' This judgment shall decide Civil Revisions Nos.106 to 109, 173 and 340 of 1996, as common questions are involved.
2. These cases have rather a chequered history. One Jhangi Mal son of Piara Mal Arora Hindu was the owner of the agricultural lands involved in all these matters located in village Khanpur Marral Tehsil and District Multan. On his death, inheritance Mutation No,28 was attested on 30-10-1928 and the land was mutated in favour of his only son Easer Mal. This Easer Mal embraced Islam sometimes after partition of the sub-Continent and adopted Islamic name of Ghulam Mustafa. The change in the name was effected in the Revenue Records vide Mutation No,133 attested on 18-4- 1948. I may note here that it is an undisputed fact that his children, who are parties to these cases, also embraced Islam afterwards. The said Easer Mal (hereinafter to be referred as Ghulam Mustafa) proceeded to make several alienations. The details with reference to the civil revisions are as follows:-- S. No. C.R. No. Mutation Dated Area Vendees/respondentsTotal area
(I) 106 of 199619 12-1-1965 98(K), 14 (M)Muhammad Bakhsh etc.98 (K) 14 (M)
(II) 107 of 1996188 12-3-1960 32(K) Qadir Bakhsh etc. 820-12- 19637(K) 3(M)Qadir Bakhsh etc. 47(K)
3(M) 24 26-3-19658(K) -do-
(III) 108 of 1996190 12-3-1960 18(k)
14(m)Khuda Bakhsh etc 22(K)
14(M) 195 26-9-19604(K) -do-
(IV) 61 26-5-1967100(K)
6(M)Jaffar Hussain etc. 100(K)
6(M)
(V) 189 12-3-1960 16(K)
4(M)Allah Wasaya etc. 58(K)
13(M) 30 9-11-1965 42(K)
9(M)-do-
(VI) 176 9-9-1958 36(K)
15(M)Muhammad Bakhsh etc.152(K)
15(M) 178 11-9-1958 40(K) -do- 181 14-12-195818(K) -do- 182 14-12-195858(K) -do- ' The petitioners/plaintiffs, the sons of said Ghulam Mustafa, filed these civil suits, challenging the said alienations as detailed above, primarily on the ground that the Hindu family or to be more precise that the father of said Ghulam Mustafa was governed by customary law in the matter of inheritance and succession and he inherited the land from his father Jhangi Mal under the said law and the land, being ancestral qua the said plaintiffs, could not have been alienated without legal necessity and without consideration. Declarations were accordingly sought that the alienations effected by means of the said mutations are void. All these suits were filed in the year 1981 in the life time of Ghulam Mustafa. He died on 1-6-1985. The plaints were accordingly amended; resultantly, his female heirs were impleaded as defendants and the relief of possession was also sought. The defendants/vendees in the cases contested the suits with the objection that these were barred by time and were not maintainable and when Ghulam Mustafa embraced Islam and became a Pakistani Muslim citizen, he was governed by the Muslim Personal Law in the matter of inheritance and alienations. The allegations as to absence of consideration and legal necessity were denied.
After upholding of the decision of the Federal Shariat Court in the case of Muhammad Ishaq v.
