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| Will for daughter. |
مختصر اور آسان کہانی
غلام یاسین ایک شیعہ مسلمان تھے اور ان کے پاس تقریباً 600 کنال ایک مرلہ زمین تھی۔ ان کی ایک ہی بیٹی، مسماۃ حسینہ بی بی، تھی جبکہ انہوں نے اپنی بیوی کو اپنی زندگی میں طلاق دے دی تھی۔
غلام یاسین نے وفات سے کچھ عرصہ پہلے ایک وصیت نامہ تحریر کیا جس میں واضح کیا کہ وہ شیعہ مسلک سے تعلق رکھتے ہیں، ان کی تدفین شیعہ طریقے کے مطابق کی جائے اور ان کی بیٹی ہی ان کی واحد قانونی وارث ہے۔
مرحوم کے بعض رشتہ داروں نے اس وصیت کو جعلی قرار دیتے ہوئے دعویٰ کیا کہ غلام یاسین سنی تھے اور آخری دنوں میں منہ کے کینسر میں مبتلا ہونے کی وجہ سے بات بھی نہیں کر سکتے تھے۔
عدالت میں بیٹی نے وصیت نامہ، اس کے کاتب اور گواہوں کو پیش کیا۔ متعدد گواہوں نے بھی تصدیق کی کہ غلام یاسین وفات تک شیعہ مسلک اختیار کر چکے تھے۔ مخالفین مرحوم کے منہ کے کینسر یا وصیت کے وقت بولنے سے معذوری کا کوئی طبی ریکارڈ پیش نہ کر سکے۔
عدالت نے قرار دیا کہ کسی شخص کا پیدائشی طور پر سنی ہونا اس بات سے نہیں روکتا کہ وہ بعد میں شیعہ مسلک اختیار کرے۔ اسلامی قانون کے مطابق بالغ مسلمان اپنا مسلک تبدیل کر سکتا ہے اور پھر نئے مسلک کے قانون کے تابع ہوتا ہے۔
چونکہ غلام یاسین کی واحد بیٹی فرسٹ کلاس کی وارث تھی جبکہ مخالفین تیسرے درجے کے دور کے رشتہ دار تھے، اس لیے بیٹی نے انہیں وراثت سے خارج کر دیا۔
آخرکار پشاور ہائی کورٹ، ڈی آئی خان بینچ نے ماتحت دونوں عدالتوں کے فیصلوں کو درست قرار دیتے ہوئے نظرثانی کی درخواست خارج کر دی۔
اہم نکات
اہم نکتہ 1: بالغ مسلمان اپنا مسلک تبدیل کر سکتا ہے اور پھر نئے مسلک کے قانون کے تابع ہوتا ہے۔
اہم نکتہ 2: جس فریق نے کسی حقیقت کا دعویٰ کیا، اسے اس دعوے کا ثبوت بھی دینا ہوگا۔
اہم نکتہ 3: مرحوم کے منہ کے کینسر اور وصیت کے وقت بولنے سے معذوری کا کوئی طبی ریکارڈ پیش نہیں کیا گیا، اس لیے یہ اعتراض ثابت نہ ہو سکا۔
اہم نکتہ 4: وصیت کے کاتب اور گواہوں کی شہادت سے وصیت ثابت ہوئی۔
اہم نکتہ 5: شیعہ قانونِ وراثت میں قریبی درجے کا وارث دور کے وارث کو خارج کر دیتا ہے۔
اہم نکتہ 6: مرحوم کی اکلوتی بیٹی فرسٹ کلاس کی وارث تھی، جبکہ درخواست گزار تیسرے درجے کے دور کے رشتہ دار تھے۔
اہم نکتہ 7: عدالت نے دونوں ماتحت عدالتوں کے متفقہ فیصلے میں مداخلت کی کوئی وجہ نہیں پائی۔
عدالتی فیصلہ
پشاور ہائی کورٹ، ڈی آئی خان بینچ نے قرار دیا کہ مرحوم کا شیعہ مسلک اختیار کرنا ثابت تھا، وصیت بھی ثابت ہوئی اور اکلوتی بیٹی قریبی درجے کی وارث ہونے کی وجہ سے دور کے رشتہ داروں کو وراثت سے خارج کرتی ہے۔ چنانچہ نظرثانی کی درخواست میرٹ نہ ہونے کی وجہ سے خارج کر دی گئی۔
Must read judgment.
