Preface

107
STEP 4
After taking the above steps the Cadi shall now call for evidence to prove
the three vital content of the claim (i.e death of the deceased, his heirs and estate).
Proof of these issues apart from being requirement of law is rationally necessary in
view of the fact that the plaintiff and the so called defendant are in the same shoe
as both of them are seeking for the sharing the wealth of another person who could
have been the real defendant being the owner of the wealth but is not physically
before the court and both parties are alleging that he died and they are his heirs and
the wealth they want to share is his estate. All these facts are not within the
knowledge of the court and the persons alleging them are the prospective
beneficiaries of the allegation. Hence the need for evidence of a neutral person
who will not directly or indirectly, benefit from the wealth to confirm the truth of
the allegation to the court. In law, it is a legal requirement that the heirs must prove
the death, the heirs and estate of the deceased. As it is provided on page 179-180 of
the famous book of Islamic law of procedure (IHKAMUL AL AHKAM ALA
TUHFATUL HUKKAM) as follows:
Meaning: “If sharing of the deceased person's properties is to take place in
the court and before a judge that could only be possible after proving the death of
the person to be inherited, his heirs and the estate he left behind.” My careful
perusal of the lower court's record of proceedings does not set my eyes on where
the learned trial Cadi complies with the above vital procedure. In other words not a