2016 S C M R 1195

[Supreme Court of ]

Present: , C.J., , Amir Hani Muslim, Iqbal Hameedur Rahman and Khilji Arif Hussain, JJ

Mst. NOOR BIBI and another---Appellants

Versus

GHULAM QAMAR and another---Respondents

Civil Appeal No. 2133 of 2006, decided on 17th March, 2016.

(On appeal from the judgment of the High Court, Lahore dated 24-10-2001 passed in C.R. No.2239 of 2000)

Per Anwar Zaheer Jamali, CJ

(a) Islamic law---

----Inheritance---Shia law---Widow with children---Under the Shia law, a widow with a child from her deceased husband was entitled to a share in both movable and immovable property of her (deceased) husband---Widow with child would be entitled to inherit 1/8 share from the legacy of her deceased husband.

Syed v. Abu Nasar, Member (Judicial) Board of Revenue, Punjab Lahore and 7 others PLD 1972 SC 346 distinguished.

Mohammedan Law by Sir D.F. Mulla (17th Edition) and Syid Murtaza Husain v. Musammat Alhan Bibi 1909 IC (Vol.2) 671 ref.

(b) Islamic law---

----Inheritance---Shia law---Childless widow---Under Shia law childless widow was disqualified from claiming share from the estate of her deceased husband, but only to the extent of lands (immoveable property) left behind by her husband---Childless widow took no share in her husband's land, but she was entitled to her one forth share in the value of trees and buildings standing thereon, as well as in his movable property including debts due to him though they may be secured by a usufructuary mortgage or otherwise.

Mohammedan Law by Sir D.F. Mulla (17th Edition) ref.

Per Mian Saqib Nisar, J; agreeing with Anwar Zaheer Jamali, CJ

(c) Islamic law---

----Inheritance---Shia law---Childless widow---Where a widow never gave birth to a child from the propositus, she will not be entitled to inherit from the propositus' immovable property---Childless widow would also encompass those widows who, though had children with the propositus, but did not survive the propositus--- Even if a widow has given birth to a child out of her wedlock with the propositus, but such child died prior to the death of the propositus, the widow would not be entitled to inherit the immovable property of the propositus as she was a 'childless widow' under Shia personal law.

Asaf A.A. Fyzee in his book titled Outlines of Muhammadan Law (4th Ed.); Digest of Moohummudan Law (2nd Ed.) (Part Second) by Neil B.E. Baillie; Succession in the Muslim Family (1971) by N.J. Coulson; Muhammad Law (Volume II) by Syed Ameer Ali; Principles of Muhammadan Law (2004) by D.F. Mulla; Umardaraz Ali Khan and others v. Wilayat Ali Khan and another (1896) ILR 19 All 169; Mir Alli Hussain and another v. Sajuda Begum and others (1897) ILR 21 Mad 27; Aga Mahomed Jaffer Bindanim v. Koolsom Beebee and others (1897) 25 Cal. 9; Muzaffar Ali Khan and others v. Parbati and another (1907) 29 All 640; Durga Das and others v. Muhammad Nawab Ali Khan and others (1926) ILR 48 All 557; Syed Ali Zamin and another v. Syed Muhammad Akbar Ali Khan and others 116 IC 525 and Syed Muhammad Munir (represented by 10 heirs) and another v. Abu Nasar, Member (Judicial) Board of Revenue, Punjab, Lahore and 7 others PLD 1972 SC 346 ref.

Iftikhar Hussain Shah, Advocate Supreme Court and Salim Khan Chechi, Advocate Supreme Court for Appellants.

Nemo for Respondents.

Date of hearing: 17th March, 2016.

JUDGMENT

ANWAR ZAHEER JAMALI, C.J.---This appeal by leave of the Court arises out of the judgment dated 24.10.2001 in Civil Revision No.2239/2000, passed by learned single Judge in chambers of the , Lahore, whereby the said Civil Revision was allowed, concurrent findings of the two Courts below, challenged therein were set aside, and accordingly the suit for declaration and change of mutation filed by the respondents was decreed.

