7/6/24, 7:38 PM 2020 S C M R 601

2020 S C M R 601
[Supreme Court of Pakistan]
Present: Qazi Faez Isa and Sardar Tariq Masood, JJ
Mirza ABID BAIG---Appellant
Versus
ZAHID SABIR (DECEASED) through LRs and others---Respondents
Civil Appeal No. 472 of 2013, decided on 12th February, 2020.
(On appeal against the judgment dated 6.02.2013 passed by the Lahore High
Court, Lahore in C.R. No. 489/2009)
(a) Qanun-e-Shahadat (10 of 1984)---
----Arts. 117, 118 & 119---Contract Act (IX of 1872), S. 25---Islamic law---
Inheritance---Brother depriving sister of her legal share in inheritance through a
purported compromise agreement---Purported compromise application was neither
executed nor filed whereas the purported agreement was not executed---Purported
agreement surfaced fifteen years after its alleged execution without an explanation
offered as to why it was not disclosed earlier---Burden to prove the two documents
(the purported compromise application and the purported agreement) lay on the
appellant (Art. 117 of the Qanun-e-Shahadat, 1984) but he did not discharge the
burden of proof (Art. 118)---Since appellant failed to establish fact of payment
under the compromise application and agreement, both said documents were void
in terms of S. 25 of the Contract Act, 1872---Appeal was dismissed with costs.
Appellant-brother continued to throw one unnecessary challenge after another to
prevent his sisters from getting their inheritance. One of the sisters who entered
into the purported compromise agreement with the appellant had since passed away.
Legal heirs of said sister/respondents remained deprived of their mother's share of
inheritance for over forty-five years. Such conduct of the appellant contravened the
law and also the dictates of Almighty Allah; Shariah expounded that legal heirs
immediately on the death of their predecessor became owners of the estate left
behind as per their predetermined shares.
Rights of inheritance of deceased sister to the extent of the certain properties had
been determined by the Court however the appellant then produced the purported
compromise application and long afterwards emerged the purported agreement. No
explanation was forthcoming why these documents remained under wraps.
Purported compromise application was neither executed nor filed and the
purported agreement was not executed. The purported agreement was dated 16th
October 1993 but was brought forward after fifteen years, in the year 2008. The
purported agreement left blank the place where the consideration amount was to be
written. Appellant testified that he had inserted in his hand an amount of Rs.
"700,000/=" which he said was paid in cash but failed to establish the particular
fact of payment having been made to the deceased sister.

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Purported compromise application did not refer to the purported agreement

which was also inexplicable. Purported agreement surfaced fifteen years after its
alleged execution without an explanation offered as to why it was not disclosed
earlier. The signature of deceased sister on both these documents was also different
from her signature on the plaint and other admitted documents. Both these
documents were also thumb-impressed by her therefore it was relatively easy to
establish if she had affixed her thumb impression thereon by sending them for
forensic examination but the appellant did not elect to do so and thus an adverse
presumption could be drawn against him. The burden to prove the two self-serving
documents (the purported compromise application and the purported agreement)
lay on the appellant (Article 117 of the Qanun-e-Shahadat, 1984) but he did not
discharge the burden of proof (Article 118).
The purported compromise application and the purported agreement were stated
to have been executed on payment of compensation of seven hundred thousand
rupees but appellant failed to establish that such payment was made, therefore,
these documents were void in terms of section 25 of the Contract Act, 1872.
Appeal was dismissed with costs throughout with the observations that often
times male members of a family deprive their female relatives of their legal
entitlement to inheritance and in doing so Shariah and law was violated; that since
the deceased sister and now her legal heirs/respondents stood deprived of
inheritance for forty-five years, it was expected that if the matter went to the
Executing Court it would ensure that the matter was promptly concluded without
entertaining frivolous objections from the appellant to further procrastinate the
misery of the respondents.
(b) Islamic law---
----Inheritance---Vulnerable females compelled to relinquish their entitlement in
inheritance in favour of their male relations---Such relinquishment by female
members of the family was contrary to public policy and Shariah.
Ghulam Ali's case PLD 1990 SC 1 ref.
Muhammad Atif Amin, Advocate Supreme Court and M.S. Khattak, Advocate-
on-Record for Appellant.
Mustafa Ramday, Advocate Supreme Court assisted by Zaafir Khan, Ms. Zoe
Khan and Akbar Khan, Advocate and Syed Rifaqat Hussain Shah, Advocate-on-
Record for Respondents Nos. 1(a) to (d).
Respondents Nos. 2 - 5 ex parte.
Dates of hearing: 10th and 12th February, 2020.
ORDER
Qazi Faez Isa, J. Mirza Sultan Baig died on 22nd March 1975 leaving behind a
widow Mst. Tahira Sultana, two sons, namely Mirza Abid Baig and Mirza Imran
Baig, and four daughters, namely Abida Azam, Zahida Sabir, Naveeda Sultan

