NISAR HUSSAIN KHAN, J.---Petitioner has challenged the judgment and decree of learned Civil Judge-III, Lakki Marwat, dated 314-2009 and that of learned Additional District Judge, Lakki Marwat dated 10-4-2010, whereby petitioner's suit was concurrently dismissed.
2. The precise facts of the case are that petitioner filed a suit in the court of learned Senior Civil Judge Lakki Marwat, seeking declaration to the effect that plaintiff and pro forma defendants Nos.
6 to 36, being the legal heirs of Braim son of Sodad, are entitled to the Shari share in his legacy.
While, his inheritance Mutation No,3789, dated 30-1-1935, attested solely in favour of Mgt. Mastura, his widow (predecessor of defendants Nos. 1 to 5), is ineffective upon the rights of the plaintiff.
Similarly, Mutation No,449, dated 31-5-2002, qua the inheritance of said Mst. Mastura, in favour of defendants No,1 to 5, is also illegal and ineffective upon his right, which is liable to be cancelled.
3. The suit was contested by the defendants by filing written statement, on variety of grounds, factual as well as legal, which culminated into framing of issues. The parties led evidence in support of their respective stance and on conclusion of trial, petitioner's suit was dismissed and appeal filed thereagainst, also met the same fate. Hence, instant revision petition.
4. Learned counsel for the petitioner argued that one Braim son of Sodad, died issueless and his whole property was mutated in favour of his widow Mst. Mastura vide Mutation No,3789 dated 30-1- 1935. He maintained that at the time of demise of said Braim, his three brothers namely Taimur Shah, Daim and Shah Baz, were alive, who under the Shari Law, were also entitled to inheritance of late Braim; that plaintiff and pro forma defendants (now petitioner and pro forma respondents) are the legal` heirs of those brothers of Braim deceased, whose legacy is under contest; that Mst.
Mastura died in 2002 and her inheritance Mutation No,449 dated 31-5-2002, was attested in favour of her sister Mst. Gul Mira (daughter) and Mosam Khan etc. (her nephews) and later on, the inheritance of Mst. Gul Mira, devolved on Mst. Pasham Jana and Mosam Khan etc. (her nephews) vide Mutation No,487 dated 31-5-2002 i,e, on the same date. Whereas, petitioner filed this suit on 19-4-2004; which is well within time and limitation does not run in matter of inheritance. Thus, both the Courts below have erred in law by non-suiting the petitioner, without considering the legal aspect of the case.
5. Conversely, learned counsel for the respondents contended that relation of the parties is admitted, however, the N.W.F.P. Muslim Personal Law (Shariat) Application Act, 1935 as well as West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, have not been given retrospective effect, so the mutation attested on the strength of custom, is protected. Learned counsel heavily relied upon the judgment of the Hon'ble Supreme Court in case titled, "Ghulam Haider and others v.
Murad through Legal Representatives" (PLD 2012 Supreme Court 501) and argued that in light of ratio of this report, the suit of petitioner has rightly been dismissed. He maintained that all the three brothers alive, at the time of attestation of mutation in favour of Mat. Mastura, did not question the transfer of property in her favour, so petitioners being their descendants, are estopped to agitate any such right. Hence, this petition is liable to be dismissed.
6. I have heard the extensive arguments of the learned counsel for the parties and have gone through the record as well as the law referred, in support of their respective stance.
7. The relation of the parties, inter se, is not disputed, hence, need no discussion. The propositions which require to be resolved, in light of the facts and arguments of the learned counsel for the parties, are; firstly, as to whether the petitioners are entitled in the legacy of late Braim, their predecessor, who died issueless, when it has been mutated/transferred, as a whole, in favour of Mst. Mastura, his widow, in 1935, particularly in light of the recent judgment of the Hon'ble Supreme Court, in Ghulam Haider's case (supra)?. Secondly, whether the suit of the petitioners, is within time? To resolve these pivotal questions, we will have to trace out the history of law of inheritance with regard to legacies of Muslims since pre-partition in Subcontinent. The first legal instrument on the subject is punjab Laws Act (IV of 1872), which was promulgated on 28th March, 1872 and was made applicable in the Punjab. It is pertinent to mention before proceeding further, to remove ensuing ambiguity or doubt, that N.W.F.P. (now Khyber Pakhtunkhwa) was part of Punjab, prior to 1901. Section 5(a) of the ibid Act, enunciates that any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, would be the rule of decision provided it has not been declared to be void by any competent authority or not altered or abolished by any enactment. Whereas, clause (b) of the section commands the application of Muhammadan Law, in cases where the parties are Muhammadan and Hindu Law, in cases where the parties are Hindus. By virtue of section 5 (b) of the ibid Act Sharia was made applicable in territories of Punjab including N.-W.F.P (now KPK), since 28th March, 1872, in cases, where the parties were Muslims. In other cases, even while applying custom, justice, equity and good conscience, were made the guiding principles, which are stemming out of the Islamic Jurisprudence, enunciated fourteen hundred years ago. The shares of the prospective legal heirs had once for all been settled and fixed in Quranic text, being the Divine Law, on which, there is no need of any scholarly interpretation or discussion which are to be followed in latter and spirit, without raising any question about it, as the guiding principles for decision given in section 5(a) of the ibid Act, have been the hallmark of Islamic justice system.