2. Briefly stated, relevant facts of the case are that on 24.07,1995, Respondents Nos. 1 and 2, being son and daughter of late Nasir Hussain, instituted a declaratory suit against their real mother, Mst. Noor Bibi (Appellant No.1.), and their brother, Zulfiqar Ali (Appellant No.2), in respect of agricultural land measuring 45 Kanal, 14 Marla, out of total land measuring 76 Kanal 4 Marla, bearing Khasra Nos. 92, 124, 125, 126, 127, 621/128, 134, 135, 193, 194, 195, 634/280, 307, 308 and 309, Khewit No.13, Khatooni No.14 according to Jamabandi for the year 1992-93, situated at village Gurri, Bhoora, Tehsil and District Sialkot. Their claim was based on the assertions that their father, Nasir Hussain, had died five years ago, whereafter Inheritance Mutation No.181 dated 24.01.1994 was attested in favour of his legal heirs according to which, Mst. Noor Bibi, widow of deceased, got 1/8 share, Ghulam Qamar and Zulfiqar Ali, sons, got 4/5 and Mst. Razia Bibi, daughter, got 1/5 out of 7/8. Late Nasir Hussain belonged to Shia faith, wherein a widow is not entitled to any share in the immovable property (lands) owned by her deceased husband. Further, according to Shia law of inheritance, Ghulam Qamar and Zulfiqar Ali, sons should have been given 4/5 share each and Mst. Razia Bibi, daughter should have been given 1/5 share, whereas the widow of Nasir Hussain (deceased) was not entitled to 1/8 share.

3. The suit was contested by the parties, issues were framed, evidence was recorded, and vide judgment dated 15.11.1997, it was dismissed with the observation that the widow, as per Shia law of inheritance, being mother of two sons and a daughter, not being a childless widow, was entitled to inherit legal share from the legacy of her deceased husband, Nasir Hussain.

4. The appeal under section 96 of the Code of Civil Procedure, 1908, filed by respondents against the judgment of the Trial Court of learned Senior Civil Judge, Sialkot, before the Court of Additional District Judge, Sialkot on 12.12.1996, was dismissed vide judgment dated 01.03.2000, with the conclusion that the findings of the Civil Court, that the widow of deceased Nasir Hussain, being mother of two sons and a daughter, was not a childless widow and thus entitled to her legal share under Shia law of inheritance, were unexceptionable.

5. Against these concurrent findings of the two Courts below, the respondents then preferred Civil Revision under section 115, C.P.C. before the Lahore High Court, Lahore, on 13.06.2000, which was heard and allowed vide impugned judgment dated 24.10.2001 with reference to the application of ratio of judgment in the case of Syed Muhammad Munir v. Abu Nasar, Member (Judicial) Board of Revenue, Punjab Lahore and 7 others (PLD 1972 SC 346).

6. We have heard arguments of the learned ASC for the appellants, while respondents have chosen to remain absent.

7. In his submissions, the learned ASC for the appellants briefly stated admitted facts of the case that Appellant No.1 is widow of late Nasir Hussain and real mother of Zulfiqar Ali (Appellant No.2), Ghulam Qamar (Respondent No.1) and Mst. Razia Bibi (Respondent No.2). Nasir Hussain had expired five years prior to the filing of suit, leaving behind amongst others some agricultural lands as detailed in Paragraph No.1 of the plaint. Therefore, keeping in view that parties were governed by Shia law of inheritance, the two Courts below have rightly held the Appellant No.1 entitled to her share from the estate (lands) of late Nasir Hussain as in her capacity as widow, but the High Court misinterpreted and wrongly applied the ratio of judgment in Syed Muhammad Munir's case (supra), while equating the claim of Appellant No.1 to that of a childless widow, which is admittedly not the position in the present case.

8. Since the whole case of the respondents is based on the ratio of the judgment in Syed Muhammad Munir's case (ibid), it will be useful to discuss the said case in some detail.

9. In this case, the only issue involved was regarding the exact connotation of 'childless widow' so as to decide whether it meant a widow from whose womb no issue had been born to the deceased or a widow who might have had an issue from her womb to the deceased which died before the opening of inheritance of her deceased husband. It was in this background that not only detailed discussion of various authoritative books of scholars and jurists of the subcontinent on this limited subject was made, but Quranic verses and relevant Hadiths were also taken into consideration to record the conclusion as follows:

"The Shias claim that the difference between Shias and Sunnis arise as a result of their different interpretations of some of the Quranic texts. The Sunnis, it is said, accept the interpretations given by the four Imams, namely; Imam Abu Hanifa, Imam Malek, Imam Ahmad and Imam Shafi'e whereas the Shias rely on the interpretations of the Holy Qur'an given by only the Ahl¬e-Bait (Members of the Household of the Holy Prophet) beginning with Hazrat Ali and ending with the last Imam and, as such, they claim that their interpretation is likely to be more correct. No one, they maintain, could have known the Holy Qur'an better than Hazrat Ali himself who in his Book had recorded these interpretations according to the instructions of the Holy Prophet himself.

