  IN THE SUPREME COURT OF PAKISTAN 
( Appellate Jurisdiction ) 
 
 
 
 
 
PRESENT: 
MR. JUSTICE ANWAR ZAHEER JAMALI, CJ  
MR. JUSTICE MIAN SAQIB NISAR  
MR. JUSTICE AMIR HANI MUSLIM  
MR. JUSTICE IQBAL HAMEEDUR RAHMAN  
MR. JUSTICE KHILJI ARIF HUSSAIN 
 
CIVIL APPEAL NO. 2133 OF 2006 
(on appeal from the judgment of the 
Lahore 
High 
Court, 
Lahore 
dated 
24.10.2001 passed in CR No.2239/2000) 
 
Mst. Noor Bibi and another 
 
…Appellants 
 
VERSUS  
Ghulam Qamar and another  
…Respondents 
 
 
For the Appellants: 
Mr. Iftikhar Hussain Shah, ASC. 
Mr. Salim Khan Chechi, ASC.   
 
For the Respondents: 
Nemo. 
 
Date of Hearing:  
17.03.2016 
JUDGMENT  
 
 
 
Anwar Zaheer Jamali, CJ.— This appeal by leave of the 
Court arises out of the judgment dated 24.10.2001 in Civil Revision 
No.2239/2000, passed by learned single Judge in chambers of the 
Lahore High Court, Lahore, whereby the said Civil Revision was 
allowed, concurrent findings of the two Courts below, challenged 
therein were set aside, and accordingly the suit for declaration and 
change of mutation filed by the respondents was decreed.  
2. 
 
Briefly stated, relevant facts of the case are that on 
24.07.1995, Respondent Nos. 1 and 2, being son and daughter of late 
Nasir Hussain, instituted a declaratory suit against their real mother, 
Mst. Noor Bibi (Appellant No.1), and their brother, Zulfiqar Ali 
(Appellant No.2), in respect of agricultural land measuring 45 Kanal 14 
CA 2133/2006                              -2- 
 
Marla, out of total land measuring 76 Kanal 4 Marla, bearing Khasra 
Nos. 92, 124, 125, 126, 127, 621/128, 134, 135, 193, 194, 195, 
634/280, 307, 308 and 309, Khewit No.13, Khatooni No.14 according 
to Jamabandi for the year 1992-93, situated at village Gurri, Bhoora, 
Tehsil and District Sialkot. Their claim was based on the assertions that 
their father, Nasir Hussain, had died five years ago, whereafter 
Inheritance Mutation No.181 dated 24.01.1994 was attested in favour 
of his legal heirs according to which, Mst. Noor Bibi, widow of deceased, 
got 1/8 share, Ghulam Qamar and Zulfiqar Ali, sons, got 4/5 and Mst. 
Razia Bibi, daughter, got 1/5 out of 7/8. Late Nasir Hussain belonged 
to Shia faith, wherein a widow is not entitled to any share in the 
immovable property (lands) owned by her deceased husband. Further, 
according to Shia law of inheritance, Ghulam Qamar and Zulfiqar Ali, 
sons should have been given 4/5 share each and Mst. Razia Bibi, 
daughter should have been given 1/5 share, whereas the widow of Nasir 
Hussain (deceased) was not entitled to 1/8 share.  
3. 
 
The suit was contested by the parties, issues were framed, 
evidence was recorded, and vide judgment dated 15.11.1997, it was 
dismissed with the observation that the widow, as per Shia law of 
inheritance, being mother of two sons and a daughter, not being a 
childless widow, was entitled to inherit legal share from the legacy of 
her deceased husband, Nasir Hussain.  
4. 
 
The appeal under Section 96 of the Code of Civil Procedure, 
1908, filed by respondents against the judgment of the Trial Court of 
learned Senior Civil Judge, Sialkot, before the Court of Additional 
District Judge, Sialkot on 12.12.1996, was dismissed vide judgment 
dated 01.03.2000, with the conclusion that the findings of the Civil 
Court, that the widow of deceased Nasir Hussain, being mother of two 
CA 2133/2006                              -3- 
 
sons and a daughter, was not a childless widow and thus entitled to her 
legal share under Shia law of inheritance, were unexceptionable.   
5. 
 
