Wednesday, 30 May 2012

Childless widow is entitled for share in movable property

PLJ 2008 Lahore 696

Present: Syed Asghar Haider, J.

NAZAR MUHAMMAD--Petitioner

versus

AYESHA BIBI (WIDOW) and 3 others--Respondents

Civil Revision No. 418 of 2007, decided on 15.1.2008.

Muhammadan Law--

----Inheritance--Childless widow--Fiqh Jafria--Entitlement for--Precise proposition whether under the Shia Fiqa a childless widow is not entitled to inheritance in the lands etc. of the deceased--Held: Ouster of a childless widow is only from the landed property and not from the other moveable assets of the deceased husband, in the Shia Fiqh--Case remanded.     [P. 699] A

Sheikh Naveed Shahryar, Advocate for Petitioner.

Exparte for Respondent.

Date of hearing: 5.12.2007.

Judgment

The Respondent No. 1 filed a suit for declaration pleading that she is widow of deceased Muhammad Khan, the owner of disputed land, he was a Sunni Muslim by faith, and, therefore, she is entitled to inheritance in his estate. The mutations, whereby she was deprived of inheritance in his estate, on basis of being a childless widow, on the presumption of deceased being a Shia Muslim be, therefore, annulled.

2.  The petitioner/defendant filed written statement, inter alia pleading that Muhammad Khan (his father), was a Shia Muslim, the Respondent No. 1, being a childless widow was not therefore, entitled to inheritance, the impugned mutations thus are in consonance with law, and therefore, unexceptionable. Of the divergent pleadings of the parties, issues were framed and they were put to trial. The trial Court dismissed the suit, aggrieved thereof the Respondent No. 1 filed appeal, which was allowed, hence the present petition, by the defendant/petitioner.

2.  Contesting respondent despite notice did not enter appearance, therefore, she was proceeded against ex-parte on 11.09.2007.

3.  The learned counsel for the petitioner contended that under Fiqa Jafria a childless widow is not entitled to inheritance in the estate of the husband, in the present matter there is preponderance of evidence that deceased Muhammad Khan was a Shia, he specifically adverted to an inquiry conducted by the concerned Magistrate, wherein scores of people appeared and supported the version of the petitioner/defendant, that the deceased was a Shia and professed Fiqa Jafria. The defendant was also able to prove his contentions and assertions by producing quality evidence, his witnesses fully supported the fact that late Muhammad Khan deceased was a Shia, while the evidence produced by the plaintiff is discrepant and the witnesses produced by her, are not residents of the said locality. They also are interested because they have a paramount interest with the plaintiff/respondent being her relatives. He laid much emphasis on the fact that the defendant/petitioner produced all residents of the village Salima while the plaintiff produced all witnesses of Mauza Khem Khurd where the deceased was not resident, thus their evidence is not credible. To fortify his contentions, he relied on the following precedents:--

(i)   "Mst. Sharif Bibi versus Munir Hussain Shah and 7 others" (PLJ 2001 Lahore 284);

(ii)  "Mst. Aisha Bibi (deceased) through Legal Heirs and others versus Muhammad Malik and others" (PLJ 2003 Lahore 995).

(iii) "Bhojraj versus Sita Ram and others" (AIR 1936 Privy Council 60);

(iv)  "Malik Khan Muhammad versus Haji Sikandar Khan" (1989 CLC 2412);

(v)   "Mahmood-ul-Hassan deceased through legal heirs and others versus Yateem Bibi and others" (PLJ 2004 Lahore 1177) and

(vi)  "Syed Lal Hussain Shah versus Mst. Robina Shaheen and another" (PLD 2000 SC (AJK) 25);

4.  I have heard the learned counsel for the petitioner, perused the impugned judgment and decree and also the judgment and decree of the trial Court.

5.  Before dilating on the facts, the material evidence produced by the parties, apprising and deciphering it, it is essential to reproduce the issues framed by the trial Court:--

1.    Whether the plaintiff has got no cause of action? OPD-4.

2.    Whether the plaintiff is estopped by her words and conduct from bringing the instant suit? OPD-4.

3.    Whether the suit is not maintainable in its present form? OPD-4.

4.    Whether the plaintiff has not come to the Court with clean hands, if so, its effect? OPD-4.

5.    Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD-4.