In view of this difference in the interpretation of the Qranic text itself, we feel that it would not be proper on our part at this stage to attempt to put our own construction in opposition to the express ruling of commentators of such great antiquity and high authority. To depart from a rule of succession which the Shia community has universally been following ever since the days of Imam Jafar Sadek, as evidenced by the unanimous opinions of the Shia jurists on this point, would be wrong. It is not open to us to change a settled rule of succession, having the force of ljma behind it at this late stage. If a change is desired to be made this work should be undertaken by the Legislature itself after consulting the Shia Community. We can only point out that the translation given by Allama Mufti Syed Tyeb Agha Musavi Jazairi does not tally with the English translation given by S. V. Mir Ahmed Ali, another eminent Shia scholar.

This rule has, it appears, also been consistently followed by the Court in this subcontinent since the decision of the Calcutta High Court in Mst. Asloo v. Mst. Umdutoonnissa. It was affirmed by the Privy Council in 1897 in the case of Aga Mohamed Jaffer Bindaneem v. Koolsom Bee Bee. The Allahabad, Madras and Patna High Courts have also followed it in Umardaraz Ali Khan. v. Wilayat Ali (1), Durga Das v. Nawab Ali (2), Mir Ali Hussain v. Sajuda Begum (3) and Syed Ali Zamin the contrary has been brought to our notice.

We would, therefore, allow this appeal, set aside the order of the High Court and declare that on the death of Mst. Fatima, childless widow, her life estate terminated and the bequest made by her in favour of Mst. Hassan Zamani in respect of the Nizampur lands came to an end. According to the Shia Law, even after the termination of her limited estate under custom, she acquired no share in the landed properties obtained by her in lieu of her husband's estate left behind in India, according to the Shia Law."

10. From the above, it will be seen that at no stage of the proceedings any issue had cropped up with reference to the status of a widow with children under the Shia law of inheritance, rather the issue dilated upon was in respect of a childless widow, being governed by Shia law of inheritance. In this backdrop, we have no hesitation to hold that the judgment of the Revisional Court impugned before us is not in consonance with the real facts and the ratio of judgment in Syed Muhammad Munir's case (ibid), which, as discussed above, proceeded on different premises. Under section 113 of Mohammedan Law by Sir D.F. Mulla (17th Edition), the status of a childless widow for the purpose of inheritance under Shia Fiqah has been discussed as follows:

"Section 113. Childless widow.-A childless widow takes no share in her husband's land, but she is entitled to her one forth share in the value of trees and buildings standing thereon, as well as in his movable property including debts due to him though they may be secured by a usufractuary mortgage or otherwise."

Apart from it, right of inheritance of a Shia widow from the estate of her deceased husband, not being a childless widow, is also clearly established from the table of sharers under Section 90 of the same book, where in the column of sharers she is placed at serial No.2, with normal share of 1/8, being one or more.

11. Similarly, in another book on Shia Law of succession titled 'Muhammadan Law' Volume-II, authored by renowned scholar, Syed Amir Ali, only a childless widow has been shown disqualified from claiming share from the estate of her deceased husband, that too only to the limited extent of lands left behind by her husband.

12. Further, in the book of succession in Muslim family, authored by N.J. Coulson, he has opined that:

"'Childless' here means, according to the text, that the surviving widow is without a child, alive or in embryo and subsequently born alive, at the time succession to the estate opens. A wife, therefore, suffers from this disability if she has had children by the propositus who have died before the succession opens or if her only children are those of another marriage. The rule is clearly aimed at ensuring, to a larger degree, that lands remain within the husband's family. A widow succeeds to a share in her husband's lands only when that share, or the greater part of it, will in the normal course of events be transmitted to the husband's issue upon her deceased."

13. This aspect of the case has also been considered in the case of Syid Murtaza Husain v. Musammat Alhan Bibi 1909 IC (Vol.2) 671, which lays down that under the Shia faith, a widow with a child from her deceased husband is entitled to a share in both movable and immovable property of her husband.

14. This being the position, in our considered opinion, the learned single Judge in chambers of the Lahore High Court committed patent error of law and failed to exercise his jurisdiction in accordance with law, which resulted in gross injustice to the appellants. Thus, such judgment is liable to be set aside.

15. Foregoing are the reasons for our short order dated 17.03.2016.

Sd/-

Anwar Zaheer Jamali, C.J.

Sd/-

Mian Saqib Nisar, J.

Sd/-

Amir Hani Muslim, J.

Sd/-

Iqbal Hameedur Rahman, J.

Sd/-

Khilji Arif Hussain, J.

Agreeing with the opinion/conclusion I have however added a supportive note.

