Zia Perwez, J.--These two Civil Appeals are directed against the impugned judgment dated 29.5.2002 passed in RFA No, 499 of 2000 by a learned Division Bench of the Lahore High Court, Lahore, whereby the appeal of the appellant Mst. Fareeda Khatoon was partly allowed.
2. The facts of the case are that Property No, 27-B, New Muslim Town`, Lahore comprising of land measuring 2 kanals 9 marlas and 76 Sq.ft. together with a residential house constructed thereon (hereinafter referred to as the "suit property") was owned by one Mahmood Ahmed Butt. He gifted the said property to the extent of 50 % to his wife the appellant Mst. Fareeda Khatoon during his life time under a registered Hibanama dated 7.3.1989 (Exh.D.2) executed in her favour. He also executed a second document titled "Wasiyatnama" in her favour, whereby she was entitled to the usufruct of the remaining 50 % of the suit property during her life time. He died issueless.
3. The respondents in C.A. No, 1112 of 2002 (also the appellant in C.A. No, 1946 of 2002) filed a suit for administration of estate of late Mahmood Ahmed Butt and rendition of accounts. It was alleged in the plaint that the appellant, widow of Mahmood Ahmed Butt had taken over exclusive possession of the properties owned by her husband and was enjoying the usufruct of the same to 'the exclusion of the plaintiffs/respondents. The said suit was contested by the appellant Mst. Fareeda Khatoon. On the basis of the pleadings of the parties, the learned trial CoUrt framed the following issues:-- "1. Whether Mahmood Ahmed Butt deceased was owner of the suit properties mentioned in Para No, 2 of the plaint at time of his death.
2. Whether Mahmood Ahmed Butt was Sunni or Shia by faith? OPD Parties.
3. Whether the plaintiffs have got no locus standi to bring this suit? OPD.
4. Whether the plaintiffs are entitled to get any share in the suit properties, if so, what are their legal shares? OPD.
5. Whether the plaintiffs are entitled to get decree for mesne profit, if so, to what extent? OPD
6. Relief."
4. After recording evidence, the learned trial Court passed a preliminary decree on 10.10.2000 in favour of plaintiffs/respondents. The appellant preferred Regular First Appeal No, 499 of 2000 before the Lahore High Court which was partly accepted vide impugned judgment dated 29.05.2002. Both the parties have filed present civil appeals.
5. Mirza Hafeez-ur-Rehman, the learned ASC for the appellant in (C.A. No, 1112/2002) while admitting the transfer of 50% of property in favour of appellant Mst. Farida Khatoon through a registered gift- deed contended that the Lahore High Court did not properly appreciate the relevant facts of the case, regarding the life time interest of the appellant in the remaining 50% of the said property. It is further contended by the learned counsel that the respondents/plaintiffs failed to discharge their onus of proof on Issue No,
5. Under these circumstances, a preliminary decree could not be passed in their favour. In view of Naziruddin and others v. Khairat Ali (1938 ILR Lucknow 713), Sardar Nawazish Ali Khan v. Sardar Ali Raza Khan (PLD 1948 P.C. 23), Mst. Khan Bibi v. Mst. Safia Begum and others (PLD 1969 Lahore 338), Murid Hussain and two others v. Mst. BakhshIlahi, and four others (PLD 1975 Lahore 1484) and Mst. Sarnia Naz v. Sheikh Pervaiz Afzal and others (2001 SCJ 670).
6. On the other hand, Mr. S.M. Naeem, t learned ASC for the respondents/defendants (appellants in C.A. 1946/2002) contended that the learned Division Bench of the High Court had not appreciated the evidence in its true perspective and reversed the findings of the learned trial Court on Issue No
5. He further stated that the findings of the learned High Court were required to be set aside so that the judgment of the learned trial Court was upheld by allowing the appeal with costs. In support of his submissions, he placed reliance on the cases of Amina Khatoon and another v. Siddiqur Rehman Dihidar and another (PLD 1960 Dacca 647), Chief Administrator of Auqaf, West Pakistan v.
Khan Muhammad Sher Nawab Khan (PLD 1967 Lahore 672), and Fazal Muhammad v. Mst. Chohara (Widow) of Ghulam Sarwar (since dead) represented by her L.Rs, (1992 PSC 1555).
7. We have heard the learned counsel for the parties at length and have perused the record, carefully with their able assistance.
