ASIF SAEED KHAN KHOSA, J. --- In the Province of the Punjab transition from the customary law of inheritance of agricultural land to that under the Islamic law of inheritance. (Shariah) has generally been problematic and the case in hand is a befitting example of the same. One Lal son of Janan owned some land in two revenue estates of District Dera Ghazi Khan known as Chhabri Bala Sharqi and Chhabri Bala Gharbi and he died in the year 1943 or 1944. He was survived by a son namely Murad, a daughter namely Mst. Bano and a widow namely Mst. Sehati. The said widow of Lal namely Mst. Sehati died after about 24/25 years of the death of Lal and, thus, the remaining survivors of Lal deceased were his son namely Murad and his daughter namely Mst. Bano. After the death of Lal almost all his land in both the above-mentioned revenue estates was mutated exclusively in favour of his son namely Murad in terms of the customary law of inheritance to the exclusion of his mother namely Mst. Sehati and his sister namely Mst. Bano and the relevant Mutation No. 4536 (Exhibit-P13) was attested on 29.10.1944. Some land belonging to Lal deceased was, however, omitted from the above-mentioned mutation and that remaining land situated in Chhabri Bala Sharqi was mutated in favour of Lal's son namely Murad, his widow namely Mst.
Sehati and his daughter namely Mst. Bano through Mutation No. 5631 (Exhibit-D27) attested on 28.02.1959 but this time the mutation of inheritance was attested in terms of the Islamic law of inheritance. On 15.10.1973 Murad filed a suit for declaration seeking annulment of Mutation No. 5631 to the extent of Mst. Sehati and Mst. Bano maintaining that Lal deceased was governed by the customary law of inheritance and, therefore, Murad ought to have exclusively inherited all the land mutated through Mutation No. 5631 attested on 28.02.1959. The sole defendant in that suit was Mst.
Bano because by then Mst. Sehati had died. Mst. Bano filed a written statement maintaining therein that Lal deceased was in fact governed by the Islamic law of inheritance and not the customary law of inheritance and, thus, through Mutation No. 5631 attested on 28.02.1959 she had rightly been given her sharai share of Lal deceased's land. During the consolidation proceedings which were in progress at that time it was opined that Murad had wrongly got the earlier mutation (Mutation No. 4536) attested on 29.10.1944 as instead of getting the entire land mutated in his favour under the customary law of inheritance he ought to. Have obtained only his share of inheritance under the Islamic law of inheritance. Equipped with that information Mst. Bano filed a suit for declaration and possession on 06.03.1974 claiming her sharai share in respect of all the properties of her father namely Lal deceased and also maintaining that Mutation No. 4536 attested on 29.10.1944 was fraudulent. By that time some part of that land obtained by Murad had been alienated by him in favour of his son namely Kattu. Murad and Kattu filed a written statement contesting the claims made by Mst. Bano through her suit. Both the above-mentioned suits, i.e. One filed by Murad and the other filed by Mst.
Bano were consolidated and after framing of issues and receiving of evidence the learned Civil Judge, Dera Ghazi Khan dismissed the suit filed by. Murad and decreed the suit filed by Mst. Bano vide judgments and decrees dated 19.05.1975. Murad filed two appeals in that regard and on 07.11.1977 the learned Additional District Judge, Dera Ghazi Khan allowed both the said appeals and remanded the cases back to the learned Trial Court for their decision afresh after framing a fresh issue, i.e. Issue No. 6-A. In the post-remand proceedings the learned Civil Judge, Dera Ghazi Khan dismissed Mst. Bano's suit and decreed the suit filed by Murad vide judgments and decrees dated 26.10,1980 holding therein that the land in issue was ancestral land and the parties were governed by the customary law of inheritance. In the meanwhile Mst. Bano died and her legal representatives filed two appeals. Vide judgments and decrees:dated 21:05.1984 the appeals filed by the legal representatives of Mst, Bano were allowed by the learned Additional District Judge, Dera Ghazi Khan, decreeing the suit filed by Mst. Bano and dismissing the suit filed by Murad. It was held by the learned Additional District Judge, Dera Ghazi Khan that the parties were governed by the Islamic law of inheritance. During this while Murad died and his legal heirs filed Civil Revisions No. 418 and 419 of 1984 before the Lahore High Court, Multan Bench, Multan and on 24.09.2001 a learned Judge- in-Chamber of the said Court allowed both the revision petitions, set aside the judgments and decrees passed by the learned Additional District Judge, Dera Ghazi Khan and restored the judgments and decrees passed by the learned Civil Judge, Dera Ghazi Khan. It was held by the learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan that the parties were governed by the customary law of inheritance and, thus, all the land left behind by Lal deceased was to devolve upon his son namely Murad only. The above-mentioned Judgments and decrees passed by the learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan were assailed before this Court by the legal representatives of Mst. Bano through Civil Petitions for Leave to Appeal No. 3061 and 3062 of 2001 wherein leave to appeal was granted by this Court on 22.04.2002. Hence, the present appeals before this Court.
2. We have heard the learned counsel for the parties at some length and have gone through the record of these cases with their assistance besides attending to the relevant precedent cases referred to by them.
3. The principal point of controversy between the learned counsel for the parties before us has been the true scope and effect of Section 2-A of the West Pakistan Muslim Personal Law (Shariat)
Act, 1962 introduced through the West Pakistan Muslim Personal Law (Shariat) Act (Amendment)
Ordinance XIII of 1983 and its application to the facts of the present cases. We have observed that the entire history of transition from the customary law of inheritance of agricultural property to the Islamic law of inheritance in the Province of the Punjab leading to introduction of Section 2-A through the above-mentioned Ordinance XIII of 1983 had been summed up by this Court in its judgment handed down, in the case of Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 SC 407) and the scope and effect of Section 2-A introduced through the said Ordinance XIII of 1983 had also comprehensively and exhaustively been commented upon therein. The relevant part of the judgment delivered in that case is reproduced below:--- "It would be appropriate to give the historical background which has culminated in the said law.
After the conquest of the Indian Sub-continent by the 'alien power various laws were enacted to govern separate territories as and when the need arose. A detailed discussion on evolution of Sub- Continental jurisprudence would be found in Haji Nizam Khan v. Additional District Judge, Lyallpur and others [PLD 1976 Lahore 930]. In that context it will be relevant for the present discussion only to mention three laws: (1) Section 26 of Bombay Regulation IV of 1827; (2) Section 5 of the Punjab Laws Act IV of 1872; and (3) Section 27 of the N.-W.F.P. Laws and Justice Regulation VII of 1902. Similar provisions were made in these legislative measures on the subject-matter Under discussion. The one requiring particular consideration and attention would be Section 5 of the Punjab Laws Act, 1872, therefore, the same is reproduced below:--- "5. Decisions in certain cases to be according to native laws.-- 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 usage or institution, the rule of 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.
