Succession and inheritance

 Succession: Muslim Family Laws Ordinance, 1961


Citations / Case Law study on  Succession

 2015  SCMR  869     SUPREME-COURT

4— Constitution of Pakistan, Art. 203-D(2), proviso & 203F(1), (3)—Succession—Death of any son or daughter of the propositus before the opening of succession—Inheritance right of children of such son or daughter—Repugnancy to Injunctions of Islam—Section 4 of the Muslim Family Laws Ordinance, 1961, had been declared against the tenets and Injunctions of Islam by the Federal Shariat Court in its judgment rendered in the case of Allah Rakha and others v. Federation of Pakistan and others (PLD 2000 FSC 1)—Effective date of such declaration—Such declaration even if affirmed by the Shariat Appellate Bench (of the Supreme Court) would take effect from 31-3-2000 in view of the provision contained in Art. 203D of the Constitution—Such declaration could not affect previous operation of law or a succession taking place before such date—Appeal was dismissed accordingly.


4—Succession—Object—Succession provided for in S. 4 of Muslim Family Laws Ordinance, 1961 was for the benefit of orphan sons and daughters of predeceased parent—Such succession had been provided to remedy the discrimination which was believed to exist against grand-children whose parents had died before the succession was opened—Parents of such grand-children would be deemed to be alive for the purpose of succession—Said provision of S. 4 of Muslim Family Laws Ordinance, 1961 was not introduced to give a share to the grand-child more than what would have been his/her due share if the parents were alive when succession was opened.


42—Muslim Family Laws Ordinance (VIII of 1961), S. 4—Suit for declaration—Mutation attested on 5-4-1986 regarding legacy of predecessor-in-interest of parties challenged by plaintiffs claiming to be legal heirs of his pre-deceased son/daughter—Suit decreed concurrently by Courts below declaring plaintiffs to be entitled to inherit estate left by deceased—Defendant’s plea that judgment of Federal Shariat Court reported as PLD 2000 FSC 1 declaring S. 4 of Muslim Family Laws Ordinance, 1961 to be un-Islamic was challenged before Shariat Appellate Bench of Supreme Court, thus, impugned judgments/decrees could not be passed—Validity—Federal Shariat Court had passed such judgment in year 1991, whereas S. 4 of Muslim Family Laws Ordinance, 1961 was applicable law at the relevant time—Suspension of operation of such judgment of Federal Shariat Court by Shariat Appellate Bench of Supreme Court could not be made ground to set aside impugned judgments/decrees—High Court dismissed revision petition in circumstances.

  2012  PLD  217     SUPREME-COURT

4—Succession—Inheritance in estate of grandfather claimed by children of his pre-deceased son—Validity—Succession to an estate of a Muslim under Muhammedan Law would open at the time of his death and his legal heirs alive at such time would be entitled to inherit his estate—Section 4 of Muslim Family Laws Ordinance, 1961 was prospective in nature and could not be given retrospective effect to undo or reopen inheritance already concluded under Muhammedan Law prior to promulgation of Muslim Family Laws Ordinance, 1961—Deceased grandfather had died in year 1956, while his son had died in year 1955—Legal heirs of pre-deceased son, thus, would not be entitled to inherit estate of their grandfather under Muhammedan Law—Suit filed by legal heirs of pre-deceased son was dismissed in circumstances.


4—Qanun-e-Shahadat (10 of 1984), Art. 124–Succession—Daughter, if assumed not to be traceable or to have died before deceased, would be entitled to her share in land left by deceased—Wife, if died before death of her husband, would not receive any share in land left by him.


4—Constitution of Pakistan, Art.199—Constitutional petition—right of inheritance—Wife of petitioner predeceased her parents and after their death petitioner claimed to be a legal heir pf his parents-in law—Validity—According to S.4 of Muslim Family Laws Ordinance, 1961, share from deceased grandfather’s property had been bestowed upon the children of his predeceased son but the same did not mean that other heirs of the deceased would be excluded from their share of inheritance—Petitioner who was a widower of predeceased daughter was to be treated as an heir in the proceedings regarding division of property devolved upon his pre-deceased wife from her parents—Petition was allowed in circumstances.