Sd/-

Mian Saqib Nisar, J.

MIAN SAQIB NISAR, J.---I have had the privilege of going through the apt and lucid opinion of the Hon'ble Chief Justice, and though I completely agree with the conclusion thereof, however, would like to add some supportive reason(s) and relevant material in this context.

Asaf A. A. Fyzee in his book titled "Outlines of Muhammadan Law" (4th Ed.) has stated:-

"Childless widow. A childless widow does not take her share from the immovable property of her husband; but she is entitled to her proper share in the value of the household effects, trees, buildings, and movable property, including debts due to the deceased (t)."

In the "Digest of Moohummudan Law" (2nd Ed.) (Part Second), Neil B. E. Baillie has opined:-

"...... When the wife has had a child by the deceased she inherits out of all that he has left; and if there was no child she takes nothing out of the deceased's land, but her share of the value of the household effects and buildings is to be given her. It has been said, however, that she is to be excluded from nothing except the mansions and dwellings; while Moortuza (may God be pleased with him) has expressed a third opinion to the effect that the land should be valued and her share of the value assigned to her. But the first opinion is that which appears to be best founded on traditional authority."

N. J. Coulson in his book titled "Succession in the Muslim Family" (1971) has expressed the following with regard to 'childless wives' in Shia personal law:-

"3.4.1. Variations from Sunni law.

(d) A childless wife inherits no share in her deceased husband's lands.

3.4.2. The childless wife

"Childless" here means, according to the texts, that the surviving widow is without a child, alive or in embryo and subsequently born alive, at the time succession to the estate opens. A wife, therefore, suffers from this disability if she has had children by the propositus who have died before the succession opens or if her only children are those of another marriage. The rule is clearly aimed at ensuring, to a large degree, that lands remain within the husband's family. A widow succeeds to a share in her husband's lands only when that share, or the greater part of it, will in the normal course of events be transmitted to the husband's issue upon her decease......

(Emphasis supplied)

A childless wife's right of succession is subject to one further restriction. She does not inherit the immovable property - buildings, trees, etc. - of her husband in specie, but is entitled to receive the value of her share therein. In sum, her right of inheritance is a share of one-quarter or one-eighth, as the case may be, in the estate less the lands, but this right attaches in specie only to the moveable properties of the inheritance."

'Childless widow' has been elucidated upon by Syed Ameer Ali in his book titled "Muhammad Law" (Volume II) as follows:-

"The husband takes a share in all kinds of property left by his deceased wife, and so does the widow when she has a child "born of her womb", or a child's child. But when she has no child, or when a child was born to her, but died before the decease of her husband, then she is entitled to a fourth share in the personal estate only, including household effects, trees, buildings, etc. She takes no interest in the landed property."

(Emphasis supplied)

D. F. Mulla in his treatise titled "Principles of Muhammadan Law" (2004) has expressed his view under:-

"113. Childless widow. -A childless widow takes no share in her husband's lands, but she is entitled to her one- fourth share in the value of trees and buildings standing thereon, as well as in his movable property including debts due to him though they may be secured by usufructuary mortgage or otherwise."

2. The above view of the scholars is supported by numerous pre-partition judgments of the sub-continent. In the judgment reported as Umardaraz Ali Khan and others v. Wilayat Ali Khan and another [(1896) ILR 19 All 169] the High Court of Allahabad opined as follows:-

"The last ground in the memorandum of appeal questions the correctness of the ruling of the lower Court, that the widow of Mansab Ali was entitled to a one-fourth share of the buildings left by her husband. Mansab Ali was a Shia. According to the beat authority on the Shia law, a childless widow takes nothing out of her deceased husband's land, but she inherits a share of the buildings left by him. (Baillie's Digest of Moohummudan Law, Imameea Code, p. 295). This view was adopted by this Court in Mussumat Toonanjan v. Mussumat Mehndee Begum, N.-W.P., H.C. Rep., 1868, p. 13. We, therefore, overrule the fourth plea of the appellants."

The learned High Court of Madras in the case of Mir Alli Hussain and another v. Sajuda Begum and others [(1897) ILR 21 Mad 27] held that:-

"The authorities in support of the Munsif's finding that a childless widow of the Shiya school is not entitled to any share in the land of her husband are to be found in Mussamut Asloo v. Mussamut Umdutoonnissa (20 W.R., 297) and Mussumat Toonanjan v. Mussumat Mehndee Begum (3 Agra High Court Reports, 13. We see no reason to differ from those decisions. Elberling's work referred to by the Subordinate Judge in support of the contrary view is no authority."