8. At the outset, we may refer to the legal developments by way of the relevant enactments that took place on the subject over the period. The Personal Laws, and Customs prevailing in the Punjab were recognized by Section 5 of the Punjab Laws Act of 1872 which read as follows:-- "5 Decisions in certain cases to be according to Native Law. 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 usages or institutions the rule of the 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 and
(b) the Muhammadan Law, in case where the parties are Muslims, and the Hindu Law, in case where the parties are Hindus, except insofar as such law has been attended or abolished by legislative enactment, or has been modified by any such custom as is above-referred to."
Subsequent changes were brought about gradually by various enactments. The West Punjab Muslim Personal Law (Shariat) Application Act, 1948 recognized an overriding effect of Shariat over Custom. By Section 2 of Punjab Muslim Personal Law (Shariat) Application Act, 1962 it was provided as under: "2 Notwithstanding any rule of custom or usage, in all questions regarding succession (whether testate or intesta special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages, or institutions including waqfs, trusts and property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslim."
9. Limited ownership under Customary Laws was further regulated by Section 3-A of Punjab Act IX of 1948 as modified by means of Punjab Muslim Personal Law (Shariat) Application Act, (Amendment Act No, XI of 1951) as follows:-- "3-A. Where a will made by a Muslim provides for more than one legatee succeeding to the testator's property one after the other, and the will has taken effect before the coming into force of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951, on the death of the legatee-in-enjoyment of the property at the time of the coming into force of that Act, the property shall devolve on such heirs and successors of the testator under the Shariat as would have inherited it had the testator died intestate, and if any person who would have so inherited the property or any share therein, had there been no will, has in the meantime died, his share in the testator's property shall devolve on such of that person's heirs and successors as may be in existence at the time of the death of the said legatee."
The above position continued in force upto 1983, when the Muslim Personal Law (Shariat) Act (Punjab Amendment) Ordinance, 1983, was promulgated and Section 2-A was inserted in the Punjab Muslim Personal Law (Shariat) Act, 1962 to the following effect:- "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 or order of any Court affirming the right of any reversion er 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, in executable 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."
9-A. Before the above enactments, life interests allowing for usufruct of a property of its deceased owner were prevalent under Customary Law in Punjab some other parts of Subcontinent. As a consequence of the above enactments, settlement of inheritance and distribution of shares according to Shariat were enforced thereby overriding any custom or usage. Consequently, the creation of life interests for enjoyments of usufruct of properties upon the death of a male holder were done away with and were subjected to Muslim Personal Laws (Shariat). The cases of Naziruddin and others (supra), Sardar Nawazish Ali Khan (supra), Mst. Khan Bibi (supra), Murid Hussain and two others (supra), and Mst. Samia Naz (supra) are distinguishable. These cases related to the application of the principle of `Ariya' (also known as `Areeat') of Muslim Personal Law which is in the nature of a licence to enjoy the use or profits without any return for a limited period and property does not pass on and is revocable at will by the doner. The learned counsel could not satisfy us whether or not the operation of a gift by way of `ariya' could be postponed and could take place from the death of the donor. We need not dilate upon this aspect further as this point was never agitated at any stage of the proceedings before the Courts below. Moreover, in the instant case, the surviving legal heirs of the deceased Mahmood Ahmed Butt never concurred or accepted the creation of life interests in favour of Mst. Fareeda Khatoon so as to take effect from the date of death of donor. The case of Amina Khatoon and another (supra) is distinguishable as it involved a question whether the gift was limited to the usufruct of the house or the corpus of the property. The case of Chief Administrator of Auqaf, West Pakistan (supra) involved the creation of waqaf in addition to life estate for benefit of the wife while the remaining life interest was declared invalid.
10. In the present case, the transfer of 50 % share by way of gift in favour of appellant Mst. Farida Khatoon has not been disputed before us. As far as, the remaining 50 % of the said property subject to life interest of the usufruct in favour of appellant Mst. Farida Khatoon is concerned, it is not sustainable in view of the provisions of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, Punjab Muslim Personal Law (Shariat) Application Act, 1962 and the Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972. The right of inheritance according to Shariat cannot be deferred or superseded by custom or usage. The cases of Ihsan Illahi v. Hukam Jan (PLD 1967 SC 200) and Muhammad Tufail v. Atta Shabir (PLD 1977 SC 220) involved concurrence/acceptance of a transaction during life time of a deceased owner. Therefore, both the cases had no application to the merits of the present appeals.
In the case of Fazal Muhammad (supra) this Court had held that under the Muhammadan Law, a Will in favour of, legal heir, in the absence of consent of the other legal heirs was invalid.
11. Moreover, Civil Appeals No, 1112 and 1946 of 2002 are barred by limitation. No ground for interference in the impugned judgment is made out.
12. Both these Civil Appeals Nos,1112 of 2002 and 1946 of 2002 are dismissed with no order as to costs.