ISLAMABAD: Resolving conflicting jurisprudence on inheritance rights, the Supreme Court has affirmed that an inheritance-share suit becomes time-barred only if the defendant proves that the claimant knew or should reasonably have known about the denial of an heir’s share more than six years before filing the claim.
Likewise, if the heir is instead trying to cancel a document he himself was party to, the suit is late only if the defendant proves the heir knew of the grounds to cancel it more than three years before filing, says the SC while affirming that limitation in inheritance suits begins only when an heir learns ofan overt act repudiating their title, not from the date of an incorrect revenue mutation or mere silence or passage of time.
‘Time does not run against the heir; it runs against the heir’s knowledge of a wrong. The right of an heir, vested at the moment of death, never lapses with time,’ observed Justice Shahid Waheed in a 106page judgement authored by him.
Justice Waheed headed a fivejudge larger bench, which also comprised Justice Naeem Akhtar Afghan, Justice Ageel Ahmed Abbasi, Justice Shakeel Ahmad and Justice Miangul Hassan Aurangzeb.
The unanimous verdict, which was pronounced on Friday, answered nine questions of law referred to the bench amid conflicting rulings by high courts on whether the Limitation Act, 1908, applies to inheritance claims.
The judgement explained that the appeals and petitions arose from suits seeking declarations, joint possession and partition, in which plaintiffs claimed shares in the estates of their predecessors.
The defendants had pleaded limita-tion. The courts below, following different strands of the SC’s precedents, had reached opposing conclusions on materially similar facts.
The judgement also recommended to the lawmakers as well as the Law and Justice Commission of Pakistan (LJCP) to consider amending the law to make it a requirement that if an heir gives up, settles, or exits (takharuj) their share in an inheritance, that should only be done through a formal written document that is registered, and it should be signed only after the heir has been told what their share actually is.
Invoking Article 187 of the Constitution, which empowers it to do complete justice, the SC directed all provincial revenue authorities to ensure that no inheritance mutation is attested without a family registration record issued by the National Database and Registration Authority (Nadra), or equivalent proof identifying all heirs.
It further ordered that written noticesbeissuedtoeveryheirlisted in the record, including female heirs, at their respective addresses.
A recorded statement must also beobtained from any heir alleged to have received less than their rightful share.
Before attesting any mutation involving a gift, sale, relinquishment or settlement of inherited land by an heir, the revenue officer must record the heir’s personal appearance, verify their identity and obtain a statement confirming that they have been informed of their precise share. In the case of a female heir, this process must be conducted in the presence of a woman revenue officer, where available. Noncompliance may be considered by courts when determining whether an heir had knowledge of the transaction.
Similarly, registering authorities, development authorities, cantonment boards and cooperative housing societies must not transfer inherited property without a succession certificate, letters of administration or a court decree. They must also issue written notices to all heirs before effecting any transfer, the judgement said.
Settlement officers in areas undergoing their first settlement, includ-ing the merged tribal districts, were directed to record allheirsin accordance with Sharia and notify them of objection proceedings.
The SC also directed trial courts to frame issues and decide them on the basis of evidence whenever limitation was pleaded in an inheritance suit, and to endeavour to dispose of such cases expeditiously.
Under the judgement, suits for declaration of an inherited share are governed by Article 120 of the Limitation Act, 1908, with a period of six years running from the date an overt denial is brought home to the heir’s knowledge; where an heir seeks to avoid an instrument to which they were personally a party, the period is three years under Article 91.
The judgement proposed that the legislature and the LJCP insert a specific provision in the Limitation Act, 1908, governing suits by heirs, so that the limitation period and its starting point are prescribed by statute rather than inferred under the residuary article. This should be accompanied by an outer time limit, running from an open transfer for value accompanied by delivery ofpossession, beyond which a goodfaith purchaser could not be disturbed.
The court further suggested amending Section 498A of the Pakistan Penal Code, 1860, or introducing a complementary provision, to make the deprivation of any heir, male or female, of their inheritance through deceitful or unlawful means an offence, while retaining the special protection the existing section affords to women.
It also recommended imposing a statutory duty, within a reasonable timeframe, on heirs and revenue and registering authorities to complete the partition or distribution of an estate after its devolution has been recorded, giving practical effect to the prompt distribution required under Sharia.
The judgement directed the court office to send copies to the secretary of the Ministry of Law and Justice, provincial law secretaries, the attorneygeneralforPakistan,provincial and Islamabad Capital Territory advocates general, and LJCP secretary for consideration and necessary action.