Javed Iqbal, J.--This is an appeal preferred under Article 185(2)(d) of the Islamic Republic of Pakistan, 1973 against the judgment/decree dated 3.6.2004 passed by the Lahore High Court, Bahawalpur Bench, whereby the civil revision preferred on behalf of Atta Muhammad has been accepted.
2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "one Pir Bakhsh, who was owner of agricultural lands in Mouaza Kot Azam, Tehsil Hasilpur to the extent of 226 kanals and marla, met with death in the year 1942, and was succeeded by Allah Wasaya, alone son and by two daughters namely, Mst. Zeenat Mai and Mst. Kamon Mai. The mutation of Inheritance No, 109 was got sanctioned by Allah Wasaya in his favour alone on 27.12.1942 without disclosure of other two above noted heirs. In the year 1982, this mutation of inheritance, above mentioned with regard to the inheritance of deceased was challenged by Mst.
Zeenat Mai alongwith Mst. Kamon Mai, the two daughters in the Civil Court by filing a suit for declaration, claiming their inheritance rights in the disputed lands in accordance with Muhammadan Law of inheritance and disputing the correctness of the aforesaid mutation. Atta Muhammad and others, the petitioners were the plaintiffs, who were the sons, daughters and husband of Mst. Zeenat Mai, deceased daughter of Pir Bakhsh,. while Allah Wasaya, Respondent No, 1 was the defendant, in whose favour the impugned Mutation No, 190, sanctioned on 27,12.1942, was solely attested and arrayed in the list as Defendant No, 1, and his sons to whom he had gifted the lands, during the pendency of the suit through Mutations No, 486 and 488 sanctioned on 17.10.1982 and 12.12.1982 respectively were impleaded as Defendants No, 1(-) to 1(-) in the suit. According to the averments of the plaint, the land left by Pir Bakhsh was to be distributed in accordance with Islamic Shariat and the plaintiffs were entitled to (1/4) share of the lands, as they were entitled to it on the basis of inheritance in accordance with Shariat. It may be mentioned here that Mst. Kamon Mai, during the pendency of the suit had withdrawn from the suit and the case of Mst. Zeenat Mai was pursued by her heirs, Atta Muhammad and other plaintiffs/petitioners for their share. The suit was contested by the defendants by filing the written, statement in which they asserted that in Mouza Kot Azam, Tehsil Hasilpur, custom was prevalent due to which Mst. Zeenat Mai was not entitled to get any inheritance from her father Pir Bakhsh and the mutation in question was correctly sanctioned. Other pleas of limitation, adverse possession and maintainability of the suit were also raised which are not relevant for the decision of the case." After completion of formalities, framing of necessary issues and recording evidence pro and contra the learned Courts below have dismissed the suit preferred on behalf of respondent, concluding that the property left by Pir Bukhsh was governed by customary law and therefore, the land in question was rightly sanctioned in favour of Allah Wasaya son of Pir Bukhsh by means of mutation No, 109 dated 27.12.1942.
3. Mian Allah Nawaz, learned Sr. ASC entered appearance on behalf of appellants and 'urged with vehemence that the legal and factual aspects of the controversy have not been dilated upon in its true-perspective which resulted in serious miscarriage of justice. It is next contended that the suit was time barred, under valued which has rightly been dismissed by the learned trial Court which aspect of the controversy escaped the notice of learned single Judge in chambers which resulted in grave prejudice to the appellants. It is contended emphatically that the parties were governed by custom which was proved by adducing cogent and concrete documentary and oral evidence duly supported by admission of one of the daughters of deceased Pir Bakhsh namely Kamon Mai but it was ignored without assigning any cogent reasoning. It is next contended that the concurrent findings of facts recorded by the learned trial Court regarding the applicability of custom could not have been reversed in exercise of revisional jurisdiction as conferred upon the learned High Court under Section 115 CPC. It is argued that it is a case of misreading and non-reading of evidence as Ex.D/2 and Ex.D/3 to Ex.D/6 have been misinterpreted and misconstrued. It is also contended that the provisions as enumerated in Section 7 of the Punjab Custom (Powers to Contest) Act, 1920 have not been considered whereby no person can contest any alienation of self-acquired or non- ancestral immovable property by a male proprietor on the ground that such alienation is contrary to custom.
