The sisters asked the court for recognition of the shares of their parents’ estate in conflict with their brothers
ISLAMABAD:
The Federal Constitutional Court (FCC) has issued guidelines for courts as well as tax authorities regarding the adjudication and application of inheritance tax for legal heirs.
“All courts, tax authorities and other bodies responsible for adjudicating, recognizing or enforcing inheritance rights, in particular those relating to legal heirs, must exercise increased vigilance and judicial control over these matters and are responsible for ensuring compliance with the following essential guarantees when considering any compromise, waiver, family arrangement, settlement, gift, transfer, declaration of consent or other instrument having the effect of affecting, restricting, compromising or extinguishing the inheritance rights of women’, a 33-page judgment drafted,” Chief Justice Aminuddin Khan said while hearing a case in which sisters were deprived of their inheritance rights.
The sisters had filed a suit against their brothers, primarily seeking declaration and separate possession of their respective sharia shares in the estate left by their deceased parents.
While the trial was in progress, a written compromise was allegedly reached between the parties and, based on that, the trial court rendered its judgment.
Subsequently, the petitioners alleged that the said compromise was obtained by fraud, misrepresentation and concealment of material facts, and that their consent was neither free nor informed. They further asserted that the trial court lacked jurisdiction to enter a judgment based on an illegal and uncertain compromise and therefore invoked curative jurisdiction.
The FCC Division Bench, led by Chief Justice Amin, held in its guidelines that all courts and taxing authorities must, when adjudicating instruments affecting the inheritance rights of female heirs, apply a rule of heightened judicial review, treating such matters as involving the protection of a vulnerable class.
“No presumption of validity arises from the mere execution, certification, registration, transfer or appearance of consent, unless the same is supported by strict proof of voluntariness and informed understanding,” the judgment states.
He noted that the onus will be “heavy” on the beneficiary of the transaction to “affirmatively” establish, by means of credible and irrefutable evidence, that the instrument represents a free, informed and conscious act of the performer.
“The courts must ensure that it is proven in writing that the executor had clear knowledge of the nature of the transaction and the exact inheritance rights that were affected or abandoned.
“It must be established that the performer had access to independent, competent and disinterested advice, sufficient to enable informed decision-making, free from any influence or dependence.
“Any transaction must be examined to exclude the presence of coercion, fraud, misrepresentation, undue influence or familial or social domination.
“When consideration is alleged, the courts will require strict proof that it was lawful, actual, adequate and actually received in a verifiable manner.
“It must be demonstrated that the content of all documents has been proofread, explained and translated into a language perfectly understood by the performer.”
The FCC held that courts must verify that the performer was given a reasonable opportunity for consideration and consultation, without haste or pressure.
“Any transaction which is prima facie impermissible, unilateral or disproportionately detrimental to the heir will be subject to strict disapproval unless fully justified by clear evidence.
“Any suspicious or doubtful circumstances surrounding the transaction must be satisfactorily explained by the beneficiary; otherwise, an adverse finding will follow.
“In all such cases, the courts must record a positive finding of voluntary and informed consent before confirming any deprivation of inheritance rights.”
In the end, the FCC stated that tax authorities should exercise the same caution at the mutation stage and should not sanction entries affecting inheritance unless the above safeguards are demonstrably met.
The FCC held that, in a society where legal heirs are unfortunately and frequently deprived of their divinely ordained and legally protected inheritance rights through subtle coercion, social pressures, manipulation, and fraudulent schemes, courts have a heightened obligation to review transactions affecting these rights with the greatest vigilance.
“The doctrine developed for the protection of women parda nasheen is not a mere technical rule of proof but a substantive safeguard designed to protect vulnerable women from exploitation and deprivation.
“Indeed, when a transaction involves an elderly, illiterate rural woman observing parda, the burden on the beneficiary becomes exceptionally onerous.
“Any suspicious circumstances surrounding any such transaction must be satisfactorily dispelled by evidence of the highest order, leaving no room for doubt, conjecture or uncertainty.”
The judgment notes that inheritance shares in a deceased Muslim’s estate are neither uncertain nor dependent on the whims of individuals. They are specifically prescribed by the Holy Quran and, upon the death of a Muslim, his legal heirs acquire legally vested property rights.
“The protection of women’s property rights is firmly anchored in a series of international human rights instruments which, although different in legal nature, collectively establish binding obligations and authoritative standards of interpretation relevant to the current controversy. The 1948 Universal Declaration of Human Rights (UDHR), although not a treaty, is widely considered to reflect customary international law and is an authoritative statement of fundamental rights.
“The judicial conscience of the Court cannot remain indifferent to the recurring phenomenon according to which heirs are deprived of their legitimate shares under the cover of deeds of renunciation, family settlements, compromise agreements, gifts, alimony clauses, nuptial considerations, monetary payments or other ostensible transactions. requiring judicial review.
