ABDUR RAHIM vs SIRAJUD DIN and 4 others
This matter concerns a petition for leave to appeal against a judgment of the Peshawar High Court, which dismissed a constitutional petition challenging orders passed by special forums under the PATA Regulation regarding the inheritance of property. The core legal question was whether certain documents executed by the deceased father of the parties effectively transferred title to the petitioner during the father's lifetime, or whether the property should be distributed according to Shariat upon his death. The Supreme Court held that the documents in question were merely copies, not originals, and were not accepted as genuine by the deceased owner, who had explicitly revoked them. Furthermore, the Court determined that even if the documents were genuine, they did not transfer proprietary rights but merely allowed for the enjoyment of the property. Consequently, the Court upheld the lower forums' decisions that the property must be distributed among the heirs according to the Muslim Personal Law (Shariat). The key principle laid down is that in the absence of valid, original documentation transferring title during a donor's lifetime, property must devolve according to the Shariat upon the owner's death.
- Does a document merely reciting a division of property among prospective heirs without an explicit transfer of proprietary rights constitute a valid gift?
- Can secondary evidence in the form of copies of documents be relied upon when the original documents are lost and their genuineness is disputed?
- Does the Muslim Personal Law (Shariat) govern the inheritance of property in the absence of a valid inter vivos transfer?
1. ' WALI MUHAMMAD KHAN, J.---Abdul Rahim petitioner, through the instant petition, has called in question the judgment of the Peshawar High Court, dated 19-6-1990, whereby his Constitutional petition challenging the orders of the hierarchy of special forums under the PATA Regulation, was dismissed.
2. ' The facts of the case are that the petitioner and Sirajud Din respondent No,1 are sons of Zulfiqar Malik who was undeniably the owner of the suit property. It is alleged by the petitioner that he transferred part of his ownership vide deed, dated 18-6-1957 in favour of the petitioner and that through a subsequent deed dated 23-10-1970 he divided the remaining property amongst the petitioner, Siraj Din respondent No,1, his daughters and retained some to himself. Sirajud Din respondent No,1 applied to the Additional Deputy Commissioner on 10-5-1975 for the partition of the property between him and his brother Abdur Rahim petitioner. It is worthwhile to mention here that at the time of submission of this application their father was alive and he died on 20-7-1975.
3. The application was sent to the Tehsildar who, vide his order, dated 11-6-1975, directed the parties to get their disputes decided through Shariat. This was appealed against before the Assistant Commissioner who, vide his order, dated 19-11-1976 dismissed the appeal of the petitioner holding the father of the parties during his lifetime could divide the property in the manner he' liked but after his death his inheritance is to be divided among his Shari heirs according to Shariat including the female heirs. The petitioner dissatisfied with the same filed a second appeal before the Additional Deputy Commissioner, Swat who concurred with the finding of the first appellate Court and dismissed the appeal vide order, dated 23-7-1977 giving his detailed reasons that the alleged documents executed by Zulfiqar Malik were revoked by him later on vide his application dated 11- 8-1978 (inadvertently written as 1975) to the Extra Assistant Commissioner, Swat and that the alleged gift through the said deeds was not accompanied by delivery of possession and that the executant thereof retained his dominion over the property till his death. A further appeal was filed before the Additional Commissioner who, vide his order, dated 11-7-1978, on acceptance of the appeal, set aside he order impugned before him and remanded the case with the direction that the parties be asked to prove their claim by producing evidence. This time both the parties preferred revision petition before the Additional Secretary, Home who, vide his consolidated judgment, dated 9-9-1982 accepted revision petition filed by Sirajud Din respondent No,1 and by setting aside the order of the Additional Commissioner ordered that the division of the property among the heirs of Zulfiqar Malik will take place in accordance with Muhammadan Law of inheritance viz., Shariat and dismissed the revision petition filed by Abdur Rahim petitioner. Left with no other legal remedy, the petitioner invoked the constitutional jurisdiction of the Peshawar High Court but with no success vide the impugned order.
4. ' We have heard Mr. M. Sardar Khan, Advocate, for the petitioner; Mr. Aman Khan, Advocate, for the respondent; and have perused the record of the case with their valuable assistance. The learned counsel for the petitioner placed reliance on the two deeds dated 18-6-1957 and 23-10-1970 available on the paper book and also certain earlier decisions. The perusal of the two documents mentioned above revealed that they are not the original documents allegedly executed by Zulfiqar Malik but are copies from the register maintained in the Tehsil wherein the contents thereof had been incorporated. These documents are not accepted by respondent-1 as genuine. Zulfiqar Malik also did not accept the genuineness of these documents vide his application dated 11-8-1978 which is incorporated in the impugned judgment of the High Court. The petitioner concedes that the original documents are lost. In the absence of the original documents the special forums could not take notice of the copies and rightly kept them out of consideration.
5. Even if the said documents are presumed to have been executed, even then they did not in any way transfer title from the executant thereof to the petitioner or the other persons mentioned therein. The operative part of the documents simply recites that the executant divide the property among his prospective heirs during his lifetime but nowhere acknowledges the transfer of proprietary rights in their favour during his lifetime divesting himself of ownership thereof. The contention of the learned counsel for the petitioner that during the Riwaj the gift of the property by the donor to the donee would take place through such documents, cannot be accepted. Zulfiqar Malik allegedly executed the documents and if the intention was to transfer ownership there was nothing to prevent him from specifically saying so in the documents themselves. We do not entertain any doubt that these documents, if they are accepted as genuine, were simply for the purpose of enjoyment of the property by the sons of Zulfiqar Malik and for no .Other purpose. They are therefore of no assistance to the petitioner so far as his title of the suit property is concerned.
6. ' Zulfiqar Malik has since died and the question of succession having arisen after the extension of Shari laws in that part of the country, the rule of inheritance among his heirs shall be Muslim Personal Law (Shariat) and the special forums as well as the High Court have rightly held that Shari Law of inheritance would govern the parties regarding the inheritance of their predecessor.
7. ' Finding no legal infirmity in the impugned order of the High Court, we refuse leave to appeal and dismiss the petition. 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.
Cited by 2 cases
- Shah Hussain vs Din Muhammad etc 2021 PHC 208, 2021 PLJ Peshawar 158, 2022 MLD 46
- Dr. MUHAMMAD RAFIQ vs MUHAMMAD YOUSUF and another 1995 PLD Karachi 382