Mst. JANTAN through Mazhar Hussain vs Mst. MANZOORAN BIBI and others

' The main litigated question in the civil suit and in the present civil revision is as to whether deceased Mst. Bhagan was a Shia Muslim or a Sunni Muslim. The learned Courts below through the concurrent findings decided this question of fact against the claim of the petitioner that deceased Mst. Bhagan was a Shia. The learned subordinate Courts recorded their mutually endorsing findings on the basis of due, proper and thorough analysis, appreciation and evaluation of evidence.

2. A revisional Court does not normally enter into the exercise of reevaluation of evidence in absence of excess of authority, irregularity or non-exercise thereof or misreading or non-reading of evidence.

3. The learned counsel for the petitioner emphasized that inference drawn from the evidence against the petitioner were not deducible and the principles of appreciation of evidence had not been properly followed by the learned Courts below. Although this contention is incorrect yet this Court in order to satisfy the principles of justice and equity reexamined the evidence. Particularly because inheritance claim of the petitioner mainly depended upon the faith and Fiqah of the deceased Mst. Bhagan as a Shai or non-Shia. To get a view of the evidence on the question of faith of Mst. Bhagan, I asked the learned counsel for the petitioner to read out the best and the strongest evidence produced by the petitioner. The learned counsel for the petitioner read out the examination-in-chief of the petitioner's four witnesses i.e, P.W.1 to P.W.4 and placed reliance upon Exh. P.8 and Exh.P.9 (Receipts, dated 26-11-1983 and 6-12-1982 respectively for Rs,5 and Rs,10 made to Anjuman Ghulaman-e-Qaim-i-Al-eMuhammad, Bonga Balochan, Tehsil Shah Pur).

4. The maximum case that emerged from the petitioner's strongest evidence i.e, depositions of P.W.1 to P.W.4 is that they stated Mst. Bhagan to be a Shia and also that her funeral and burial took place in accordance with Shia Maslak. These depositions by P.Ws are too general, wide and too unsubstantiated to be attached credence. Mere statement that she was a Shia and her funeral rites were conducted in accordance with Shia Faith, cannot under the circumstances of the present case be the adequate evidence of Mst. Bhagan's faith when all her community and relatives were Sunnies. None of the witnesses particularly deposed as to the mode or manner of performance by Mst. Bhagan of her Shia faith prayers, rites, its practices, ceremonies and mandates. None of the depositions made reference to the source, basis and reason of witnesses's statement that the deceased was a Shia. The witneses also failed to disclose the particular modalities of the alleged burial and funeral rites of the deceased if carried out in accordance with the Shia Fiqah and exercise of that Fiqah. Neither the ladies who gave last bath and coffin to the deceased nor the Imam leading the Janaza prayers of Mst. Bhagan were produced. Not a single witness was produced by the petitioner to prove as to whether the deceased ever offered prayers and if she did under which Fiqah and faith. Similarly no witness was produced to show that the deceased ever attended Majalis or Zuljinah/ Tazia/Taboot/Alam or the Muharram processions, or the performance of the essential mandates of the Shia Faith. Mere statement of P.W.3 or P.W.4 that the deceased attended Majalis and contributed through Exh. P.8 and Exh. P.9 to a Shia organization were meaningless statements and were too unspecific to deserve any serious consideration. Exh.

P.8 and Exh.P.9 (receipts for Rs,5 and Rs,10) in Tehsil Shah Pur appear to have been procured to create some evidence. This in itself is adequate to disprove the premises of faith built by the petitioner. Anybody at any time can put in such petty amounts as donations. Donation receipts, if valid, could only prove the monetary contribution made by a person to an organization but cannot be the proof of the donor's faith which requires independent, clear and indisputable evidence for its proof or disproof.

4-A. In view of this discussion I do not find any infirmity in the concurrent findings of facts of the learned Courts below that the deceased Mst. Bhagan was not a Shia to entitle the petitioner to inherit from her under the Shia Personal Law.

5. Having held that the petitioner is not entitled to inherit from the deceased Mst. Bhagan under Fiqah Jafferia, I am clear in my mind that if the petitioner was entitled to inherit under Hanafi Law of Inheritance, she cannot be denied of her due share. The principles of estoppel as sought to be applied to the petitioner, cannot be so applied in view of the submissions made by the learned counsel for the petitioner. Even otherwise a waiver or abandonment of the right cannot be presumed in the matters of inheritance unless and until such waiver or abandonment is clear, specific, conscious, voluntary, indisputable and uncontestable. What is granted to a legal heir of a deceased by the injunctions of Almighty, cannot be taken away or denied for sheer technicalities or unproved and unclear presumptions or illogical deductions.

6. Under these circumstances, I am of the opinion that if the petitioner was entitled to inherit under the Hanafi Law, the learned Courts below should have proceeded to hold an enquiry to determine:- -

(i) As to whether the petitioner was entitled to inherit from the deceased Mst. Bhagan under Hanafi Law of Inheritance or not; and

(ii) If she was found to be entitled what was her due share that was denied to her from the inheritance of Mst. Bhagan.

6. In view of what has been discussed above, the findings of the learned subordinate Courts on the faith of deceased Mst. Bhagan are upheld but the judgments and decrees, dated 3-2-1994 and 8- 5-2000 respectively by the learned Civil Judge and the learned Additional District Judge, dismissing the petitioner's suit and appeal are set aside. The petitioner is held to be entitled to a trial on the above recorded questions relating to her entitlement and share, if any, under the Hanafi Law of Inheritance. The case is remanded to the learned Senior Civil Judge, Sargodha for re- hearing and re-deciding the above questions in accordance with law. The parties shall appear before the learned Senior Civil Judge, Sargodha on 11-11-2004. The learned Senior Civil Judge may hear the case himself or may entrust the same to any other Civil Judge for decision in view of the observations made above. This revision petition is accepted in the above terms with no orders E as to costs.