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.