4. Mr. Muhammad Jaffar Hashmi, learned ASC represented the respondents' and while repudiating the view point as canvassed at bar by Mian Allah Nawaz, learned Sr. ASC on behalf of appellants, supported the judgment impugned for the reasons enumerated therein with the further submission that the applicability of custom could not be proved and therefore, the legal heirs could not have been deprived of from the estate of Pir Bukhsh as it was never devolved upon him as ancestral property.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have also examined the judgment dated 14.4.1988 passed by learned Civil Judge, judgment dated 25.11.1999 passed by learn& Additional District Judge and the judgment impugned. The pivotal question which needs determination would be as to whether the property in question had purchased by Pir Bukhsh or it was devolved upon him by means of inheritance from his father? After having gone through the entire evidence which has come on record we are of the considered view that the property in question was purchased by Pir Bukhsh and hence his daughters could not have been deprived of their legal rights. In this regard we are fortified by the dictum laid down in Ghulam Ali v. Mst.
Ghulam Sarwar Naqvi (PLD 1990 SC 1) whereby it was observed as follows:-- "As soon as an Owner dies, succession to.. his property opens. There is no State intervention or clergy's intervention needed for the passing of the title immediately, to the heirs. Thus it is obvious that a Muslim's estate legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of inheritance as compared to other systems.
Thus their being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. It is so notwithstanding whether they (the heirs) like it, want it, abhor it, or shun it. It is the public policy of Islamic law. It is only when the property has thus vested in the heir after the succession opens, that he or she can alienate it in a lawful manner."
6. It was further observed in case Ghulam All v. Mst. Ghulam Sarwar Naqvi (supra) that the Muslim Law of Succession, Ilm-ulFaraiz, which has been derived from the rules of succession to be found in the Quran" (See the Text of the Quran at P. 98-101 of the 2nd Edition of Muslim Law by Saksena), or in the Traditions, as well as from such of the Pre-Islamic customs, as were approved of by the Prophet (P.B.U.H.) is a great achievement of the Muslim jurists. As coherence and logic have imparted perfection to the system, it deserves our admiration". F.B. Tyabji observes, "The Muslim law of inheritance has always been admired for its completeness as well as the success with which it has achieved the ambitious scheme of providing not merely for the selection of a single individual or homogenous group of individuals, on whom the estate of the deceased should devolve by universal succession, but for adjusting the competitive claims of all the nearest relations." As to the excellence of the system in a formal sense, Sir William Jones has observed: I am strongly disposed to believe that no possible question could occur on the Muslim Law of succession which might not be rapidly and correctly answered." (Jones Works, VIII, 204). S. Visey-Fitz Gerald's remark (S. V. Fitz Gerald, Muslim Law P. 20) in this connection is also very instructive, "In all systems of law, the doctrine of succession is, it has been said, the touchstone of the lawyer; the legal mind delights in its inevitable intricacies, the layman is repelled; and it is this truth of legal education of, rather than any calculation of, material advantage, which is enshrined, in the `Hadis':--Learn the laws of inheritance and teach them to the people, for they are one-half of useful knowledge.' To Muslim the Sharia law of inheritance is ideally perfect; founded on the sure rock of divine revelation and worked out in the utmost detail by that mental ingenuity which God gave man for the purpose of understanding revelation. The logical strength of the system is beyond question; and, the fact that the results are sometimes impracticable does not in the Muslim eyes detract from its divine character. Human ingenuity admittedly cannot always carry out the fine distinctions of divine justice; and the system is reverenced as a matter of theological dogma even by those Muslims who, as a matter of custom, do not follow it." The claims of near relations have been' rightly and justly adjudicated upon and in the words of Macnaghten: "In these provisions we find ample attention paid to the interests of all those whom nature places in the first rank of our affections; and indeed it is difficult to conceive any system containing rules more strictly just and equitable."
(Macnaghten's preliminary remarks in 'Principles and Precedents of Muslim Law). The tribute paid to the system by Rumsey is no less exalter He observes: "The Mohammedan Law of inheritance comprises beyond question the most refined and elaborate system of rules for the devolution of property that is known to the civilised world." (Preface, P.1). (See Saksena, Third Edition, on "Muslim Law" Chapter XV Section 1 for these and other observation). Females' Position in Muslim Law. "We shall deal briefly with the rights of females to inheritance as given in the Quran. The Prophet lays down in effect, that blood relationship is the cause of title to succession. Then the Quran goes on to describe, the rights of females to succession." Covet not the grace by which God hath preferred some of you to others; unto men there is a portion. of what they have earned, and unto women the portion of what they have earned". "Men ought to have the portion of what their parents and kindred leave, women apart of what their parents-kindred leave, whether it be little or much, let them have a determinable portion."