(b) the Muhammadan Law, in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except insofar as such law has been altered or abolished by legilative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom' as is above-referred to."
It is also necessary to notice here two more laws which have always been considered in the Punjab as complementary to Section 5 of Act IV of 1872. They are: The Punjab Limitation (Custom) Act, I of 1920 and The Punjab Custom (Power to Contest) Act, II of 1920.
It would be seen that notwithstanding the fact that Custom was to be the rule of decision in matters enumerated in the purview of the Section by virtue of sub-clause (a) thereof, Muslim Law was to be applied as the governing rule under sub-clause (b) in cases where parties were Muslims, except insofar as such law had been' altered or abolished by legislative enactment or stood modified by any such Custom. Case-law developed in the Sub-Continent on the lines that the normal law applicable to Muslims will be the Muslim Law but wherever Custom was alleged and proved to have modified the Muslim Law then that particular Customary law would be applicable.
Attempts were made by the Muslims of India to remove the said rider regarding Custom in different phases, It is not necessary to notice all of them. It would suffice if mention is made of the North-West Frontier Province Muslim Personal Law (Shariat) Application Act (VI of 1935) and the Muslim Personal. Law (Shariat) Application Act, XXXVI of 1937 - a Central Statute. Section 2 of this latter Act reads as follows:--- "Section 2. Application of Personal law to Muslims.---Notwithstanding any custom or usage to the contrary in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provisions of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubarat, maintenance, dower, guardianship, gifts, trusts and trust properties, and Wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in case where the parties are Muslims shall be 'the Muslim Personal Law (Shariat)."
It is necessary to note that the overriding control of "custom" or "usage to the contrary" on questions mentioned_ in the above provision including succession, was removed, except insofar as it related to agricultural land. Although other laws were later enacted including on marriage with a view to enforce Muslim Personal Law (though partially), yet it was not till Independence that the law of inheritance regarding agricultural land was changed. The first attempt was made in the Punjab with the enactment of the West Punjab Muslim Personal Law (Shariat) Application Act, IX of 1948. Parallel provisions were also made in the Colonization of Government Lands (Punjab) Act (No. V) of 1912 by Punjab Act III of 1951 and in The Tenancy Act (Punjab Act XVII) of 1887 by Punjab Act IV of 1951. Although in the Punjab a separate enactment was made which purported to be a Code by itself, in the -form of Act IX of 1948, in Sindh an amendment was made in Section 2 of Act XXXVI of 1937 (reproduced above). By Section 3 of the Muslim Personal Law (Shariat) Application (Sindh Amendment) Act No. XXII of 1950, the phrases "save questions relating to agricultural land" and "charities and endowments" were omitted from the said Section (2 of Act XXXVI of 1937). Relevant comment on the development of this branch of law in N.-W.F.P. Has been made by this Court in the case of Muzaffar Khan v. Mst. Roshan Jan and others [PLD 1984 SC 394]. (In addition to the afore- noted laws, in the field of Rehabilitation of Displaced Persons, necessary amendments on same lines have been made in the evacuee laws and schemes, one of :them being Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act (No. XXV) of 1975. For Baluchistan the position can be discovered by making reference, amongst others, to the Baluchistan Civil Disputes (Shariat Application) Regulation, 1976 and the Rules made under. Para. 6 thereof. The Bahawalpur State Shariat (Muslim Personal Law) Application Act, 1951 and The Khairpur State Muslim Females Inheritance (Removal of Customs) Act, 1952 also are worth noticing. There might be other similar laws, but they all need not be noted here.
After the foregoing broad outline, it is essential to revert to the post-Partition development of this branch of law in the Punjab, from which Province these appeals have arisen. Punjab Act IX of 1948 as amended by Act of 1951 reads as follows:--- "The West Punjab Muslim Personal Law (Shariat) Application Act (No. IX) of 1948 (As amended by Act XI of 1951)
(15th March, 1948)
An Act to provide for the application of the Muslim Personal Law (Shariat) to Muslims in West Punjab in certain respects.
Preamble. Whereas it is expedient to make provision for the application in certain respect of the Muslim Personal Law (Shariat) to Muslims in West Punjab; It is hereby enacted as follows: Section 1. Short title, extent and commencement . (1) This Act may be called the West Punjab Muslim Personal Law (Shariat) Application Act, 1948.
(2) It extends to the whole of West Punjab.
(3) It shall come-into force at once.
Section 2. Notwithstanding any rule of 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 bastardy), family relations, wills, legacies, gifts, religious usages or institutions- including Waqfs, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims.
Section 3. In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any such person before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat): Provided that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner, shall devolve on her if she loses her limited interest in the property on account of her marriage or re-marriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death.
Section 3-A. Where a will made by a Muslim provides for more than one legatee succeeding to the testators' 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.
Section 4. Repeal of Section 5 of Punjab Laws Act for certain purposes.---With effect from the date on which this Act comes into operation, (i.e. 15th March, 1948) so much of the provisions contained in Section 5 of the Punjab Laws Act, 1872, as conflict with the present Act shall be deemed to have repealed.
Section 5. Save as expressly provided by the provisions of Section 3, this Act shall have no retrospective operation."
It is important to notice that Section 5 of Act IX of 1948 (as amended) provided that save as expressly provided by the provisions of Section 3, that Act would have no retrospective operation.
Further, by virtue of the superior Courts declaration of law when interpreting various provisions of that Act with reference to the retention of Customary law as projected in the old legislations already noticed, it was ruled first by the Lahore High Court and then by this Court in several judgments dealing with various aspects of succession including widows limited estate, that, a person who had inherited agricultural land prior to the enforcement of Act IX of 1948, his or her power of alienation (treating the same as an incidence of Customary succession) will be controlled by the law of succession which applied to him or her then (prior to Act IX of 1948). In other words, if a person had inherited agricultural land under Custom as an heir (in any form) to the last full owner, then qua that heir the restrictions regarding alienation under Custom would control his power of alienation notwithstanding the promulgation of the Muslim Shariat Application Act IX of .1948. An important condition, amongst others, which was consistently spelled out was that no alienation could take place without the consent of the concerned reversioners unless it was for consideration and legal necessity. Females/widows inheriting the estate in various forms were also dealt with, on somewhat similar lines.
Some well-known Lahore cases have been noticed in Muhammad lshaq v. Federation of Pakistan [PLD 1981 FSC 278] and The Federation of Pakistan v. Muhammad lshaque [PLD 1983 SC 273]. Some important cases of this Court dealing with similar and related aspects are:--- Mst. Shahzadan Bibi v. Amir Hussain Shah (PLD 1956 SC (Pak.) 227); Abdullah v. Mst. Bakhto Mai (PLD 1956 SC (Pak.) 321); Said v. Fazal Hussain (PLD 1959 SC (Pak.) 356); Khair Din v. Muhammad Hussain (PLD 1961 SC 468); Syed Abdur Rashid v. Pakistan (PLO 1962 SC 42) Mir Lalik A.I v. Standard Vacuum Oil Company (Esso) (PLD 1964 SC 220); Mst. Rehmat Bibi v. Ibrahim (PLD 1966 SC 349); lhsan Ilahi v.