Federation of Pakistan PLD 1981 FSC 278 by the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan in the case of The Federation of Pakistan v. Muhammad Ishaq and another PLD 1983 SC 273, the vendees raised an objection that the suits have abated. The objection was overruled by the learned trial Court on 8-1-1984. Later upon promulgation of Punjab Ordinance XIII of 1983, adding section 2-A to the Muslim Personal Law (Shariat) Application Act, 1962, the vendees/respondents raised a formal objection. An issue bearing No,9-A was framed and was treated as a preliminary one. The objection was again rejected vide order dated 7-1-1985 by the learned trial Court. Revisions filed by the vendees/respondents were dismissed by a learned Additional District Judge, Multan, on 19-9-1995. Writ Petition No,946 of 1985 was filed in this Court which was withdrawn on 7-5-1988. Parties went on trial on the following issues:--
(1) Whether the suit is within time? OPP
(2) Whether the suit is collusive? OPD
(3) Whether *he suit is not maintainable in its present form? OPD
(4) Whether the plaintiffs have no cause of action? OPD
(5) Whether the description of the suit property is incorrect? OPD
(6) Whether the plaintiffs are estopped from filing the suit? OPD
(7) Whether the suit is bad for misjoinder of causes of action? OPD
(8) Whether the contestant defendants are bona fide purchasers of the suit property for value without notice? OPD Whether the property in dispute was ancestral qua defendant No,1? OPP (9-A) Whether the suit is not maintainable in view of the decision couched in PLD 1981 Federal Shariat Court 278 and PLD 1983 SC 273?
(10) If the Issue No,9 is proved, whether defendant No,1 was governed by custom in matter of alienation at the time of sale in dispute, if so, what was the agricultural custom? OPP
(11) Whether the sale in question in favour of the defendants Nos.2 to 6 is inoperative qua the reversionary rights of the plaintiffs? OPP
(12) Whether the suit is not maintainable in view of decision concluded in PLD 1981 FSC 278 and PLD 1983 SC 273? OPD
(13) What is the effect of repeal of Custom Act No,I and II of 1920 by the Muslim Personal Law (Shariat) Application Act, 1962?
(14) Whether the plaintiffs have no cause of action after the repeal of section 5 of the Punjab Laws Act, 1872 and Custom Act, I, II of 1920? OPD
(15) Whether the plaintiffs are entitled to the delivery of possession of the suit-land? OPP
(16) Whether the suit is not maintainable in view of preliminary objection No,3? OPD
(17) Whether the suit is not maintainable in view of Article 2-A of Constitution of Pakistan, 1973? OPD
(18) Relief.
' The suits were dismissed by the learned trial Court vide judgment and decree dated 19-3-1989.
First appeals filed by the plaintiffs/petitioners were heard by the learned District Judge, Multan.
Vide order, dated 6-3-1991, the learned District Judge framed the following additional issues:-- (10-A) Whether defendants Nos.2 to 4 and Ashiq Muhammad etc. Had purchased the disputed land against consideration and if so, what was the consideration and for legal necessity? OPD 2 to 4 (10-B) Whether Ashiq. Muhammad etc. Had also purchased the disputed land and if so, what is the effect of impleading them as defendants? OPD 2 to 4 (10-C) Whether deceased vendor Ghulam Mustafa was a drunkard and extravagant type of person, if so proved, its effect? OPP ' The matter was referred to the learned trial Court in terms of Order XLI, rule 25, C.P.C. The learned trial Court conducted the requisite proceedings and recorded findings on the said Issues Nos.10-A to 10-C. All these issues were answered in favour of the plaintiffs/petitioners. The appeals were then heard by a learned Additional District Judge, Multan, who dismissed the same on 14-12-1995. I may note here that the learned Additional District Judge upheld the findings recorded by the learned trial Court under Issues Nos.12, 13, 14 and 17. Under Issue No,8, it was held that the respondents are bona fide purchasers. With regard to Issue No,1, it was held that the suits were correctly held to be barred by time. Issues Nos.3, 4, 6 and 16 were decided with reference to the findings on Issues Nos.8, 14 and 17. The findings recorded by the learned trial Court on the additional Issues Nos.10-A to 10-C in favour of the plaintiffs/petitioners were upheld. I may further note here that under Issue No,10-A, it has been held by both the Courts that the sale was without consideration. It is not understandable as to how the learned Additional District Judge held under Issue No,8 that the respondents/vendees are bona fide purchasers. Be that as it may, these civil revisions came up for hearing before this Court and were dismissed vide judgment and decree, dated 4-12-1998. Against these judgments, the plaintiffs/petitioners filed Civil Appeals Nos.744 to 749 of 1999. All these appeals were allowed vide judgment dated 7-11-2002 by the Honourable Supreme Court of Pakistan and the matter was remanded back to this Court for decision afresh with directions