2025 CLC 992
[Peshawar (D.L.Khan Bench)]
Before Inam Ullah Khan, J
SHAH JAHAN and others ---Petitioners
Versus
Mst. HASEENA BIBI and others --Respondents.
Civil Revision No. 178-D of 2024 with C.M. No. 282-D of 2024, decided on 24th February, 2025.
(a) Islamic law---
-Will-Proof-Follower of 'Shia' sect---Relevant revenue record exhibited by one of the witnesses of plaintiff /respondent revealed that the deceased (father of respondent/lady-plaintiff) was the owner of the property-in-question-Respondent/plaintiff not only produced/exhibited the will-deed but also produced the scribe and marginal witnesses of the same (will-deed) as her witnesses---In said will-deed the deceased disclosed that he was follower of Shia sect and directed to conduct his funeral ceremony according to Shia sect and to burry him in a shia graveyard; he further directed that the respondent/plaintiff is his sole legal heir and his legacy will be devolved according to Shia sect-Petitioners/defendants were not able to shatter the evidence qua writing of the will-deed---As many as six witnesses produced by the respondent/plaintiff, including one who led the funeral prayer of deceased, remained consistent to the effect that the deceased was follower of Shia sect till his death-Respondent/plaintiff had proved on record that her father was follower of Shia sect and he validly scribed the will-deed- -deed--No mis-reading, not mis-reading, non-reading or unlawful exercise of jurisdiction could be pointed out and both the Courts below shelow had passed the impugned judgments/decrees after proper appreciation of the record/evidence, thereof the concurrent finding could be interfered with---Revision petition, being meritless, was dismissed in limine, in circumstances.
(b) Maxim
---Actori incumbit onus probandi---Meaning and scope-He who asserts a fact fact must prove the same, which is based on latin maxim "onus probandi actori incumbit"---Mode of proof is the procedure by which the "facts in issue" as also "the relevant facts have to be proved during the trial--In the present case, the petitioners/defendants were unable to produce medical record showing their assertion regarding disease of the deceased suffering from mouth cancer and that at the time of writing will deed, he was unable to talk---Revision petition was dismissed.
(c) Islamic law...
---Sect/sub-sect by birth, renouncing of-Scope and effect-Sect of the deceased---Proof---Inheritance---One of the witnesses produced by the respondent/plaintiff stated that he led the Janaza (funeral) prayer of deceased as per Shia sect---One of the witnesses of the petitioners/defendants (DW-1) stated that two funeral prayers of the deceased were offered; one, as pre Shia sect, and the other, as per Sunni sect led by a Maulvi (prayer leader)--On the request of said witness, prayer leader was summoned but he was abandoned---Subsequently, the prayer leader was examined as a Court Witness (CW-1), who stated in his statement that the deceased was follower of Shia sect and that he (prayer leader) had not led his Janaza (funeral) prayer-Two of the (six) witnesses of respondent/plaintiff admitted in their cross-examination that by birth the deceased was Sunni but that he (deceased) later on adopted Shia sect--Under Para 31 of Chapter 3 of Principles of Muhammadan Law, a Muhammadan male or female who has attained the age of puberty, may renounce the doctrines of the sect or sub-sect to which he or she belongs and adopt the tenets of the other sect or any other sub-sect and he or she will thenceforth he subject to the law of the new sect or sub-sect---Respondent/plaintiff had proved on record that her father was follower of Shia sect and he validly scribed the will-deed---No mis-reading, non-reading or unlawful exercise of jurisdiction had been pointed out and both the Courts below had passed the impugned judgments/decrees after proper appreciation of the record/evidence, thereof the concurrent finding could not be interfered with-Revision petition, being meritless, was dismissed in limine, in circumstances.
(d) Islamic law...
