.. by Asad-ul-Mulk
THE jurisprudence emanating from the Supreme Court in inheritance cases is perturbingly inconsistent regarding the defence of limitation, and its recent ruling in ‘Noor Muhammad vs Ghulam Haider’ (2026) buttresses this. The doctrine of stare decisis (‘stand by things already decided’), can scarcely afford inconsistency on such a tectonic question of law, when virtually every third family in the country is grappling with an inheritance case.
In the past 15 years, the Supreme Court has issued no less than 25 reported judgements in inheritance cases dealing with defence of limitation, and the allied defences of waiver, acquiesce and estoppel (which we shall collectively refer to as the defence of ‘limitation’). Yet when clients ask, based on the records of their case, ‘how probable is it for the defence of limitation to succeed?’, one is banefully disarmed, as a practitioner, because of inconsistent and confounding jurisprudence.
From Japan to Argentina, claims before courts, have to be brought within a certain time frame, otherwise statutes of limitation prohibit archaic disputes from being resurrected. Statutes of limitation encapsulate a policy fostering ‘diligence’. Accordingly, wrongs need timely adjudication, because delay results in the destruction of evidence, while witnesses die, memory fades, documents are lost, and in the intervening period, people plan their lives with third-party interests created as a corollary. Consequently, any person who slumbers for long ought to be precluded from raising a belated claim.
Courts in British India recognised limitation as a defence in Muslim inheritance cases under the Limitation Act, 1877, as well the Limitation Act, 1908, with the Calcutta High Court’s decision in ‘Mahomed Ali Khan vs Khaja Abdul Gunny’ (1883) and Bombay High Court’s decision in ‘Fatma Boo vs Ghisan Boo’ (1909) being amongst the earliest rulings on the subject respectively. Pakistan still follows the Limitation Act, 1908. The Supreme Court was inclined to allow limitation to be erected as a defence in inheritance claims as late as in ‘Boota Khan vs Faiz Ali’ (1987).
Wrongs need timely adjudication.
Then came the Supreme Court’s six consequential judgements, starting with ‘Ghulam Ali vs Mst Ghulam Sarwar’ (1989) and concluding with ‘Muhammad Hanif vs Nazir Ali’ (1993),all six authored by justice (later chief justice) Afzal Zullah, which made limitation an impossible defence to meet. Accordingly, even outright adverse possession for three generations, and the assertion of continuous overt hostile title could not sufficiently sustain limitation as a defence, which remained available only cosmetically.
This monolithic shift of Pakistan’s jurisprudence by justice Zullah sustained itself for almost 20 years, so much so that within a decade the Supreme Court felt sanguine enough in ‘Juma Khan vs Mst Bibi Zeinab’ (2002) to explicitly declare that the “question of limitation did not arise” in inheritance cases. The result was a flood of claims, many of which reached the Supreme Court around 2010 and thus the court began to re-evaluate the defence of limitation in inheritance cases.
Curiously, while some judges continued to stick to the jurisprudence set by justice Zullah, others departed and entertained the defence of limitation, most demonstrably in ‘Lal Khan vs Muhammad Yousuf’ (2011) and ‘Mst Grana vs Sahib Kamala’ (2013).
The most coherent Supreme Court judgement on the subject is perhaps ‘Saadat Khan vs Shahid-ur-Rehman’ (2021). Authored by justice Syed Mansoor Ali Shah, the judgement quells the mischief of resurrecting stale claims by holding that Article 120 of the Limitation Act, 1908, and thus the ‘six years’’ period of limitation is applicable to inheritance cases. At the same time, it sufficiently protects legal heirs by qualifying the commencement of the clock of limitation and linking it to the demonstration of the open, hostile and overt denial of title.
Ironically, the latest judgement of the Supreme Court on the subject — ‘Noor Muhammad vs Ghulam Haider’ (2026) — again reverts to the jurisprudence of justice Zullah, and practically abjures the defence of limitation. This inconsistency in jurisprudence is contrary to the concept of “law as integrity”, which Ronald Dworkin broaches in Law’s Empire (1986) as requiring law to “speak with one voice”, and also at a tangent with one of the “inner morality of law” which according to Lon L. Fuller in The Morality of Law (1964), chafes at “self-contradiction”.
An inheritance claim, which likely succeeds before one bench, may fail before another — all owing to inconsistency in jurisprudence. To obviate such inconsistency, the Supreme Court needs to form a larger bench, overrule the per-incuriam rulings, so that all litigants can be treated with parity. .. The writer is a practising barrister. .. asadulmulk@legalparameter.com
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