and granted only in respect of debts and securities and not for any other kind of property.

(ii) Succession Certificate neither gives any general power of administration on the estate of the deceased nor establishes the title of the grantee as the heir of the deceased. It only furnishes the grantee with authority to collect debts due to the deceased and allows the debtors to make payments to him without incurring loss.6 Section 381 of the Act raises a conclusive presumption against the debtors that the person holding the certificate is entitled to receive the debts specified therein and affords full indemnity to the person discharging the debt in good faith.7

(iii) Application for Succession Certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of a portion thereof.8 Hence, it is not necessary for an applicant to include all of them in one application.9

(iv) The right to certificate is not the same thing as the right to the estate. A certificate cannot be granted to a stranger. Therefore, the person to whom the certificate can be granted must have some interest in the estate.10

(v) The proceedings under sections 370 to 375 of the Act are summary in nature which implies that the inquiry, if any, must be short leading up to and resulting in a rapid decision.11 At the same time, the court is not relieved of the obligation to hear the parties and take sufficient evidence to enable it to determine who is the person best entitled to the certificate and decide other points necessary for disposal of the application.12

(vi) Since the proceedings under the Act are of summary nature, intricate questions cannot be resolved therein.13 Where the issue is whether a particular person is the legal heir of the deceased, the matter should be left to the civil court.14
(vii) In the summary inquiry the court has only to ascertain as to who is entitled to the certificate. That being the limited purpose of the inquiry, the findings of the court would not operate as res judicata in subsequent proceedings. Nevertheless, such findings do not affect the liability of any person who may receive the whole or any part of any debt or security, or any interest or dividend, to account therefore to the person lawfully entitled thereto.15

(viii) The person who is entitled to inherit the property of the deceased is also responsible for his liabilities which must be recognized as charge on the property in law. The claim which is either admitted by the legal heirs of the deceased or is recognized in law and is not subject to further determination would be deemed to be a charge on the property of the deceased. The claim which requires determination by the appropriate forum cannot be treated as a charge on his property. It is not the domain of the court seized of the matter relating to the issue of a succession certificate to adjudicate the claim of a third person against the deceased for the satisfaction of such a claim from his property. The proceedings under the Act are limited to the determination of the rights of legal heirs of the deceased inter se and the scope of such proceedings cannot be enlarged to the settlement of the disputed claim and determination of liabilities of legal heirs of the deceased through the adjudication by the competent court.16

(ix) Where the Judge dealing with an applicant for grant of Succession Certificate reaches the conclusion that the right belongs to the applicant, he is bound to make an order for grant of certificate to him. However, in cases which are covered under subsection (3) or subsection (4) of section 373, if the Judge is of the view that the right claimed by the applicant cannot be decided without determining intricate and difficult questions of law and fact or, where there are more applicants than one and it appears to the Judge that more than one of such applicants are interested in the estate of the deceased, the Judge may nevertheless grant the certificate in both such cases to such of the applicants who appear to be having a prima facie best title and fitness to the grant of such certificate. However, in respect of these two class of cases, which are covered under sub-section (3)
or subsection (4) of section 373, the power of the Judge to grant the Succession Certificate is circumscribed to the condition that he must require the person in whose favour he grants the Certificate to give sufficient security as a condition precedent for rendering the account of debts and securities received by him and for indemnity of the person who may be entitled to the whole or any part of those debts and securities.17

A Succession Certificate granted under Part-X may be revoked on the grounds enumerated in section 383 of the Act.

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