ISLAMABAD: The Supreme Court of Pakistan says families, community leaders, religious scholars, the legal profession, revenue authorities and civil society all share a collective obligation to ensure that inheritance rights conferred by law are neither diluted nor defeated, observing that a society cannot celebrate justice while tolerating the deprivation of women from their lawful inheritance.
Directing all courts and revenue authorities dealing with inheritance disputes to remain mindful that the law leans in favour of protecting, rather than defeating, women’s inheritance rights, the Court held that any transaction having the effect of excluding a female heir from succession must be examined with the utmost care, caution and judicial scrutiny.
The observations came as a two-member bench comprising Justice Shahid Bilal Hassan and Justice Shakeel Ahmad set aside a decades-old mutation that had excluded a widow and her daughters from their rightful inheritance, allowing the appeal filed by Noor Muhammad and others and overturning concurrent judgments of the trial court, appellate court and the Lahore High Court’s Bahawalpur Bench.
The case concerned the estate of Roshan son of Bora, whose death in 1955 triggered an inheritance mutation in favour of his legal heirs. On the same day, a second mutation was entered on the basis of an alleged oral gift purportedly made by his widow and daughters in favour of his sons and brothers. The petitioners contended the gift never occurred and that the mutation was engineered to deprive the female heirs of their lawful share, while the respondents argued the mutation had gone unchallenged for decades and that the suit was barred by limitation.
Authoring the judgment, Justice Hassan held that once the validity of a gift is challenged, the burden shifts to its beneficiaries to prove all three essential ingredients of a valid gift under Islamic law – declaration, acceptance and delivery of possession – through independent and reliable evidence. The Court found the record “conspicuously silent” on whether the female heirs were ever informed that they would be permanently divested of their property rights, or that they had knowingly and voluntarily relinquished them.
The judgment held that a mutation is maintained for fiscal purposes and neither creates nor extinguishes title, and cannot substitute proof of the underlying transaction. It further noted that continued possession by a co-heir does not, by itself, establish delivery of possession pursuant to a gift, since the possession of one heir is ordinarily deemed to be held on behalf of all heirs absent clear repudiation of their rights.
The Court also found it significant that shares in the produce of the land continued to be given to the female heirs for years after the alleged gift – a circumstance it said cast doubt on claims that the women had irrevocably divested themselves of ownership. It ruled that the lower courts had erred by resting their decisions primarily on limitation and long possession without first determining whether the gift itself had been proved.
Declaring Mutation No.75 and all subsequent transactions founded upon it illegal, void and ineffective, the Court restored the petitioners’ inheritance shares and directed revenue authorities to make consequential corrections in the record.