Hukam Jan (PLD 1967 SC 200); Mst. Qaiser Khatoon v. Maulvi Abdul Khaliq (PLD 1971 SC 334); Muhammad Yaqub v. Member, Board of Revenue (PLD 1973 SC 304); Mst. Khatun v. Malla (1974 SCMR 341); Amir Bakhsh v. Allah Yar (PLD 1974 SC 124); Aslam v. Mst. Kamalzai (PLD 1974 SC 207); Mst. Zarmina v. M. Najawar (1975 SCMR 487); Muhammad Ismail v. Barkhurdar (PLD 1977 SC 144) and Zafarullah v. Muhammad Siddiq (PLD 1980 SC 76).
As would appear from the precedent law certain difficulties arose regarding the application of the Muslim (Shariat) law to the matters enumerated'n Act IX of 1948. Accordingly West Pakistan Act V f 1962 under the name and title of t e Punjab/Sindh/NWFP/Baluchistan Muslim Personal Law (Shariat)
Application Act (West Pakistan Act V) of 1962 reproduced earlier, was promulgated on 31st December, 1962. It inter alia repealed and purported to re-enact laws relevant for application of Muslim Personal Law (Shariat). As would appear from the legislative history as also the discussion in some of the afore-cited rulings by the superior Courts, this law had also not achieved all the purposes for which it was enacted. Accordingly another law namely the Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance (No. IX) of 1972 was promulgated on 12th of April, 1972. It reads as follows:--- "1. Short title, extent and commencement:-- -(1) This Ordinance may be called Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972.
(2) It extends to the whole of the Punjab.
(3) It shall come into force at once and shall be deemed to have taken effect from the 31st day of December, 1962.
'
2. Removal of doubts.---(1)
Notwithstanding anything contained in the West Pakistan Muslim Persona! Law (Shariat)
Application Act, 1962 (Shariat) (Amendment) Ordinance, 1963 (West Pakistan Ordinance XXXIX of 1963). The West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act, 1964 (West Pakistan Act XXVIII of 1964) or any other law or any decree, judgment or order of any Court or other authority or any proceeding before any Court or other authority the limited estates in respect of immovable property held by Muslim females under the Customary law shall be deemed to have been terminated with effect from 31st day of December, 1962.
(2) All decrees, judgments, or orders passed in any suit, appeal or other proceedings by any Court or other authority which are inconsistent with the provisions of sub-section (1) shall be of no legal effect and such suits, appeals or other proceedings shall be decided afresh on the application made by a person affected by such decree, judgment or order."
Before passing on to the next subject it might be of some use for completing the picture to mention that a special law of inheritance was also enacted qua grandchildren of Muslim grandparents whose parents had died during the lifetime of their grandparent, in Section 4 of the Muslim Family Laws Ordinance {No. VIII) of 1961 a Central Statute. A challenge to this law as being against Quran and Sunnah, under Chapter 3-A of the Constitution failed on technical ground of jurisdiction, in the case of Federation of Pakistan v. Mst. Farishta [PLD 1981 SC 120].
The enforcement of Muslim Law of Inheritance in accordance with the dictates of the Constitution fell short of the intended purposes and the Customary Law continued to govern some of the questions relatable to succession and alienation by males as well as females. This situation prevailed till 1981 when the Federal Shariat Court ruled in the case of Muhammad Ishaque that the Customary law and its related rules discussed above and referred to in that judgment in particular, were repugnant to the Holy Quran and Sunnah, and in exercise of the power conferred by Article 203-D of the Constitution, the. Customary Law which allowed challenge by collaterals to the alienation of property inherited under Custom by a full owner, was declared as ineffective.
Necessary amendment in the Muslim Personal Law (Shariat) Application Act, 1962 was directed to be made by 30th of June, 1981. It was however clarified that this declaration would not affect any rule regarding the right of reversioners to challenge any alienation made by female holders of limited estates before the enforcement of the said Act of 1962 which put an end to all limited interests as the considerations regarding thereto were different.
The Federation of Pakistan preferred an appeal from the judgment of the Federal Shariat Court before the Shariat Appellate Bench ,of this Court which was dismissed on 17th May, 1982. The decision is reported as The Federation of Pakistan v. Muhammad Ishaque. The direction of the Federal Shariat Court for amendment of the relevant law was upheld . However further time was allowed for making the amendments till 20th June, 1983. We have not been informed whether any amendment has been made in any other Province but a law has been enacted in pursuance of the said decisions of the 'Federal Shariat Court and the Supreme Court of Pakistan, in the Punjab. It is Muslim Personal Law (Shariat) Application Act (The Punjab Amendment Ordinance No, XIII) of 1983, which has already been reproduced. It has added Section 2-A to the Act V of 1962.
Before discussing the implications of- the new Punjab law, it would be appropriate to mention that by item No. 11 2nd Schedule of Federal Laws (Revision and Declaration) Ordinance (No. XXVII) of 1981 PLD 1982 Central Statutes 12, an amendment was made in Section 5 of the Punjab Laws Act IV of 1872 as follows:--- "11. The Punjab Laws Act, IV of 1872.-(1) In Section'5,
(i) in clause (a), for the words "Any custom" the words and comma 'Where the parties are not Muslims, any custom" shall be substituted; and
(ii) in clause (b), the words gnd commas "the Muhammadan law, in cases where the parties are Muslims, and" shall be omitted."
By virtue of Section 3 of this Ordinance, the repeal by this Ordinance shall not affect the previous operation of any law so repealed.
All the learned. Counsel while interpreting the latest Punjab law of 1983 have tried to point out certain omissions, technical or otherwise, shortcomings and/or so-called defects in this law. Be that as it may, it has undoubtedly achieved the major object contained in the directions of the Federal Shariat Court and the Supreme Court in the aforecited two judgments. It is highly important to note that in the opening clause of the newly-added Section 2-A (to Act V of 1962) it has been made absolutely clear that notwithstanding anything to the contrary contained in Section 2 of 1962 Act "or any other law for the time being in force"; and further, notwithstanding "any custom or usage or decree, judgment or order of any Court", the governing law shall be Muslim Personal Law (Shariat); if, any male "heir" had "acquired" any agricultural land under custom before the application of Act IX of 1948 on 15th March, 1948; provided the person from whom the said heir had acquired the land, was a Muslim. In order to make it more clear it has been provided that the said heir shall be deemed to have become, upon the said acquisition "an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat)."
