' JAVED IQBAL, J.--- This appeal with leave of the Court is directed against judgment, dated 11-4- 2003 whereby the civil revision preferred on behalf of appellants has been dismissed.
2. Leave granting order, dated 8-7-2004 is reproduced hereinbelow to appreciate the legal and factual aspects of the case:--- "Petitioners seek leave to appeal against the order of the Lahore High Court, Lahore, dated 11-4- 2003, passed in Civil Revision No,334 of 2002.
(2) Learned counsel for the petitioners, inter alia, submitted that the question of interpretation of section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act, is involved in this petition. He further pointed out that similar question of law has already been raised in Civil Petition No,1571-L of 2000.
(3) Leave to appeal is granted to consider the law point raised by learned counsel for the petitioner. As this petition is barred by 2 days, the question of limitation shall be considered at the time of hearing of the appeal. In the meanwhile, interim order, dated 27-8-2003 shall continue.
(4) Office is directed to fix the appeal for hearing along with the above-referred Civil Petition bearing No,1571-L of 2000."
3. Mr. Shahid Mubeen, learned Advocate Supreme Court entered appearance on behalf of appellants and mainly contended that section 2-A of the Pakistan Muslim Personal Law (Shariat)
Application Act, 1962 (hereinafter referred to as the Act) has been misconstrued and misinterpreted which resulted in serious miscarriage of justice. It is also argued that the prime object of section 2-A of the Act is 'that no female heir should be deprived from inheritance which has been ignored by the learned High Court. It is also contended that the evidence which has come on record has neither been scrutinized nor discussed by the Appellate Court and thus, the judgment rendered was nullity in the eyes of law which also escaped the notice of learned High Court. It is also urged with vehemence that Issues Nos.6 and 6-A have not been decided properly and the evidence led in this regard has been ignored.
4. Mr. Tasawar Hussain Qureshi, learned Advocate Supreme Court entered appearance on behalf of respondents and supported the judgment impugned for the reasons enumerated therein.
5. We have carefully examined the respective contentions in the light of relevant provisions of law, scanned the entire evidence and perused the judgments of learned trial and Appellate Court as well as the judgment impugned. A careful scrutiny of the entire record would reveal that the controversy revolves around the inheritance of one Umra (deceased) whose property was devolved upon his two sons namely Ali Muhammad and Naathu by Mutation No,695 got sanctioned on 15-1-1943 but no share was given to his daughters namely Bassi, Fateh Bibi, Karam Bibi and Mst. Budhaan. It is also the case of appellants that pursuant to the provisions as enumerated in section 2-A of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment)
Ordinance XIII of 1983 the daughters of Umra could not have been deprived of their legal share from the estate of Umra as per Shariah.
6. The pivotal question which needs determination would be as to whether the provisions as enumerated in section 2-A of the Act have been misinterpreted or misconstrued by the learned single Judge of Lahore High Court, Lahore in Chambers, It is worth mentioning that section 2-A of the Act has been interpreted on different occasions by this Court and there is hardly any scope for its reinterpretation. In this regard we have examined the case-law enunciated in the following cases:--
(i) Ismail v. Ghulam Qadir 1990 SCM R 1667 "Be that as it may, the position now is different. As a result of the declaration by the Shariat Appellate Bench of this Court in connection with the repugnancy of the customary Laws to Islamic Injunctions, West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983) was promulgated. The amended law was interpreted in Abdul Ghafoor v. Muhammad Shafi PLD.
1985 SC 407 as having strong retrospective effect. Section 2-A of the said Ordinance reads as follows:-- "2-A. Succession prior to Act (IX of 1948).--- Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim:--
(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat);
(b) any decree, judgment of order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;
(c) all suits or other proceedings of such a nature pending in. Any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith: Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees."
(ii) Lal v. Rehmat Bibi PLD 1991 SC 582 "Be that as it may, learned counsel further contended that after the grant of leave to appeal in this case a major jurisprudential change having already taken place by the enforcement of West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983), this Court by its judgment in Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407 has held that it is retrospective in operation. Thus, according to learned counsel for the appellants under section 2-A as introduced by the Ordinance, 1983 Allah Ditta shall be deemed to have inherited his property under Muslim Law and its devolution on his death would be in accordance with Muslim Law of Inheritance. That .Being so 1/4th of his inheritance would go to his widows---her heirs; out of the remaining 1/2, 1/4 would go to Mst. Taleh Bibi as sister and through her to her heirs and the other 1/4th will go to the residuaries including the plaintiffs. Learned counsel for the respondents in reply contended that section 2-A deals with only alienations and the challenge thereto and does not change the nature of devolution under customary law as in present case on Allah Ditta's death in 1940. According to him Mst. Taleh Bibi had validly made the gift of the entire 'property to Mst. Hayat Bibi. Leaving aside the question whether on the basis of the assumptions made by the learned counsel Mst. Taleh Bibi was or was not a limited owner and whether or not she could make gift of the entire property the fact remains that a section 2-A as held in the case of Abdul Ghafoor being retrospective the devolution even if it took place in 1940 would not be deemed to be under custom. In several subsequent judgments of this Court including Ismail and another v. Ghulam Qadir and others 1990 SCM R 1667 the view has been followed that section 2-A has a strong retrospective effect.