contained in paras.8 and 9 of the said judgment. I deem it proper to reproduce here paras.8 and 9 of the said judgment, dated 7-11-2002 of the Honourable apex Court. The same reads as follows:-- "(8) The question of alienation of Ghulam Mustafa was held to be barred by res judicata by the High Court on the ground that Issue No,9-A on the applicability of section 2-A of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 having been decided against the defendants through judgments dated 8-1-1984 and 7-1-1985. While giving these reasonings, the learned Judge of the High Court appears to have altogether ignored that on 8-1-1989 when issues were framed, Issues Nos.9 and 10 and other issues were decided by the trial Court by holding that Ghulam Mustafa having become owner after inheritance of the property from Hindu, therefore, under Muslim Law could alienate the property without any limitation. In our view, it was a question independent from the applicability of section 2-A of the said Ordinance because in this case, the question had arisen whether a Hindu who inherited the property from his Hindu father under the Hindu Law after embracement of Islam would continue to be governed by Custom under which his father was governed in the matter of alienation of the property, therefore, the said question having been independently decided under Issues Nos.9 and 10, the High Court was required to examine the findings of the said issues under the Mahomedan Law. Learned counsel for the appellants has also made an application for recording of additional evidence about the dates of birth of the plaintiffs but since we are remanding the case to the High Court- to make such an application for granting them permission to lead further additional evidence which if made shall be decided on its own merits by the said Court in accordance with law.
(9) In this view of the matter, the real questions in controversy having not been decided by the High Court as observed above, therefore, all these appeals are accepted, impugned judgment of the High Court is set aside and the cases are remanded to the said Court for disposal of the revision petitions afresh in accordance with law. Needless to say that since the Courts below have recorded findings on all the issues, therefore, the High Court shall examine findings on these issues while deciding revision petitions. In view of the fact that Issues Nos.9 and 10 are to be decided independently from section 2-A of the Ordinance, it is also appropriate that the question whether findings on issue No,9-A would be barred by res judicata shall also be decided afresh."
3. Before I proceed further, I may state that one of the directions issued by the Honourable Supreme Court was that the question of limitation be decided and for this purpose, applications to be filed by the petitioners/plaintiffs for additional evidence to be also considered. On 16-12-2003, learned counsel for the vendees/respondents stated that he will not be pressing Issue No,1 as to limitation; consequently, my learned brother observed that it would not be necessary to decide the said issue or the question relating to limitation. Even during the course of hearing of the civil revisions before me, the learned counsel for the respondents/vendees reiterated the said stand. Consequently, I will not be deciding the question of limitation, the objection having been given up by the respondents/vendees.
4.. Mirza Manzoor Ahmad, learned counsel for the petitioners, has argued that the learned Courts below have wrongly held that section 2-A of the Muslim Personal Law (Shariat) Application Act, 1962, is attracted in the facts and circumstances of the present cases. According to him, the said provision of law would apply only if the last male holder, who, in the present case, is Ghulam Mustafa, had inherited the land under custom from a Muslim. In the present case, the admitted position is that Ghulam Mustafa had inherited the land from Jhangi Mal, who was a Hindu and at the relevant time, Ghulam Mustafa himself was a Hindu. The precise contention is that said sine qua non being absent, section 2-A would not be applicable. Learned counsel also refers me to the provisions of the Punjab Laws Act, 1872. Section 5 thereof, according to the learned counsel provides that as per the questions mentioned in section 5 of the said Act, the rule of decision shall be any custom applicable to the parties and the Personal Law has been kept subservient to the said provision. According to the learned counsel, section 5 of the Punjab Laws Act, 1872, was not entirely repealed and the rule of decision contained to be the custom. I may note here to the credit of the learned counsel that he has also pointed out that the said section of the Punjab Laws Act, 1872, was amended by the Federal Laws (Revision and Declaration) Ordinance, 1981. However, his contention is that the said amendment would not have any retrospective effect. He also relies on the case of Mst. Khatun v. Malla and 5 others 1974 SCMR 341 and Mst. Rahmat Bibi and others v.
