DR. KHURSHID IQBAL, J. The contention of the petitioner (plaintiff) as per his plaint is that in the year 1995, the respondent # 1 (to be referred as defendant) received, with her consent, 02 Kanals and 05 marlas land as "Shaal" (locally called Tikray or Paronay, a woman use to cover her head) from Noor Muhammad, father of pro forma respondents/defendants # 4 to 14, pursuant to what he calls private partition of the legacy of their father late Sultan Muhammad, according to the local Pashto culture. The next contention of the plaintiff is that in the year 2011, the defendant, agitated the issue of her Sharai share. In order to settle the dispute, the matter was referred to a Jirga, which heard Muhammad Karim, husband of the defendant and the plaintiff-party. The Jirga members resolved the dispute on the basis of a deed captioned as Iqrar Nama/Sulh Nama, dated 03.01.2011. A copy of the deed the plaintiff produced in the evidence as Ex.PW-2/1 is available on the record (to be referred as 'the deed'). It reflects that Noor Muhammad Khan, the elder brother had given the aforesaid land to the defendant, which was not formally mutated in her name and that she was demanding her whole share in the inheritance. It further shows that two decisions were given.
Firstly the land measuring 02 Kanals and 15 Marlas will be transferred in her name and Rs. 100,000/- in cash will also be given to her. Secondly, if the defendant was not satisfied with the above referred decision, the petitioner will pay her Rs. 500,000/- within a period of two months. This Court will discuss the evidence the petitioner produced in support of the deed.
2. In the suit, the plaintiff sought declaration, perpetual injunction and cancellation of two sale mutations vide which she has sold certain land. The respondent denied the claim. She contested the suit. The trial Court decreed the suit while believing that the deed is genuine and that the defendant has given up (relinquished or waived) her remaining Sharai share. It is worth mentioning here that while rejecting the contention of the defendant, the trial court held that relinquishment, which is called takharuj in Islamic law, was proved. The learned appellate court disagreed with the judgment of the trial court, and while allowing the appeal, dismissed the suit of the plaintiff. Hence, he filed the instant revision petition. As both the courts below are at variance, this court shall discuss the evidence on the record in light of the relevant law and the legal principles laid down by the higher Courts.
3. Counsel for both the parties were heard at length. The record of the suit was perused.
4. The, plaintiff examined his mother Mst. Fauna Bibi and Mst. Hussain Bibi, widow of Noor Muhammad (his uncle), as PW-5 and 6, respectively. They both furnished evidence of the fact that the defendant, after having received 02 Kanals and 05 Marlas land, from her brothers, had relinquished her share in the remaining legacy. They both were subjected to cross-examination in which they failed to remain firm with their depositions recorded in examination-in-chief PW5 stated under cross-examination that Muhammad Roshan, her husband, has passed away 40 years ago, and Noor Muhammad, brother of her husband, has died 20 years ago. Though she referred to certain period of time, stating that it was a time of early winter when the alleged relinquishment took place. She further stated that her two sons Fida Muhammad and Atta-Ur- Rahman were also present at that time. Amongst them Atta-Ur-Rahman (PW-7) deposed that at the relevant time, his mother, paternal aunt and his brother Fida Muhammad were present when the defendant was called by) his uncle Noor Muhammad to his house to separate the shares in the lands. When further asked, PW5 replied that husband or son of the defendant were not present. She added on her own that husband and son of defendant had the knowledge of the relinquishment.
PW6 did not mention all those persons present at that time to whom PW5 referred. She was specifically asked about the time. She could not recollect the year and month of the relinquishment and even of the private partition. PW7, in his examination-in-chief, stated that the defendant had relinquished her remaining share. While under cross-examination, he admitted that her act of relinquishment was not reduced into writing. His cross-examination further shows that he was born in the year 1982, which means that in the year 1995, in which the alleged relinquishment was expressed, he was 13 years old.
5. Turning now to the deed dated 31.01.2011, a bare perusal of which would show that neither defendant herself thumb impressed/signed it, nor has her husband Muhammad Karim thumb impressed it, as her attorney. Indeed, it is in no way contended by the plaintiff that Muhammad Karim was authorized by his wife/defendant for the purpose of resolution of the dispute through Jirga. The petitioner examined Haji Riaz Ullah Khan, Haji Raees Khan and Muhammad Ismail (PW5- 2, 3 and 4) in support of the deed. It is admitted in their statements that neither statements of the parties were recorded, nor was the thumb impression of defendant obtained on it. It is also admitted by them that the defendant was observing Pardah and that none of them has personally obtained her consent and/or her thumb impression on the deed. Though PW2 stated that Muhammad Karim husband of defendant was present, who had taken him to her, but there is no solid proof of the fact that, if at all, Muhammad Karim was duly and properly authorized to participate in the proceedings on her behalf. PW2 even admitted this much that he has not recorded the statement of any witness to the effect that the defendant has received 02 Kanals and 05 Marlas land as "Tikray or paroney" from the plaintiff-party.
