QADIR BAKHSH And Others vs AHMAD BAKHSH And Other
This petition for special leave to appeal arises from a property dispute between the children of the deceased Mst. Hayat Begum (petitioners) and her brother (respondent No. 1) regarding the inheritance of property left by their mother, Mst. Fateh Bibi. The trial court initially decreed the petitioners' suit for partition. However, the Additional District Judge reversed this decision, dismissing the suit on the assumption that because Mst. Fateh Bibi died before Independence, the parties were governed by customary law, which excluded sisters from inheritance. The High Court upheld this judgment in second appeal. The core legal question is whether the courts below erred in law by raising a presumption that Muslims residing in urban areas were governed by customary law, despite the absence of such a plea by the respondent. The Supreme Court granted leave to appeal, finding that the contention regarding the erroneous application of customary law requires detailed consideration. The Court held that the presumption of customary law application without a factual basis or pleading constitutes a potential legal error warranting further examination by the appellate court.
- Can a court presume that parties are governed by customary law in the absence of such a plea?
- Is there a legal presumption that Muslims living in urban areas are governed by customary law regarding inheritance?
ORDER
SAAD SAOOD JAN, J.--The petitioners in this petition for special leave to appeal are the children of Mst. Hayat Begum who was the real sister of respondent No.1 and wife of respondent No.2. The dispute between the petitioners and respondent No.1 relates to the property which was allegedly left on her demise by Mst. Fatet Bibi, who was the mother of respondent No.1 and Mst. Hayat Bibi.
The trial Court decreed the petitioners suit for partition but in appeal the learned Additional District Judge dismissed the suit on the assumption that as Mst. Fateh Bibi had died before Independence the parties were governed by customs under which the sisters were excluded by their brothers in the matter of inheritance. The judgment of the learned Additional District Judge was upheld by the High Court in second appeal.
2. In support of this petition, it is contended that it was no the case of respondent No.1 that he and his family were governed by the Customs and that there was no presumption in law that Muslim living in the urban areas were governed by the customary law. The High Court and the Additional District Judge, therefore, erred it law in raising this presumption without any basis whatsoever.
3. The contention raised on behalf of the petitioners requires consideration. Leave to appeal is granted. Security for costs in the sum of Rs.2,500. The appeal may be made ready for hearing on the present record with permission to the parties to place additional documents, if any, on the file. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.