-Inheritance---Sect of deceased---Principles and presumption as to the sect of a deceased Muslim stated.

 2022 S C M R 399

(a) Islamic law---

----Inheritance---Sect of deceased---Principles and presumption as to the sect of a deceased Muslim stated.

Every Muslim in the sub-continent was presumed to belong to Sunni sect, unless "good evidence" to the contrary is produced by the party contesting the same. The judicial determination of whether the said presumption of faith of a party, holds or positively stands rebutted, would be adjudged on the principle of preponderance of evidence produced by the parties. No strict criteria can be set to determine the faith of a person, and thus, to pass any finding thereon, the Courts are to consider the surrounding circumstances; way of life, parental faith and faith of other close relatives.

(b) Islamic law---

----Inheritance---Dispute between sisters and mother of deceased over his faith/sect---When the impugned inheritance mutation was initially entered and sanctioned (in favour of the deceased's mother), she did not claim that her son (deceased-son) was a Shia Muslim; it was only after the impugned inheritance mutation was set aside, and the matter was remanded by the Collector for afresh decision that she, for the first time, took the stance that her son, belonged to Shia sect---Moreover, the mother was not a credible witness, as her deposition that her husband, father of deceased, was a Shia Muslim was belied by the inheritance mutation of her husband---Under the said mutation, the estate of her husband was divided amongst his legal heirs in accordance with the Hanfi Sunni law of inheritance, and not Shia law---Preponderance of evidence supported the assertion of the sisters, that their deceased brother was of Sunni sect, resultantly, the mother was unable to positively discharge the burden of proof that lay on her and rebut the initial presumption that the deceased belonged to Sunni sect---Appeal was allowed, and suit for declaration filed by the sister/plaintiff was decreed.

(c) Limitation Act (IX of 1908)---

----S. 3, First Sched. & Art. 120---Specific Relief Act (I of 1877), S. 42---Inheritance---Co-sharer---Suit for declaration seeking share in inheritance---Limitation---Six-year period of limitation provided by Art. 120 of First Schedule to the Limitation Act, 1908 was to be counted from the time when the right to sue accrues, and the right to sue accrues to a co-sharer against the other co-sharer, when the latter denies the rights of the former in the joint property or ousts him/her from the co-ownership of the joint property---Wrong entry as to one's inheritance rights in the revenue record (i.e., inheritance mutation) is not, to be taken as an ouster of a co-heir from the co-ownership of the joint property---Indeed, the devolution of the ownership of the property on the legal heirs takes place, under the Islamic law, through inheritance immediately, and that too without intervention of anyone---Treating a wrong inheritance mutation, as an ouster of a co-sharer from the co-ownership of the joint property, and treating the six-year limitation period under Art. 120 of the Limitation Act, 1908 to start from the date of sanction of the inheritance mutation, is not legally correct.