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(Pasha) and Fakhira Tariq. A suit for the administration of the estate of their father
and rendition of accounts was filed by Abida Azam (plaintiff No. 1) and Zahida
Sabir (plaintiff No. 2) on 28th May 1980. They mentioned the properties in the
plaint which were left by their father and sought their shares therein as per shariah.
2. The suit was decreed on 26th March 1992 with regard to two properties, that
is house No. 69 (its previous number was 118), Garden Block, situated in the New
Garden Town, Lahore, measuring 6 kanals and a shop situated in Ram Gali No. 2,
Lahore ("the said house and shop"). Mirza Abid Baig filed an appeal challenging
the judgment and decree. Another appeal was filed by his mother, brother and two
sisters, namely Naveeda Pasha and Fakhira Tariq. Both the appeals were dismissed
vide judgment dated 3rd January 1995. Thereafter, civil revision petition was filed
by Mirza Abid Baig and during its pendency he entered into a compromise with his
sister Abida Azam (plaintiff No.1 in the suit) who upon receipt of one million and
four hundred thousand rupees withdrew her suit and the said petition was disposed
of on 22nd November 1995.
3. On 21st October 1997 Naveeda Pasha, Zahida Sabir and Fakhira Tariq filed an
application under section 12(2) of the Code of Civil Procedure ("the Code") in the
High Court followed by a similar application filed the other brother/son, Mirza
Imran Baig. The learned Judge of the High Court recalled the order disposing of the
revision petition and remanded the matter to the Appellate Court to record evidence
to verify whether a statement was made by the counsel on behalf of their clients to
bind them. Evidence was recorded by the Appellate Court which was transmitted to
the High Court for consideration. The learned Judge of the High Court on 9th
August 2003 concluded that the person who had effected the compromise on behalf
of the sisters was not legally authorized as a counsel to do so and, consequently by
consent, both applications under section 12(2) of the Code were accepted and the
revision petition stood revived.
4. Thereafter, when the revision petition was fixed for hearing it was pointed out
to the learned Judge of the High Court by Mirza Abid Baig that an application
under Order XXIII, rule 1 of the Code was filed by Zahida Siddiqi, which was
stated to be another name of Zahida Sabir, ("the purported compromise
application") before the Appellate Court on 20th October 1993 which had escaped
the attention of the learned Judge of the Appellate Court. Therefore, the matter was
again remanded to the Appellate Court to consider the purported compromise
application and whether it was filed under undue influence or coercion. Zahida
Sabir/Siddiqi, who allegedly signed the purported compromise application, had
died in the year 2003 before any order was passed on it. Zahida Sabir's legal heirs
withdrew the purported compromise application on 11th July 2008. Then on 30th
July 2008 Mirza Abid Baig filed an application under Order XLI, rule 27 of the
Code to bring on record additional evidence which was a two-page agreement dated
16th October 1993 ("the purported agreement") which said that Zahida Sabir had
given up her claim on payment of seven hundred thousand rupees. After recording
of evidence Mirza Abid Baig's appeal was accepted to the extent of the claim of
Zahida Sabir. The legal heirs of Zahida Sabir challenged this decision by filing a
civil revision petition before the High Court and the learned Judge of the High

