Share of Issueless/childless widow from her (Shia) husband's estate.

PLD 2016 Lahore 865

C) Islamic Law--

--Shia law of inheritance ---"Issueless/childless widow" -- Share of issueless widow from her (Shia) husband's estate -- Question of competence of a childless widow from Fiqa-e-Jafriya had neither been adjudicated upon by the Judiciary as yet nor codified into a law by the Legislature-- However, Ayat 12 of Sura Al-Nisa (Holy Quran) stated that a childless widow was entitled to 1/4th share from the leftover estate of her husband--High Court on such basis declared that even a childless widow from Fiqa-e-Jafariya would be entitled to claim 1/4th share from the leftover estate of her husband--High Court observed that it expected that he Federal Ministry of Law, would take legislative measures to promulgate a codified law in such regard in order to protect the rights of Ahl-e-Tashih childless widow, in getting their due shares from the inheritance of their deceased Husband.

IN THE LAHORE HIGH COURT RAWALPINDI BENCH RAWALPINDI JUDICIAL DEPARTMENT

Civil Revision No. 795-D of 2010. 

(Khalida Shamim Akhtar vs. Ghulam Jaffar & another)

J U D G M E N T 

:- The question emerged in this civil revision petition was that, as to whether an issueless widow, whose husband was follower of Fiqa-e-Jafariya, can competently claim her share from the inheritance of such deceased husband, in the background that, the present petitioner, whose husband-Mohammad Khan, expired leaving her as “widow”, was refused to get her share as inheritance from the leftover estate of her husband, mainly by Ghulam Jaffar and Noor Khan, real brothers of deceased Mohammad Khan with the plea that, under Shia Law of Inheritance, an issueless widow is not entitled to claim her share from the inheritance of her deceased husband. 2. In this case, the learned trial court, vide judgment and decree dated 16.12.2008, proceeded to pass a decree in favour of the petitioner in her suit filed against above-referred Ghulam Jaffar and Noor Khan, whereby, she was held entitled to have a share from the leftover estate of late Mohammad Khan, her husband, in her capacity of “widow”. 2 Civil Revision No. 795-D of 2010. In appeal, however, such findings were reversed, particularly, by setting aside the findings on Issue No.8, and the petitioner was deprived from any share, to be claimed as inheritance from her deceased husband, being childless widow. The appeal, filed by present respondents was allowed by the learned Additional District Judge, Chakwal, vide judgment and decree dated 08.06.2010; hence, this civil revision petition before this Court. 3. The learned counsel for the respondent has mainly based his contentions by opposing the petition on a pamphlet entitled “Beevi Ki Meeras” by Allama Mufti Syed Tyeb Agha Musavi Jazairi, who at one point of time, when West Pakistan Legislative Assembly, was going to promulgate some law making issueless Shia widows competent to claim their shares from the estate of their deceased husbands, seriously controverted and the Legislative Assembly was not allowed to promulgate any law, touching the Shia Community. In this respect, the learned counsel for the respondent has placed reliance on Syed Muhammad Munir (represented by 10 heirs) and another vs. Abu Nasar, Member (Judicial) Board of Revenue , Punjab, Lahore and 7 others (PLD 1972 Supreme Court 346), wherein, although the issue under discussion was dealt with in some details, but ultimately, it was ruled out that, it was not open to the Supreme Court in 1972 to change a settled rule of succession, having the force of Ijma behind it at such latter stage and it was held that, if a change is desired to be made, this work should be undertaken by the Legislature itself, after consulting the Shia Community. The Legislature, however, as noted herein-above was resisted to promulgate any law on the subject and no amendment was made by the West Pakistan Legislative Assembly simply, for the reason that, it was opposed by the Shia Community. The following from the said judgment would be relevant for the present purposes:- 3 Civil Revision No. 795-D of 2010. “It seems that this question was raised sometime back in the West Pakistan Legislative Assembly but no amendment was made as it was opposed by the Shia community. In that connection, one Allama Mufti Syed Tyeb Agha Musavi Jazairi seriously controverted the argument that the Shia rule was against the text of the Holy Qur’an by maintaining in a pamphlet entitled “Beevi Ki Meeras” that the proper translation of the Arabic text of the Holy Qur’an quoted earlier, is as follows:-

"ازواج کے لئے چوتھا حصہ ہے۔ تمہارے ترکہ کی بعض چیزوں میں بشرطیکہ تمہاری اوالد نہ ھو اور آٹھواں حصہ ہے تمہارے ترکہ کی بعض چیزوں میں سے اگر تمہاری اوالد موجود ھو۔ تمھاری وصیت کو پورا کرنے اور قرضہ کو ادا کرنے کے بعد"