Sections 2-A has several implications. It would, amongst others. Lead to the following results insofar as these four case are concerned:-
(a) Wherever a male heir had acquired by way of inheritance (if there is other acquisition also it is not relevant here) agricultural land from any Muslim before 15th of March, 1948 he shall be deemed to be an absolute owner having the power of alienation as enjoyed under the Muslim Law.
(b) The power of alienation, even if it takes place before 15th March, 1948, shall not be controlled by any rule of customary law because the deeming provision makes it clear that the male heir had become 'upon such acquisition' (prior to 15th March, 1948) an. 'absolute owner of such land'.
(c) The foregoing two conclusions and consequences flowing from Section 2-A shall not be controlled by what is contained in any law for the time being in force. This is without any exception.
Thus Section 5 of the Punjab Laws Act IV of 1872 and the Punjab Limitation . Customs Act (No. 1) of 1920 and the Punjab Customs (Power to Contest) Act (No. 11) of 1920 or any other law mentioned in Section 7 of 1962 Act as also similar other laws, even to the extent they were previously held by the superior Courts to be applicable, would not effect the operation of the law enacted and declared in Section 2-A.
(d) The phrase in Section 2 of the 1962 Act; 'subject to provisions of any enactment for the time being in force' and similar other expression in Section 7(2) thereof has lost its purpose and efficacy in these cases though the proviso to Section 3 will not suffer similar erosion insofar as it gives effect to the judgment of the Federal Shariat Court and the Supreme Court regarding the limited estate which were earlier held by females. The same result has been provided in the opening part of Section 2-A. That is, 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 or judgment or order of any Court, the said law shall have operation.
(e) Therefore, this new law has a far- reaching effect. Subject to the provision contained in its sub- clauses (b) and (c) it nullifies all orders, judgments and decrees as also neutralizes custom and usage and further to the extent any law is in conflict with the new law, it overrides the same. In this context, therefore, all rules of custom and all previous laws to the extent they remained alive notwithstanding earlier partial or ineffective repeal and despite the previous decisions of Courts would, be virtue of this new law and to the extent it makes a new provision to the contrary, would lose effect.
(f) The questions of retrospectively in ordinary technical sense is not relevant as this provision itself relates to a period prior to 15.3. 1948 and is being enacted nearly half a century later. Such an operation of this provision would come only in a seeming conflict with Section 6 of the 1962 Act but there can be no hurdle in reading Section 6 in its own context and not affecting the retrospectively inherent in Section 2-A. When both are put in juxtaposition to each other the following two important re-arranged positions of Section 2-A would emerge:
(1) If 'a male heir had before the commencement of the Punjab Muslim Personal Law (Shariat)
Application Act, 1948 ----- acquired any agricultural land under Custom from the person who at the time of such acquisition was a Muslim'.
(2) he 'shall be deemed to have become ------ an absolute owner---- as if such land had devolved on him under the Muslim Personal Law (Shariat)'.
(g) Thus, it will neutralize the effect of Section 6 on 2-A. Not only this, sub-clause (b) of Section 2-A also makes it more clearly retrospective because it not only affects pending suits but also proceedings which have culminated into final decrees. They, if contrary to the purview of the main substantive' provision in `Section2-A or in any way coming in conflict with any of the provisions of the Muslim Personal Law (Shariat) Act, 1962 as amended, would now become inexecutable and of no legal effect under sub-clause (b).
(h) Same is the effect of sub-clause (c) which provides that all suits or other proceedings including the execution proceedings seeking possession of land under such decrees shall abate forthwith.
(i) Notwithstanding the foregoing reading of Section 2-A visualising it in substance as having application prior even to 15th March, 1948 as well and in this sense being retrospective, the proviso to sub-clause (c) thereof clearly excludes its operation insofar as the past and closed transactions are concerned. They, as explained therein would include only those cases where possession of the land has also already been delivered under such decree as is referred to in sub-clauses (b) and (c). To this limited extent, therefore, the inherent retrospectively of Section 2-A has been controlled by the proviso to clause (c).
(j) In the light of the above analysis the provision being of a special character would require interpretation in peculiar context thereof. Therefore, it would not be necessary to examine the further contention advanced at the bar that declaratory legislation, as Section 2-A prima facie appears to be, is ordinarily retrospective - though the examination would lead to the same result.
For the same reason the following cases and other authorities dealing with different facts of retrospectively cited at the bar need not be commented upon in the present discussion: Mst. Fazal Begum v. Hakim All (AIR 1941 Lah. 22); Nuruddin AKhan v. Kitti Baru Bibi (PLD 1952 Dacca 22), Tofazzal Hussain v. The Province of East Pakistan (PLD 1961 Dacca 389): Messrs Dreamland Cinema. Multan v. Commissioner of income-Tax, Lahore (PLD 1977 Lah. 292); Wall Muhammad v.
Additional Deputy Commissioner (PLD 1973 Notes (Lah.) 83); Abid Kalam v. Bashir Ahmad Rana (1984 CLC (Kar) 2997); Province of East Pakistan v. Muhammad Mehdi All Khan (PLD 1959 SC 387); Province of East Pakistan v. Muhammad Hussain Mia (PLD 1965 SC 1); Sayeedur Rahman v. Chief Election Commissioner Dacca (PLD 1965 SC 157); Begum B. H. Syed v. Afzal Jahan Begum (PLD 1970 SC 29); Rafiuddin v. Chief Settlement and Rehabilitation Commissioner (PLD 1971 SC 252): Commissioner of Sales Tax v.
Kruddsons Ltd. (PLD 1974 SC 180); and Federation of Pakistan v. Muhammad Siddiq (1980 SCMR 443). Craies on Statutes Law, 7th Edn., Chapter 15; Crawford's Statutory Construction (1940), p. 107 and Maxwell on .The Interpretation of Statutes, 12 Edn., pp. 224-225.
Before proceeding further it needs to be clarified and emphasised that the question whether a "transaction" (distinguished from "a case"), as used in the proviso to clause (c), is past and closed will depend upon the circumstances of each case; though with one certainty in all cases namely that "possession of such land has already been delivered, under such decree".
(k) Although it can be generally safely assumed that the purview of Section 2-A together with its sub-clause (a) provides substantive law and sub-clauses (b) and (c) together with the proviso to sub-clause (c) provided its procedural content, no hard and fast water-tight rule can be laid down in this behalf because there are elements of either type in the two sets of provisions contained in Section 2-A.
(I) it needs to be clarified here that the word 'acquisition' which has been used twice vis-a-vis "a male heir" in the purview and sub-clause (a) of Section 2A, insofar as the present cases are concerned, would apply to the acquisition through succession, but, whether this word is intended to be applied to other acquisitions by a male 'heir' from a Muslim predecessor, not being relevant in the present four cases, might be examined as and when proper occasion arises.