6. Coming to the relevant law on the subject, our higher courts have developed rich jurisprudence on the law of inheritance. The text of the law of inheritance laid down in the Holy Quran is quite clear and simple. In Islamic law, inheritance is a compulsory right. An individual has no right to refuse from being an inheritor of his/her immediate ancestor. However, unfortunately, due to our cultural practices averse, particularly, to women and, in some situations, to the vulnerable poor amongst our familial relations, we cook one pretext or another, to exclude them and/or to compel them to relinquish their due shari shares, or a portion thereof, when inheritance of a propositus opens for distribution. Before this court shall refer the relevant case law, it deems pertinent to examine the concept of takharuj on the basis of which the learned trial court passed decree against the defendant. The appellate court has allowed the appeal and dismissed the suit. The Courts below didn't explain the concept of takharuj at all. No doubt, takharuj is a concept of the law of inheritance. It has been comprehensively defined and explained in juristic works. Reference may be made to Fatawah-e-Usmania, pp591-593 (Sharif sons Printers, Al-A'sr Academy, Peshawar, vol. 10, 4th Ed. Rabi Al-Thani, 1440, Hijri, Dec. 2018). This court is of the view that its proper understanding, particularly its application in our specific cultural context will be very much helpful. Even otherwise, understanding of Islamic inheritance law is a must.
Inheritance law is essential in Islamic Law. The importance of inheritance law is shown by the Prophet's (peace be upon him) hadith transmitted by Majah and Al-Daraqutni: "Learn about the Inheritance and teach it, for it is half of knowledge, but it will be forgotten. This is the first thing that will be taken away from my nation" [Khorisima Gusasih and Burhanudin Harahap, 'Inheritance Sharing Model that Can Be Done Not as the Provision in Al-Quran', International Journal of Multicultural and Multireligious Understanding, 5(3) June 2018, pp280-2851.
7. The literal meaning of takharuj is to exclude; to abort. Given the obligatory nature of the right of inheritance which carves out no room for refusal, inheritors may distribute their respective shares in an amicable manner. In the process, an inheritor may agree to take a specific portion or kind of the inherited property and give a part or other kind, to other inheritors. Having stepped down, such an inheritor stands excluded.
This is called takharuj. In this perspective, the exclusion amounts to compromise (sulk) and takharuj becomes tasaluh. In the realm of Islamic law of inheritance, takharuj could be understood as tasaluh (sulh or compromise on something). Takharuj as tasaluh comes into play in a situation where one of the legal heirs of a propositus voluntarily agrees on something specific from the pool of the inherited property and doesn't press for his/her whole share.
8. Scholars trace doctrinal underpinning of takharuj to Quranic injunctions (for example, prohibition of taking other's property except in legitimate manner: Al-Nisa: 128), and the hadith of the Holy Prophet (sallallahu alayhi wa sallam) [permissibility of sulh among Muslims except that in legalising what is forbidden (haram) and forbidding what is permitted (halal)]. The concept was specifically applied during the rule of Hazrat Uthman ibn Affan (R.A.) in a case relating to the distribution of the property of a companion Hazrat Abd al-Rahman ibn Awf, after his death. One of his widows, whom he had divorced while he was ill, and during her iddat at the time of his death, claimed her share in his inheritance.
The companions disagreed on how the wife should receive the inheritance, so, they carried out musalahah on her Abd al-Rahman ibn Awf had four wives and children. So, in normal distribution (following Fara'id) Tumadir [the widow] would receive 1/4 of 1/8 portion from 32 parts of the property left by her husband, she accepted to receive half of it which was one part of the 64 parts equivalent to 83,000 (dinar) while this way of apportionment has never been outlined in Al-Quran."
[See Yazid Ahmad et al, `Takharuj as an Effective Solution to the Inheritance Problems of Muslims', The Social Sciences 13 (5): 1094-1100, 2018].
