Inheritance Under Hanafi Sect in Pakistan: A General Overview

– By Sara Saleem

1. Introduction

In general, the law of inheritance deals with matters pertaining to distribution of shares in movable and tangible estates and properties of any deceased person among his legal heirs.  However, Pakistan followed a combination of Sharia law and man-made legislation system on the subject of inheritance.

In this Article, theme of “Inheritance” with respect to the hanafi school of thought has been extensively discussed in terms of relevant Quranic verses, laws and judicial decisions given by the superior courts of Pakistan and subsequently concluded with some comments or suggestions in the below-mentioned paragraphs.

In the Blacks’ Law Dictionary, the phrase “Inherit” means “to take by inheritance; to take as heir on death of ancestor.” In addition, this term “Inheritance” means “An estate in things real, descending to the heir.”

In the Arabic language, “Inheritance” means “Ilmil-farâyied”, or “Ilmil-mirâth”and ميراث .

2. Principles of Inheritance in Islam

    Allah has laid down principles of inheritance in various verses of the Holy Quran for knowledge of Muslim community living across the globe. These principles are summarized as under:

    i.          A share of a male is equivalent to the shares of two females.

    ii.         In the inheritance of a male deceased:

    • If there are only two or more female offspring, they would get 2/3 share of the inheritance.
    • Only daughter would receive a half share of the inheritance.
    • If a propositus has children, then both parents of the deceased would receive 1/6 share.
    • The mother of issueless propositus would get 1/3 share of the inheritance.
    • If a propositus has siblings, then mother would receive 1/6 share.

    iii.       In the inheritance of a deceased wife:

    • Issueless husband would get half share of the inheritance.
    • If there are children, husband would receive ¼ share, after payment of debts and bequeath from her property.

    iv.        In the inheritance of a deceased husband:

    • Issueless widow would receive ¼ share of inheritance.
    • If they have children, then she would get receive 1/8 share, after payment of debts and bequeath from deceased husband’s property.

    v.   In case, a propositus male and a propositus female had no ascendants and descents, but a brother and a sister are alive at the time of opening of succession, then both of them would get 1/6 share, but if there are more than two, then they would receive share in 1/3 of the legacy of deceased.

    vi.  if an issueless man dies, leaves only a sister, she would get half of his brother’s inheritance.

    vii. if a man dies, who have no children, but two sisters, his sisters would receive 2/3 of the inheritance.

    viii. If a man dies, who have no children, but brothers and sisters dies, brother would get double than sister.

    ix.   If an issueless woman dies, her only brother would get her inheritance.[1]

    The above-cited sharers have been provided in various verses of the Holy Quran, which are reproduced as under:

    • “Allah thus commands you concerning your children: the share of the male is like that of two females. If (the heirs of the deceased are) more than two daughters, they shall have two-thirds of the inheritance; and if there is only one daughter, then she shall have half the inheritance. If the deceased has any offspring, each of his parents shall have a sixth of the inheritance; and if the deceased has no child and his parents alone inherit him, then one-third shall go to his mother; and if the deceased has brothers and sisters, then one-sixth shall go to his mother. All these shares are to be given after payment of the bequest he might have made or any debts outstanding against him.(4:11)[2]”
    • “And to you belongs half of whatever has been left behind by your wives if they die childless; but if they have any children then to you belongs a fourth of what they have left behind, after payment of the bequest they might have made or any debts outstanding against them. And to them belongs a fourth of what you leave behind, if you die childless; and if you have any child then to them belongs one-eighth of what you have left behind, after the payment of the bequest you might have made or any debts outstanding against you. And if the man or woman has no heir in the direct line, but has a brother or sister, then each of these shall inherit one-sixth; but if they are more than two, then they shall inherit one-third of the inheritance, after the payment of the bequest that might have been made or any debts outstanding against the deceased, providing that the bequest causes no injury. This is a commandment from Allah; Allah is All-Knowing, All-Forbearing. (4:12)”

    “These are the bounds set by Allah. Allah will make the man who obeys Allah and His Messenger enter the Gardens beneath which rivers flow. He will abide there for ever. That is the mighty triumph. (4:13)”

    “And he who disobeys Allah and His Messenger and transgresses the bounds set by Him  – him shall Allah cause to enter the Fire. There he will abide. A humiliating chastisement awaits him. (4:14)”[3]

