Sisters applied to the courts for judicial recognition of shares of their parents’ assets in dispute with brothers
ISLAMABAD:
The Federal Constitutional Court (FCC) has issued guidelines to courts and tax authorities on the adjudication and enforcement of inheritance rights of legal heirs.
“All courts, tax authorities and other forums charged with the adjudication, recognition or enforcement of inheritance rights, particularly those relating to legal heirs, will exercise increased judicial oversight and scrutiny in such matters and are directed to ensure compliance with the following indispensable safeguards while examining any commitment, waiver, family arrangement, agreement, gift, mutation, declaration of consent or other instrument that has the effect of affecting, restricting, compromising or extinguishing the inheritance rights of women.” The 33-page judgment written by Chief Justice Aminuddin Khan was declared while hearing a matter in which the sisters were deprived of their inheritance rights.
The sisters had filed a case against their brothers, primarily seeking separate declaration and possession of their respective Sharia shares in the estate left by their deceased parents.
During the pendency of the lawsuit, a written agreement was allegedly reached between the parties and, on the basis of the same, the court of first instance proceeded to issue a ruling.
Subsequently, the petitioners alleged that said commitment had been obtained through fraud, misrepresentation and concealment of material facts, and that their consent to it was neither free nor informed. They further held that the trial court lacked jurisdiction to issue a decree based on an unlawful and uncertain undertaking, and therefore invoked curative jurisdiction.
The FCC division, headed by Chief Justice Amin, in its guidelines held that all courts and tax authorities, when adjudicating instruments affecting the inheritance rights of female heirs, must apply a standard of heightened judicial scrutiny, treating such matters as if they involved the protection of a vulnerable class.
“No presumption of validity will arise from the mere execution, attestation, registration, mutation or appearance of consent, unless the same is supported by strict proof of voluntariness and informed understanding,” the ruling states.
He noted that the burden on the beneficiary of the transaction to establish “affirmatively”, through credible and impeccable evidence, that the instrument represents a free, informed and conscious act of the performer will continue to be “heavy”.
“The courts will ensure that it is on record that the performer had clear knowledge of the nature of the transaction and the exact inheritance rights affected or waived.
“It must be established that the performer had access to independent, competent and disinterested advice, sufficient to allow him to make informed decisions and free of influence or dependencies.
“Any transaction will be examined to exclude the presence of coercion, fraud, misrepresentation, undue influence or family or social domination.
“When consideration is alleged, the courts will require strict proof that it was lawful, real, adequate and actually received in a verifiable manner.
“It must be demonstrated that the content of all documents has been read, explained and translated into a language fully understood by the performer.”
The FCC held that courts will need to verify that the executor was given a reasonable opportunity to reflect and consult, without rush or pressure.
“Any transaction that is prima facie unconscionable, unilateral or disproportionately detrimental to the heir will be subject to strict disapproval unless fully justified by clear evidence.
“All suspicious or doubtful circumstances surrounding the transaction must be satisfactorily explained by the beneficiary, otherwise adverse inferences will be drawn.
“In all such cases, courts must record an affirmative finding of voluntariness and informed consent before confirming any deprivation of inheritance rights.”
In the end, the FCC stated that tax authorities will need to exercise similar caution at the mutation stage and will not penalize inputs that affect inheritance unless the above safeguards are shown to be met.
The FCC held that, in a society where legal heirs are regrettably and frequently deprived of their divinely ordained and legally protected inheritance rights through subtle coercion, social pressure, manipulation, and fraudulent devices, courts have a heightened obligation to examine transactions affecting such rights with the utmost vigilance.
“The doctrine developed for the protection of parda nasheen women is not a mere technical rule of evidence but a substantive safeguard designed to protect vulnerable women from exploitation and deprivation.
“In fact, when a transaction involves an elderly, illiterate, rural woman observing the parda, the burden placed on the beneficiary becomes exceptionally onerous.
“Any suspicious circumstances surrounding such transaction must be satisfactorily dispelled by evidence of the highest degree, leaving no room for doubt, conjecture or uncertainty.”
The ruling noted that the shares of inheritance in the estate of a deceased Muslim are neither uncertain nor dependent on the whims of individuals. They are specifically prescribed by the Holy Quran and upon the death of a Muslim, his legal heirs acquire property rights acquired by operation of law.
“The protection of women’s property rights is firmly rooted in a variety of international human rights instruments that, although differing in their legal character, collectively establish binding obligations and authoritative interpretive standards relevant to the present dispute. The 1948 Universal Declaration of Human Rights (UDHR), although not a treaty, is widely regarded as a reflection of customary international law and constitutes an authoritative exposition of fundamental rights.”
“The judicial conscience of the Court cannot remain indifferent to the recurring phenomenon by which heirs are deprived of their legitimate shares under the guise of quitclaim deeds, family arrangements, betrothal agreements, gifts, support agreements, nuptial considerations, monetary payments or other ostensible transactions. Any agreement that has the effect of depriving an heiress of her legitimate inheritance, without strict proof of free, informed and independent consent, may be viewed with the gravest suspicion and subjected to the most rigorous scrutiny judicial.”
