Case Summary: Ghulam Ali v. Mst Sarwar Naqvi (Pakistan)

Written by SAHR co-founder, Natasha Latiff.

• The three petitioners in the case were the sons of Ghulam Ahmed Shah and the respondent his daughter and their sister. The father left behind property in different estates at the time of his death. Mutations were entered and sanctioned properly in all estates except for one. Apparently, the property involved therein was not much compared to the remaining land. Nonetheless, she was deprived of her Islamic share in her father’s property covered by this mutation.
• The petitioners’ explanation for this discriminatory treatment of respondent’s share was based on the fact that the petitioners had spent nearly about rupees one lac on two marriages arranged by them for their sister — there was an intervening divorce. They also spent about ten thousand rupees in a murder case wherein they were involved on account of said divorce. They further claimed some amount for maintaining her for about five years. The petitioners thus claimed that for these considerations the respondent relinquished voluntarily her claim in the inheritance of her father in so far as it related to one estate only. As the judge put it, “(…) here we are dealing with the brothers trying though illegally, as if a guardian-in-inheritance-so-called, of a sui juris sister, on allegedly ‘moral basis’ to oust her.” (p. 12)
• The suit filed by the respondent seeking her share in the land covered under the disputed mutation was dismissed by the trial Court on the ground that the sister had relinquished her right. This finding of fact was set aside on appeal filed by her. The petitioners’ Civil Revision challenging the Appellate Court order was dismissed; they sought leave to appeal in the Supreme Court.

Legal Reasoning

1. Whether the petitioners had a strong moral claim to the suit property.

The Court relied on Islamic Law and the precedent case of Haji Nizam to establish that the doctrine of ‘Representation of the estate by an intermediary’was alien to Islam (See p. 12). Therefore, the brothers not being intermediaries in this case had no “moral” ground to oust their sister from their father’s property as the interest in property devolved on the sister automatically after the father’s death. Further, the Court said that it was the brothers’ moral obligation in Islam to maintain their widowed/divorced sister.

“The theory of representation of the estate by an intermediary is unknown to Islamic law of inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like the executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. It is so notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic law…If the State, the Court, the clergy, the executor, the administrator does not intervene, no other body intervenes on any other principle, authority or relationship — even of kinship.”(p. 12)

“It has already been held that the devolution of property through Islamic inheritance takes place immediately without any intervention; therefore, in this case the respondent became the owner of the suit property immediately on the death of her father.”(p. 17)

“In the Holy Quran and the Sayings of the Holy Prophet (P.B.U.H.), emphasis has been laid again and again on the best possible concern and treatment of female relations. Even on this particular subject of the treatment of a divorcee relation one finds enough material to show that if none else the parental home, which would in this case include the brothers, remains responsible for the maintenance of a needy divorcee or widow…” (pp. 22–23)

2. Whether relinquishment is allowed in Islamic Law.

The Court has throughout the judgment extensively quoted from Quran to establish that a woman under Muslim Law enjoys equal rights and privileges as men and this is true even in case of inheritance. Also, Islam enjoins upon men the duty to protect and enforce the rights of women. (See Quranic Verse Surah 4, Verse 34).

“In the light of the foregoing discussion on the Islamic point of view, 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…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.”(p. 21)

“The Holy Prophet (PBUH) was eager to explain again and again the rights of daughters and the way their fulfillment taken one to the heights of piety…It is unimaginable that a daughter enjoying “protection and maintenance” with the father till she is married, when she is married and divorced, would lose this right — this of course is subject to certain conditions…it would be her right to be treated by the father in the best possible manner in all these circumstances. And if beyond the bare necessity he does anything concerning the daughter, it has to be treated as gift and not something which would have to be returned by the daughter by compensating the father in the tangible property. The rights of a sister, in cases like the present case, will have to be equated with that of a daughter, with all the necessary consequences…therefore, all these considerations which have been pleaded in this case cannot be made basis of any relief to the petitioners or for that matter for validating the so-called “relinquishment.””(p. 23)

“The relinquishment by the respondent, if any, is against public policy and morality, which concepts are to be decided on the basis of Islamic teachings and principles.” (p. 24)

The Court found such claim of relinquishment by the petitioners to be against public policy, as determined by principles of Islamic Law. Therefore, in the Court’s opinion even if the sister had herself waived the right of inheritance, this being against public policy, would invalidate the agreement to relinquish inheritance rights between petitioner and the respondent.

“…it might be very rare that a male co-heir would relinquish his right for a female heir. Experience shows that is has always been the reverse. The flow of love cannot be so unnatural. Therefore, (…) in cases like the present one there will be a presumption (…) that it was not on account of natural love but on account of social constraints (…) that relinquishment has taken place. (…) In the present case, it appears to be jugglery that the petitioners claimed that the relinquishment by the respondent was in consideration of what they claim to have done in her two marriages as also for her maintenance. (…) All these claims are against the teachings of Islam- injunctions in the Holy Qur’an and the Sayings of the Holy Prophet (PBUH), wherein emphasis has been laid again and again on the best possible concern for and treatment of female relations.”(pp. 22–23)

3. Whether the suit was time-barred.

The Court dealt with all these issues simultaneously and relied on precedents and the Holy Quran.

Applying Muslim Law, the Court held, “The petitioners being the brothers of the respondent were required by the Islamic law to protect the property rights of their sister if ever they came into possession of the land in any capacity…one who is enjoined with the protection of the other’s property cannot lay claim adverse to the interests and rights of that other one who owns it.” (p. 24)

The Court relied largely on the case of Najabat v. Saban Bibi wherein, it was held that, “the co-sharers/co-owners were not at all obliged to file a suit to seek a declaration to the effect that a mutation had been wrongly sanctioned. It was also held that a suit filed, due to denial of rights of the plaintiff/co-sharer, for declaration would be within time and the Revenue authorities on success of such suit would be required by law to correct the mutation entries.” (p. 10)

The law obtained from this case was that a suit where a mutation has been wrongly sanctioned will not affect the claimant’s right to file a suit in as much as the suit will not be time-barred.

Conclusion

(i)The petitioners had no “moral” claim to the suit property

“Here we are dealing with the brothers trying though illegally, as if a guardian-in-inheritance-so-called, of a sui juris sister, on allegedly “moral” basis, to oust her. It is clearly prohibited by Islam.” (p. 12)

(ii) The appellate Court had not erred in setting aside the finding of relinquishment by the Trial Court.

“The act of relinquishment was void and ineffective. Her inheritance, having accrued in her favour on her father’s death remained intact at all relevant times.” (p. 24)

(iii) The adverse possession had not matured in petitioners’ favour; the consideration going in favour of respondent based on co-shareship was available to her as her ouster from the property was void and the suit was not time-barred.

“Under the Islamic dispensation in the present case there could be no claim of adverse possession.” (p. 24)

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