(m) No hard and fast rule would apply to question of abatement visualised in clause (c). As to whether an appeal, being generally treated as continuation of the suit proceedings, it would abate in cases of alienations, will depend upon the facts of each case. Each case would have to be looked at under the light of the purview of sub-clause (a) of Section 2-A read with sub-clauses (b) and (c) of Section 2-A. For example, although an appeal filed by an aliened might prima facie relate to the question of alienation generally covered by clauses (a) and (b) but he having obtained the right in the property from an 'absolute owner' as declared by this law would in proper cases, be able to assert his right in appeal on the basis of the purview of Section 2-A and thus contrary to abatement and notwithstanding what is contained in clause (b), he might be entitled to pursue and obtain a decree in appeal. But ordinarily the appeals filed by those who had failed to obtain decree for cancellation or setting aside of alienation, depending upon the circumstances of each case, will abate.
(n) In yet another eventuality neither of the two foregoing postulations might be strictly relevant. It can be illustrated by visualising decree, setting aside an alienation covered by sub-clause (b) of Section 2-A, having already been passed and the same being under challenge in appeal. If the Appellate Court had not issued any order staying the execution and accordingly it was executed during the pendency of appeal and the possession also delivered, but notwithstanding the execution the pendency of appeal will keep the dispute alive and it (execution) will remain subject to the result in appeal, a further appeal or revision, if competent. The execution of the decree per se notwithstanding the provision contained in clause (c) might not cause the abatement of the appeal. In such a case the execution of decree and delivery of possession would be subject to and controlled by the provisions of the C.P.C. Relating to the restitution on acceptance of appeal.
(o) It is correct that the newly-enacted Section 2-A does not make any specific and direct provision about a female heir acquiring and holding land as absolute owner, limited owner or maintenance holder but for the time being insofar as these present cases as concerned, even if they are treated as illustrative of various disputes, which would come up for resolution, this omission does not present any difficulty nor it appears to be intended so as to exclude this branch of the litigation from the purview of the existing Act (V) of 1962 read with the newly-added provision to it, namely Section 2-A. When the Act is read as a whole as amended by the Ordinance of 1983, Section 2-A would give extended meaning to the provisions contained in Sections 3, 4 and 5 of the Act of 1962. Section 3 provides that the limited estates held by Muslim female under customary law stood terminated but this termination shall not affect the estates which were kept alive and governed by the law repealed under Section 7 notwithstanding the said repeal. Section 5 again inter alia deals specifically with the females whose estates were terminated under Section 3. It provides that the estate concerned 'shall devolve on such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the full owner and if any such heir has died in the meanwhile his share shall devolve in accordance with Shariat on such persons as would succeed him if he had died F immediately after the termination the life estate ...............
Provided that the share to which a Muslim female holding limited . Estate under customary law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner, shall desolve on her. Read in his context, Sections 3 and 5 would now be a supplement to the newly-added Section 2-A and be treated as its various extensions.
(p) Thus, read two seeming conflicts/omissions would be removed:--
(i) the omission about the female heir would become understandable, because to an extent it 'already stood supplied by Sections 3 and 5 and the remaining gap would be filled by taking into account all the heirs, male or female, of the 'male heir', specified in Section 2-A; and.
(ii) Section 6 would now operate in one way, as an interpretation clause for Sections 3, 4 and 5 as well as for 2-A when all read together. And accordingly they shall have retrospective effect.
(q) It is well-known that the provisions regarding females were interpreted by the superior Courts as implying that notwithstanding the termination of the limited interest in 1962 the previous holding of the estate and interest was subject to the restrictions imposed by the customary law if the origin of the estate or interest was in the customary law. Accordingly the alienations made by them whether in possession of the land as a limited estate or in lieu of maintenance were subject to the challenge by the reversioners of the last full owner. The 1962 Act when terminating the limited interest did not make any major change in this behalf. Not only this the judgments rendered by the two superior Courts (Federal Shariat Court and the Supreme Court in its Shariat Appellate Bench) also kept alive the law relating to the challenge to the alienations made by the females holding limited interest; so as to keep intact and preserve the estate for the benefit of the Muslim (Shariat) Law heirs of the last full owner. Section 2-A has to be interpreted in the foregoing entire context and has to be read and reconciled with Sections 3 and 5 insofar as the females are concerned; as also, the pre-existing Section 2 insofar as the general change in the law was concerned.
(r) The position that develops thus is that a 'male heir' who acquired agricultural land under custom from a Muslim prior to 15th March, 1948 is held to have inherited under the Muslim (Shariat)
Law. His heirs, after his death meanwhile, would be discovered in accordance with the Muslim Law.
They could be male and female heirs. But if a female deriving the limited interest from any such 'male heir' (now under Section 2-A, deemed to be an 'absolute owner. Under Muslim Law' since the time of his acquisition) would not be able to keep any land in excess of her share as an heir under the Muslim law. She will act as a conduit so as to pass the remaining land to the other heirs of such a 'male heir' and so on how low-so-ever. Under the Muslim (Shariat) Law of Inheritance.
This by and large is what has been provided in and emerges out of the combined reading of Sections 3, 4 and 5 now read with Section 2-A. Thus read in this context, the omission in Section 2-A of a female holding an interest in land, is of not much significance.
(s) Out of the other two aspects of the new legislation commented upon at the bar as involving serious defects/omissions, in addition to the one relating to females, which has just been dealt with, one relates to the scope of the word 'acquisition' used twice in the purview of Section 2-A and in sub-clause (a) thereof. For the present no more comment is necessary in these cases except that if this, word would have been definect, it would have been much better. Be that as it,may, whatever the scope of this word in Section 2-A, it definitely includes acquisition by succession/inheritance.
(t) The next omission undoubtedly is so obvious that it cannot be lost sight of even on the assumption that in these cases this omission would not present any serious difficulty. First part of sub-clause (b) of Section 2-A reads as follows:--- "Any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery of possession of agricultural land on such basis shall be void ."
Neither the purview of Section 2-A nor any of its clauses including clause (b) provides any qualification for the words "such an alienation" nor for the words "such basis" as used in above- quoted part of clause (b). The word "such" used here shows that an intervening linking phrase, expression or sentence making the sub-clause consistent inter se has inadvertently been omitted: presumably by way of an innocent drafting or printing mistake. It can be safely assumed that the missing phrase could on the one hand 'qualify "such an alienation" and on the other, it would define "such basis"'. Read in the context of the two judgments of the Federal Shariat Court and the Shariat Appellate Bench of this Court the connotation of 'such an alienation' could include the alienation made by any "male heir" as is referred to in the purview of Section 2-A; and "such basis" could refer to the restrictions on account of which "such an alienation" would be void, if the succession was under Custom and the same had opened prior to 15.3.1948 (as was usually the case under the present law). This could be the only underlying purpose. To an extent it can be achieved in these cases by treating the word 'such' when used for the first time in clause (b), as redundant. Therefore, till the law is amended the Court can act accordingly.
