Nieces’ Right of Inheritance in Absence of Nephews under Hanafi Law.
حنفی فقہ کے تحت بھتیجوں کی موجودگی میں بھتیجیوں کا وراثت میں حصہ نہ ملنا
پس منظرِ مقدمہ
تنازعہ کی نوعیت
قانونی سوال
اسلامی قانونِ وراثت کے اصول
فریقین کی قانونی حیثیت
عدالت کا تجزیہ
فتوٰی اور دستاویزی ثبوت
فیصلہ
قانونی نتیجہ
Must read judgement.
2026 C 1 C 120
[Sindh]
Before Arshad Hussain Khan, J
NOOR MUHAMMAD-Deceased
Versus
12
Ms. AMNA ASHFAQ ---Petitioner
S.M.A. No. 99 of 2022, decided on 6th May, 2024.
Islamic Law-
-Inheritance-Hanafi law of inheritance Classes of heirs-Deceased dying inestate-Nieces of such deceased, entitlement of--Objection of the female [two nieces]('the Objectors) was that they would also join in shares claiming half of the share as compared to male---Validity--Under Para-61 Principles of Muhammadan Law, there are three classes of heirs, namely; (1) "Sharers" are those who are entitled to a prescribed share of the inheritance (2) "Residuaries" are those who take no prescribed share but succeeded to the "residue" after the claims of the sharers are satisfied and (3) "Distant Kindred" are all those relations by blood who are neither Sharers nor Residuaries---The first step in the distribution of the estate of a deceased Muhammadan, after payment of his funeral expenses, debts and legacies is to allot their respective shares to such relations as being to the class of sharers and are entitled to a share-The next step is to divide the residue (if any) among such of the residuaries as are entitled to the residue---If there are no sharers, the residuaries will succeed to the whole inheritance If there be neither sharers nor residuaries, the inheritance will be divided among such of the distant kindred as are entitled to succeed thereto---The distant kindred distant kindred are not entitled to succeed so long as there is any heir belonging to the class of sharers or residuaries---There are two fundamental principles of the Islamic Law of 'inheritance accepted by the Sunni Fiqah: the first principle is that the Qur'anic Sharers are to be given their prescribed shares unless a Qur'anic sharer is excluded by another heir according to the Rules of Exclusion prescribed in the Qur'an and Sunnah and elaborated upon by Islamic Jurisprudence (Sharia): the second principles is that after the Qur'anic Sharers have been given their shares the rest of the estate is divided amongst the nearest male agnates of the deceased as Residuaries---The agnates are the persons related to the deceased through a male link--Consequently, the son of a deceased brother is a male agnate-in the present case, admittedly, the parties belonged to the Hanafi Fiqqah and according to the Hanafi Law of inheritance mentioned under Paras 63, 65 and 67 in the Principles of Muhammadan Law, which contained a detailed lists of Sharers, Residuaries and the Distant Kindred, wife of the deceased, fell within the class of Sharers, who were entitled to a prescribed share of inheritance and one minor daughter of the deceased also fell within the class of sharers in absence of son-As far as two nephews of the deceased were concerned, they fell within the category of Residuaries---Whereas, the deceased's two nieces (the Objectors) fell within the class of Distant Kindred, who were not entitled to any share according to the Hanafi Law in presence of Sharer and the Residuaries-Moreso, a fatawa had been obtained and filed by the petitioner which also showed that the nieces of the deceased would not be entitled for the share of any of the properties, left behind by the deceased, except the two nephews, who were mentioned in the Family Registration Certificate Consequently, in the present case, the widow and the daughter would be entitled to get their shares as Sharers and the sons of the brother of the deceased were entitled to get their residuary shares by virtue of being male relatives on the father's side and it should he divided equally among them as Residuaries---The Objectors (nieces of the deceased) would not he entitled to get any thing because they were not among the male relatives on the father's side-Thus, the objections of the Objectors being misconceived were rejected-Since the objections had been rejected, as such, there appeared no impediment---Succession Miscellaneous Application was allowed, in circumstances.
Ibrahim and 4 others v. Rehmat Ali and 6 others PLD 2002 SC 741; Waris Ali and others v. Rasoolan Bibi PLD 2014 SC 779 and Abdul Khaliq and another v. Fazalur Rehman and others PLD 2004 SC 768 ref.
Shujaat Ali Khan for Petitioner.
Nadeem Memon for L.Rs.
Asim Iqbal for Objectors.