S.42—Limitation Act (IX of 1908), Art.120—Muslim Family Laws Ordinance (VIII of 1961), S.4—Suit for declaration—Mutation excluding plaintiff from inheritance was attested on 23-2-1974—Plaintiff filed suit on 1-10-1986 claiming to be in possession of suit land as co-.sharer since opening of succession—Trial Court decreed the suit, but Appellate Court dismissed same being time-barred—Validity—Status of plaintiff as co-sharer stood vanished in year 1979, when as a result of consolidation proceedings defendants (purchasers) had got separate “Wanda” of their share as owners—Plaintiff could have filed suit for declaration uptill year 1985—Appellate Court had rectified judgment of Trial Court, which was suffering from grave legal errors—High Court dismissed revision petition.


42—Muslim Family Laws Ordinance (VIII of 1961), S.4—Qanun-e-Shahadat (10 of 1984), Art.64—Civil Procedure Code (V of 1908), 5.115—Declaration of title—Relationship, existence of—Proof—Daughters of pre-deceased daughter—Rights—Third party interest—Plaintiffs were daughters from pre-deceased daughter, while defendants were sons from the pre-deceased son—Mutation of inheritance was attested only in the names of defendants who sold the suit-land to a third party—Plaintiffs assailed the mutation of inheritance as their names were excluded from inheritance—Defendants denied relationship of plaintiffs with pre-deceased daughter of deceased owner—Trial Court and Appellate Court concurrently decreed the suit and dismissed the appeal respectively—Validity—Case set up by defendants did not find any corroboration either from any document on record or otherwise—Defendants never entered in witness-box to rebut the case of plaintiffs—Only the defendants could have cleared the position—Nothing was available on record from which it could be inferred that plaintiffs were not the daughters of pre-deceased daughter of deceased owner—Both the Courts below had concurrently decided against defendants—High Court did not find any fallacy in the judgments of Courts below—Third party claimed to be bona .fide purchaser but defendants could not alienate the share of plaintiffs—Third party had purchased only the share of defendants and no title regarding the share of plaintiffs passed to third party—Plaintiffs and defendants being daughters and sons of pre-deceased children were entitled to receive the share which their mother and father would have received under S.4 of Muslim Family Laws Ordinance, 1961—High Court declined to interfere with the judgments and decrees passed by two Courts below—Revision was dismissed.


—S. 4—Inheritance—Distant kindered—Distant kindered only inherits when there are no residuaries—Once it is established that the deceased had left as his heirs the sharers and residuaries, there will be no occasion for inheritance being claimed from the estate of the deceased by a distant kindered—Person claiming inheritance admittedly being son of predeceased sister is a distant kindered and in the presence of sharer the residuaries will not inherit from the estate of deceased when relationship of the claimant with deceased is- admitted and his place in the matter of inheritance is determined—Such place by means of analogy to S.4, Muslim Family Laws Ordinance, 1961 cannot be changed as he will remain what he is.


—Ss.5 & 7—Muslim Family Laws Ordinance (VIII of 1961), S.4—Succession—Suit for inheritance by grandson through his deceased father—Plaintiff’s father died in 1958, while father of his deceased father and his grandfather died in 1975—Predeceased son was not entitled to inheritance under Islamic Sheria—Case had been based by the plaintiff on S.4 of Muslim Family Laws Ordinance, 1961, whereby in the event of the death of son or daughter of the “Propositus” before the opening of succession, the children of such son or daughter, if any living at the time when succession opened, would receive per stripes a share equivalent to the share which such son or daughter, would have received if alive—Provisions of S.4 of Muslim Family Laws Ordinance, 1961, had been declared as repugnant to the injunctions of Islam by the Federal Shariat Court with direction to the President of Pakistan to amend same so as to bring said provision in conformity with the Injunctions of Islam and that said provisions would cease to have effect from 31-3-2000—Said decision of the Federal Shariat Court was Bending before the Supreme Court in appeal—Muslim Family Laws Ordinance, 1961, family had been given protection from. any amendment in terms of Article 8(3)(b)(i) of the Constitution—Even if judgment of Federal Shariat Court was taken into consideration, then, according to it S.4 of Muslim Family laws Ordinance, 1961 had been made ineffective from 31-3-2000, while succession was opened in 1975 after death of grandfather of the plaintiff—Plaintiff was thus entitled to inherit in terms of S.4 of Muslim Family Laws Ordinance, 1961—Suit of the plaintiff was decreed declaring that the plaintiff was entitled to inherit from the estate of his grandfather in lieu of his deceased father.


