Wednesday, 30 May 2012

Rights of legal heirs in shia law

PLJ 2008 Karachi 7

Present: Arshad Noor Khan, J.

Mst. YAQOOBI BEGUM and another--Appellants

versus

Syed AFSHEEN FATIMA and another--Respondents

M.A. No. 50, Misc. Nos. 2910 of 2005 and No. 866 of 2006,
decided on 16.1.2008.

Islamic Law--

----Inheritance--Shia law--Deceased was employed--Entitlement of service benefits--Shares of widow, children and parents--Entitlement--Widow and children of deceased as per Shia law were not excluded from the estate left by deceased--Mother and father of deceased were also entitled to their shares in the property left by deceased--Appellant being mother of deceased was entitled to l/6th share of the estate left by deceased and remaining share was inherited by widow and children--Deceased was a police officer and was entitled to certain benefits including death compensation as well as monthly salary of deceased till the age of 60 years, if deceased would have been alive, as according to the scheme of police department, widow and children deceased must be benefited with recurring income of deceased in the shape of monthly salary--High Court declined to interfere with the order passed by trial Court as there was no illegality apparent on the face of it--Appeal was dismissed.      [P. 9] A

Mr. Feroze Hussain Sheikh, Advocate for Appellants.

Mr. Muhammad Shoaib Abidi, Advocate for Respondents.

Date of hearing: 16.1.2008.

Order

By this appeal, the petitioner has questioned the legality and validity of the order passed by learned VI Additional District Judge, Karachi-South, dated 10-8-2005, passed in S.M.A. No. 216/2004 (Yaqoobi Begum v. Mst. Afsheen).

The facts leading rise to this appeal in brief are that the appellant is the mother of deceased Syed Hassan Asghar Taqvi and the Respondent No. 1 is the wife of the deceased. The deceased was employed in Police Department as SIP and unfortunately on 10-6-2004 he was martyred in an attack by the terrorists, as such his legal heirs were entitled to service benefits, gratuity, etc. as well as the monetary salary uptil the age of 60 years of the deceased in case if he would have been alive. The appellant, being the mother, filed Succession Miscellaneous Application before the learned lower Court wherein the respondent was shown as objector. The learned VI Additional District Judge, Karachi-South, after consideration of the material brought before him, was pleased to pass the following order:

"Therefore it is hereby ordered that the concerned Police Department where the deceased was serving are directed to pay arrears of monthly salary of Shaheed deceased to his widow/Ms. Afsheen within thirty (30) days hereof and also continue to pay her the monthly salary till she attains the age of sixty (60) years as per Police Rules. Further the Police Authorities/employers of deceased Shaheed are directed to deposit Death Compensation of Rs. 300,000 as well as Pension/Gratuity/G.P. Fund and other dues of the deceased with the Nazir of District South, Karachi within same time who shall distribute the shares of Petitioner/mother and widow/Afsheen according to their Personal Law after proper verification and invest the shares of minor babies namely (1) Baby Saba (2) Baby Abya and (3) Baby Erum in same profitable Banking Scheme, payable to them at the time of their marriages or attaining the ages of maturity whichever dates are earlier, after deducting and receiving a fee of Rs. 5,000 (Five Thousand) only of the Nazir. The petitioner is also directed to deposit the amount of Insurance Policy of deceased received by her amounting to Rs. 228,000 with the Nazir who after distributing the shares of mother and widow shall invest the shares of minor daughters in the above Banking Scheme."

The petitioner being aggrieved against the aforesaid order has filed this appeal.

I have heard Mr. Feroze Hussain Sheikh, learned counsel for the appellant, and Mr. Muhammad Shoaib Abidi, learned counsel for the respondent.

Mr. Feroze Hussain Sheikh, learned counsel for the appellant, vehemently contended that the Respondent No. 1 is the divorcee of the deceased, who was pronounced divorce on 10-2-2004 by the deceased, as such the divorce becomes effective on the date when the deceased was martyred on 10-6-2004, as such she was excluded from the right of inheritance as per Shia Personal Law and the learned lower Court was not justified in allowing her as shareholder in the estate left by the deceased.

Mr. Muhammad Shoaib Abidi, learned counsel for Respondent No. 1, has vehemently controverted the contentions advanced by the learned counsel for the appellant and stated that the contentions regarding pronouncement of divorce to the Respondent No. 1 by the deceased is an afterthought and is against the documentary evidence available on record and that the said point has been raised just to deprive off her from the legitimate right of her claim in the estate: left by the deceased.

I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.

As per Shia law the widow and the children of the deceased have not been excluded from the estate left by the deceased. The mother and father of the deceased are also entitled for their share in the property left by the deceased. This legal proposition has not been disputed by the learned counsel for the appellant. As per Shia law the appellant, being the mother of deceased Syed Hassan Asghar Taqvi was entitled to 1/6th share of the estate left by the deceased and the remaining share must be inherited by the widow and the children of the deceased. The deceased, who was a police officer, was entitled to certain benefits including the death compensation as well as the monthly salary of the deceased till the age of 60 years if the deceased would had been alive as according to the scheme of the Police Department the widow and the children of the deceased must be benefited with the recurring income of the deceased in the shape of monthly salary. The learned trial Court has, therefore, perfectly passed the order referred to above and no illegality is apparent on the face of the order passed by the learned lower Court.















      A



The main emphasis of the learned counsel for the appellant is that the Respondent No. 1 was pronounced divorce by the deceased, therefore, she must be excluded from the inheritance left by the deceased. The said contention has been controverted by the learned counsel for Respondent No. 1 by pointing out the affidavits sworn by Faheemuddin son of Nawabuddam and Azhar Ali son of Ashgar Ali in S.M.A. No. 216/2004, filed before the learned lower Court in the present proceedings and they both have testified that the deceased had pronounced divorce to the Respondent No. 1 during his lifetime on 10.2.2004 and they are witnesses to that divorce. Surprisingly the said affidavits have been sworn by both of them on 10-2-2004, which is the alleged date of pronouncement of the alleged divorce to Respondent No. 1 by the deceased and on that date, viz. 10-2-2004, even the deceased was alive, who was martyred on 10-6-2004, as such the truth of the affidavits sworn  by both these deponents is manifest which appears to be fake and

 Kar.      Mehmood-ul-Hassan Khan v. Dow University PLJ
      of Health Sciences
      (Sabihuddin Ahmed, C.J.)

2008  Mehmood-ul-Hassan Khan v. Dow University Kar.
      of Health Sciences
      (Sabihuddin Ahmed, C.J.)

afterthought just to provide wrongful gain to the present appellant. It is not believable that on the very same day, viz. 10-2-2004, they witnessed the divorce proceedings and on the very same day they filed their affidavits in a case which was not in existence in the eye of law. The contention advanced by the learned counsel for the appellant, therefore, seems to be devoid of any force.

For the foregoing reasons, I do not find any merit in the appeal, which is hereby dismissed.

(R.A.)      Appeal dismissed

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