Question:
mera sawal yeh hn mery walid ki bachpan mein death hogai thi meri age 8 years thi aur mjh sy 3 choty bhai hain behn aur koi nahi hn abbu k inteqal k bad chacha taya property pr qabza karna chahty they meri ammi ny court mein case lara aur property jo k 1 building hn wo mil gai jo k mery bhiyun k nam ki gai us waqt wo baligh ni they care taker ammi bani mein ab shadi shuda hn mery do bachy hn bhiyun ki b shadiyan hogai mery husband ki apni koi property ni rent ka ghar tha pehly wo b ab ni raha mein usi building k pent house mein rehti hn lekin mjhe ab zarort hn ghar ki chat ki mery ghar waly mery against hn mjhe sharan hissa ni dy re pls guide mein court k through kya apna right ly sakti hn aur kaisy ?
Answer:
Based on the details you have provided, here’s guidance on how you can pursue your inheritance rights through the courts:
- Understanding Your Rights as a Daughter:
- As a daughter, you are entitled to a share in your father’s property according to Muslim Sharia Law. This right is inherent and guaranteed, irrespective of any initial distributions made without your consent.
- Several judgments support the principle that daughters cannot be deprived of their rightful inheritance under Sharia due to previous litigation or customary practices. For example, in MUHAMMAD ANWAR and 2 others Versus KHUDA YAR and 25 others, 2008 SCMR 905, the Supreme Court of Pakistan emphasized that Section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, has retrospective effect, ensuring that daughters receive their due share conferred upon them by Sharia.
- Legal Basis:
- The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, ensures that in matters of inheritance, Muslim Personal Law (Shariat) prevails. Section 2-A further reinforces that the law applies retrospectively.
- The spirit of these laws, as interpreted by various courts, is to protect the rights of female heirs and ensure they receive their rightful shares according to Islamic law.
- Filing a Suit for Declaration and Partition:
- Nature of the Suit:
- You should file a suit for declaration and partition in the appropriate court. This suit will declare your share in the property and enforce its partition.
- Key Steps:
- Legal Representation:
- Engage a competent lawyer who specializes in inheritance and family law.
- Document Preparation:
- Collect all relevant documents, including your father’s death certificate, property documents of the building, any prior court orders related to the property, and your identification documents (CNIC).
- Prepare a detailed account of how the property was initially managed and how your brothers have been excluding you from your rightful share.
- Drafting the Plaint:
- Your lawyer will draft a plaint (the initial written statement presented to the court) outlining your claim. The plaint should include:
- Details of your relationship to your father.
- Description of the property.
- Your Shari share in the property.
- Details of how your brothers have denied you your share.
- A request to the court for a declaration of your rights and partition of the property.
- Filing the Suit:
- File the suit in the civil court with proper jurisdiction.
- Pay the required court fees, which are usually a percentage of the property value.
- Court Proceedings:
- Attend all court hearings, and provide all necessary information and documents to your lawyer.
- Be prepared to present witnesses if necessary to support your claim.
- Possible Outcomes:
- If the court rules in your favor, it will declare your share in the property and order a partition. The partition can be done physically, if possible, or by selling the property and distributing the proceeds according to the Sharia shares.
- Legal Representation:
- Dealing with Limitation:
- Limitation periods generally do not apply to inheritance matters when you are a co-sharer. The principle is that limitation does not run against a co-sharer.
- Inam Elahi and 2 others Versus Mst. Saeeda Begum (DECEASED) through LRs and others, 2021 CLC 1215, the Lahore High Court held that the law of limitation did not apply in this case, as the right of inheritance cannot be defeated by limitation. The court reasoned that the plaintiffs’ status as daughters of the deceased was proven by the evidence brought on record.
- The court also stated that fraud vitiates the most solemn proceedings, and cannot be endorsed.
- Ensuring a Fair Partition:
- Valuation:
- Ensure the property is accurately valued to determine the monetary value of your share.
- Partition Options:
- Physical Partition: If the property can be physically divided, the court will order a division based on your share.
- Sale and Distribution: If physical division is not feasible (as in the case of a building), the court may order the property to be sold, with the proceeds distributed among the heirs according to their Sharia shares.
- Additional Considerations:
- Retrospective Application of Sharia Law:
- Courts have consistently held that Sharia law applies retrospectively in inheritance matters. This means that even if the initial distribution of property occurred before the formal enactment of Sharia laws, your rights as a daughter under Sharia law are still valid.
In conclusion, to claim your Sharai right in your father’s property through the court, you need to file a suit for declaration and partition, ensuring you have all necessary documents and legal representation. The courts in Pakistan recognize and protect the inheritance rights of daughters under Muslim Law, and numerous judgments support the enforcement of these rights, regardless of previous distributions or claims of limitation. If building has historical significance, you can obtain heritage certificates from relevant heritage organization, this certificate will ensure that its historical value is maintained during partition.