2020 S C M R 601
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.
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.
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