    3.      Elements of Inheritance in Islam

    There are three elements of Inheritance in Islam:

    1. Propositus.
    2. Heir.
    3. Inheritance.[4]

    4.     Conditions to be fulfilled before distribution of Inheritance

    There are certain pre-requisites such as funeral expenses, payment of debts, bequests  that ought to be complied, before distribution of inheritance of any deceased person. [5]

    5.     Legislation on the subject of Inheritance in Pakistan

    The prevalent laws on the subject matter of inheritance in Pakistan are:

    The Muslim Family Law Ordinance, 1961 deals with issues pertaining to succession, registration of marriages, talaq, dissolution of marriage otherwise than by talaq, maintenance and dower for muslim citizens in Pakistan. These subjects are also covered under the Mohammedan Law, which is non-statutory and do not enjoy status of law and it is not binding upon the Court to decide the case in accordance with the book, written by D.F. Mulla. There are various instances, in which the courts negate from the principles provided in Mohammedan law, while dealing with family matters of muslims living in Pakistan.

    The Succession Act 1925 deals with issues related to intestate and testamentary succession in Pakistan. It also deals with succession of a property of deceased persons to their legitimate legal heirs.

    The Mohammedan Law, written by D.F. Mulla, deals with matters pertaining to Muslim Personal Law. It was firstly published in 1905 and since then have been amended on numerous occasions. It includes issues such as inheritance, succession, wills, gifts, waqf, pre-emption, marriage, dower, legitimacy, divorce, guardianship and maintenance under hanafi, shafaei, maliki and shia sects of Islam. However, various judgments of Courts have declared that the Mohammedan law is a reference book, and it is not obligatory upon judges to base their decisions on matters pertaining to Muslim family on this book. Reliance is placed on  case laws cited as PLD 2016 Lahore 865, 2000 SCMR 838, 1989 CLC 604, 2000 MLD 1967, 2002 YLR 2548, PLD 2002 Lahore 283, 2004 SCMR 1839, etc.

    6. Case laws on the subject of Inheritance in Pakistan

    The relevant case laws, with respect to Inheritance are discussed as under:

    1. The interpretation of section 4 of the said Ordinance had been changed from time to time. In Mst. Zarina Jan verses Mst. Akbar Jan[6] case, there was a dispute between the petitioner Mst. Zarina Jan and respondent Mst. Akbar Jan regarding distribution of inheritance of Mr Shah Zaman the deceased.  The facts were that Mst. Akbar Jan is the only surviving heir (daughter) of propositus Mr Shah Zaman, and Mst. Zarina was his son Mir. Afzal’s daughter, who died during life time of his father. The Trial Court decided inheritance mutation, in which 2 shares (1/3rd of 6 shares) were given to Mst. Akbar Jan and the remaining 4 shares (2/3rd out of 6 shares) were given to Mst. Zarina Jan, representing her father according to the Muslim Family Law Ordinance, 1961. The lower appellate court reversed the decision and declared that the Mst. Zarina Jan would get 1/3rd,  out of the share of her father, which he would get if alive and  Mst. Akbar Jan, being the only legal heir of Mir Afzal, would get the other half of  his pre-deceased brother’s share, which is other than her own in her Father’s property.  The said decision was challenged before the Supreme Court of Pakistan, which held that in the light of section 4 of this ordinance,   Mst. Zarina Jan, was entitled to inherit the same share, which her father would get, if he would be alive. Mst. Akbar Jan would only get her own share in the property of her deceased father.
    2. In Mst. Farishta verses the Federation of Pakistan[7], section 4 of the Muslim Family Law Ordinance 1962 was declared as against the injunctions of Islam.
    1. In Kamal Khan alias Kamla verses Mst. Zainab[8], the petitioner filed a revision petition in the Court, in which he challenged the findings of the courts, that defendant is not a grand daughter of Mr. Sufaid Khan, the propitious, and even if she is found to be the same, she could inherit only to the extent of half of the estate of her own pre-deceased father, and not more, and he, being nephew of deceased, should be given the rest of the property. The Court deliberated upon the matter in detail and decided that precedent of Mst. Zarina Jan verses Mst. Akbar Jan should not be accepted in this case. Moreover, the defendant would inherit only one half of the estate of his pre-deceased father, received as inheritance, and the other half would revert to his collaterals namely Kamal Khan.
    1. In Allah Rakha & others verses Federation of Pakistan[9], thirty-seven petitions have been filed under Article 203-D of the Constitution of Islamic Republic of Pakistan 1973, which questioned the validity of various provisions  i.e. sections 4,5,6 and 7 of the Muslim Family Law Ordinance 1961. After extensive deliberations, the Court disposed all petitions with  the following observations:
    2. Section 4:          The Quran clearly defined the eligibility, level of precedence and number of shares to be distributed among heirs, whenever succession of a propositus opens. It has also been provided that in the presence of living children, the grand children of a deceased son or daughter of propositus would not inherit from the property or assets of their grandfather. Thus, section 4 was found to be in violation of injunctions of Islam and decided to be struck down.
    • Section 5:          The registration of marriage had been declared as a positive step towards protection of rights and duties of couple towards each other, their children and society, hence, it was not considered as un-islamic  in the light of teachings of Holy Quran and Sunnah.
    • Section 6:          This section needs to be amended, so that both spouses would be able to solve their problems in an effective and efficient manner, and the same should not lead to unnecessary litigation for both parties.  The section 6, as amended in the light of observation of the court, would not be in violation of injunctions of Islam.
    • Section 7:          As a whole, section 7 would not be declared against the teachings of Holy Quran. However, sub-sections (5) and (7) of section 7 should be struck down.

