In a move to strengthen women’s inheritance rights, the Supreme Court (SC) on Wednesday ordered the restoration of the inherited share of two sisters in their ancestral property after a 71-year dispute, while establishing that the burden of proving an oral gift (hiba) rested with those claiming to benefit from it.
In 1955, the defendants’ father passed away, and their two brothers transferred the inherited property into their names, claiming that it had been orally gifted to them.
A two-member bench at the Lahore Registry comprising Justice Shahid Bilal Hassan and Justice Shakeel Ahmad allowed the appeal filed by Noor Muhammad and issued a 14-page judgment, setting aside the concurrent decisions of the trial court, appellate court and high court that had upheld the disputed oral gift.
The apex court also directed the revenue authorities to correct the land record and ensure that the sisters receive their inheritance in accordance with the 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 names, claiming that it had been orally gifted to them. The appellants maintained that the oral gift was fraudulently engineered to deprive the female heirs of their lawful inheritance.
Rejecting the findings of the lower courts, the Supreme Court ruled that the beneficiaries of an alleged oral gift bear the legal burden of proving its existence.
The judgment observed that the trial court fundamentally erred by treating the alleged oral gift itself as proof instead of examining whether the burden of evidence had been discharged, rendering its approach contrary to settled legal principles.
Referring to a past judgment in the Faqir Ali and others versus Sakina Bibi and others case, the court had ordered that where the “beneficiaries of a gift seek to exclude female heirs from inheritance”, the onus lies upon them to prove the gift.
“It is trite that a gift in order to be valid and binding on the parties must fulfil three conditions, namely (i) declaration of gift by the donor, (ii) acceptance of gift by the donee, and (iii) delivery of possession of corpus.”
The court further held that even if the alleged oral gift had remained unchallenged for decades, as argued by the respondents and accepted by the high court, the obligation to establish its validity still rested with those seeking to benefit from it.
The bench also rejected the objection that the claim had been filed after an inordinate delay, noting that the record showed the mother and sisters continued to receive a share of the income generated by the land for several years after the purported gift.
“After remaining in possession of the property, the sons and their successors subsequently dealt with the property through exchange mutations and gift transactions in favour of their descendants,” the SC highlighted in the detailed order.
This, the court said, indicated they had not been aware of any valid transfer excluding them from inheritance.
Mutation as evidence
The apex court noted that following the death of Roshan, Mutations 74 and 75 were entered in favour of the defendants on April 4, 1955, recording that the widow and daughters of the deceased relinquished their share in favour of the male heirs.
“Inheritance Mutation No74 was entered on April 4, 1955, in favour of legal heirs; on the same day, Mutation No75 was also entered on the basis of an alleged oral gift made by the widow and daughters of the deceased in favour of two sons/brothers. Both mutations were sanctioned on April 17, 1955,” the judgment noted.
The top court dispelled the assumption made by lower courts that the mutation itself constituted proof of the transaction.
The order read, “A mutation is maintained primarily for fiscal purposes, and neither creates nor extinguishes title,” further stressing, “It is reiterated that a mutation is maintained for fiscal purposes and neither creates nor extinguishes proprietary rights.”
Constitutional, legal and Islamic proprietary rights of women
Emphasising the constitutional, legal and Islamic protection afforded to women, the Supreme Court declared that inheritance was neither a matter of male discretion nor family generosity, but a vested legal and Sharia right that automatically devolves upon all heirs immediately after the death of the deceased.
The bench maintained that women’s inheritance rights cannot be extinguished through “private arrangements, family pressure or customary practices” and warned that every transaction allegedly depriving women of inheritance, including fake gifts, fraudulent mutations and sham arrangements, must be subjected to sharp judicial scrutiny.
The court observed that denying women inheritance is not merely a legal dispute but a deep-rooted social problem that often begins within families before reaching the courts. It added that women cannot be deprived of their share in the guise of family honour, tradition or social pressure.
The court enunciated the articles supporting the women’s right to inheritance: “Article 2A incorporates the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam, while Article 25 guarantees equality before law and equal protection of law. Articles 23 and 24 recognise and protect the right to acquire, hold and enjoy property and prohibit deprivation thereof save in accordance with law.”
The bench further highlighted that Article 35 also obligated the state to protect the family, the mother and the child and Article 227 mandates that all laws shall be brought in conformity with the Injunctions of Islam.
“These constitutional guarantees, when read in conjunction with the Islamic injunctions relating to inheritance, leave no room for ambiguity.”
The top court recognised that the state, courts, revenue authorities and society collectively share responsibility for ensuring women receive their inheritance in practice and not “just on paper”.
The SC declared all judgments of the subordinate courts void and ordered correction of the revenue record to secure the sisters’ inheritance.Latest News, Breaking News & Top News Stories | The Express TribuneRana YasifRead More