SC restores the inheritance of heirs to ancestral property after 71 years, imposes the burden of proof of oral donation on beneficiaries

In a bid to strengthen women’s inheritance rights, the Supreme Court (SC) on Wednesday ordered the restitution of two sisters’ inherited share in their ancestral property after a 71-year dispute, while establishing that the burden of proving an oral donation (hiba) was on those who claimed to benefit from it.

In 1955, the defendants’ father died and his two brothers transferred the inherited property into their names, claiming that it had been verbally donated to them.

A two-member bench of the Lahore Registry, comprising Justice Shahid Bilal Hassan and Justice Shakeel Ahmad, accepted the appeal filed by Noor Muhammad and issued a 14-page judgment, setting aside the concurrent decisions of the trial court, the appellate court and the high court that had upheld the disputed oral gift.

The high court also ordered tax authorities to correct the property registry and ensure that the sisters received their inheritance in accordance with the law.

According to the ruling, the litigation dates back to 1955 when, after the death of the parties’ father, two brothers transferred the inherited assets to his name, alleging that they had been verbally donated. The appellants maintained that the oral donation was fraudulently designed to deprive the heirs of their legitimate inheritance.

Rejecting the findings of lower courts, the Supreme Court ruled that beneficiaries of an alleged oral donation bear the legal burden of proving its existence.

The ruling observed that the trial court committed a fundamental error by treating the alleged oral donation itself as evidence instead of examining whether the burden of proof had been met, making its approach contrary to established legal principles.

Referring to an earlier judgment in the case of Faqir Ali and others versus Sakina Bibi and others, the court had ordered that where “beneficiaries of a gift try to exclude female heirs from the inheritance”, the onus of proving the gift falls on them.

“It is trite that a gift to be valid and binding on the parties must fulfill three conditions, namely (i) declaration of gift by the donor, (ii) acceptance of the gift by the donee and (iii) delivery of possession of the corpus.”

The court further held that even if the alleged oral donation had gone unchallenged for decades, as argued by the defendants and accepted by the apex court, the burden of establishing its validity still fell on those seeking to benefit from it.

The court also rejected the objection that the claim had been filed after an inordinate delay, noting that the record showed that the mother and sisters continued to receive a share of the income generated by the land for several years after the alleged donation.

“After remaining in possession of the property, the children and their successors subsequently managed the property through exchange mutations and donation operations in favor of their descendants,” the SC highlighted in the detailed order.

This, the court said, indicated that they were not aware of any valid transfer that would exclude them from the inheritance.

Mutation as evidence

The high court noted that after Roshan’s death, mutations 74 and 75 were entered in favor of the accused on April 4, 1955, recording that the widow and daughters of the deceased renounced their share in favor of the male heirs.

“Patrimonial mutation No. 74 was registered on April 4, 1955, in favor of the legal heirs; on the same day, mutation No. 75 was also entered based on an alleged oral donation made by the widow and daughters of the deceased in favor of two sons/brothers. Both mutations were sanctioned on April 17, 1955,” the ruling states.

The high court dispelled the assumption made by the lower courts that the mutation itself constituted evidence of the transaction.

The order stated: “A mutation is maintained primarily for tax purposes, and does not create or extinguish title,” and further emphasized: “It is reiterated that a mutation is maintained for tax purposes and does not create or extinguish ownership rights.”

Constitutional, legal and Islamic property rights of women

Emphasizing the constitutional, legal and Islamic protection afforded to women, the Supreme Court declared that inheritance was not a matter of male discretion or familial generosity, but an acquired legal and Sharia right that automatically vests in all heirs immediately after the death of the deceased.

The court held that women’s inheritance rights cannot be extinguished through “private agreements, family pressures or customary practices” and warned that any transaction that allegedly deprives women of inheritance, including false gifts, fraudulent mutations and false agreements, must be subject to rigorous judicial scrutiny.

The court observed that denying inheritance to women is not simply a legal dispute but a deep-rooted social problem that often begins within families before reaching the courts. He added that women cannot be deprived of their share under the pretext of family honor, tradition or social pressure.

The court enunciated the articles that support women’s right to inheritance: “Article 2A incorporates the principles of democracy, freedom, equality, tolerance and social justice enunciated by Islam, while Article 25 guarantees equality before the law and equal protection of the law. Articles 23 and 24 recognize and protect the right to acquire, possess and enjoy property and prohibit the deprivation of property except in accordance with law.”

The court further highlighted that Article 35 also obliges the State to protect the family, mother and child and Article 227 requires that all laws conform to the precepts of Islam.

“These constitutional guarantees, when read together with Islamic injunctions relating to inheritance, leave no room for ambiguity.”

The high court recognized that the State, courts, tax authorities and society collectively share the responsibility of ensuring that women receive their inheritance in practice and not “just on paper.”

The Supreme Court declared all the rulings of the lower courts null and void and ordered the correction of the income register to ensure the sisters’ inheritance.