LAHORE:
In a bid to strengthen women’s inheritance rights, the Supreme Court ordered the restoration of two sisters’ inherited share in their ancestral property after a 71-year dispute, while establishing that the burden of proving an oral gift (hiba) fell on those who claimed to benefit from it.
In 1955, the defendants’ father died and their two brothers transferred the inherited property into their names, claiming it had been gifted to them orally.
A division bench of SC Lahore Registry, comprising Justice Shahid Bilal Hassan and Justice Shakeel Ahmad, allowed the appeal filed by Noor Muhammad and delivered a 14-page judgment, setting aside the competing decisions of the trial court, the appellate court and the high court which had upheld the oral gift.
The apex court also ordered the tax authorities to correct the land record and ensure that the sisters receive their inheritance according to law.
According to the judgment, the dispute dates back to 1955 when, following the death of the parties’ father, two brothers transferred the inherited property into their name, claiming that it had been offered to them orally.
The appellants argued that the oral gift was fraudulently designed to deprive the heirs of their rightful inheritance. Rejecting the lower courts’ findings, the Supreme Court held that the recipients of an alleged oral gift bear the legal burden of proving its existence.
The judgment observed that the trial court had committed a fundamental error in treating the alleged oral gift itself as evidence instead of considering whether the burden of proof had been discharged, making its approach contrary to established legal principles.
The SC referred to an earlier judgment in the case of Faqir Ali and others v Sakina Bibi and others, in which the court had ordered that when “beneficiaries of a donation seek to exclude female heirs from inheritance, the onus is on them to prove the donation.”
“It is well known that a donation, to be valid and enforceable against the parties, must fulfill three conditions, namely (i) the declaration of donation by the donor, (ii) the acceptance of the donation by the donee, and (iii) the delivery of possession of the corpus.”
The court further held that even though the alleged oral gift had remained undisputed for decades, as argued by the defendants and accepted by the High Court, the onus of establishing its validity still rested on those seeking to benefit from it.
The court also rejected the objection that the application was filed after undue delay, noting that the record showed that the mother and sisters continued to receive a share of the income generated by the land for several years after the purported donation.
He noted that the sons and their successors then managed the property through exchange mutations and gift transactions in favor of their descendants. According to the court, this indicates that they were not aware of any valid transfer excluding them from the inheritance.
Mutation as proof
The apex court noted that after Roshan’s death, mutations 74 and 75 were registered in favor of the accused on April 4, 1955, recording that the widow and daughters of the deceased had relinquished their share in favor of the male heirs.
“Probate mutation No. 74 was registered on April 4, 1955 in favor of the legal heirs; on the same day, mutation No. 75 was also registered on the basis of an alleged oral donation made by the widow and daughters of the deceased in favor of two sons/brothers. Both transfers were sanctioned on April 17, 1955.”
The apex court refuted the assumption made by the lower courts that the mutation itself was evidence of the transaction. “A mutation is maintained primarily for tax purposes and does not create or extinguish title. It is recalled that a mutation is maintained for tax purposes and does not create or extinguish ownership rights.”
Women’s property rights
Highlighting the constitutional, legal and Islamic protection afforded to women, the SC said inheritance was neither a matter of male discretion nor family generosity, but an acquired right under Shariah and Sharia law which automatically accrues to all heirs immediately after the death of the deceased.
The bench held that women’s inheritance rights cannot be extinguished by “private arrangements, family pressures or customary practices” and warned that any transactions allegedly depriving women of inheritance, including fake gifts, fraudulent transfers and sham arrangements, must be subjected to strict judicial scrutiny.
The court observed that denying women inheritance is not just a legal dispute but a deep-rooted social problem that often begins within families before reaching the courts. He adds that women cannot be deprived of their share under the cover of family honor, tradition or social pressure.
The court set out the articles supporting women’s right to inheritance.
“Article 2A incorporates the principles of democracy, freedom, equality, tolerance and social justice enunciated by Islam, while Article 25 guarantees equality before the law and equal protection of the law.
“Articles 23 and 24 recognize and protect the right to acquire, hold and enjoy property and prohibit the deprivation thereof except in accordance with law,” it adds.
The bench pointed out that Article 35 also obliges the state to protect the family, mother and child and Article 227 requires all laws to be brought into conformity with the injunctions of Islam.
“These constitutional guarantees, read in conjunction with Islamic injunctions relating to inheritance, leave no room for ambiguity.”
The top court recognized that the state, courts, tax authorities and society collectively share the responsibility to ensure that women receive their inheritance in practice and not “just on paper”.