----Inheritance--Shia law---Principles--Shia Law of inheritance divides heirs into two groups, namely, (1) heirs by by consanguinity, that is blood relation, and (2) heirs by marriage, that is, husband and wife-Heirs by consanguinity are divided into three classes and each class is sub-divided into two sections---Para 88 of Chapter 8 of the principles of Muhammadan Law provided three classes of heirs;
I (1) Parents;
II (ii) Children and other lineal descendants h.l.s;
II (1) Grandparents h.h.s. (true as well as false);
II (ii) Brothers and sisters and their descendants h.l.s;
III (i) Paternal and (ii) maternal, uncles and aunts of the deceased and of his parents and grandparents h.h.s, and their descendants h.ls. Of three classes of heirs, first excludes the second from inheritance and second excludes third-In the present case, admittedly, the respondent/plaintiff was the only daughter of the deceased while he divorced his wife during his lifetime-Respondent (plaintiff/lady), being heir of first class, excluded the petitioners, who were the heirs of third class-Even otherwise, it is settled principle of Islamic Law that nearer in degree excludes the more les the more remote, therefore, as per the pedigree table and the law, the petitioners were not only distant kindred kindred of the deceased but also remoter in degree-No mis-reading, non-reading or unlawful exercise of jurisdiction had been pointed out and both the Courts below had passed the impugned judgments/decrees after proper appreciation of the record/evidence, therefore the concurrent finding could not be interfered with-Revision petition, being meritless, was dismissed in limine, in circumstances.
Syed Ansar Hussain v. Syed Risalat Hussain and 10 others 1985 MLD 265 and Rasool (deceased) through L.Rs and 6 others v. Jano and 10 others 2021 MLD 1759 ref.
Khalida Shamim Akhtar v. Ghulam Jaffar and another PLD 2016 Lahore 865 distinguished.
Burhan Latif Khaisori for Petitioners.
Nemo for Respondents (motion case).
Date of hearing: 24th February, 2025.
JUDGMENT
INAM ULLAH KHAN, J.-This revision petition arises out of the judgment and decree, dated 28.10.2024, of the learned Additional District Judge-V, D.I.Khan, whereby the appeal of the petitioners against the judgment and decree, dated 29.5.2023, of the learned Civil
Judge-VIII, D.L.Khan, has been dismissed.
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The brief facts of the case are that the respondent No. 1 filed a civil suit against the petitioners alleging that her father Ghulam Yasin belongs to Shía sect and died on 03.4.2013. His funeral ceremony was conducted according to Shia sect, as per his will. He was owner in possession of land measuring 600 kanal and 01 marla, situated in mauza Taj, Tehsil and District D.L.Khan, fully detailed in the head note of the plaint. After his death, she is owner in possession of his legacy while the petitioners, who are the sons of her cousins, have no concern whatsoever with the legacy of her father. Therefore, cancellation of inheritance mutations Nos. 460, dated 04.6.2013, and No.847, dated 04.6.2013, on the request of the petitioner No.2, is totally wrong and against the facts and law hence, the official respondents Nos. 2 to 4 are bound to enter and attest inheritance mutation in her favour as per Shia Law.
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The petitioners filed their written statement wherein they raised the plea that the father of the respondent No.1 was follower of Sunni sect and the will deed is fake and bogus. From the pleading of the parties, issues were framed. Pro and contra evidence of the parties was recorded. Thereafter, the learned trial Court/Civil Judge-VIII, D.I.Khan, heard the arguments of the parties and decreed the suit vide judgment, dated 29.5.2023. Feeling aggrieved of the aforesaid judgment, the petitioners filed appeal which was dismissed by the Additional District Judge-V, D.I.Khan, vide judgment and decree, dated 28.10.2024, hence, they approached to this Court by filing the instant petition.
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I have heard the arguments of learned counsel for the petitioners and perused the record.
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The record reflects that PW-2 produced revenue record as Ex.PW-2/1, 2/2, 2/3 and 2/4 which reveal that Ghulam Yasin, father of respondent No.1, was owner of the property in question. The respondent No.1 produced the will deed as Ex.PW-7/1. She produced the scribe of will deed as PW-3 and its marginal witnesses as PWs-4 and 5. In the will deed Ghulam Yasin disclosed that he was follower of Shia sect and directed to conduct his funeral ceremony according to Shia sect and burry him in Chah Syed Munawar Shah graveyard. He further directed that the respondent No.1 is his sole legal heir and his legacy will be devolved according to Shia sect. The petitioners have not been able to shatter the evidence qua writing the will deed.
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Learned counsel for the petitioners contended that Ghulam Yasin was suffering from mouth cancer, therefore, he was unable to talk and the will deed, written before 18 days of his death, is fake and bogus. During the course of a civil trial, it is cardinal principle that he who asserts a fact must prove the same, which is based on latin maxim "onus probandi actori incumbit". Mode of proof is the
graveyard. He further directed that the respondent No.1 is his sole legal heir and his legacy will be devolved according to Shia sect. The petitioners have not been able to shatter the evidence qua writing the will deed.
