These slides summarize some basic principles of wills and inheritance as applicable in Pakistan. In this regard, they highlight the role of the superior judiciary. In the end, they pinpoint some bad precedents set by the judiciary on the Islamic law of inheritance.

1. Analysis of Decisions of Superior
Courts on Will & Inheritance
Dr Shahbaz Ahmad Cheema
Professor of Law
University of the Punjab, Lahore

2. ‘Law’ in Pakistani Legal System
• Written law (Statutes & Ordinances)
• Muslim Family Laws Ordinance 1961 (MFLO)
• Judgments of Supreme Court and High Courts
on question and principle of law (Articles 189
& 201)
• Federal Shariat Court (Article 203D)
• Islamic law as residuary law and interpretative
law

3. Decisions on ‘Will’
• Khairan Bibi V Ghulam Hassan [2007 CLC 167
(Lahore)] Distinction between will and
gift/hiba. Entire transaction should be
construed and ascertained and isolated
expressions are not be given overrated weight
• Zakirullah Khan V Faizullah Khan (1999 SCMR
971) Mere silence on the part of legal heirs
would not be equated with their consent for
making effective 1/3rd of an estate as will

4. Section 4 of MFLO 1961
• Inheritance of children of predeceased son/daughter
• Literal application or re-adjusted application under
Islamic law
• Mandatory wasiyat [Allah Rakha V Federation of
Pakistan (PLD 2000 FSC 01)]
• Council of Islamic Ideology for making uncles/aunts as
financially responsible for orphaned grandchildren
• Dr Muhammad Munir = section 4 as a legal maneuver
by state for shifting its responsibility to others
• Mandatory will is bound to take away the element of
voluntariness and free consent from will
• “An Analysis of the Application of Traditional Islamic
Law of Inheritance in Pakistani Courts”

5. Inheritance Rights of Women
• Section 498A of Pakistan Penal Code makes
disinheritance of women as an offence
punishable with imprisonment up to 10 years
under Criminal Law (Amendment) Act 2011
• Ghulam Ali V Ghulam Sarwar Naqvi (PLD 1990 SC
01) Brothers are obliged to protect their sisters’
right of inheritance; no space for the arguments
of estoppel, waiver and adverse possession;
disinheritance of women is against public policy.
• Khalida Shamim Akhtar V Ghulam Jaffar (PLD
2016 Lahore 865) Inheritance of childless widow
under Shia law

6. Shia Sunni Debate
• All Pakistanis are presumed to be Muslims unless
proved otherwise (Latifan Bibi V Rehmat Ali 2012 SCMR
1251) [Ahmadi v Muslim/Sunni/Hanafi]
• All Muslims are presumed to be Sunni unless proved
otherwise
• All Suunis are presumed to be Hanafi unless proved
otherwise
• All Shias are presumed to be the Ithna Ashari unless
proved otherwise
• Ghulam Shabbir V Bakhat Khatoon 2009 SCMR 644
• “Socially Abhorrent but Legally Acceptable: A Study of
Alleged Conversions of Sunnis and Shias in Cases of
Inheritance in Pakistan”

7. Estate of Missing Person
• M Sohail Kiyani V Raja M Anwar (PLD 2017
Islamabad 162)
• Mr A went missing in 1973 and the case was
initiated in 2013 for distribution of his estate
• Person missing for seven years without any
contact with his relatives/family is presumed to
be dead unless otherwise shown by evidence
(Article 124 of QSO)
• Due to non-availability of such evidence, his
estate was distributed among those who were
alive in 1980

8. Bad Precedent 1
• Saadullah V Gulbanda (2014 SCMR 1205)
• Mother, 3 full sisters & consanguine brother
• SC awarded the entire estate to mother and full
sisters under misconceived principle of radd
• Exclusion of consanguine brother is incorrect
• Solution under Islamic law: mother = 1/6; full
sisters = 2/3 & consanguine brother = 1/6
• Radd is not attracted in presence of any residuary
• “Inheritance of Full Sister/s with Consanguine
Brother/s in Pakistan: A Critical Analysis of
Saadullah v Gulbanda”

9. Bad Precedent 2
• Muhammad Khalid V Noor Bibi (2005 SCMR 1717)
• Deceased died issueless
• Sons and daughters of paternal uncle and an aunt as
petitioners
• Maternal uncles as respondents
• SC erroneously treated all as distant kindred and
granted the entire estate to maternal uncles excluding
all others
• Sons of paternal were residuaries and entitled to have
the entire estate to the exclusion of all others

10. Bad Precedent 3
• Khalida Begum V M Rashid Khan [PLD 2012 High
Court (AJ&K) 34]
• Widow = ¼ (10/40)
• Full sister = ½ (20/40)
• 4 Consanguine brothers = (8/40)
• 2 Consanguine sisters = (2/40)
• Incorrect decision: Consanguine brothers are
residuaries alone and their presence deprives
consanguine sisters to get any share