(u) The foregoing interpretation of Section 2-A as also the other provisions of Act V of 1962 when read together, takes into account the object of the Legislation insofar as it has been enacted in pursuance of the judgments of the Federal Shariat Court and the Shariat Appellate Bench of Supreme Court. In case of doubt, difficulty, redundancy or omission, the same have been removed by following the well-established rule laid down by this Court in the case of Muhammad Bashir v. The State (PLD 1982 SC 139); namely, that In such-like situations only that course would be adopted which advances Muslim law and the principles of a Muslim jurisprudence."
4. While, arguing this matter before us the learned counsel for both the parties were found by us to be labouring under an impression that while interpreting the provisions of Section 2-A introduced through Ordinance XIII of 1983 it had been held by this Court in the above-mentioned case that a male heir acquiring any agricultural land under custom before March 15, 1948 from a person who at the time of such acquisition was a Muslim was to 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) but his absolute ownership of such land was to be deemed to be confined to that share of that land which he would have inherited under the Muslim Personal Law (Shariat) from the person from whom he had acquired that land. The said impression entertained by the learned counsel for the parties has, however, been found by us to be unfounded, if not misconceived, because we have failed to find anything in the judgment passed in that case to support such an impression. As a matter of fact what had been held by this Court in that judgment was quite clear and categorical and the relevant passages of that judgment are reproduced here again for clarifying the issue:--- "Section 2-A has several implications. It would amongst others, also lead to the following results insofar as these four cases are concerned:---
(a) Wherever a male heir had acquired by way of inheritance (if there is other acquisition also it is not relevant here) agricultural land from any Muslim before 15th of March, 1948 he shall be deemed to be an absolute owner having the power of alienation as enjoyed under the Muslim Law. (b) The power of alienation, even if it takes ,place before 15th March, 1948, shall not be controlled by any rule of customary law because the deeming provision makes it clear that the male heir had become 'upon such acquisition' (prior to 15th March, 1948) an 'absolute owner of such land',
(c) The foregoing two conclusions and consequences flowing from Section 2-A shall not be controlled by what is contained in any law for the time being in force. This is without any exception.
Thus Section 5 of the Puniab Laws Act IV of 1872 and the Punjab Limitation Customs Act (No. 1) of 1920 and the Punjab- - Customs (Power to Contest) Act (No. 11) of 1920 or any other law mentioned in Section 7 of 1962 Act as also similar other laws, even to the extent they were previously held by the superior Courts to be applicable, would not effect the operation of the law enacted and declared in Section 2-A.
(r) The position that develops thus is that a 'male heir' who acquired agricultural land under Custom from a Muslim rior to 15th March, 1948 is held to have inherited under the Muslim (Shariat)
Law. His heirs, after his death meanwhile would be discovered in accordance with the Muslim Law.
They could be male and female heirs. But if a female deriving the limited interest from any such 'male heir' (now under Section 2-A, deemed to be an 'absolute owner under Muslim Law since the time of his acquisition) would not be able to keep any land in excess of her share as an heir under the Muslim law. She will act as a conduit so as to pass the remaining land to the other heirs of such a 'male heir' and so on how low-so-ever, under the Muslim (Shariat) Law of Inheritance. This by and large is what has been provided in and emerges out of the combined reading of Sections 3, 4 and 5 now read with Section 2-A. Thus read in this context, the omission in Section 2-A of a female holding an interest in land, is of not much significance."
(Underlining and italics have been supplied for emphasis) .
This interpretation of Section 2-A introduced through Ordinance XIII of 1983 was followed. By this Court in the case of Hakim A.I and others v. Barkat Bibi and others (1988 SCMR 293) in the following words:- "4. While this appeal was pending, the West Pakistan "Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 came into force. The Ordinance inserted a new Section as Section 2-A in the West Pakistan Muslim Personal Law (Shariat). Act, 1962. It 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); As its very language suggests, this Section has retrospective effect. That being so, by operation of Clause (a) Mauia Bakhsh has to be treated as one who at the time of his death was governed the Muslim Personal Law. Consequently, the validity of the Will now requires to be examined in the light of the Muslim Personal Law and not in accordance with the rule of Custom. Now, admittedly, under the Muslim Personal Law Mst. Barkat Bibi was one of his heirs. She could not take advantage of the Will without the consent of the other heirs. It was nobody's case before us that the other heirs of Maula Bakhsh had at any time consented to the Will in her favour. Consequently, the claim of Mst.
Barkat Bibi to the land in dispute on the basis of the Will must be rejected."
1990 SCMR 1667) a similar interpretation of Section 2-A introduced through Ordinance XIII of 1983.
Had been handed down by this Court in the following terms:-- "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 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 or 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."
As is clear from the purview of the above reproduced provision, Nawahi Dad shall be deemed to have become absolute owner of the land which he inherited from his father Dauloo as if the said land had devolved on him under the Muslim Personal Law (Shariat). Accordingly his widow Mst.
Husainan being only a limited owner could not have alienated by way of gift the property beyond her share under the Islamic Law of inheritance as a widow. Out of excess area gifted by her the plaintiffs/respondents being the heirs of Nawahi Dad under Muslim Law as residuaries have rightly been given their due share. That being so this appeal merits to be dismissed on this ground."
PLD 1991 SC 582) a similar approach towards Section 2-A introduced through Ordinance XIII of 1983 was adopted and it was observed as follows:--- ------------- 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 the entire property the fact remains that 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 SCMR 166) 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 sub-section (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 repel the contention raised by the learned counsel that Section 2-A entirely deals with certain alienations and/or decrees."
Thereafter in the case of Muhammad Yousaf through Legal Heirs and 2 others v. Mst. Karam Khatoon through Legal Heirs and 2 others (2003 SCMR 1535) the same view of Section 2-A introduced through Ordinance Xlll of 1983 had been taken and it was observed as under:-- "8. From the aforesaid discussion, it appears that the principles of Muslim Law were applicable even prior to 1951 when rule of Shariat was enforced in Bahawalpur State. Even if, we do not enter into the interpretation of repealed Section 5 of the Punjab Laws Act, still, after 1951 the matter of inheritance in Bahawalpur State shall be governed by Bahawalpur Shariat Application Act of 1951 and thereafter by West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. The same was repeatedly held by this Court. The matter has further been clarified by bringing an amendment in West Pakistan Muslim Personal Law (Shariat) Application Act 1962 with the insertion of Section 2A through the Punjab (Amendment) Ordinance, 1983 that runs as follows:-- "2A. 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) Act;
(b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or 'directing delivery of 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; and
(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."
This amendment has settled the matter once for all to the effect that in matters of inheritance etc. The rule of law shall always be Muslim Personal Law and that it would be with retrospective effect.
In Hakim A.I v.