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Learned counsel for the petitioners contended that Ghulam Yasin was suffering from mouth cancer, therefore, he was unable to talk and the will deed, written before 18 days of his death, is fake and bogus. During the course of a civil trial, it is cardinal principle that he who asserts a fact must prove the same, which is based on latin maxim "onus probandi actori incumbit". Mode of proof is the procedure by which the "facts in issue" as also "the relevant facts" have to be proved during the trial. In the instant case, the petitioners have not been able to produce medical record showing that Ghulam Yasin suffering from mouth cancer and at the time of writing will deed, he was unable to talk.
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PW-9 stated that he led the Janaza prayer of Ghulam Yasin as per Shia sect. PWs-6 to 11 remained consistent to the effect that Ghulam Yasin was follower of Shia sect till his death. DW-1 stated in his statement that / two Janaza prayers of Ghulam Yasin were offered; one, as per Shia sect, and the other, as per Sunni sect led by Maulvi Muhammad Afzal. On his request, Maulvi Muhammad Afzal was summoned by the learned trial Court but he was abandoned. Subsequently, the aforesaid Maulvi Muhammad Afzal was examined as CW-1, who stated in his statement that Ghulam Yasin was follower of Shia sect and that he had not led his Janaza prayer. Though PWs-6 and 11 admitted in their cross-examination that by birth Ghulam Yasin wa was Sunni but, later on adopted Shia sect. A Muhammadan male or female who has attained the age of puberty, may renounce the doctrines of the sect or sub-sect to which he or she belongs, and adopt the tenets of the other sect or any other sub-sect, and he or she will thenceforth be subject to the law of the new sect or sub-sect. Reference is made on Chapter 3, Para-31, 20th Edition, D.F Mulla on the principles of Muhammadan Law. However, the respondent No.1 has proved on record that her father was follower of Shia sect and he validly scribed the will deed.
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Admittedly, the respondent No.1 is the only daughter of the deceased Ghulam Yasin while he divorced his wife Mst. Hajira Bibi during his lifetime. The Shia Law of Inheritance divide heirs into two groups, namely, (1) heirs by consanguinity, that is, blood relations, and (2) heirs by marriage, that is, husband and wife. Heirs by consanguinity are divided into three classes and each class is sub-divided into two sections. In this regard Chapter 8, Para-88, 20th Edition, D.F Mulla on the principles of Muhammadan Law composed as follows:-
I (1) Parents;
II (ii) Children and other lineal descendants h.L.s.
II (i) Grandparents h.h.s. (true as well as false);
II (ii) Brothers and sisters and their descendants h.l.s.
III (i) Paternal, and (ii) maternal, uncles and aunts, of the deceased, and of his parents and grandparents h.h.s., and their descendants h.l.s.
Of three classes of heirs,
rs, first excludes the second from inheritance and the second excludes third. In the present case, the
respondent No.1, being heir of first class excludes the petitioners, who are the heirs of third class. In this regard reference may be made to the case of Syed Ansar Hussain v. Syed Risalat Husain and 10 others, (1985 MLD 265) (Karachi) and Rasool (deceased) through L.Rs and 6 others v. Jano and 10 others, (2021 MLD 1759) [Gilgit-Baltistan Chief Court). Even otherwise, it is settled principle of Islamic Law, that nearer in degree excludes the more remote, therefore, as per the pedigree table and the law, the petitioners are not only distant kindred of Ghulam Yasin but also remoter remoter in degree. Learned counsel for the petitioners has relied upon Amina Khatoon (widow) v. Member (Judicial-III), Board of Revenue, Punjab and and 7 others, (PLJ 2021 Lahore 182) and Khalida Shamim Akhtar v. Ghulam Jaffar and another, (PLD 2016 Lahore 865), but the facts of the aforesaid entirely different, therefore, the same applicable in the instant case. not
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Both the learned Courts below have passed the impugned judgments/decrees after proper appreciation of the material available on the record, thereof the concurrent finding cannot be interfered with. No misreading, non-reading or unlawful exercise of jurisdiction could be pointed out by the learned counsel for the petitioners to interfere with the concurrent findings of both the Courts below.
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The upshot of the above discussion is that the instant revision petition, being meritless, is dismissed in limine. MQ/52/P
Revision dismissed.
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