—S.4—Succession—Oral will—Proof—Principles—Daughter of predeceased son—Right to inheritance—Plaintiff filed suit claiming therein that she being the only issue/daughter of predeceased son, her grandfather made an oral will in her favour to the extent of 113 of his entire land holding and that plaintiff was entitled to her share in inheritance of her grandmother—One of the two defendants resisted suit, denying oral will in favour of plaintiff, and took plea of limitation—Trial Court rejected plaintiff’s claim as to will but decreed suit to the extent of her share in inheritance of plaintiff’s grandmother—Appellate Court decreed entire suit—Validity—Onus of establishing an oral will was a very heavy one and it was to be proved with utmost precision and considering every circumstance of time and space—Surrounding circumstances, time, place, conduct of parties, nature of their relationship, their credibility, their expediencies and their approaches qua subject-matter were material and relevant facts for proof of oral transaction—Discrepancies in statements of witnesses as to time, date, month, year, testator’s words, reasons and circumstances of oral will needed careful and close examination and could not be lightly, vaguely or generally dealt with by Court—


—-S.4—Specific Relief Act (I of 1877), S.42—Succession—Sons and daughters of predeceased son and daughter—Widow of predeceased son–Suit for declaration that share in inheritance given to widow of predeceased son was illegal—Such suit was concurrently dismissed–Validity—Express and unambiguous phraseology and language of the provisions of Muslim Family Laws Ordinance, 1961 leave no obscurity or doubt that the “children of son or daughter” are only entitled to inherit and receive share which expression does not include the widow “of such son” —Inaction of a party or limitation does not affect the right or interest—Mutation had to record the shares—Entry contrary to law could not operate as estoppel —Mere passage of time does not extinguish the right.


—-Ss. 1 & 4—Civil Procedure Code (V of 1908), S.115—Inheritance of daughter of predeceased son —Non-Muslims– Provisions of Muslims Family Ordinance, 1961—Applicability—Parties were Ahmadi by faith and respondent was daughter of a pre-deceased son of the owner of the property—Dispute was with regard to entitlement of the respondent in the property left by her grandfather—Plea raised by the petitioner was that provisions of S.4 of Muslims Family Laws Ordinance, 1961, were not applicable to the parties as they were not Muslims by faith—Validity–As the parties were Ahmadi by faith, therefore, provisions of Muslims Family Laws Ordinance, 1961, were not applicable to them—Order of Appellate Court granting inheritance to favour of the respondent under S.4, Muslims Family Laws Ordinance, 1961, was against the law and the same was set aside—Revision was allowed accordingly.


—-S. 4—Succession—Claim of inheritance —Non-challenging of the mutation by the mother of the respondents during her lifetime, does not subsequently debar the respondents from claiming the share of inheritance of their father that vested in them, the moment the propositus died.


—-S. 4—Specific Relief Act (I of 1877), S.42—Constitution of Pakistan (1973), Arts.2-A & 203-D(1-A) (2)—Suit for declaration—Succession—After death of original owner of suit-land, mutation of property left by deceased was sanctioned in favour of his two sons (plaintiffs) and a daughter of deceased daughter of original owner who died 40/45 years prior to death of original owner—Claim of plaintiffs/sons of deceased owner was that deceased daughter of original owner/sister of plaintiffs was not entitled to inherent property of the deceased original owner and had challenged said mutation-

  2002  SCMR  426     SUPREME-COURT

—-S. 4—Constitution of Pakistan (1973), Art.185(3)—Inheritance–Children of predeceased daughter—Principle settled by Federal Shariat Court in case titled Allah Rakha and others v. Federation of Pakistan and others reported as PLD 2000 FSC 1—Applicability—Respondents were children of predeceased daughter of the deceased predecessor-in-interest of the parties–Petitioners excluded the respondents from the mutation of inheritance—Such mutation was assailed in civil suit which was decreed in favour of the respondents—Lower Appellate Court maintained the judgment passed by the Trial Court and revision before High Court was also dismissed–Petitioners played a fraud while getting the mutation sanctioned in their favour and they intentionally and deliberately excluded the respondents–Validity—Where the provision of S.4 of Muslim Family Laws Ordinance, 1961, was very much in the field at the time of attestation of mutation, the principle laid down in the judgment of FSC would not be applicable to the instant case as the judgment had to take effect from 31-3-2000—Petitioners deliberately and knowingly got the names of the respondents omitted from the aforesaid mutation, such act on the part of the petitioners was not appreciated by Supreme Court—Held: Appeal against the ji4dgment passed by Federal Shariat Court was pending adjudication before Supreme Court, the decision of the Federal Shariat Court would not be attracted till the disposal of the appeal—Leave to appeal was refused.


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