狠狠撸

狠狠撸Share a Scribd company logo

Analysis of decisions of Pakistan's Superior Courts on Will & Inheritance

?Download as PPTX, PDF?
?
S
Shahbaz Cheema

These slides summarize some basic principles of wills and inheritance as applicable in Pakistan. In this regard, they highlight the role of the superior judiciary. In the end, they pinpoint some bad precedents set by the judiciary on the Islamic law of inheritance.

1 of 10
Download to read offline
Analysis of Decisions of Superior Courts on Will & Inheritance Dr Shahbaz Ahmad Cheema Professor of Law University of the Punjab, Lahore
‘Law’ in Pakistani Legal System ? Written law (Statutes & Ordinances) ? Muslim Family Laws Ordinance 1961 (MFLO) ? Judgments of Supreme Court and High Courts on question and principle of law (Articles 189 & 201) ? Federal Shariat Court (Article 203D) ? Islamic law as residuary law and interpretative law
Decisions on ‘Will’ ? Khairan Bibi V Ghulam Hassan [2007 CLC 167 (Lahore)] Distinction between will and gift/hiba. Entire transaction should be construed and ascertained and isolated expressions are not be given overrated weight ? Zakirullah Khan V Faizullah Khan (1999 SCMR 971) Mere silence on the part of legal heirs would not be equated with their consent for making effective 1/3rd of an estate as will
Section 4 of MFLO 1961 ? Inheritance of children of predeceased son/daughter ? Literal application or re-adjusted application under Islamic law ? Mandatory wasiyat [Allah Rakha V Federation of Pakistan (PLD 2000 FSC 01)] ? Council of Islamic Ideology for making uncles/aunts as financially responsible for orphaned grandchildren ? Dr Muhammad Munir = section 4 as a legal maneuver by state for shifting its responsibility to others ? Mandatory will is bound to take away the element of voluntariness and free consent from will ? “An Analysis of the Application of Traditional Islamic Law of Inheritance in Pakistani Courts”
Inheritance Rights of Women ? Section 498A of Pakistan Penal Code makes disinheritance of women as an offence punishable with imprisonment up to 10 years under Criminal Law (Amendment) Act 2011 ? Ghulam Ali V Ghulam Sarwar Naqvi (PLD 1990 SC 01) Brothers are obliged to protect their sisters’ right of inheritance; no space for the arguments of estoppel, waiver and adverse possession; disinheritance of women is against public policy. ? Khalida Shamim Akhtar V Ghulam Jaffar (PLD 2016 Lahore 865) Inheritance of childless widow under Shia law
Shia Sunni Debate ? All Pakistanis are presumed to be Muslims unless proved otherwise (Latifan Bibi V Rehmat Ali 2012 SCMR 1251) [Ahmadi v Muslim/Sunni/Hanafi] ? All Muslims are presumed to be Sunni unless proved otherwise ? All Suunis are presumed to be Hanafi unless proved otherwise ? All Shias are presumed to be the Ithna Ashari unless proved otherwise ? Ghulam Shabbir V Bakhat Khatoon 2009 SCMR 644 ? “Socially Abhorrent but Legally Acceptable: A Study of Alleged Conversions of Sunnis and Shias in Cases of Inheritance in Pakistan”
Estate of Missing Person ? M Sohail Kiyani V Raja M Anwar (PLD 2017 Islamabad 162) ? Mr A went missing in 1973 and the case was initiated in 2013 for distribution of his estate ? Person missing for seven years without any contact with his relatives/family is presumed to be dead unless otherwise shown by evidence (Article 124 of QSO) ? Due to non-availability of such evidence, his estate was distributed among those who were alive in 1980
Bad Precedent 1 ? Saadullah V Gulbanda (2014 SCMR 1205) ? Mother, 3 full sisters & consanguine brother ? SC awarded the entire estate to mother and full sisters under misconceived principle of radd ? Exclusion of consanguine brother is incorrect ? Solution under Islamic law: mother = 1/6; full sisters = 2/3 & consanguine brother = 1/6 ? Radd is not attracted in presence of any residuary ? “Inheritance of Full Sister/s with Consanguine Brother/s in Pakistan: A Critical Analysis of Saadullah v Gulbanda”
Bad Precedent 2 ? Muhammad Khalid V Noor Bibi (2005 SCMR 1717) ? Deceased died issueless ? Sons and daughters of paternal uncle and an aunt as petitioners ? Maternal uncles as respondents ? SC erroneously treated all as distant kindred and granted the entire estate to maternal uncles excluding all others ? Sons of paternal were residuaries and entitled to have the entire estate to the exclusion of all others
Bad Precedent 3 ? Khalida Begum V M Rashid Khan [PLD 2012 High Court (AJ&K) 34] ? Widow = ? (10/40) ? Full sister = ? (20/40) ? 4 Consanguine brothers = (8/40) ? 2 Consanguine sisters = (2/40) ? Incorrect decision: Consanguine brothers are residuaries alone and their presence deprives consanguine sisters to get any share

