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“We cannot be unmindful of the fact that male members of a family often deprive their female relatives of their legal entitlement to inheritance and, in doing so, the shariah and law are violated. Vulnerable women are also sometimes compelled to relinquish their entitlement to inheritance in favour of their male relations”, says a 10-page judgment authored by Justice Qazi Faez Isa. Justice Sardar Tariq Masood and other members of the bench also endorsed the verdict.
The court has also referred to its 1991 ruling in the Ghulam Ali case wherein it was observed that ‘relinquishment’ by female members of the family was contrary to public policy and contrary to shariah.
Justice Isa, in his verdict, also reproduced one paragraph of a 30-year-old SC judgment which says, “The so-called “relinquishment” by a female of her inheritance as has taken place in this case is undoubtedly opposed to “public policy” as understood in the Islamic sense with reference to Islamic jurisprudence. In addition, it may be mentioned that Islam visualised many modes of circulation of wealth of certain types under certain strict conditions.
“And when commenting on one of the many methods of achieving this objective, almost all commentators on the Islamic System agree with variance of degree only, that the strict enforcement of laws of inheritance is an important accepted method in Islam for achieving circulation of wealth. That being so, it is an additional objective of public policy. In other words the disputed relinquishment of right of inheritance, relied upon from the petitioner’s side, even if proved against respondent, has to be found against public policy. Accordingly, the respondent’s action in agreeing to the relinquishment (though denied by her) being against public policy the very act of agreement and contract constituting the relinquishment, was void”, says the 30- year-old ruling which is now being reproduced by division bench of apex court.
Facts of case:
Justice Isa, in his ruling, while narrating the facts of the matter, noted that this case is yet another sad example of a brother denying and resisting the claim of his sisters to their legal entitlement to inheritance.
The order says that Mirza Sultan Baig died on 22nd March 1975 and when he died his properties came to vest in his legal heirs and should have been distributed among them in accordance with shariah but this was not done compelling two of his daughters to file a suit to get what was due to them.
Mirza Abid Baig stooped to denying that his sisters were the legal heirs of Mirza Sultan Baig. He also, without any proof, claimed that his father was not the legal owner of the said house and shop, insinuating but without stating, let alone establishing, that he was their real owner and that his father was the benami (ostensible) owner.
The Civil Judge, Lahore decreed the suit in respect of only two of the properties, that is the said house and shop, but this too was not acceptable to Mirza Abid Baig, who continued to throw one unnecessary challenge after another to prevent his sisters from getting their inheritance and regrettably succeeded in such tactics as Zahida Sabir passed away and it is now forty-five years since she, Zahida Sabir, and then her children have remained deprived of inheritance.
The court lamented that such conduct of Baig contravened the law and also the dictates of Almighty Allah; shariah expounds that legal heirs immediately on the death of their predecessor become owners of the estate left behind as per their predetermined shares.
The rights of Zahida Sabir to the extent of the two properties had been determined by the Court. However, Mirza Abid Baig then produced the purported compromise application and long afterwards emerged the purported agreement. No explanation was forthcoming why these documents remained under wraps.
The court noted that it is thus quite clear to us that Mirza Abid Baig had staged the whole thing; the purported compromise application was neither executed nor filed and the purported agreement was not executed. The purported agreement is dated 16th October 1993 but is brought forward after fifteen years, in the year 2008.
The purported agreement left blank the place where the consideration amount was to be written. Mirza Abid Baig testified that he had inserted in his hand an amount of “700,000/=” which he said was paid in cash but failed to establish the particular fact of payment having been made to Zahida Sabir.
Applicant Mirza Abid Baig further destroyed his credibility by preposterously alleging that his sister was not entitled to inherit from her father’s estate. He further stated that the amount paid by him to her was not in settlement of her inheritance, which then raised the question why the payment had been made, but no answer was forthcoming, says the order.
The court also observed that the purported compromise application did not refer to the purported agreement which is also inexplicable.
“As if this was not enough the purported agreement surfaced fifteen years after its alleged execution without an explanation offered as to why it was not disclosed earlier. The signature of Zahida Sabir on both these documents was also different from her signature on the plaint and other admitted documents.
Both these documents were also thumb-impressed by her therefore it was relatively easy to establish if she had affixed her thumb impression thereon by sending them for forensic examination but Mirza Abid Baig did not elect to do so and thus an adverse presumption can be drawn against him. The burden to prove the two self-serving documents (the purported compromise application and the purported agreement) lay on Mirza Abid Baig but he did not discharge the burden of proof. The purported compromise application lay unattended and was in turn withdrawn by the legal heirs of the Zahida Sabir before any order was passed thereon, says the order.
The filing of an application under Order XXIII rule 1 of the Code, which seeks to withdraw a suit or claim, is not tantamount to the withdrawal of the suit or claim. The purported compromise application and the purported agreement were stated to have been executed on payment of compensation of seven hundred thousand rupees but Mirza Abid Baig failed to establish that such payment was made; therefore, these documents were void in terms of section 25 of the Contract Act, 1872, it adds.
The court also noted that the high court , exercising revisional jurisdiction under section 115 of the Code, had correctly noted that the Appellate Court had wrongly exercised its jurisdiction, had misread evidence, disregarded crucial evidence, relied on the purported compromise application which Mirza Abid Baig could not establish was part of the Court record, gave credence to purported agreement without the concomitant obligation of making payment and wrongly assumed that a valuable claim was relinquished without proof and without consideration.
“Therefore, there is no reason to allow this appeal which is dismissed with costs throughout. The costs shall be paid to the respondent Nos. 1(a) to 1(d). Since the said respondents and before them their mother stood deprived of inheritance for forty-five years, we expect that if the matter goes to the Executing Court it will ensure that the matter is promptly concluded without entertaining frivolous objections from the appellant to further procrastinate the misery of the said respondents”, says the judgment.
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