8. After having taken over exclusive control of Sub-continent in 1857, even the alien Rulers, were constrained to promulgate the ibid Act in 1872, within a period of 15 years, essentially on the demand of their subjects, to rest the matter at peace. After separation of Khyber Pakhtunkhwa then N.-W.F.P., in 1901, new legislation, was made on the subject and N-.W.F.P. Muslim Personal Law (Shariat) Application Act No, VI of 1935) was promulgated on 6th December, 1935. Whereas, in Punjab, similar legislation was introduced by promulgation of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948 (Act IX of 1948). The study of both these legislative instruments, would reveal that there is some difference in both the legislations, which start even from the "Preamble". In (Act IX of 1948), applicable in Punjab, which reads as:-- "An Act to provide for the application of the Muslim Personal Law (Shariat) to Muslims in West Punjab "in certain respects" and in preamble it further reads:- "Whereas it is expedient to make provisions for the application "in certain respects" of the Muslim Personal Law (Shariat) to Muslims in West Punjab".
' Whereas, the phrase " in certain respects" is nowhere mentioned in preamble of the N.-W.F.P.
Muslim Personal Law (Shariat) Application Act, 1935 (Act VI of 1935), which shows that in the West Punjab Muslim Personal Law (Shariat) Application ' Act, 1948. Have been controlled to some extent with the rider of "in certain respects". Whereas, it was not the case in the N.-W.F.P. Muslim Personal Law (Shariat) (Application Act, VI of 1935. By virtue of section 3(2) of the N.-W.F.P. Muslim Personal Law (Shariat) Application Act, VI of 1935, it has been given retrospective effect. In pursuance, of section 4 of the ibid Act, the actual legal heirs of the last full owner, would succeed to his legacy on termination of the limited ownership of the Muslim female, under the Customary Law. However, her Shari share provided by the Muslim Law, has been protected. The same scheme is evident from section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, but by virtue of section 5 of the Act, it is expressly provided that it would have no retrospective effect, which is in contrast and in conflict with section 3(2) of the N.- W.F.P. Muslim Personal Law (Shariat ) Application Act VI, 1935. When all the Provinces were merged into one unit of the West Pakistan, a consolidated legislation on the subject was made and the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, was promulgated on 31st December, 1962, which was made applicable to whole of the West Pakistan (now Pakistan) and Muslim Personal Law (Shariat) was made the rule of decision, in the matters of inheritance, notwithstanding any custom or usage in vogue in the society. By virtue of section 3 of this Act, substituted by the West Pakistan Ordinance XXXIX of 1963, all the limited estates, held by females under the customary Law, were terminated. In terms of section 5, the life estate so terminated under section 3 was to devolve upon the person who would have entitled to succeed under the Muslim Personal Law (Shariat) Application Act, upon the death of the last full owner and if any such heir has died in the meantime, his share has been made to devolve in accordance with the Sharia on such person as would have succeeded him, if he had died immediately, after the termination of the life estate. However, the Shari share inheritable by the female under the Muslim Personal Law (Shariat) has been protected by proviso of the same section.
9. The main reliance of learned counsel for the respondent is on the judgment of the Hon'ble Supreme Court in case titled, "Ghulam Haider and others v. Murad through Legal Representatives"
(PLD 2012 Supreme Court 501). The basic theme of which is sprouting out of section 2-A of the Muslim Personal Law (Shariat) Application Act, 1962, which was introduced by virtue of Ordinance XIII of 1983 on 1-8-1983 in Punjab, when one unit was no more in existence. The provisions of section 2-A are not applicable to the K.P.K, firstly it being a provincial amendment, so would be applicable within the domain of its own jurisdiction. And secondly, the title of section 2-A itself refers to its application, prior to Act IX of 1948, which, undoubtedly was a provincial legislation, applicable in Punjab, and has got no nexus with the N.-W.F.P. Act VI of 1935. Thus, have got no application on the subjects of other provinces. Even the bare perusal of the judgment of the Hon'ble Supreme Court, reveals that it encompasses the matters of inheritance ensuing in Punjab. So with utmost respect and humility, it is not applicable to the instant case.