More Related Content

Analysis of decisions of Pakistan's Superior Courts on Will & Inheritance

  • 1. Analysis of Decisions of Superior Courts on Will & Inheritance Dr Shahbaz Ahmad Cheema Professor of Law University of the Punjab, Lahore
  • 2. ‘Law’ in Pakistani Legal System ? Written law (Statutes & Ordinances) ? Muslim Family Laws Ordinance 1961 (MFLO) ? Judgments of Supreme Court and High Courts on question and principle of law (Articles 189 & 201) ? Federal Shariat Court (Article 203D) ? Islamic law as residuary law and interpretative law
  • 3. Decisions on ‘Will’ ? Khairan Bibi V Ghulam Hassan [2007 CLC 167 (Lahore)] Distinction between will and gift/hiba. Entire transaction should be construed and ascertained and isolated expressions are not be given overrated weight ? Zakirullah Khan V Faizullah Khan (1999 SCMR 971) Mere silence on the part of legal heirs would not be equated with their consent for making effective 1/3rd of an estate as will
  • 4. Section 4 of MFLO 1961 ? Inheritance of children of predeceased son/daughter ? Literal application or re-adjusted application under Islamic law ? Mandatory wasiyat [Allah Rakha V Federation of Pakistan (PLD 2000 FSC 01)] ? Council of Islamic Ideology for making uncles/aunts as financially responsible for orphaned grandchildren ? Dr Muhammad Munir = section 4 as a legal maneuver by state for shifting its responsibility to others ? Mandatory will is bound to take away the element of voluntariness and free consent from will ? “An Analysis of the Application of Traditional Islamic Law of Inheritance in Pakistani Courts”
  • 5. Inheritance Rights of Women ? Section 498A of Pakistan Penal Code makes disinheritance of women as an offence punishable with imprisonment up to 10 years under Criminal Law (Amendment) Act 2011 ? Ghulam Ali V Ghulam Sarwar Naqvi (PLD 1990 SC 01) Brothers are obliged to protect their sisters’ right of inheritance; no space for the arguments of estoppel, waiver and adverse possession; disinheritance of women is against public policy. ? Khalida Shamim Akhtar V Ghulam Jaffar (PLD 2016 Lahore 865) Inheritance of childless widow under Shia law
  • 6. Shia Sunni Debate ? All Pakistanis are presumed to be Muslims unless proved otherwise (Latifan Bibi V Rehmat Ali 2012 SCMR 1251) [Ahmadi v Muslim/Sunni/Hanafi] ? All Muslims are presumed to be Sunni unless proved otherwise ? All Suunis are presumed to be Hanafi unless proved otherwise ? All Shias are presumed to be the Ithna Ashari unless proved otherwise ? Ghulam Shabbir V Bakhat Khatoon 2009 SCMR 644 ? “Socially Abhorrent but Legally Acceptable: A Study of Alleged Conversions of Sunnis and Shias in Cases of Inheritance in Pakistan”
  • 7. Estate of Missing Person ? M Sohail Kiyani V Raja M Anwar (PLD 2017 Islamabad 162) ? Mr A went missing in 1973 and the case was initiated in 2013 for distribution of his estate ? Person missing for seven years without any contact with his relatives/family is presumed to be dead unless otherwise shown by evidence (Article 124 of QSO) ? Due to non-availability of such evidence, his estate was distributed among those who were alive in 1980
  • 8. Bad Precedent 1 ? Saadullah V Gulbanda (2014 SCMR 1205) ? Mother, 3 full sisters & consanguine brother ? SC awarded the entire estate to mother and full sisters under misconceived principle of radd ? Exclusion of consanguine brother is incorrect ? Solution under Islamic law: mother = 1/6; full sisters = 2/3 & consanguine brother = 1/6 ? Radd is not attracted in presence of any residuary ? “Inheritance of Full Sister/s with Consanguine Brother/s in Pakistan: A Critical Analysis of Saadullah v Gulbanda”
  • 9. Bad Precedent 2 ? Muhammad Khalid V Noor Bibi (2005 SCMR 1717) ? Deceased died issueless ? Sons and daughters of paternal uncle and an aunt as petitioners ? Maternal uncles as respondents ? SC erroneously treated all as distant kindred and granted the entire estate to maternal uncles excluding all others ? Sons of paternal were residuaries and entitled to have the entire estate to the exclusion of all others
  • 10. Bad Precedent 3 ? Khalida Begum V M Rashid Khan [PLD 2012 High Court (AJ&K) 34] ? Widow = ? (10/40) ? Full sister = ? (20/40) ? 4 Consanguine brothers = (8/40) ? 2 Consanguine sisters = (2/40) ? Incorrect decision: Consanguine brothers are residuaries alone and their presence deprives consanguine sisters to get any share