"

 

 

 

 

 This translation, it will be noticed, does not tally with the other translation which we have given above; but the learned author has also maintained that the rule excluding a childless widow from inheriting agricultural lands is based on the true traditions of Imam Jafar Sadek, the founder of the Shia School. Indeed, the learned author has cited as his authorities for this rule Muhammad Bin Muslim, Biyah al-Zarti and Zajar Sayeb and also cites Abdul Malek as authority for the following tradition:-- “It is said that Imam Muhammad Baqir also summoned the Book of Hazrat Ali. This was brought by Imam Jafar Sadek and in it was found written that for widows there will not be any share in the lands of their deceased husbands. This was written in the hand of Hazrat Ali himself which was recognized by Imam Muhammad Baqir. But even according to these traditions it will be noticed that no distinction has been made between “childless” and “childful” widows. The denial is to all widows and the reason given for this rule is that, since the widow does not belong to the family of the deceased husband, she is excluded from inheritance in the lands in order to avoid disputes which are likely to occur if she remarries and thus introduces an outsider in the family. 4 Civil Revision No. 795-D of 2010. The Shias claim that the differences 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 interpretation given by the four Imams, namely; Imam Abu Hanifa, Imam Malek, Imam Ahmad and Imam Shafi’e whereas the Shias rely on the interpretation 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 Quranic 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 Ijma’ 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 Urdu 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.” 4. Keeping in view the importance of the question, emerged in this petition and the fact that, a particular class is being deprived from a right of inheritance, and the fact that the Legislature, despite the fact that, it was expected from it even in 1972 to take such legislative measures in order to settle the issue, has not taken any such steps, a public notice was ordered to be issued on 05.05.2016, inviting any segment of life to render assistance to the Court in this regard, particularly, Shia Ulema. 5 Civil Revision No. 795-D of 2010. In response, Allama Syed Iftikhar Hussain Naqvi Najafi, a sitting Member of Council of Islamic Ideology, Government of Pakistan, appeared and rendered assistance. He has also referred his own collection on this point titled “Kitab-e-Meeras”; Volume-3, Chapter-9 whereof deals with the matter of inheritance of husband or wife. 5. During arguments, from both the sides, case-laws titled Syed Muhammad Munir (represented by 10 heirs) and another vs. Abu Nasar, Member (Judicial) Board of Revenue, Punjab, Lahore and 7 others (PLD 1972 Supreme Court 346) and also Muhammad Bashir and others vs. Mst. Latifa Bibi through LRs. (2010 SCMR 1915) have been referred and relied upon in order to reach to a just conclusion; therefore, I am going to summarize the above noted case-laws. In Syed Muhammad Munir’s case (supra), some collection of different Authors, including Syed Ameer Ali, Tyabji, K.P. Saxena, Shama Churun Sircar and Allama Mufti Syed Tyeb Agha Musavi Jazairi, the Hon’ble Supreme Court of Pakistan reached to the conclusion that, the rule, which was being acted in Shia Sect for inheritance purpose to the effect that, a “childless widow” would not inherit her husband in immovable property, has been taken as the force behind as of “Ijma” and it was left to be taken-up by the Legislature, after consulting Shia community, if a change is desired to be made in such rule. In the same judgment, it has been noted that, such question was raised some times back in the West Pakistan Legislative Assembly, but no amendment was made in relevant law as it was opposed by Shia community and in such connection, Allama Mufti Syed Tyeb Agha Musavi Jazairi seriously controverted the argument that Shia rule was against the text of Holy Qur’an by maintaining in a pamphlet entitled “Beevi Ki Meeras”. Ayat No.12 of Sura Al-Nisa can be quoted in this respect, which has been translated in English by S.V. Mir Ahmed Ali:- 6 Civil Revision No. 795-D of 2010. “And for them shall be a fourth of what ye leave if ye have no issue, and if ye have an issue then for them (shall be) the eighth of what ye leave after paying the bequest ye had bequeathed and the debt”. In Muhammad Bashir’s case (supra), although the Hon’ble Supreme Court of Pakistan has commented upon the history and background of division of Muslims in different sects by maintaining that, it is not necessary that a “Mussalman” must either be a Sunni or a Shia and it may well be that he is free from all sectarian feelings, sentiments and faith. It was also maintained that, it cannot be overlooked that, in the first 150 years of the history of Islam, sects were unknown. In fact, the four Schools of Law viz. Hanafi, Maliki, Shafi and Hanbali, were founded in the second century Hijra. The position, therefore, is crystallized that the formation or division of the Muslim population in the world among several sects took place long after the revelation and death of the Prophet (Peace Be Upon Him). After digging out such history, the Hon’ble Supreme Court, thus, found itself unable to hold that, every “Mussalman” must either be a Shia or a Sunni. However, such question of competence of a “childless widow” to inherit her Shia husband, has not been answered even in Muhammad Bashir’s case. 6. The Quranic Command, as reflected herein-above, in Verse No.12 of Surah Nisa has completely been ignored in the case, in hand, rather a totally contrary view is being preferred. The main sources of Shariat are; Holy Qur’an, Sunnah, Ijma and Qias and the Hon’ble Federal Shariat Court in case titled “Muhammad Nasrullah Khan vs. The Federation of Pakistan & another” (Shariat Petition No.06/I of 2013) has held that, if something in any Book is proved to be different from Quran and Sunnah, that would be invalid. 7 Civil Revision No. 795-D of 2010. Muhammadan Law by D.F.Mullah, not only in the present case, but other cases also is oftenly quoted for a reference. The Hon’ble Federal Shariat Court, in the referred judgment, has held that, said law is in fact only a reference book and not a statutory law applicable in Pakistan, in the sense that the legislature has not enacted the same. It is just an option of the Court to consult the same on the basis of equity and refer to the principles mentioned in paragraphs of the said book, at times, and that too casually in some matters only. Moreover, the rules quoted in Muhammadan Law are not at all applicable, if in the opinion of the Court, they are found opposed to justice, equity and good conscience. These rules are not even referred to in situations directly covered by the Holy Quran or Sunnah or by binding Ijma and Qias. 7. According to Para-113 of Muhammadan Law by D.F. Mulla, 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 a usufructuary mortgage or otherwise. This Para is in complete negation of Ayat No.12 of Sura Al-Nisa, whereby a childless widow is entitled to 1/4th share from the leftover estate of her husband. The legislation has not declared Muhammadan Law as codified one. 8. In “Kitab-e-Meeras” Volum-3, Chapter-9 by Allama Syed Iftikhar Hussain Naqvi Najafi, even a childless widow of Fiqa-e-Jafariya, is held entitled to inherit 1/4th share from the leftover estate of her deceased husband and while appearing before this Court, he has reiterated his such version as taken in the referred book ad submitted that, Ahl-e-Tashih or Fiqa-e-Jafariya are first Muslims and cannot think of a different thinking, as have been settled by Holy Qur’an. Ayat No.12 of Sura Al-Nisa, has been referred by Allama Syed Iftikhar Hussain Naqvi Najafi, in support of his 8 Civil Revision No. 795-D of 2010. such version. He has referred the under-mentioned collections from Fiqa-eJafariya on this point:- 