Barkat Bibi (1988 SCMR 293) the Section aforesaid was declared to be having retrospective effect, 'being clear from the very language used. An elaborate discussion was further made- by this Court in Abdul Ghafoor v. Muhammad Shafi (PLO 1985 SC 407) where the retrospectively of Section 2A was absolutely determined.
9. A cursory glance over the Section aforesaid is most likely to give an impression that the right involved is sanctioned to a male heir alone. It does not appeal to common sense that a drastic enforcement of Shariat Law would exclude a rightful female and would favour male heirs alone.
This matter also had been dealt with by this Court in Abdul Ghafoor (supra). It was observed that a male heir who acquired agricultural land under custom from a Muslim prior to 15th March, 1948 would be held to have inherited under Muslim Law. His heirs would be discovered in accordance with the Muslim Law. Such heirs could be male as well as female. If a female derives limited interest from any such male heir (having become absolute owner, under Section 2A), would not be able to keep land in excess of her Sharai share under the Muslim Law. She will act as a conduit to pass the remaining land to the other heirs of such a male heir. This Court had further observed that the conclusion aforesaid emerges out of the combined reading of Sections 3, 4 and 5 read with newly- added Section 2A. If so read together, the omission in Section 2A of a female, is of not much significance."
The next in the line of cases adopting the above-mentioned interpretation of Section 2-A introduced through Ordinance XIII of 1983 was the case of Muhammad Anwar and 2 others v.
Khuda Yar and 25 others (2008 SCMR 905) wherein it had been observed by this Court as follows:-- - "5. There is no cavil with the proposition that Section 2-A of the Act being retrospective in effect, last male holder had to be treated as one who at time of his death was governed by the Muslim Personal Law and resultantly his legacy will be devolved in accordance with Muslim Personal Law/Sharia. In this regard reference can be made to cases titled Hakim All v. Barkat Bibi (1988 SCMR 293), Muhammad Qasim Khan v. Mehboba (1991 SCMR 515), Fazal Nishan v. Ghulani Qadir (1992 SCMR 1773), Retina's Digest of Customary Law and Federation of Pakistan v. Muhammad 'shag (PLD 1983 SC 273), Abdul Ghafoor v. Muhammad Shafi (PLD 1985 SC 407), Ismail and another v. Ghulam Qasir (1990 SCMR 1667) and Lal and 3 others v.
Rehmat Bibi and another (PLD 1991 SC 582)."
The interpretation of Section 2-A introduced through Ordinance XIII of 1983 advanced and adopted in the cases mentioned above had also been followed. In the case of Muhammad Hussain and others v. Muhammad Shafi and others (2008 SCMR 230) and it had been held by this Court as under:-
5. ---------- 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 A.I 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 Pakista n 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 SCMR 1667).
(ii) Lal v. Rehmat Bibi (PLD 1991 SC 582)
(iii) Ghulam Janet (Mst.) v. Ghulam Janet (2003 SCMR 362)
7. On the touchstone of the criterion as discussed hereinabove this appeal has been examined. We are of the considered view that A.I 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 A.I Muhammad and Naathu by means of Mutation No. 695 got recorded 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."
(italics have been supplied for emphasis)
We may observe that the words "hence Section 2-A of the Act would have no application in this case" appearing in the above mentioned judgment might have been a result of some typographical error because the said words neither fitted into the context nor into the result of the decision handed down in that case.
The last in the line of this category of cases was the case of Bashir Ahmad v. Abdul Aziz (Civil Appeal No. 372 of 2005 decided by this Court on 12.03.2009). In the judgment delivered in that case this Court had clearly held as follows:- "9. Once it is settled that rule of inheritance at certain time was custom and some person acquired the property under custom from a Muslim, he shall be deemed to have become an absolute owner of such land as if such land had devolved on him under the Muslim Personal Law (Shariat) provided such acquisition had occurred prior to the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948. Such devolution has been declared absolute by Section 2-A of The West Pakistan. Muslim Personal law (Shariat) Application Act, 1962, the relevant portion of which is reproduced as under:- "[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 Mt, 1948 a male heir had acquired any agricultural land under custom from the person who at the time on such acquisition was
(a) he shall be deemed to have became, upon such acquisition an absolute owner of such land, as f such land had devolved on him under the Muslim Law (Shariat):
(b) (c)
10. In the instant case it has sufficiently been proved through oral as well as documentary evidence that the rule of inheritance at the relevant time was custom. Once inheritance had devolved under such custom and prior to 1948, the person acquiring such Agricultural land becomes absolute owner thereof."
5. The case of Mst. Ghulam Janat and others v.
Ghulam Janat through Legal Heirs and others (2003 SCMR 362) has been found by us to be the only reported case of this Court wherein although the above-mentioned interpretation of Section 2-A introduced through Ordinance XIII of 1983 had been generally followed yet a critical addition had been made thereto with the following observations:--- "6. Learned counsel for the petitioners argued that the effect of Section 2-A "bid was not to reopen the inheritance of the last male owner which took place when the West Pakistan Muslim Personal Law (Shariat) Application Act, 1948 had not been enforced whereas it only declares that any person who had inherited agricultural land before coming into force of 1948 Shariat Application Act would be deemed to be the full owner thereof. He argued that the intention of the law was to remove the limitations on the power of such a person of alienation of the land which he had inherited under custom and nothing else.
7. We are afraid, the argument in our considered view is not tenable as it is contrary to the intention and spirit of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and The Punjab (Amendment) Ordinance, 1983.
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 Muslimi.
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 !Imitations on his owers 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."
(underlining and italics have been supplied for emphasis] We may observe with profound respect that the words "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" appear to have been added in the said judgment out of nowhere as they neither drew support from the provisions of ' Section 2-A introduced through Ordinance XIII of 1983 nor from any interpretation of Section 2-A rendered in any previous judgment of this Court.
6. In view of an apparent conflict of opinions expressed by this Court in the case of Mst. Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others (supra) on the one hand and all the other cases mentioned above on the other vis-a-vis interpretation of Section 2-A introduced through Ordinance XIII of 1983 this Special Bench, has been constituted and called upon to render a determinative finding in that regard and to set the controversy and conflict in that respect at rest.
Before proceeding further in the matter we would like to reproduce the full text of Ordinance XIII of 1983 which reads as follows:- "ORDINANCE XIII OF 1983 WEST PAKISTAN MUSLIM PERSONAL LAW (SHARIAT) ACT (AMENDMENT) ORDINANCE, 1983 An Ordinance further to amend the West Pakistan Muslim Personal Law (Shariat) Act, 1962 [Gazette of Punjab, Extraordinary, 1st August, 1983] No. Legis. 3(13)/83.---The following Ordinance by the Governor of the Punjab is hereby published for general information:- Preamble.--- Whereas it is expedient to amend the West Pakistan Muslim Personal Law (Shariat)
Act, 1962 to bring it in conformity with the Shariah in the manner hereinafter appearing; Now, therefore, in pursuance of the Proclamation of fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C.M.L.A. Order No. 1 of 1977) and the Provisional Constitution Order, 1981 (C.M.L.A. Order No. 1 of 1981), the Governor of the Punjab is pleased to make and promulgate the following Ordinance:
1. Short title and commencement.---(1) This Ordinance may be called the West Pakistan Muslim Personal law (Shariat) Act (Amendment)
Ordinance, 1983.
