SYID MURTAZA HUSAIN Vs. MUSAMMAT ALHAN BIBI

JUDGEMENT

(1.) Musammat Alhan Bibi brought an action for the recovery of her share in the landed property of her deceased husband and sought other reliefs also. One of the pleas in defence was that she, as a widow governed by the Shia Law, was not entitled to any share in the landed property loft by her husband. Both the Courts decreed the claim, remarking that no authority was cited to support the plea in defence. The defendant Murtaza Husain has preferred a second appeal to this Court and it is contended on his behalf that the plaintiff as a Shia widow has no share in the landed property left by her husband. Alhan is not a childless widow and admittedly has a daughter Abida Bibi by her deceased husband.

(2.) There certainly is a difference of opinion among the Doctors of the Shia Law regarding the right of a widow who has a child by her deceased husband and is governed by the Shia Law to have a share in the landed property left by her deceased husband. The author of the Sharaia is of opinion that she gets a share in all the property including land left by her deceased husband. See Text No. 3 p. 38 in Fazl Rab V/s. Khatun Bibi 15 A. 29 at p. 38. The authors of the Masalikul Afham (see Text No. 7 p. 41), the Jamaul Shatat (see Text No. 8 p. 42), the Sharah Kabir (see Text No. 9 p. 43)--these texts with their translations are given in Fazl Rab V/s. Khatun Bibi 15 A. 29 at p. 38 and the author of the Jawaherul Kalam--for the opinion of the Jawaherul Kalam see text (a) in this judgment--hold a contrary view, place a widow who has a child on the same footing with a childless widow, and debar both from sharing in the landed property left by the husband. (a) There is no doubt in that the best opinion (lit: strongest) is that there is no distinction between a widow who has a child and a childless widow in being debarred from inheritance. There is no doubt also in that the best opinion is that she is debarred from inheriting the corpus of every distinction between inclosures and dwelling houses and other kinds of landed property.

(3.) Jawaherul Kalam (commentary of Sharaiul Islam) Book of Inheritance, the fifth Masala p. 287.