    v.         In Hassan Aziz and others versus Meraj-uddin and others[10], the matter before the Supreme Court of Pakistan was that whether great grand children of propositus allowed to inherit property of their great grand mother, in a situation, when their father, being grand son of propositus, was not alive at the time of opening of succession. The Court commented on the wordings of the section 4 of Muslim Family Law Ordinance 1961, “opening of succession”, and stated that “Now, it is a fundamental principle of the law of Muslim inheritance that the legal heirs of a person are only determined at the moment of death and not before. This rule is clearly reflected in s. 4 by use of the words “opening of succession”. The point is then reinforced by the immediately succeeding words, “the children of [the predeceased] son or daughter, if any, living at the time the succession opens” (emphasis supplied). The words emphasized impose a clear limitation: s. 4 applied only to those grandchildren as are alive at the time of death of the propositus.”

     It was also said that an exception has been created that children of pre-deceased son and daughter are not allowed to inherit from the property of their grand parents and in the instant case, it is the matter of inheritance of great grand mother, and their father deceased his grand mother, so no liberal meaning can be given to the section 4 of the above-said ordinance. Subsequently, the Court concluded with following statement, “They, being the great grandchildren, did not have any share in the property left behind by the propositus on the basis of s. 4. Both the learned trial court and the learned High Court were therefore correct in dismissing their claim.”

    vi.        In Muhammad Rafiq versus Mst. Ghulam Zoharan Mai and another[11], the petitioner challenged the decision of high court, in which it rejected the plea of petitioner/appellant in this case that his deceased father gifted him a piece of land, which was formally recorded  by revenue authority of Tehsil Dunyapur, District Lodhran. However, the High Court rejected the gift deed and divided the same between widow and daughter of propositus. Thus appellant challenged this verdict before the Supreme Court, which upheld the decision of High Court, as appellant failed to prove the authenticity of gift deed and also expressed his reservations for depriving mothers, sisters or daughters with their share in the properties of their deceased family members. In the end, the Court concluded in the following words:

    “7. The appellant deprived his mother and sister from their inheritance. Many females do not have the wherewithal to approach the courts to obtain their rights. Those like the respondents that do, suffer, and often have to wait for years, to get what was rightfully theirs to begin with. The appellant proceeded on the assumption, like some male heirs do, that even if they eventually lose the case they would still get the usufruct of the land by illegally retaining its possession over the years spent in

    litigation.

    8. This appeal should never have been filed and we have no hesitation in dismissing it, and do so with costs throughout. We also impose special costs in the amount of Rs.500,000 (five hundred thousand rupees) on the appellant as the defence taken by him was vexatious and false. Costs to be paid by the appellant to the surviving respondent. If costs are not paid the same shall be recovered as arrears of land revenue from the appellant, and till costs are paid they shall continue to constitute a charge on the estate of the appellant.”

    vii.         InMuhammad Sajid Tareen vs. Government of Balochistan[12], the question before the Court was Whether depriving women from property of their deceased relations, against teaching of the Holy Quran and Sunnah and expressed its concern regarding this deplorable social behaviour toward female family members in relation to inheritance. After listening to both sides, it allowed the petition in the larger public intrests.