Regarding the second question also although none of the learned counsel has taken out the relevant decisions of this Court, it has already been held that the law as enacted in section 2-A(a) contains a command that acquisition of agricultural land before the enactment of the 1948 (Shariat) Application Act by a male heir though in fact under custom from his predecessor-in- interest who was a Muslim yet the heir "shall be deemed to have become on such acquisition an absolute owner of such land as if such land devolved upon him under the Muslim Personal Law".
This command when applied to the present case would mean that Allah Ditta a male heir having acquired agricultural land under custom from the person who at the time of such acquisition was a Muslim had by virtue of the deeming provision in subsection (a) of section 2-A, become an absolute owner of the land as if such land devolved on him under the Muslim Personal law. This is sufficient to repeal the contention raised by the learned counsel that section 2-A entirely deals with certain alienations and/or decrees."
(iii) Ghulam Janat (Mst.) v. Ghulam Janat 2003 SCM R 362 "(8)It may be seen that before coming into force of Shariat Application Act, 1948, in the matter of inheritance as regards agricultural land, the Customary Law was being followed in India and not Muslim Law. Laws were promulgated from time to time in order to make Shariat law applicable as to the inheritance of a Muslim as regards agricultural land. The first step taken towards this object was promulgation of 1948 Shariat Application Act. Under this Act, the Islamic Law as regards inheritance of agricultural land in India had not been fully applied, therefore, after the creation of Pakistan, Muslim Personal Law (Shariat) Application Act, 1962 was promulgated according to section 2 of which among others, in the matter of succession, the rule of decision, subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims. Under section 3, thereof, it was, however, provided that the limited estate held by a female Under the Customary Law of agricultural land would continue till such time the same was terminated in accordance with law and after termination of it, the inheritance shall be deemed to have opened on the date when last male owner had died and all those persons who would have inherited the land under Mohammadan Law as heirs would be given their due share and if anyone of them in the meanwhile had also died, his share would devolve upon his heirs, Since under this Act also, limitation on the powers of even the male heir on alienation of land inherited under the Customary Law to the exclusion of female heir was continuing and could be challenged under the rules of Customary Law being without necessity and in case the estate was held by a female as a limited owner under Custom, the applicability of Shariat Law of Inheritance stood postponed till the termination of the said limited estate, as such, Shariat Application (Amendment) Ordinance, 1983 through which section 2-A was added in the 1962 Muslim Personal Law (Shariat) Application Act was promulgated in order to apply Islamic Law of Inheritance with immediate effect and the intention is further clear that on the termination of life estate, the inheritance was deemed to have opened on the date of death of last male owner in accordance with Shariat Law and the estate was deemed to have devolved on all those persons who were heirs according to Muslim Law on the said date and in case of the death of any of them, his share was to devolve on his heirs, Under section 2-A, it was declared that a male heir of deceased Muslim will be deemed to be full owner thereof meaning thereby that he shall be deemed to have inherited the property not under custom with limitations on his powers to transfer but under the Mohammadan Law, as such, he was deemed to have inherited the property under Mohammadan Law as a consequence of which he could not be held to have acquired ownership rights in the entire estate but shall have to be deemed to be the full owner to the extent of his share."
7. On the touchstone of the criterion as discussed hereinabove this appeal has been examined. We are of the considered view that Ali Muhammad and Naathu have rightly been treated as absolute owner of the land in question. It transpired from the scrutiny of record that Umra had expired prior to 1943 and the land in question was devolved upon Ali Muhammad and Naathu by means of Mutation No,695 got recorded B on 15-1-1943 in Revenue Record under the Customary Law and hence section 2-A of the Act would have no application in this case. There is no denying the fact that the mutation was attested on 15-1-1943 which remained unchallenged till 1990 when the appellants got up from a deep and unexplained slumber and filed a suit for declaration after 47 years which is demonstrative of the fact that the ground realities had been admitted. It is to be noted that appeal was barred by two days and no plausible justification could be furnished on the basis whereof it could be condoned. It is worth mentioning that leave to appeal was granted on the point of limitation. In sequel of above mentioned discussion appeal being devoid of merit is dismissed.