SYED SAJJAD HASSAN SHAH, J.---Mirza Muhammad and one another the petitioners have challenged under section 115 of C.P.C., the judgment and decree passed by the learned Additional District Judge-V1, Swabi, dated 8-4-2009, whereby appeal filed by the petitioners against the judgment and decree passed by the learned Civil Judge, Swabi dated 11-5-2007 was dismissed.
1. Brief facts leading to the instant litigation are that Mst. Sher Bano deceased mother/predecessor- in-interest of respondents Nos.1 to 5 filed the instant suit against the defendants/petitioners seeking the declaration to the effect that the property detailed in the heading of the plaint was the ownership to the extent of her Shari share, devolved after death of her father namely Noor Baig, she had challenged the Mutation No,3216 attested on 30-12-1936, whereby, deprived of her share in the suit property by the petitioners/brothers and also prayed for the decree for perpetual injunction and recovery of possession. The plaintiff expired during the pendency of suit, therefore, her legal representative impleaded as party to the suit. The plaintiff Sher Bano in her plaint averred that on the death of her real aunt Mst. Haroon widow of Niamat vide Mutation No, 9899, Exh.DW-2/13 she has been given her shari share in the ownership of deceased being the daughter of Noor Baig. The suit was contested by filing written statement by the defendants/petitioners, in the light of divergent pleas raised in the pleadings of the parties, issues were framed by the learned trial court, evidence of official witnesses recorded as P.W.1, Patwari Halqa produced the revenue record, after 1994-95 till date, and P.W.2 A.D.K. Produced the record from 1936-37 till 1948-49, after the examination of the parties the learned trial court while seized of the matter, dismissed the suit, being, aggrieved of the judgment and decree filed an appeal by the defendants/petitioners, the same has also been dismissed, now by way of instant petition, challenged the concurrent judgments and decrees of both the Courts below.
2. The learned counsel for the petitioners confined his arguments to the point of limitation and contended that even if the matter of inheritance of deceased Muslim was governed by law of custom prevailing in the year, 1937, the suit filed by the plaintiff is barred by the limitation period.
Reliance placed on section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), in order to substantiate his view point, he argued that even if the inheritance of Muslim propositus was governed according to principle of the Muslim Personal Law, regardless that the propositus died in the year, 1937 or prior thereto, the provisions of the Limitation Act would apply mutatis mutandis to the facts of the instant case, as was filed for the enforcement of right of inheritance of deceased, died prior to the enforcement of the Muslims Law of Inheritance, therefore, the inheritance distributed under the custom prevailing in the year, 1937 is in accordance with law and now it cannot be challenged by way of the instant suit.
3. The learned counsel appearing on behalf of the respondents controverted the arguments of learned counsel for petitioners contended that the matter of inheritance of a Muslim propositus would be governed, in accordance with the principles, enunciated in the Muslim Personal Law, irrespective of the fact that the propositus died, even the custom was the law of land, rather he would be deemed to have been died within the domain of the Muslim Personal Law, therefore, his inheritance amongst the legal heirs to be distributed in accordance with law ibid. Lastly, he prayed that both the courts below have concurrently decided the question of inheritance in between the parties, this petition not maintainable, thus merits dismissal.
4. The undisputed facts of the instant case are that Mst. Sher Bano, deceased plaintiff (predecessor in interest of respondents) and defendants/respondents are the descendents of Noor Baig, died in 1937. The inheritance Mutation No,3216 was attested in accordance with the rule of custom prevailing by then. While seeking dismissal of the suit on point of limitation, the learned counsel for the petitioner relied upon the provisions contained in section 2 of the Act ibid, for convenience sake, reproduced as under:-- "S.2---Application of the Muslim Personal Law . --- Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardly, family relations, wills, legacies, gifts, religious usages or institutions, including waqf's, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in farce, shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims."
5. The learned counsel while stretching the above provisions of law pointed out the latter part of said section, provides vividly, the rule of decision, subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law while emphasizing the above provisions of law emphatically contended that the Limitation Act made applicable to the inheritance of deceased Muslims, therefore; the Limitation Act being the law in force would apply to the facts of instant case.
He further argued that both the learned courts below committed gross illegality while ignoring the above referred provisions of law.
5(a). The contention of learned counsel clearly misconceived and is obvious violence to the provisions of section 2-A of the Act ibid. As by way of an amendment in the above-referred law, introduced through West Pakistan Muslim Personal Law (Shariat) Act (Amendment), Ordinance XIII of 1983, same is reproduced for ready reference.
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, any custom or usage or decree, judgment or order or 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 reversionary 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 decree."
6. From the perusal of the above referred law, it connotes that the law has the retrospective effect, therefore, Noor Baig the father of the parties, although died in the year, 1937, after the enforcement of said law, he would be treated, as he was at the time of his death governed by A the Muslim Personal Law of Inheritance, applicable to the deceased propositus of the Muslims. In this view of the matter Mst. Sher Bano is to be considered that she was entitled to having the Shari share in the inheritance of her father. Moreso, the provisions of above referred Act had already been declared as against the injunctions of Qur'an and A Sunnah.