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Court set aside the finding and decision of the Appellate Court vide impugned
judgment dated 6th February 2013.
5. Mr. Muhammad Atif Amin, the learned counsel representing the appellant
Mirza Abid Baig, states that the Appellate Court after recording evidence had
concluded, on the basis of testimonies of witnesses and documents, that Zahida
Sabir had executed the purported compromise application and the purported
agreement. The learned counsel referred to the testimonies of Muhammad Siddiq
(AW-1) and Anwar Khan (AW-3) and stated that these witnesses had testified to the
execution of the purported agreement and that cash payment of seven hundred
thousand rupees was paid by Mirza Abid Baig to Zahida Sabir. He further states
that in the application under section 12 (2) of the Code, which was filed by Zahida
Sabir in her lifetime, she had admitted signing the purported compromise
application.
6. Mr. Mustafa Ramday, the learned counsel for the respondent Nos. 1(a) to 1(d),
who are the children and legal heirs of Zahida Sabir, states that Mirza Sultan Baig
died on 22nd March 1975 and on his death his legal heirs immediately became
owners of his estate and entitled to receive their shares in accordance with shariah,
however, some of the legal heirs were deprived and were compelled to file a suit
for administration and rendition of accounts, which was decreed by the learned
Civil Judge, Lahore in accordance with law. Mirza Abid Baig however left no stone
unturned in keeping the legal heirs deprived of their inheritance on tenuous
grounds. The learned counsel submits that Mirza Abid Baig took one false plea
after another to deprive his sisters of their inheritance; in his written statement he
even denied that the plaintiffs were the legal heirs of Mirza Sultan Baig; he also
denied that Mirza Sultan Baig "was the legal real owner" of the said house and shop
and that when these false pleas collapsed the purported compromise application and
the purported agreement emerged. The purported compromise application was
stated to have been filed on 20th October 1993 however the learned Appellate
Court Judge proceeded to decide the case on merits on 3rd January 1995, which,
learned counsel submits, incontrovertibly establishes the absence of the purported
compromise application from the Court record, because the learned Judge would
not needlessly decide a case on merits which had already been compromised. The
only purported record of the filing of the purported compromise application was a
note made in the margin of the order sheet maintained by the Court Reader which
note, according to the learned counsel, was fraudulently inserted, which was
discussed and discarded by the learned Judge of the High Court in the impugned
judgment. He further states that, the purported compromise application did not refer
to the purported agreement; the purported compromise application simply stated
"the applicant has settled her dispute with the appellant outside the Court" and that
"the applicant intends to withdraw her suit and also has no objection in the
acceptance of the appeal as prayed for" and did not refer to any purported
agreement, which if it had been executed would have been mentioned therein; the
purported agreement first surfaced on 30th July 2008 after the matter was remanded
the second time, confirming that it was not executed by the late Zahida Sabir. He
also referred to the signatures on the purported compromise application and the
purported agreement which were signed in Urdu and showed to be signed as Zahida

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Siddiqi and not Zahida Sabir which is how she signed [emphasis added]; the
learned counsel referred to the plaint and other documents which were signed as
Zahida Sabir.
7. Making his legal submissions the learned Mr. Mustafa Ramday submits that
Order XXIII, rule 1(4) of the Code states that the 'consent' of the other plaintiffs
was needed before withdrawing a case where there are more than one plaintiff,
however, the consent of Abida Azam, the other plaintiff, was not obtained. Learned
counsel refers to a decision in the case of Umar Bakhsh v. Azim Khan1 which held
that, "Court would consider the document to be compromise when both parties
signing it agree and reiterate the contents before the Court. If before the Court one
party to the document resiles from it, then the document can be called anything but
an agreement or compromise"2. Learned counsel states that the purported
compromise application was not accepted by the Court and it had been withdrawn,
therefore it was of no legal effect and should not have been considered. He
alternatively submits that since the purported compromise application was wholly
without consideration it was void in terms section 25 of the Contract Act, 1872 and
relies on the case of Sadar Din v. Khatoon3 where relinquishment of rights in
property without consideration was, "found to be a nullity in the eye of the law on
account of section 25 of the Contract Act, 1872". He says, that relinquishment of
rights could not be lightly implied and cogent evidence in this regard had to be
produced; there was no evidence of the payment of seven hundred thousand rupees
and the entire story was false. He submits that this Court has always taken great
exception when ladies are denied their property rights by male members of the
family and in this regard referred to the case of Ghulam Ali v. Ghulam Sarwar
Naqvi (Mst.)4. Concluding his submissions, the learned counsel submits that the
Appellate Court had exceeded the directions of the High Court when the case was
remanded to it and unnecessarily widened the controversy of the suit and that the
learned Civil Court Judge and the learned High Court Judge had correctly decided
the matter.
8. We have heard the learned counsel and with their assistance examined the
documents on record. This case is yet another sad example of a brother denying and
resisting the claim of his sisters to their legal entitlement to inheritance. Mirza
Sultan Baig died on 22nd March 1975 and when he died his properties came to vest
in his legal heirs and should have been distributed among them in accordance with
shariah but this was not done compelling two of his daughters to file a suit to get
what was due to them. Mirza Abid Baig stooped to denying that his sisters were the
legal heirs of Mirza Sultan Baig. He also, without any proof, claimed that his father
was not the legal owner of the said house and shop, insinuating but without stating,
let alone establishing, that he was their real owner and that his father was the
benami (ostensible) owner. The learned Civil Judge, Lahore decreed the suit in
respect of only two of the properties, that is the said house and shop, but this too
was not acceptable to Mirza Abid Baig who continued to throw one unnecessary
challenge after another to prevent his sisters from getting their inheritance and
regrettably succeeded by such tactics as Zahida Sabir passed away and it is now
forty-five years since she and then her children have remained deprived of