Ibrahim PLD 1966 SC 349 to urge that notwithstanding the promulgation of the said Punjab Muslim Personal Law (Shariat) Application Act, 1948, the matter of alienation continued to be governed by custom and the said law did not have the effect of enhancing or diminishing the powers of alienation of the holder of a land under custom. Also refers to the cases of Rehmat Ali v. Sooba Khan and 25 others PLD 1994 Lah. 259 and Muhammad Arshad and others v. Government of Pakistan and others 1992 MLD 1147 to urge that the said section 2-A would not be applicable to non-Muslims. For the proposition that a non-Muslim after embracing Islam continues to be governed by the custom, he relies on para.21 of the Mahomedan Law by D.F. Mulla. Mr. Riaz Ahmad Khan Sadozai, Advocate, on the other hand, contends that the moment Ghulam Mustafa embraced Islam, he came to be governed by the Muslim Personal Law in the matter of succession as well as alienation. He relies upon the cases of Farooq Leivers v. Adelaide Bridget Mary PLD 1958 Lah. 431, Nur Ali and another v. Malka Sultan and others PLD 1961 Lah. 431 and Mitar Sen Singh v.
Maqbul Hassan Khan AIR 1930 PC 251. The learned counsel contends that the opening words of section 2-A as to inheritance of land from a Muslim would not be applicable to clause (b) of section 2-A, inasmuch as the said sub-clause would take effect upon its own force and consequently right of the reversionaries to challenge the alienation under custom stood extinguished. According to him, the said provision of law would have retrospective effect. Refers to the case of Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407. Cites the cases of Muzaffar Khan v. Mst. Roshan Jan and others PLD 1984 SC 394; Mst. Farida and 2 others v.
Rehmatullah and another PLD 1991 SC 213 to urge that the provisions of Muslim Personal Law shall apply. According to him, these latter dictums of the Honourable Supreme Court of Pakistan would take effect and will have to be followed notwithstanding the law laid down in the case of Mst.
Khatun (supra) being relied upon by the learned counsel for the petitioners.
5. I have gone through the records with the assistance of the learned counsel for the parties.
6. As per contentions noted above, it will be seen that the only question to be resolved in these cases is the one framed by the Honourable Supreme Court of Pakistan in the judgment in these cases referred to above, i,e, "In our view, it was a question independent from the applicability of section 2-A of the said Ordinance because in this case, the question had arisen whether a Hindu who inherited the property from his Hindu father under the Hindu Law after embracement of Islam would continue to be governed by custom under which his father was governed in the matter of alienation of the property?"
7. Now para.21 of the book of Mahomedan Law by D.F. Mulla reads as follows:-- "21. Conversion of Mahomedanism and rights of inheritance.--- In the absence of a custom to the contrary succession to the estate of a convert to Mahomedanism is governed by the Mahomedan Law."
' It will be noted that the author has referred only to a state of affairs coming into existence upon the death of a person who is a Muslim and has embraced Islam. However, we are not dealing here with such a situation. The alienations were made by Ghulam Mustafa in his life time and were challenged in his life time by his sons, who claimed to be successors not under the custom but under the Mahomedan Law. Besides in the said case of Mitar Sen Singh AIR 1930 PC 251 decided on 30-6-1930, the opinion was expressed in the speech of Lord Atkin in the following words:-- "In other words, when once a person has changed his religion and changed his personal law, that law will govern the rights ofd succession of his children."
