Will

Will

Will would be valid to the extent of 1/3 of the property.. testator could not bequest his entire property, however he could bequest only 1/3 of his entire property with the consent of legal heirs—property could not be bequest in the favor of legal heirs without the consent of other legal heirs— scribe of will deed in the present case, was not mentioned nor had been produced by the plaintiffs— contents of will deed were against Quranic Version, Sunnah and law—Muslim could exercise his right to utilize his property as he wishes in his lifetime by alienating the same in any manner but he had no right to by-pass the dictates of Quran, Sunnah and prevailing law— Testator had no authority to deprive the legal heirs of their shari shares though will deed— statements of marginal witnesses of will deed were full of contradictions— Notary public who attested the will deed had not entered the same in his register— Legal right which had bestowed upon the heirs could not be jeopardized by executing an unregistered deed which was no in the knowledge of legal heirs— consent of other legal heirs had not been obtained while executing the will deed—said will deed has not been proved nor the same contained the description or property—Legal rights of defendants to the extent of their Shari shares could not be disturbed—Inheritance mutation attested in accordance with law was not liable to be annulled which was maintained—plaintiffs were bound to prove partition deed  by producing cogent and confidence inspiring evidence— partition deed was unregistered documents which had not been proved— Temporary arrangement of partition for the purpose of produce of land would not amount to permanent private partition or a legal partition—Both the courts below had decided the this lis with conscious and application of independent mind=== revision was dismissed in the circumstances

2015 CLC PESHAWAR 298

Deathbed Gift

Gift in Islamic Law

Gift—Deathbed gift… proof… donor being a very old age and having unsound mind…… living at mercy of done…. Undue influence of done…. Lack of possession of done… effect… done allegedly gifted disputed property to one of his son/purported done at the exclusion of others.. at the time of making gift done was 92/933 years old, meaning thereby that he was fairly old at the relevant time… witnesses in their evidence stated that the donor did not enjoy sound mental health at the time of making gift and such evidence went unquestioned and thus remained unshaken.. such evidence appeared to by quite credible when considered in light of the age of the donor and other attending circumstances… effect of undue  influence of done could not ruled out when the donor being old, infirm and incapacitated was living at the mercy of the done… Alleged done made contradictory statement regarding delivery of possession of disputed property to him and could not be said to have discharged the burden of proof to prove all the essentials of a gift therefore no valid gift was ever made in his favor—appeal was allowed accordingly. PLD 1975 SC 624, PLD 1964 SC 143, PLD 1977 SC 28

Gift— mental health of donor…. Relevance… evidence regarding mental health of donor could devastate the very basis of a gift

Gift… validity of gift challenged— burden of proof—when a gift was challenged the burden of proof lay on the done to prove that all essential of the gift were fulfilled

(2014 SCMR 1181 SUPREME COURT OF PAKISTAN)

Succession certificate .. Tarka

Tarka meanin g and scope of tarka… tarka had been defined as maal property which not only included property but also right to property… riht to property meant a property which was due to the deceased from anyother person, and which though not received by the deceased during his life time, but the deceased was legally entitled to raise a claim in respect of the same in his lifetime…. Tarka, thus included all moveable and immoveable properties owned and passed by the deceased at the time of his death, as well as those sums which were due to the deceased form any other person. PLD 2014 Sindh 290

GRAND CHILDREN RIGHT OF INHERITANCE

GRAND CHILDREN RIGHT OF INHERITANCE

Right of grand children to inherit their share of their predeceased father from their grandfather. Legality is that although Federal Shariat Court had declared section 4 of Muslim Family Laws Ordinance 1961 to repugnant to Islamic Sharia but such verdict was under challenge before the Supreme Court and thereby the operation of said verdict stood suspended automatically till decision of the appeal as provided by Article 203-D of the Constitution. Grandchildren therefore could inherit the share of their predeceased father from their grandfather. (2013 CLC Peshawar 542)

After granting of Letter of Administration if any legal heirs died

 

After granting of Letter of Administration if any legal heirs died

Letter of administration was allowed and ordered to be issued, after which two legal heirs of the deceased died- effect- of application for impleading heirs of deceased after order of issuance of Letter of Administration was passed- applicant contended that letter of administration could not issue without impleading legal heir of the two deceased heirs- validity- contention that since letter of administration had not been issued therefore succession application be treated as pending was incorrect. Order on the succession application was final and conclusive and issuance of letter of administration as merely compliance of said order. No matter. Under the law of succession it was not permissible that a common petition/application be entertained for grant of succession certificate/letter of administration pertaining to assets of more than one deceased person, irrespective of the fact that assets were inherited by them from the same person. Under succession Act 1925 amendment or addition was estate of deceased which could not be mentioned in the original succession petition. In the case of death of any legal heir deceased person /legal heirs could not be made party or substituted in place of actual legal heir, and a fresh application for issuance of succession certificate is required to be filed in respect of deceased of legal heir. Application for impleadment was dismissed in the circumstances. 2013 CLC Sindh 339