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inheritance. Such conduct of the appellant contravened the law and also the dictates
of Almighty Allah; shariah expounds that legal heirs immediately on the death of
their predecessor become owners of the estate left behind as per their
predetermined shares.
9. The rights of Zahida Sabir to the extent of the said two properties had been
determined by the Court however Mirza Abid Baig then produced the purported
compromise application and long afterwards emerged the purported agreement. No
explanation was forthcoming why these documents remained under wraps. It is
unbelievable that counsel would have kept silent and let the learned Judge decide
the case on merits when Zahida Sabir had already withdrawn her claim against her
brother. It is thus quite clear to us that Mirza Abid Baig had staged the whole thing;
the purported compromise application was neither executed nor filed and the
purported agreement was not executed. The purported agreement is dated 16th
October 1993 but is brought forward after fifteen years, in the year 2008. The
purported agreement left blank the place where the consideration amount was to be
written. Mirza Abid Baig testified that he had inserted in his hand an amount of
"700,000/=" which he said was paid in cash but failed to establish the particular
fact of payment having been made to Zahida Sabir5. Mirza Abid Baig further
destroyed his credibility by preposterously alleging that his sister was not entitled
to inherit from her father's estate. He further stated that the amount paid by him to
her was not in settlement of her inheritance, which then raised the question why
was payment made, but no answer was forthcoming.
10. The purported compromise application is dated 20th October 1993 but the
learned Appellate Court Judge decided the case on merits on 3rd January 1995, it is
therefore clear, that it did not exist on the Court record till 3rd January 1995
because the learned Judge would not have spent time to decide a case on merits
which had already been compromised. And, if, for the sake of argument, it is
assumed that the learned Judge had overlooked the said application it is
unbelievable that neither the learned counsel appearing in the case nor the parties
would draw his attention to it, thereby further confirming that the purported
compromise application did not exist. Mirza Abid Baig's counsel has referred to a
note made in the margin of the order sheet maintained by the Court Reader,
however, no credence can be placed on this note because it is completely
incongruous with the facts. We have also observed that the purported compromise
application did not refer to the purported agreement which is also inexplicable. As
if this was not enough the purported agreement surfaced fifteen years after its
alleged execution without an explanation offered as to why it was not disclosed
earlier. The signature of Zahida Sabir on both these documents was also different
from her signature on the plaint and other admitted documents. Both these
documents were also thumb-impressed by her therefore it was relatively easy to
establish if she had affixed her thumb impression thereon by sending them for
forensic examination but Mirza Abid Baig did not elect to do so and thus an
adverse presumption can be drawn against him. The burden to prove the two self-
serving documents (the purported compromise application and the purported
agreement) lay on Mirza Abid Baig6 but he did not discharge the burden of proof7.
The purported compromise application lay unattended and was in turn withdrawn

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by the legal heirs of the Zahida Sabir before any order was passed thereon. The
filing of an application under Order XXIII, rule 1 of the Code, which seeks to
withdraw a suit or claim, is not tantamount to the withdrawal of the suit or claim.
The purported compromise application and the purported agreement were stated to
have been executed on payment of compensation of seven hundred thousand rupees
but Mirza Abid Baig failed to establish that such payment was made, therefore,
these documents were void in terms of section 25 of the Contract Act, 1872.
11. We cannot be unmindful of the fact that often times male members of a
family deprive their female relatives of their legal entitlement to inheritance and in
doing so shariah and law is violated. Vulnerable women are also sometimes
compelled to relinquish their entitlement to inheritance in favour of their male
relations. This Court in the case of Ghulam Ali8 had observed that 'relinquishment'
by female members of the family was contrary to public policy and contrary to
shariah. It would be useful to reproduce the following portion from the decision of
this Court:
"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."9
12. The learned Judge of the High Court, exercising revisional jurisdiction under
section 115 of the Code, had correctly noted that the Appellate Court had wrongly
exercised its jurisdiction, had misread evidence, disregarded crucial evidence,
relied on the purported compromise application which Mirza Abid Baig could not
establish was part of the Court record, gave credence to purported agreement
without the concomitant obligation of making payment and wrongly assumed that a
valuable claim was relinquished without proof and without consideration.
Therefore, there is no reason to allow this appeal which is dismissed with costs
throughout. The costs shall be paid to the respondents Nos. 1(a) to 1(d). Since the
said respondents and before them their mother stood deprived of inheritance for
forty-five years, we expect that if the matter goes to the Executing Court it will
ensure that the matter is promptly concluded without entertaining frivolous
objections from the appellant to further procrastinate the misery of the said
respondents.

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MWA/A-5/SC Appeal dismissed.

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