    7.    Analysis and Conclusion:    

    To sum up, following analysis and comments have been made on the subject of inheritance in Hanafi jurisprudence, applicable in Pakistan:

    • The sections 4,5,6 and 7 of the Muslim Family Law Ordinance 1961, which were declared ultra vires to the Quran, Sunnah and the Constitution of Pakistan 1973, which states that Islam shall be the State religion of Pakistan. Moreover, all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah.[13] However, it is pertinent to mention that appeal against the above-cited decision was challenged before the Shariat Appellate Bench, Supreme Court of Pakistan, and is still pending. Thus, it is suffice to say that the above-cited provisions are still in place and applicable to the cases pending before any court in Pakistan.
    • In the light of judgments of the superior Courts in Pakistan, it is an established principle that grandchildren of pre-deceased son/daughter of propositus would get the share from assets of their grandparent, which their parent would get, if alive.
    • Besides shares of grand-children, diverse cases have been filed in superior courts for dividing shares among children, siblings and other relatives. Consequently, vexatious litigations have not only overburdened the vexatious litigations, but also increase burden of cases of different Courts, which hindered the timely disposal of cases and waste precious time of courts, but also affected the people, whose cases remained pending before these courts for years, and some cases have been concluded even after the death of petitioners.
    • In various case laws, the term “per stripe” has been extensively discussed in the Courts, and different high courts gave different opinions, but there is a need for further extensive deliberation and decision on this matter.
    •  There is a need of clarity on inheritance related issues, upon which some contradictions have been pointed by religious scholars, jurists, lawyers and judges. It has now become the responsibility of government of Pakistan to sit with religious scholars, jurists and legal fraternity from all over the Muslim world to decide this matter once for all, so that unnecessary litigation of this subject should be avoided in future.

    [1] Sura-Al-Nisa (4:11,4:12,4:13, 4:14 and 4:176)

    [4] Islamic Qanon e Warasat, 2019 (Council of Islamic Ideology).

    [5] Ibid.

    [6] PLD 1975 Peshawar 252.

    [7] PLD 1981 Supreme Court 120.

    [8] PLD 1983 Lahore 546.

    [9] Shariat Petition Nos. 29,/I of 1993 and others.

    [10] 2022 SCMR 1131

    [11] 2023 SCMR 988.

    [12] P L D 2021 Balochistan 172.

    [13] Articles 2 and 227 of the Constitution of Islamic Republic of Pakistan, 1973.

    This work is submitted to PLR by:
    Sara Saleem
    Assistant Director
    Legislation Branch
    Senate of Pakistan

    Disclaimer:

    The views, opinions, and analyses expressed in this publication are those of the author and do not necessarily reflect the official policy or position of PakistanLegalResearch.com (PLR). PLR assumes no responsibility or liability for any errors or omissions in the content, or for any actions taken based on the information provided herein. Readers are encouraged to consult legal professionals or relevant authorities for specific legal advice or information.

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    Now You Know!

    1. Islamic law, as interpreted by Shariah principles, governs inheritance matters for Muslims in Pakistan.
    2. The inheritance rights of non-Muslims are governed by their respective personal laws, such as the Hindu Succession Act for Hindus and the Succession Act for Christians.
    3. Under Islamic law, inheritance shares are predetermined for specific heirs, including spouses, children, parents, and other relatives.
    4. The Quran outlines the rules of inheritance, specifying fixed shares for each eligible heir based on their relationship to the deceased.
    5. In Pakistan, inheritance disputes often arise due to differing interpretations of Islamic law among various schools of thought.
    6. The Muslim Family Laws Ordinance of 1961 introduced reforms to inheritance laws, allowing for the distribution of property according to the deceased’s will, subject to certain limitations.
    7. Pakistani courts adjudicate inheritance disputes, applying principles of Islamic jurisprudence and relevant statutory laws.
    8. Inheritance laws in Pakistan prioritize fairness and equity among heirs, aiming to prevent unjust enrichment and ensure the proper distribution of assets.
    9. Legal professionals play a crucial role in advising clients on inheritance matters, helping them navigate complex legal requirements and resolve disputes amicably.
    10. The government periodically reviews and updates inheritance laws to address evolving societal norms and ensure compliance with constitutional principles of justice and equality.

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