No doubt that the right of inheritance is the most valuable, cherished and elementary right granted by Islam and law but equally indispensable is the right to create, hold and dispose of property which is recognized and protected with the same zeal and command of Islam and law. The right of inheritance can only be enforced against the estate of the deceased left behind at the time of death. By no stretch of imagination, the right of inheritance extends to question the legitimate and lawful transactions of transfer of property undertaken by the deceased in his life time by himself through the instrumentality of the State after following the due process of law merely on the basis of bald, general and evasive assertion of fraud unsubstantiated by cogent and irrefutable evidence. Such transactions can at best be treated at par with any other transaction challenged on the basis of fraud. Once that threshold is crossed and the transaction is cancelled, it is only then that the question of inheritance will arise.
Challenging a solemn transaction under the color or façade of inheritance will not and must not change the character of the transaction vis-à-vis any other transaction executed by the deceased with a stranger. Further, unless fraud is conclusively established by the party alleging it, going behind the transaction executed by the deceased not questioned for years in his life time on the touchstone of procedural irregularities would tantamount to trial of his grave. The obvious reason is that it is the duty of the State officials to ensure the fulfillment of procedural requirements before sanctioning or passing of a transaction. In case, there are any procedural lapses, the parties to a transaction have a right to know and the State functionaries are under a duty to point out before sanctioning the transaction so that the persons involved in the transaction get a fair and reasonable opportunity to rectify the same and enforce their will and decision thereafter. Cancellation of such a transaction after the death of the deceased on the basis of procedural lapses would invariably mean that the deceased would never get an opportunity to enforce his desire and intention regarding the disposal of his property which would stand substituted by the decision of the Court.
The owner of a property has every right and privilege to transfer or dispose of the Property in his life time in the manner he so desires, be that be in favour of any of his children. In fact, this is a fundamental right encapsulated, articulated and recognized under Articles 23 and 24 of the Constitution of the Islamic Republic of Pakistan, 1973. Therefore, it must be respected and given protection by all including the Courts of law in the absence of any fraud proved through unimpeachable and irrefutable evidence on record to the effect that the State functionaries were involved in the sanctioning or attesting of the transaction in question against the will or desire of the deceased.
The burden of proof would be much higher when the person assailing the transaction is a stranger to the transaction and is allegedly not a party to the transaction. In other words, the essence or nature of the challenge is that had the transaction been not executed, the person challenging would become a beneficiary thereof. Therefore, the ultimate beneficiary principle would be invoked to see the evidence in juxtaposition to arrive at a just and fair decision.
Long standing Revenue entries carry presumption of correctness which are liable to be preserved and protected unless the presumption is dislodged through reliable and credible evidence.
Civil Revision-112-19
MUHAMMAD IQBAL VS MST. KALSOOM BIBI ETC.
Mr. Justice Abid Hussain Chattha
05-10-2021
2021 LHC 5389
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