The judgments of this Court, cited by the learned counsel for the vendees/respondents, in the cases of Farooq Leivers PLD 1958 Lah. 431 and Nur Ali and another PLD 1961 Lah. 431, were delivered relying upon the said judgment of the Privy Council. I may note here with reference to the facts contained in para.9 of the judgment in Nur Ali's case that the judgment was delivered in the circumstances somewhat akin to the circumstances of this case. It has been observed in the case of Farooq Leivers at page 436 of the report as follows:--- It cannot be disputed that as soon as a person embraces Islam, he, at once, becomes subject to the Muslim Personal and Religious Law and is completely cut off from his past. He accepts a new mode of life and enters a new domain where his deeds, words and actions are governed by the laws of his new religion. So far as his individual personality is concerned, there cannot be any doubt about it that his future in all aspects of his life becomes amenable to Muslim law, from the moment of his conversion to Islam. "
I am, therefore, inclined to follow the dictum of this Court in the said judgments as also the said Privy Council's judgment as against the contents of the said para. Of the Book being relied upon by the learned counsel for the petitioners. However, the fact remains that in none of the cases cited by both the learned counsel for the parties the question precisely framed by the Honourable Supreme Court of Pakistan for decision of this Court has come up for consideration.
8. The primary reliance of the learned counsel for the petitioners is upon section 5 of the Punjab Laws Act, 1872, as it stood before its amendment. I may reproduce the said provision of law hereunder:-- "Decisions in certain cases to be according to native laws.--- In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions or any religious usage or institution, the rule of decision shall be---
(a) Any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority.
(b) The Mahomedan Law in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except insofar as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred."
' Upon a bare reading, this provision of law fully supports the contention of the learned counsel for the respondents. However, it will be noted that even in its unamended form, the applicability of custom is subject, inter alia, to its being declared to be void by any competent authority. There is no manner of doubt in my mind that the Federal Shariat Court of Pakistan, subject to the decision in appeal by the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan, is the competent authority in our country having the power to declare a custom to be void. The custom, allowing the challenge for collaterals to alienation of property inherited under custom, has been declared to be repugnant to the Injunctions of Islam in the said case of Muhammad Ishaq PLD 1981 FSC 278 and has been upheld by the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan upon appeal by the Federal Government in the case of The Federation of Pakistan v.
Muhammad Ishaq and another PLD 1983 SC 273.
9. Now, even before the said declaration by the Federal Shariat Court of Pakistan, the Legislature of the country introduced an amendment vide section 3 of the Federal Laws (Revision and Declaration) Ordinance, 1981, read with para.11 of the Second Schedule thereto, in the said Punjab Laws Act, 1872. I deem it proper to reproduce section 5 so amended. Clause (a) of section 5 of the Punjab Laws Act, 1872 reads as follows:-- "(a) Where the parties are not Muslims, any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority."
' While clause (b) reads as follows:- "(b) The Hindu law, in cases where the parties are Hindus, except insofar as such law has been altered or abolished by legislative enactment, or are opposed to the provisions of this Act, or has been modified by any such custom as is above referred to."
The effect of the said amendment is that custom would be applicable in the matter if the parties concerned are not Muslims, whereas Hindu Law is to apply where the parties are Hindus.
10. The view expressed in Mst. Khatun v. Malla (ibid) in its turn based on the said case of Mst.
Rahmat Bibi PLD 1966 SC 349 was definitely differed from in the case of Muzaffar Khan PLD 1984 SC 394 and this latter view was reiterated in the cases of Roshan Ali v. Noor Khan and others PLD 1985 SC 228 and Mst. Farida and 2 others v. Rehmatullah and another PLD 1991 SC 213.