6.    Whether the defendant is entitled to any special costs u/S. 35-A of CPC? OPD-4.

7.    Whether the suit is bad for mis-joinder of Defendants No. 1 to 3 ? OPD-4.

8.    Whether the suit is time barred? OPD-4.

9.    Whether the plaintiff being the widow of Muhammad Khan is entitled to get her share of inheritance from the property of the deceased fully described in the head note of the plaint? OPP

10.   Whether the deceased Muhammad Khan belonged to Shia Sect? OPD-4.

11.   Whether the deceased Muhammad Khan belonged to Sunni Sect? OPP

12.   Whether the plaintiff is the owner of 1/8 share in the property of the deceased Muhammad Khan being his widow? OPP

13.   Whether the Mutation No. 1462 dated 25.11.99 and Mutation No. 846 dated 26.11.999 in favour of Defendant No. 4 are illegally, against law and facts, mala fide and result of collusion with Defendants No. 2 and 3 and as such they are liable to be set aside? OPP.

14.   Relief.

Issues No. 9, 10, 11 and 12 are of paramount importance as they relate to the Fiqa of deceased Muhammad Khan, and also, whether the plaintiff being widow is entitled to inheritance in his estate. Issue No. 9 reads: "Whether the plaintiff being the widow of Muhammad Khan is entitled to get her share of inheritance from the property of the deceased fully described in the head note of the plaint?" while Issue No. 12 reads: "Whether the plaintiff is the owner of 1/8 share in the property of the deceased Muhammad Khan being his widow?"

6.  The contents of the plaint reflect that the plaintiff had claimed share not only in the agricultural land of the deceased Muhammad Khan located in village Salima and village Mirakh, but also in the other moveable assets of the deceased including his tube-well, dera, agricultural utensils, buffalos, etc. The defendant while filing written statement categorically pleaded that deceased Muhammad Khan was a Shia Muslim and, therefore, the plaintiff was not entitled to inheritance being a childless widow in anything in his estate. The precise proposition whether under the Shia Fiqa a childless widow is not entitled to inheritance in the lands etc of the deceased has been interpreted by eminent jurists. Tayab Jis Muhammedan Law IIIrd Edition page 908 states that "But when she has no child, or when a child was born to her, but died before the demise of her husband, then she is entitled to a fourth share in the personal estate only, including household effects, trees, buildings, etc. She takes no interest in the landed property."" D.F.Mulla in Principles of Muhammadan Law Chapter VIII states "A childless widow takes no share in her husband's lands, but she is entitled to her one-fourth share in the value of trees and buildings standing thereon, as well as in his moveable property including debts due to him though they may be secured by a usufructuary mortgage or otherwise". Syed Ameer Ali in Muhommedan Law (Chapter VI, page 1112) states "But when she has no child, or when a child was born to her, but died before the demise of her husband, then she is entitled to a fourth share in the personal estate only, including household effects, trees, buildings, etc. She takes no interest in the landed property." Therefore, it is clear the ouster of a childless widow is only from the landed property and not from the other moveable assets of the deceased husband, in the Shia Fiqh. A bare reading of the plaint reflects that the plaintiff had claimed share in entirety from the estate of the deceased, while defendant had denied the claim in entirety. The trial Court proceeded to frame Issues No. 9, 10, 11 and 12 in this context after examining the contents of the plaint, wherein a specific claim was made qua the tube-well/peter engine, dera, farm, animals etc, thus the word property was used intentionally in Issue No. 9.

7.  The parties led evidence on issues framed by the trial Court, although Issue No. 9, contained the word "property" which obviously covered both the moveable and immovable assets of the deceased but the trial Court narrowed down its scope and proceeded to examine and appraise the evidence placed before it on the erroneous view that the "property"  was  limited  only  to  the "lands" of the deceased and thus the suit of the plaintiff was dismissed, without addressing the correct legal proposition as regards the rights of a childless widow in Shia Law. Unfortunately the lower appellate Court on appeal though took cognizance of this error and rectified it too, to this extent, but it also transgressed its authority and jurisdiction and did not adhere to the correct legal proposition as enunciated in Fiqh Jafria qua a childless widow, it granted her inheritance in the landed property, which is not only against the settled principles of Shia Law but also is violative of the law as interpreted by the Hon'ble Supreme Court of Pakistan in "Syed Muhammad Munir versus Abu Nasar, Member (Judicial) Board of Revenue, Punjab, Lahore and 7 others" (PLD 1972 SC 346), therefore, it, too, proceeded on incorrect premises. Thus, both Courts exercised jurisdiction not vested in them and committed a material illegality. Resultantly both judgments are not tenable in law.

8.  Therefore, this petition is allowed, the impugned judgment and decree as well as the judgment and decree of the trial Court are set aside. The proceedings are remanded to the trial Court to decide the matter afresh, keeping in view the principles of inheritance as enunciated in Fiqh Jafria qua the rights of a childless widow, on basis of evidence already on record, and also permitting parties, if they so desire, to produce any further evidence to augment the proposition laid. No order as to costs.

(M.S.A.)    Case remanded.


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