10. It is the case of respondents that the whole legacy of Braim was transferred in the name of Mst.
Mastura, his widow, in pursuance of the custom, in vogue. He is right to This extent, because the Muslim Personal Law, does not acknowledge any such transfer in favour of widow. In pursuance of the custom, on the demise of the last full owner, being issueless, his whole property used to be transferred in favour of his widow as a limited owner and not as a full owner and on the termination of that limited estate on the occasion of her death or remarriage, the legacy was to be reverted to the rightful legal heirs of the last full owner. In the instant case, the property of Braim, was transferred to Mst. Mastura vide Mutation No,3789, as a limited owner in 1935. By honouring the custom, the brothers of deceased Braim did not object on such transfer, being conscious of the fact that it would revert back to them, on the termination of her life estate. Coincidentally, that limited estate of Mst. Mastura was not disturbed during the life time of brothers of Braim, in the Revenue Record, as neither she entered into remarriage nor she died until 2002. Whereas the brothers of Braim died much earlier than that. On her death in 2002, her limited ownership terminated and the legacy of Braim was to be reverted to his actual legal heirs or descendents of those heirs, in case of their death, how lowsoever, they would be, as Mst. Mastura was just a limited owner and not a full owner. The property of Braim in excess of 1/4th share, being Shari entitlement of Mst. Mastura could have not been transferred in favour of her legal heirs. But instead thereof, it was mutated as a whole in favour of her sister and nephews in defiance to the custom as well as the law in the field. Feeling aggrieved of the same mutation, the petitioner filed suit in 2004, just after about 2 years of this last attack on their rights, which is well within time. This aspect of the case has not been attended to by both the Courts below. Rather, they have short circuited the matter by computing the time from 1935 to 2004 and thereby non-suited the petitioner.
11. On promulgation of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the N.-W.F.P. Muslim Personal Law (Shariat) Application Act, 1935, was repealed and by virtue of section 3 of the Act V of 1962, inserted vide Ordinance XIII of 1963, all the limited estates in respect of immovable properties held by Muslim females, under the customary Law, were terminated and the life estates so terminated under section 3, by operation of law, were to devolve in pursuance of section 5 of the ibid Act, on such persons, who were entitled to succeed under the Muslim Personal Law, upon the death of last full owner. However, the entitlement of such females, limited owners C inheritable by them, in the legacy of last full owners, under the Muslim Personal Law (Shariat)
Application Act, was protected. When both these ibid sections are taken in juxta position, the consequential effect, evolving therefrom, is that limited estates, held by all the Muslim females under the customary law, were terminated, by operation of law in 1963 and were restored to the actual legal heirs of the last full owners. Thus in view of these statutory provisions, the legal heirs of Braim i,e, the petitioner and pro forma respondents had become owners in his legacy to the extent of 3/4th share by operation of law, excluding 1/4th share of Mst. Mastura, the widow of late Braim, being issueless.
12. Besides that, section 2-A of the Act VI of 1962, expressly speaks about the male heir of the deceased to become absolute owner of such land, which was acquired by him under the custom, before commencement of the Punjab Muslim Personal Law (Shariat) Application Act 1948, whereas, in the instant case, Mst. Mastura, admittedly is a female who cannot fetch benefit of section 2-A of the ibid Act, and on this count also, judgment of the honourable Supreme Court as well as Act VI of 1962, would not help the respondents. The Revenue Record, maintained by the Revenue authorities, was in derogation of the statutory command, which was required to be updated and maintained in accordance with law. It may be argued or objected that after promulgation of Act V of 1962, the petitioners- have filed suit in 2004, after a period of 42 years, so should be deemed to be time- barred. Suffice it to say that they had become owners by the operation of law in 1963, by virtue, of section 5 of the Act. V of 1962. So this objection would be misconceived, firstly for the reason that there is no estoppel against the law. Secondly, the Revenue Record maintained for fiscal purposes.
The mutation does not create. Or extinguish the right of lawful owner. Every adverse successive entry in the revenue record, gives a fresh cause of action. On one hand there is a statutory provision of Act V of 1962, which acknowledges the petitioner and pro forma respondents as owners while on .The other, there are entries in the. Revenue Record flowing from mutations, attested in favour of the respondents. When both are taken in juxtaposition, undisputedly, the rights ensuing from the Statute, would prevail against the mutation or any entry in the Revenue Record, based thereon.