Against these concurrent findings of the two Courts below, the 
respondents then preferred Civil Revision under Section 115 C.P.C. before 
the Lahore High Court, Lahore, on 13.06.2000, which was heard and 
allowed vide impugned judgment dated 24.10.2001 with reference to the 
application of ratio of judgment in the case of Syed Muhammad Munir v. 
Abu Nasar, Member (Judicial) Board of Revenue, Punjab Lahore and 7 others 
(PLD 1972 SC 346).  
6. 
 
We have heard arguments of the learned ASC for the 
appellants, while respondents have chosen to remain absent.  
7. 
 
In his submissions, the learned ASC for the appellants briefly 
stated admitted facts of the case that Appellant No.1 is widow of late Nasir 
Hussain and real mother of Zulfiqar Ali (Appellant No.2), Ghulam Qamar 
(Respondent No.1) and Mst. Razia Bibi (Respondent No.2). Nasir Hussain 
had expired five years prior to the filing of suit, leaving behind amongst 
others some agricultural lands as detailed in Paragraph No.1 of the plaint. 
Therefore, keeping in view that parties were governed by Shia law of 
inheritance, the two Courts below have rightly held the Appellant No.1 
entitled to her share from the estate (lands) of late Nasir Hussain as in her 
capacity as widow, but the High Court misinterpreted and wrongly applied 
the ratio of judgment in Syed Muhammad Munir’s case (supra), while 
equating the claim of Appellant No.1 to that of a childless widow, which is 
admittedly not the position in the present case. 
8. 
 
Since the whole case of the respondents is based on the ratio 
of the judgment in Syed Muhammad Munir’s case (ibid), it will be useful to 
discuss the said case in some detail: 
9. 
 
In this case, the only issue involved was regarding the exact 
connotation of ‘childless widow’ so as to decide whether it meant a  
 
CA 2133/2006                              -4- 
 
widow from whose womb no issue had been born to the deceased or a 
widow who might have had an issue from her womb to the deceased 
which died before the opening of inheritance of her deceased husband. 
It was in this background that not only detailed discussion of various 
authoritative books of scholars and jurists of the subcontinent on this 
limited subject was made, but Quranic verses and relevant Hadiths 
were also taken into consideration to record the conclusion as follows: 
“The Shias claim that the difference between Shias and 
Sunnis arise as a result of their different interpretations 
of some of the Quranic texts. The Sunnis, it is said, 
accept the interpretations given by the four Imams, 
namely; Imam Abu Hanifa, Imam Malek, Imam Ahmad 
and Imam Shafi’e whereas the Shias rely on the 
interpretations of the Holy Qur’an given by only the Ahl-
e-Bait (Members of the Household of the Holy Prophet) 
beginning with Hazrat Ali and ending with the last 
Imam and, as such, they claim that their interpretation 
is likely to be more correct. No one, they maintain, could 
have known the Holy Qur’an better than Hazrat Ali 
himself 
who 
in 
his 
Book 
had 
recorded 
these 
interpretations according to the instructions of the Holy 
Prophet himself. 
In view of this difference in the interpretation of 
the Qranic text itself, we feel that it would not be proper 
on our part at this stage to attempt to put our own 
construction in opposition to the express ruling of 
commentators of such great antiquity and high 
authority. To depart from a rule of succession which the 
Shia community has universally been following ever 
since the days of Imam Jafar Sadek, as evidenced by 
the unanimous opinions of the Shia jurists on this point, 
would be wrong. It is not open to us to change a settled 
rule of succession, having the force of Ijma behind it at 
this late stage. If a change is desired to be made this 
work should be undertaken by the Legislature itself 
after consulting the Shia Community. We can only point 
out that the Urdu translation given by Allama Mufti 
Syed Tyeb Agha Musavi Jazairi does not tally with the 
English translation given by S.V. Mir Ahmed Ali, another 
eminent Shia scholar.  
This rule has, it appears, also been consistently 
followed by the Court in this subcontinent since the 
decision of the Calcutta High Court in Mst. Asloo V. Mst. 
Umdutoonnissa. It was affirmed by the Privy Council in 
1897 in the case of Aga Mohamed Jaffer Bindaneem v. 
Koolsom Bee Bee. The Allahabad, Madras and Patna 
High Courts have also followed it in Umardaraz Ali Khan 
v. Wilayat Ali (1), Durga Das v. Nawab Ali (2), Mir Ali 
Hussain v. Sajuda Begum (3) and Syed Ali Zamin the 
contrary has been brought to our notice. 
CA 2133/2006                              -5- 
 