10-A. I have examined the judgment of the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan and that of the Federal Shariat Court in the said case of Muhammad Ishaq, which, ultimately, led to the amendment of the Punjab Muslim Personal Law (Shariat) Application Act, 1962. I find that in precise terms challenge was thrown to the said section 5 of the Punjab Laws Act, 1872, by virtue whereof the custom was given preference to both the Muslims as well as Hindu Personal Law. I may further note here that the appellate judgment delivered by Mr. Justice Nasim Hasan Shah (as his Lordship then was) categorically states that the Customary Law in the Punjab which restricted the right of succession and the power of alienation had its origin in the Roman System of agnatic system and the Hindu Law. It was in the said background that distinction was drawn between a title created under the said Customary Law and the one conferred by Islam and it was held that Islam does not permit of any restriction upon alienation of property. The declaration granted by the Federal Shariat Court and upheld by the Honourable Supreme Court of Pakistan was that the custom allowing challenge by collaterals to the alienation of property inherited under custom by a full owner is repugnant to the Injunctions of Islam.
11. In the present case, admittedly, Ghulam Mustafa became a Muslim. It is nobody's case that his right to hold the property was in any manner affected by his embracing Islam. Even otherwise, the right to hold the property inherited from his father would not be affected in view of the law laid down in the said case of Mitar Sen Singh AIR 1930 PC 251 and followed by this Court in the two decisions referred to above. The restriction imposed in view of the said section 5 of the Punjab Laws Act, 1872, as it stood before its amendment, as afore- noted, has since been declared to be repugnant to the Injunctions of Islam and void.
12. Needless to state that he alienated the property as a Muslim owner. The custom having been declared to be void by a competent authority even within the meaning of unamended section 5 of the Punjab Laws Act, 1872 and the derogatory provision having already been removed by the competent Legislature, there can possibly be no restriction on the powers of Ghulam Mustafa to alienate the land which could be enforceable under the Hindu Customary Law, as is being sought to be done by the petitioners in these cases.
13. So far as the contention of the learned counsel for the petitioners that opening words of section 2-A would be governing the clause (b) of the said provision of law is concerned, nothing turns on the same. A reading of clause (b) of section 2-A would show that it stands independent of the said opening words. This further is clarified upon reading of the judgment delivered by the Honourable Supreme Court, upholding the judgment of the learned Federal Shariat Court in exercise of powers under Article 203-D of the Constitution of the country. The custom itself was declared to be repugnant to the Injunctions of Islam.
14. The question might arise that in case the contention of the learned counsel, with reference to the opening words of section 2-A is accepted to be correct, then whether the judgment would have retrospective effect. To my mind the judgment of the Federal Shariat Court as well as of the Honourable Supreme Court of Pakistan having been delivered during the pendency of the suit, the declaration granted would be effective and no decree can be competently passed after the judgments had taken effect in terms of the Constitutional provisions. I may refer to the judgment of the Honourable Supreme Court of Pakistan in the case of Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 with reference to the applicability of the judgment in the case of Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 with reference to pending cases filed under the old Pre-emption Law. Upon the analogy of the said judgment, it can be safely said that the declaration granted in terms of Article 203-D of the Constitution would be applicable and the trial Court could not have competently passed a decree on the basis of said custom.
15. I may further note here that it would be anomalous rather ridiculous if I were to hold that Ghulam Mustafa after embracing Islam was a Muslim in some respects and continued to be Hindu in others. Besides as per several dictums of the Honourable Supreme Court of Pakistan, in matters of doubt or what has been termed as a void, the Courts established under the Constitution of the country are to act in a manner more nearer to Islamic jurisprudence than to promote un-Islamic Injunctions.
16. Now coming to the question as to what is the effect of the earlier decision by the trial Court on Issue No.9-A. To my mind, so far as the trial Court is concerned, it was certainly bound by the said decision during the pendency of the trial. However, there was no bar upon the Court of appeal and certainly not on this Court in forming its own opinion in exercise of appellate or revisional jurisdiction. The said finding, in my humble opinion, cannot be said to be res judicata in the course of appeal or revision. Suffice it to say that finality is attained by a decision only when appeal or revision provided against the same stand exhausted or are not availed.
17. As a result of whatever has been discussed above, all these civil revisions are dismissed, without any order as to costs.