The case reported as Aga Mahomed Jaffer Bindanim v. Koolsom Beebee and others [(1897) 25 Cal 9] involved one Koolsom Beebee, the widow of the propositus husband, who had no children. In light of these facts, the Privy Council expressed its opinion as follows:-

"There only remains the question raised on the widow's behalf that she is entitled to share in the land on which the buildings stand as well as in the value of the buildings themselves. The argument urged by Mr. Branson was that the text from Baillie's Imamia, p. 295, quoted by the learned Recorder refers only to agricultural land, and that a childless widow is, according to the proper construction of that text entitled by Shiah Law to share in land forming the site of buildings. The argument is characterized by novelty and boldness. It is unsupported by any authority, and is contrary to the accepted doctrine on the subject. Their Lordships have no hesitation in agreeing with the learned Recorder in rejecting it."

It was held by the learned High Court of Allahabad in the case cited as Muzaffar Ali Khan and others v. Parbati and another [(1907) 29 All 640] that:-

"Be that as it may, we have, as we have shown above, satisfied ourselves that the evidence will not support the finding that Mahdi Ali had a daughter by Ashraf-ul-nissa who survived him. Upon the admission made at the hearing, a widow under Imamia Law, if she has no issue alive at her husband's death, does not inherit any immovable property from her husband. We find that [645] Syed Ameer Ali in his Muhammadan Law (2nd edition), Vol. II, page 118, lays down as follows :-" Para. 78-The husband takes a share in all kinds of property left by his deceased wife, and so does the widow when she has a child born of her womb or child's child. But when she has no child, or when a child was born to her, but died before the decease of her husband, then she is entitled to a fourth share in the personal estate only, including household effects, trees, buildings, etc. : she takes no interest in the landed property. When there are several widows, they take the fourth of the personal estate equally. But when the widow has children, she takes 1/8th of both personal and real property. If the children, however, be not of her womb, she is not entitled to 1/8th of the real estate."

Once again the learned High Court of Allahabad had the opportunity to rule on the issue of 'childless widow' in the case of Durga Das and others v. Muhammad Nawab Ali Khan and others [(1926) ILR 48 All 557] and stated that:- "The Shia Law is that the childless widow of a Shia is not entitled to a share in the value of any land belonging to her husband including land which constitutes the sites of buildings. Her one-fourth share includes a share in the proceeds of the sale of the buildings. Therefore, when the plaintiffs' set up a claim to a one fourth share in certain landed properties, their claim was unsustainable."

Further: -

"We wish to lay it down for the guidance of the Court below that the Shia Law declares, as we have stated above, that while the childless widow is not entitled to a share in the value of any land even where the land forms the site of a building, she is entitled to a one-fourth share in the proceeds of sale of the buildings. This was the view of the law which was laid down by their Lordships of the Privy Council in the case reported as Aga Mahomed Jaffer Bindanim v. Koolsom Beebee (1898) 25 Cal 9."

In Syed Ali Zamin and another v. Syed Muhammad Akbar Ali Khan and others (116 IC 525) the learned High Court of Patna was of the following view:-

"A further small matter remains to be dealt with. By the decree appealed from the plaintiff is declared entitled to a third share in the immovable properties and a fourth share in the moveable properties. Under Shia law, however, a childless widow is entitled to one-fourth share in the moveables including household effects and the value of trees and buildings forming part of her husband's estate. The plaintiff's share in such property will be subject to the right of the defendant No. 2 to her one-fourth share therein."

The above leaves no room for doubt that where a widow never bore a child from the propositus, she will not be entitled to inherit from the propositus' immovable property. However, as regards the question posed by Fyzee as to whether 'childless widow' means "a woman who has had no children, or does it merely imply that the widow has no children living at the time of the death of her husband?" suffice it to say that both Coulson and Ameer Ali have opined (the relevant portions of their respective opinions have been highlighted above) that 'childless widow' would also encompass those widows who, though had children with the propositus, but did not survive the propositus. This view, particularly that of Ameer Ali's, has been relied upon by the High Court of Allahabad in the case of Muzaffar Ali Khan (supra), and this is the view which prevailed with the three member Bench of this Court in the judgment reported as Syed Muhammad Munir (represented by 10 heirs) and another v. Abu Nasar, Member (Judicial) Board of Revenue, Punjab, Lahore and 7 others (PLD 1972 SC 346). Thus in my candid view, even if a widow has given birth to a child out of her wedlock with the propositus, but such child has deceased prior to the death of the propositus, the widow would not be entitled to inherit the immovable property of the propositus as she is a 'childless widow' under Shia personal law.

MWA/N-3/SC Appeal allowed.