"With regard to children, God commandeth you (to give) the male portion of two females, and if there be females more than two, they shall have 2/3rd of that which the deceased leaves; and if there be only one, she shall have a half." "Half of what, your wives leave, shall be yours, if they leave no issues, but if they leave issues, then a fourth of what they leave shall he yours. And your wives shall have a fourth part of what you leave if you have no issues, but if you have issues, they shall have an eighth (1/8th) part of what you leave after paying the bequests and debts". "In short, Quranic heirs called "shares" consist of those relations who were previously excluded in favour of the customary heirs, but whose claim on the score of proximity was not inferior to them. They may be grouped under the following heads--
(1) husband or wife,
(2) female agnatic descendants,
(3) ancestors, including female ancestors, who are not customary heirs,
(4) collaterals, such as full and consanguine sisters and uterine sisters and brothers".
7. The legal heirs cannot be deprived of their legal shares merely for the reason that no distinction was mentioned in Wajib-ul-Arz qua ancestral and non-ancestral property. It is well settled by now that "Wajib-ul-arz applies only to ancestral properties unless its application to non-ancestral property is also specifically mentioned therein. Unless there is a clear statement to the contrary the. Riwaj-i-Am or Wajib-ul-ars refers only to ancestral land. Wajib-ul-arz, except this that a Wajib- ularz is-applicable to a particular village while a Riwaj-i-Am is applicable to the whole district."
(Rattigan's Digest of Customary Law, 1953 Edn., P. 350, Mst. Subhani and others v. Nawab and others AIR 1941 PC 21, Abdur Rehman v. Mst. Mathu ILR 13 Lah. 458, Rani Sunder Devi v. Tej Singh ILR 17 Lah.
346, Qaisar Khatoon v. Abdul Khaliq PLD 1971 SC 136).
8. There is no denial the fact that the property in question was acquired by Pir Bukhsh (deceased) which acquisition has been substantiated by producing cogent and concrete evidence. It would not be out of place to mention here that it has been averred in a categoric manner by the plaintiff in his plaint that property was self-acquired by Pir Bukhsh which was never rebutted and amounts to admission. Besides that Allah Diwaya (P.W.1) and Ghulam Qadir (P.W.3) have mentioned in an unequivocal manner that the property in question was purchased by Pir Bukhsh (deceased) himself. It is noticeable that they were never cross-examined in this regard meaning thereby that the purchase of the property in question by Pir Bukhsh has been admitted. It cannot be ignored that Allah Diwaya (P.W.1) had admitted in a crystal clear manner that the land in question was purchased by his father and it was not an ancestral property and in such an eventuality where the property was purchased by Pir Bukhsh the question of applicability of any custom does not arise and the legal heirs cannot be denied their rights of inheritance conferred upon them by Islam. It is well established by now that custom is not applicable to any property which is self-acquired and the principles qua inheritance of Muhammadan Law would be applicable. (Customary Law in the Punjab by Om Parkash, 1st Edn. [1939], Chaps. I, VII, pp. 15 to 18 & 251, Muhammad Asghar Shah v.
Muhammad Gulsher Khan PLD 1949 Lah. 116, Gul Zarin Khan u. Amir Ahmad PLD 1952 Lah. 1, Bashir Ahmad v. Muhammad PLD 1956 Lah. 934, Khair Din v. Muhammad Hussain PLD 1961 SC 468, Khatun v. Malta 1974 SCMR 341, Muslim Law by Syed Amir Ali, Vol. II, P. 20 Ranee Kajoor Unnissa v. Mst.
Roshan Jehan (1876) LR 3 FA 291, Holy Qur'an Chap. 4, V. 7, 8, 11, 12 & 176 and Sura Al-Nisa, Chap. IV, Vs.7, 8, 11, 12 and 177.)
9. In the light of what has been discussed herein above we are of the considered view that the evidence which has come on record has been appreciated by the learned single Judge in chambers with diligent application of mind and conclusion arrived at is strictly in accordance with law and settled norms of justice. The judgment impugned being well based does not warrant interference and accordingly the appeal being devoid of merits is dismissed.