9. No difference of opinion was expressed with the action and the decision. Thus, it attained the status of consensus of opinion (ijma) of the companions (Sahaba). It is argued that the contract or
(aqad) of takharuj depends upon the settlement agreed by the beneficiaries (ibid, p1096). Takharuj assumes the status of a gift in two ways. Firstly, the property from which one inheritor will stand excluded will be that of a gift of his/her remaining property to other inheritors. In this perspective, takharuj has to take place at the time of distribution by means of partition of the entire legacy, so that each inheritor is able to get possession of his/her due share first. The gift of an undivided property (musha'a) is not valid as delivery of possession is one of its essential elements. It follows that in the absence of possession by means of partition, takharuj will not be valid. Secondly, takharuj may take place where one inheritor enters a mutual settlement with other inheritors in such a way that he/she chose one portion or kind of property in lieu of another portion or kind. Such takharuj amounts to a gift for consideration (hiba bil ewaz). It may be stated here that a gift for consideration is a forum of sale and that sale of undivided property is valid. Last, but not the least, the general principle of contract--that the inheritor who opts for it shall enter into it with his/her free consent, not caused by coercion or, undue influence, or fraud, or misrepresentation or mistake as to matter of fact shall apply to takharuj.
10. In light of the above discussion, it is imperative to come back to the facts of the case in hand.
From the reappraisal of evidence carried out in paragraphs 5 and 6, above, it has categorically established that the alleged takharuj, if at all, was not reduced into writing in the year 1995. Even in its oral form it has not been proved. The plaintiff failed to produce even a shred of evidence that proper partition had taken place amongst all the legal heirs of late Sultan Muhammad and that the defendant had demonstrably exercised her choice in respect of the 02 Kanals and 05 Marlas, and relinquished her remaining share in the rest of the legacy. It is also in evidence of the plaintiff that the above mentioned land was given to the defendant as her "Tikray or paroney" from the plaintiff party, which isn't an alternative for her Sharai share. The contents of the deed don't positively state the fact of takharuj. They suggest two possible scenarios of dispute resolution in case the defendant still demands her Sharai: one, payment of Rs. 100,000/- in addition to the 02 Kanals and 05 Marlas, or else, payment of Rs. 500,000/-, as the net value of her shari share. The upshot of the above discussion is that the plaintiff has failed to prove takharuj against the defendant.
11. The customary practice in our society that women relinquish their Sharai shares in the legacy of their parents has been absolutely rejected by our higher courts since long. Reference must be made to the landmark judgment of the Supreme Court in Ghulam Ali and 2 others v. Mst Ghulam Sarwar Naqvi, PLD 1990 SC 1. The honourable Court emphasised that "the recognition and enforcement of law of inheritance by the State including Courts, vis-a-vis, the female heirs, is a matter of "public policy" in Islam" (p19). The Court linked it with the last Khutaba of the Holy Prophet (sallallahu alayhi wa sallam). After quoting from Muhammad Mian Siddiqui's book Khutabat-e- Rasool (Islamic Research Institute of International Islamic University, Islamabad), the honourable Court ruled: Here in the light of the foregoing discussion on the Islamic point of view, the so-called "relinquishment" by a female of her inheritance as has taken place in this case, is undoubtedly opposed to "public policy' as understood in the Islamic sense with reference to Islamic jurisprudence. In addition it may be mentioned that Islam visualised many modes of circulation of wealth of certain types under certain strict conditions. And when commenting on one of the many methods of achieving this object, almost all commentators on Islamic System agree with variance of degree only, that the strict enforcement of laws of inheritance is an important accepted method in Islam for achieving circulation of wealth. That being so, it is an additional object of public policy.
In other words the disputed relinquishment of right of inheritance, relied upon from the petitioner's side, even if proved against respondent, has to be found against public policy. Accordingly the respondent's action in agreeing to the relinquishment (though denied by her) being against public policy the very act of agreement and contract constituting the relinquishment, was void.
12. The honourable Supreme Court has deprecated the practice of denying to Muslim women their Sharai shares in inheritance. In Mst. Parveen (deceased) through LRs. v. Muhammad Pervaiz and others 2022 SCMR 64, it has been held: We may once again state that we are dismayed to observe the all too frequent practice in Pakistan of male heirs resorting to fraud and other tactics to deprive female heirs from their inheritance: While this deprivation causes suffering to those deprived, it also unnecessarily taxes the judicial system of the country, resulting in a needless waste of resources. Each and every day that a male heir deprives a female heir is also an abomination because it contravenes what has been ordained by Almighty Allah.
13. As sequel to the above discussion, this court has reached to the conclusion that the instant revision petition is devoid of merits. It is, therefore, dismissed with costs.