Sisters sought court recognition of shares from parents’ estate in conflict with brothers
ISLAMABAD:
The Federal Constitutional Court (FCC) has issued guidelines for courts as well as tax authorities regarding the determination and enforcement of inheritance rights for female legal heirs.
“All courts, revenue authorities and other forums charged with adjudicating, recognizing or enforcing inheritance rights, particularly those relating to female legal heirs, shall exercise increased vigilance and judicial control in such matters and shall ensure compliance with the following indispensable safeguards while examining any compromise, mutual settlement, mutual agreement, family agreement, agreement or other instrument having the effect of affecting, curtailing, compromises or wipes out the inheritance rights of women,” said a 33-page judgment authored by Chief Justice Aminuddin Khan while hearing a case in which sisters were deprived of their inheritance rights.
The sisters had brought an action against their brothers, primarily seeking a declaration and separate possession of their respective Sharia shares in the estate left by their late parents.
During the pendency of the case, a written compromise was allegedly entered into between the parties, and on the basis of this, the High Court proceeded to pronounce judgment.
Subsequently, the petitioners alleged that the said compromise had been procured through fraud, misrepresentation and concealment of material facts and that their consent thereto was neither free nor informed. They further argued that the trial court lacked jurisdiction to pass a decree based on an illegal and unsafe compromise and therefore invoked the curative jurisdiction.
The FCC’s Division Bench, headed by Chief Justice Amin, stated in its guidelines that all courts and revenue authorities, while adjudicating instruments affecting the inheritance rights of female heirs, must apply a rule of heightened judicial review and deal with such matters involving the protection of a vulnerable class.
“No presumption of validity shall arise from mere execution, attestation, registration, mutation or apparent consent unless the same is supported by strict proof of voluntariness and informed understanding,” the judgment said.
It noted that the burden will remain “heavy” on the recipient of the transaction to “affirmatively” establish, through credible and unimpeachable evidence, that the instrument represents a free, informed and deliberate act on the part of the executor.
“Courts must ensure that it is documented that the executor had clear knowledge of the nature of the transaction and the exact inheritance rights that are affected or relinquished.
“It must be established that the executor had access to independent, competent and disinterested advice sufficient to enable informed decision-making free from influence or dependence.
“Every transaction must be scrutinized to rule out the presence of coercion, fraud, misrepresentation, undue influence or familial or social dominance.
“If consideration is alleged, courts must require strict proof that it was legal, real, appropriate and actually received in a verifiable manner.
“It must be demonstrated that the contents of all documents have been read, explained and translated into a language that the attorney understands.”
The FCC held that the courts must verify that the executive was given a reasonable opportunity for reflection and consultation without haste or pressure.
“Any transaction which is prima facie unconscionable, one-sided or disproportionately prejudicial to the female heir shall be subject to strict rejection unless fully justified by clear evidence.
“All suspicious or questionable circumstances surrounding the transaction must be satisfactorily explained by the recipient, otherwise a negative inference will follow.
“In all such cases, courts must record an affirmative finding of voluntariness and informed consent before upholding any deprivation of inheritance rights.”
Finally, the FCC stated that tax authorities must exercise similar caution at the mutation stage and not sanction entries affecting inheritance unless the above safeguards are demonstrably observed.
The FCC held that in a society where female legal heirs are woefully and frequently deprived of their divinely ordained and legally protected inheritance rights through subtle coercion, social pressure, manipulation and fraudulent devices, the courts are under a heightened obligation to scrutinize transactions affecting such rights with the utmost vigilance.
“The doctrine developed for the protection of parda nasheen women is not a mere technical rule of evidence, but an essential safeguard designed to protect vulnerable women from exploitation and deprivation.
“If a transaction involves an old, illiterate, woman of the village observing the parda, the burden on the recipient becomes exceptionally onerous.
“Every suspicious circumstance surrounding such transaction must be satisfactorily removed by the highest degree of evidence, leaving no room for doubt, conjecture or uncertainty.”
The judgment noted that the shares of inheritance in the estate of a deceased Muslim are neither uncertain nor dependent on the whims of individuals. They are specifically prescribed by the Holy Qur’an and upon the death of a Muslim, his or her legal heirs acquire vested property rights by operation of law.
“The protection of women’s property rights is firmly rooted in a number of international human rights instruments which, while differing in their legal character, collectively establish binding obligations and authoritative standards of interpretation relevant to the present dispute. The Universal Declaration of Human Rights, 1948 (UDHR), although not a treaty, is widely recognized as international law, reflecting a fundamental copyright and constituent author’s rights.”
“The judicial conscience of the Court cannot remain indifferent to the recurring phenomenon of female heirs being deprived of their legal shares under the guise of quitclaim deeds, family settlements, compromise agreements, gifts, alimony, dowry, money payments, or other apparently legal transactions having a female arrangement that has a female-depriving effect without her heir having a hereditary effect. strict evidence of free, informed and independent consent is apt to be regarded with the gravest suspicion and subjected to the most exacting judicial scrutiny.”