1 -منہاج الصالحین،بحث میراث زواج و زوجہ، تالیف آیت ہللا علی سیستانی، نجف اشرف، عراق 2 -منہاج الصالین آیت ہللا وحید خراسانی، قم المقدسہ، ایران 3 -توضیح المسائل آیت ہللا حافظ بشیرحسین نجفی، بحث میراث زوج وزوجہ 4 -استفتات از حضرت آیت ہللا السید علی خامنہ ای،ایران 5 -تحریر الوسیلہ تالیف حضرت امام خمینی بحث میراث زوج وزوجہ 6 -منہاج الصالحین، بحث میراث الزوج والزوجہ ک، آیت ہللا السید ابو القاسم الخوئی، نجف اشرف عراق

The question of competence of a childless widow from Fiqa-eJafariya has not yet been adjudicated upon by the Judiciary and unless the Legislature, by performing its duty, legislate any codified law in this respect, it is declared that even a childless widow from Fiqa-e-Jafariya would be entitled to claim 1/4th share from the leftover estate of her husband. 10. After holding this, the judgment and decree arrived at by the learned Additional District Judge, Chakwal, on 08.06.2010 has no place to be retained as a valid judgment; therefore, same is set-aside, whereas, judgment and decree, passed by the learned trial court on 16.12.2008 is restored and resultantly, suit of present petitioner is decreed. 11. Before parting with this judgment, this Court extends profound gratitude to Allama Syed Iftikhar Hussain Naqvi Najafi, who rendered his valuable assistance to the Court in reaching a just decision on such intricate question, which remained unanswered since decades. 9 Civil Revision No. 795-D of 2010. 12. It is expected that, the Government of Pakistan in Ministry of Law, would take legislative measures to promulgate a codified law in this regard in order to protect the rights of childless widows from Ahl-e-Tashih, in getting their due shares from the inheritance of their deceased husbands. 13. Office is directed to send a copy of this judgment to the Secretary Law, Government of Pakistan. With these observations, this civil revision petition stands allowed.