7. The above mentioned provision namely 2-A was added as a result of the judgment passed by Hon'ble Federal Shariat Court, whereby, the Act of 1962 ibid was declared as against the injunction of Quran and Sunnah, the judgment was upheld by august Shariat Bench of Supreme Court, the case titled The Federation of Pakistan through Secretary, Law and Parliamentary Affairs, Islamahad v. Muhammad Ishaq and another reported as PLD 1983 Supreme Courts 273, honourable court after visualizing and emphasizing the true intent and purpose of inheritance as ordained by Almighty Allah, with reference to Verses of Holly Qur'an, reached to the conclusion as drawn at Page-279, "as rightly pointed out by Altaf Hussain, J, (now Chief Justice) who delivered the judgment of Federal Shariat Court that all these words have (waris) as their root which connotes according to Majjam- i-Alfas-iQuran-i-Hakeem, Vol. 2, Pages 838, 840 absolute, vesting in the ownership with right to spend it in any manner one likes, like a heir. Such ownership is not used in a restrictive sense". Thus we cannot accept the contention of the learned counsel of the appellant, Syed Riaz-ul- Hassan Gilani, that restrictions on the right of alienation imposed by Custom of persons inheriting agricultural land before 16-3-1948 can be imposed in Islam because the Hadith cited by him is in a different context and is not attracted here; and that for this reason it is not necessary to go into the other question of its authenticity or conflict with the Holy Qur'an in this case.
6. Again, it has come under consideration and was decided in a case tiled Mst. Fareeda and 2 others v. Rehmatullah and another, reported as PLD 1991 Supreme Court 213 head note (b), ratio laid down in the said judgment with reference to the case titled as Federation of Pakistan v.
Muhammad Siddiq Supra, that in so far as the question of retrospectively the position both in Punjab and N.-W.F.P., in this behalf would not be dissimilar. It was also held that as soon as the decision of this court in its Shariat Appellate Bench took effect as from 13th June, 1983, the words "subject to the provision of any enactment for the time being in force" in section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 "cease to have effect. As a result amongst others a consequence visualized and held in the case of Muzaffar Khan, that the N.-W.F.P Act of 1935, is to be given retrospective effect and that whenever a dispute comes before a Court of law with regard to succession to the estate of Muslim deceased, he will be deemed to have died under the domain of Muslim Law, even if the death has taken place before coming into force of the West Pakistan Muslim Personal Law (Shariat) Application Act of 1935. Accordingly in this case, the Act of 1962 was not in force in the area concerned on 15-1-1976 and even before the Act of 1962 was formally applied to the area concerned. To what extent the law would be retrospective, as notice above, it was held that the same would be definitely beyond 1935. Farthest limit was need not go into because in the present case Nadir Khan the last male-holder admittedly died in 1972 or 1973.
Therefore, the appellants being his daughters would get their share in his inheritance in accordance with Islamic Law. This appeal thus is allowed. The remaining share in addition to what was granted to them by the High Court shall now be allowed to them and the necessary changes would be made in all the relevant records including the record of rights."
9. Now it is self-explanatory and furnishes clear guidance that in the Islamic System of Law, the shares of sons and daughters plainly specified. There is no impediment or hindrance in distribution of inheritance under Islamic Law even before 15-3-1948, therefore, Mst. B Sher Bano being daughter of Noor Baig entitled to 1/5th share with her two brothers, the petitioners, Eventually, the predecessor of the respondents Mst. Sher Bano had illegally been deprived of the inheritance of her father in Mutation No,3216 attested on 30-12-1936.
10. There is yet another aspect of the case which has not been considered by the learned courts below, the provisions in section 3(2) of the North West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935 (N.-W.F.P Act No, VI of 1935) also permits the application of Muslim Personal Law (Shariat) ibid., the provisions reproduced as under:--
(3) Repeal of provision of previous law.---(1) On and from the day of the enforcement of this Act, section 27 of the North-West Frontier Province Law and Justice Regulation (No,V11 of 1901) shall be repealed in so far as the Muslims are concerned.
(2) Whenever a question relating to the succession upon the death of a Muslim arises in any court, the rule of decision shall be according to Muslim Personal Lair (Shariat) as if that law had been applicable at the time of such death.
11. In the instant case, the question of limitation can also be answered, in the light of the above referred proposition of law and fact. The bar of the limitation not to be applicable to the matter pertaining prior to year 1937, the suit of the plaintiff seeking the restoration of her rights in the inheritance cannot be declared as time barred as the law itself provides that, it would be applicable since the time of death of predecessor of the deceased plaintiff. ,Therefore, as Noor Baig father of Mst. Sher Bano died in the year, 1937, but deemed to have died under the domain of Muslim Personal Law. His property would be divided even today in accordance with Shari Share, more so, the right of inheritance have no nexus to the attestation of mutation as the moment Noor Baig, died, all his heirs would be deemed as to have acquired their share in accordance with their specified share in his property, even nonpayment of produce to the legal heirs would be ineffective regarding the right so acquired in the light of principle that all the owners in the property would be deemed to be interested in each and every inch of the property. The possession of one of co- owners to be considered for the benefits of all the rest of the owners in KHATA, therefore, there is no question of exclusion arises in the instant suit, thus, the suit is within time and the arguments of learned counsel for the petitioner are misconceived, in this regard reference can be made of a case titled Muhammad Anwar and 2 others v. Khuda Yar and 25 others reported as 2008 SCMR 205.
12. The learned counsel for the petitioner in support of his arguments, referred a case titled Mir Alam v. Mst. Jane and others reported as 1989 SCM R 1293, while deciding the case the reference of above mentioned provisions of law has not been made before the august Supreme Court, moreso, the above referred case proceeds on different facts and circumstances, not akin to the instant case.
13. In view of the above discussion, the judgments and decrees of both the learned courts below have been legally passed, no misreading and non-reading and no illegality or irregularity committed by both the Courts below, therefore, maintained.
14. This petition is hereby dismissed as without being any substance with no order as to costs.