We would, therefore, allow this appeal, set aside 
the order of the High Court and declare that on the death 
of Mst. Fatima, childless widow, her life estate 
terminated and the bequest made by her in favour of 
Mst. Hassan Zamani in respect of the Nizampur lands 
came to an end. According to the Shia Law, even after 
the termination of her limited estate under custom, she 
acquired no share in the landed properties obtained by 
her in lieu of her husband’s estate left behind in India, 
according to the Shia Law.” 
 
10. 
 
From the above, it will be seen that at no stage of the 
proceedings any issue had cropped up with reference to the status of a 
widow with children under the Shia law of inheritance, rather the issue 
dilated upon was in respect of a childless widow, being governed by 
Shia law of inheritance. In this backdrop, we have no hesitation to hold 
that the judgment of the Revisional Court impugned before us is not in 
consonance with the real facts and the ratio of judgment in Syed 
Muhammad Munir’s case (ibid), which, as discussed above, proceeded 
on different premises. Under Section 113 of Mohammedan Law by Sir 
D.F. Mulla (17th Edition), the status of a childless widow for the purpose 
of inheritance under Shia Fiqah has been discussed as follows: 
“Section 113. Childless widow.—A childless widow 
takes no share in her husband’s land, but she is 
entitled to her one-forth share in the value of trees and 
buildings standing thereon, as well as in his movable 
property including debts due to him though they may be 
secured by a usufractuary mortgage or otherwise.” 
 
Apart from it, right of inheritance of a Shia widow from the estate of her 
deceased husband, not being a childless widow, is also clearly 
established from the table of sharers under Section 90 of the same 
book, where in the column of sharers she is placed at serial No.2, with 
normal share of 1/8, being one or more.  
11. 
 
Similarly, in another book on Shia Law of succession titled 
‘Muhammadan Law’ Volume-II, authored by renowned scholar, Syed 
Amir Ali, only a childless widow has been shown disqualified from 
CA 2133/2006                              -6- 
 
claiming share from the estate of her deceased husband, that too only 
to the limited extent of lands left behind by her husband.  
12. 
 
Further, in the book of succession in Muslim family, 
authored by N.J. Coulson, he has opined that: 
“ ‘Childless’ here means, according to the text, that the 
surviving widow is without a child, alive or in embryo 
and subsequently born alive, at the time succession to 
the estate opens. A wife, therefore, suffers from this 
disability if she has had children by the prepositus who 
have died before the succession opens or if her only 
children are those of another marriage. The rule is 
clearly aimed at ensuring, to a larger degree, that lands 
remain within the husband’s family. A widow succeeds 
to a share in her husband’s lands only when that 
share, or the greater part of it, will in the normal course 
of events be transmitted to the husband’s issue upon 
her deceased.” 
 
13. 
 
This aspect of the case has also been considered in the case 
of Syid Murtaza Husain v. Musammat Alhan Bibi 1909 IC (Vol.2) 671, 
which lays down that under the Shia faith, a widow with a child from 
her deceased husband is entitled to a share in both movable and 
immovable property of her husband. 
14. 
 
This being the position, in our considered opinion, the 
learned single Judge in chambers of the Lahore High Court committed 
patent error of law and failed to exercise his jurisdiction in accordance 
with law, which resulted in gross injustice to the appellants. Thus, such 
judgment is liable to be set aside. 
15. 
 
Foregoing are the reasons for our short order dated 
17.03.2016. 
    Chief Justice 
 
Judge  
 
 
Judge 
 
 
Judge  
 
 
Judge 
ISLAMABAD. 
17th March, 2016. 
Mudassar/


“Approved for reporting.”