12A. Having been held entitled to the legacy of late Braim, by virtue of sections Sand 5 of the Act V of 1962, the petitioner and pro forma respondents are deemed co-owners in the suit property to the extent of G 3/4th share in the legacy of Braim. In such state of affairs, it becomes immaterial as to who is sitting in possession of joint property, as any co-owner possessing the joint property, is holding the possession on behalf of all the co-owners and he cannot claim adverse possession against them, nor can agitate the bar of limitation. Whereas, it is the case of inheritance and it has been time and again ruled by honourable Supreme Court that the question of limitation would not arise in matters of inheritance. ,In this respect cases of "Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi" (PLD 1990 SC 1), "Muhammad Qasim Khan and 6 others v. Mst. Mehbooba and 6 others" (1991 SCM R 515 and Muhamniad Anwar and 2,others v. Khuda Yar and 25 others" (2008 SCM R 905), may he referred. In pursuance of the ratio of the judgments (supra), the suit of the plaintiff is well within time, being the matter of inheritance. Once it is held that limitation would not run in the matters of inheritance, the span of time become immaterial, how so long it may be.
13. The subject of inheritance, since long, has remained the matter of concern amongst the Muslims of Sub-continent. The first legislation in codified form was made in 1872, by promulgation of (Act' IV of 1872), during the era of foreign rule. It is pity to note that we the Muslims are relentlessly boasting of ruling the Subcontinent for five hundred years and Spain for more than that, but on fall of both these reigns, there was .No system in, the field to be followed, nor there remained any sign of this glory, except some buildings of. Forts, Mosques, Tombs and Palaces. However, since promulgation of the ibid Act, the Muslims of Sub-continent have been profoundly vying for Islamic Justice System in general, Islamic Law of Inheritance, in particular-. The N.-W.F.P. Muslim Personal Law (Shariat)
Application Act, 1935, Punjab Muslim Personal Law (Shariat) Application Act, 1948, and the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, are the culmination of same will of the people. This facet of law of inheritance has been supplemented by Articles 20-A and 227 of the Constitution of Islamic Republic of Pakistan, 1973, whereby principles and provisions, set out in, the objective Resolution, have been made substantive part of the Constitution. In pursuance of principles of the Objective Resolution and Article 227, apart from other matters, if occasion arises, the laws are to be interpreted, expounded and practised, in conformity with the injunctions of Islam.
14. Alas, we earnestly profess. For Islam in our sermons, speeches, talks, books, articles and general gossip, but when it hit our interest, we react with volte face. We want to practise Islam of our own choice and in this quest have strayed beyond the spirit of Qur'aan, the basic source of Islamic Jurisprudence. We have reduced it, just to a show piece. The Qur'an which was a Book of practice, has been made a Book of prayer. This Holy. Book of Code of Life of living human beings, has been reserved for decoration of graves and life hereinafter. This is a Divine Book full of knowledge and intellect, but we have confined it just for reciting. It is a Book that conveyed the revolutionary message which was actually so brought about, but we have reduced it just for earning Swab, and that too, on mathematical formulae, without realizing that His Blessings are immeasurable. It is a Book which is the Divine Constitution, enshrined for living people to practice it, but it has been made the manifesto of dead and life thenceforth. This Holy Book was ordained for the renaissance of the lost nation, but we have dedicated it to seek pardon for misdeeds of our leads. We use the Holy verses of Qur'an for decoration of our speeches and sermons, while in practical life; we feel honour to flagrantly violate the commandments of the same very verses. This diversity in our thoughts and glaring contradictions in our declaration and practice are the root cause of rupture of socio-economic fabric of society as well as decline of national dignity, which requires to be addressed at every level, in all spheres of life. Least said the better. The inheritance rights are fixed in the Holy Scripture, which cannot be changed or altered by any scholarly interpretation nor can those fixed terms (Hudood) be interfered with, on any ground whatsoever, by any person or authority, whosoever he may be.
15. Both the Courts below have non-suited the petitioner without considering the legal aspect of the case in light of its factual backdrop and have thereby committed gross illegality while rendering the impugned judgments, which are not tenable.
16. For what has been discussed above, this petition is allowed. The impugned judgments of both the Courts below are set aside and the suit of petitioner is decreed to the effect that 3/4th share from the legacy of late Braim would go to the plaintiff and pro forma defendants being the descendants of his brothers, whereas 1/4th will go to the legal heirs of Mst. Mastura, the widow of Braim.