(2) It shall come into force at once,
2. Amendment of West Pakistan Act V of 1962.- "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 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."
For the purposes of understanding the true scope, effect and application of the said Ordinance we have attended to each and every word of the same quite carefully and have observed that, according to the Preamble to the said. Ordinance, the purpose of introduction of that legislation was "to amend the West Pakistan Muslim Personal Law (Shariat)
Act, 1962 so as to bring it in conformity with the Shariah in the manner hereinafter appearing." It is, therefore, quite clear that the effort made by the said Ordinance was to bring the Act of 1962 in conformity with the Shariah but the "manner" chosen for achieving that object was the one provided for in that Ordinance and, thus, any other mode conceivable for achieving the same object was meant to be ignored or disregarded and the purpose was to be achieved only in the manner specified in that piece of legislation. The next thing noticed by us is that the provisions of the newly introduced Section 2-A through that piece of legislation were to have their effect "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". This shows that what the new legislation wanted to achieve was that successions prior to Act IX of 1948 were meant to be governed only by the freshly introduced Section 2-A introduced through Ordinance XIII of 1983 and not by any other law or judicial intervention or interpretation. It is but obvious that by introducing Ordinance XIII of 1983 the legislature intended to put to rest all controversies and litigation in respect of successions prior to Act IX of 1948 and to hold for all times to come that all such successions were to be governed and covered by the freshly introduced Section 2-A. It was in that background that Section 2-A introduced through Ordinance XIII of 1983 had categorically provided that .......................... "where before the commencement of the Punjab Muslim Personal Law (Shariat) 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).................
7. It is abundantly clear to us that Section 2-A introduced through Ordinance XIII of 1983 was meant to cover all successions prior to introduction of Act IX of 1948, i.e. All successions before March 15, 1948; it dealt with only male heirs; and it was restricted to only those male heirs who had acquired any agricultural land under custom from a person who at the time of such acquisition was a Muslim. In plain terms Section 2-A introduced through Ordinance XIII of 1983 was meant to be applicable to only those male heirs who had acquired some agricultural land from a Muslim before March 15, 1948 and such acquisition had come about under the customary law of inheritance. According to Section 2-A introduced through Ordinance XIII of 1983 such a male heir acquiring any agricultural land under the customary law of inheritance from a Muslim was to 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). It is of paramount importance to notice that the words used in Section 2-A introduced through Ordinance XIII of 1983 were "had acquired" and "such acquisition" and the person so acquiring was to become an absolute owner of "such land" as if "such land" had devolved on him under the Muslim Personal Law (Shariat). It is quite clear to us that what the legislature had intended was that the entire agricultural land acquired by such person under the customary law of inheritance was to be recognized as under his absolute ownership as if such acquisition had come about under the Islamic law of inheritance and nothing in Section 2-A introduced through Ordinance XIII of 1983 has been found by us to be conveying any meaning that such person was to be deemed to have become an absolute owner of only that part of the acquired land which would have otherwise devolved on him as his share of inheritance under the Islamic law of inheritance. The deeming provision contained in clause (a) of Section 2=A introduced through Ordinance XIII of 1983 in fact covered the entire acquisition and the entire land acquired and was never meant to be restricted to some portion or share of the acquired land, It appears to us that the intention of the legislature was that the entire devolution on the basis of the customary law of inheritance was meant to be saved by Section 2-A and such devolution, in its entirety, was meant to be deemed to have been under the Islamic law of inheritance.
8. We have carefully gone through the first category of cases detailed above and have found that the interpretation of Section 2-A introduced through Ordinance XIII of 1983 recorded in the judgments delivered by this Court therein was identical to the one advanced by us above. The judgment passed by this Court in the case of Mst. Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others (supra) had, however, struck a different note and we observed in utmost humility and with great respect that the question of devolution of only share of inheritance was imported in that judgment without the express words of the statute even hinting at such an effect. It can, thus, be said that such a judicially conjured or contrived adjunct or supplement in fact ran contrary to the very spirit as well as the express words of Section 2-A which had quite explicitly talked about the entire acquisition and the entire land to be deemed to have come in the absolute ownership of the person who had acquired the same under the customary law of inheritance. In our humble view and discernment in the first category of cases mentioned above this Court had understood, captured and applied the true spirit of Section 2-A introduced through Ordinance XIII of 1983 and that view appears to us to be a correct view which is to be followed. We may add that the said view and interpretation of clause (a) of Section 2-A was also fortified by the language of clauses (b) and (c) of Section 2-A which categorically excluded any application or execution of "any decree, judgment or order of any Court affirming the right of any reversioner under custom usage" and went on to save all the acquisitions of lend under the customary law of inheritance even if such acquisitions Were contrary to the Islamic law of inheritance
9. It is a universally recognized principle of interpretation of statutes that where the plain language of a statute admits of no other interpretation then the intention of the legislature conveyed through such language is to be given its full effect. It appears that in the case of Mst. Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others (supra) that principle had been departed from. The plain language of Section 2-A and its clauses clearly provided that an acquisition by a male heir from a Muslim under the customary law of inheritance before March 15, 1948 was to be deemed to be an acquisition devolving upon the recipient under the Islamic law of inheritance. In other words, if we may venture to observe so, such an unIslamic acquisition had, through legal fiction, been Islamized by the legislative intervention so as to remove any confusion and to bring an end to an otherwise unending litigation on the subject. It appears that in the case of Mst. Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others (supra) such Islamization of otherwise un-Islamic acquisitions had troubled or irked this Court and, thus, through the means of interpretation some words were read by this Court in Section 2-A introduced through Ordinance XIII of 1983 in order to apply Islamic law of inheritance to such acquisitions which reading in had not only committed violence upon the letter and spirit of Section 2-A but had also contributed towards creating complications and generating further litigation. Under the scheme of the Constitution of the Islamic Republic of Pakistan, 1973 Islamization of laws lies in the exclusive domain and jurisdiction of the Federal Shariat. Court and the Shariat Appellate Bench of this Court and by virtue of Article 203G of the Constitution no Court or Tribunal, including the Supreme Court and a High Court, can entertain any proceeding or exercise any power or jurisdiction in respect of any matter which lies within the power or jurisdiction of the Federal Shariat Court or the Shariat Appellate Bench of this Court. It is, thus, obvious that what this Court coulr1 not athieve directly was also impermissible to be achieved indirectly. From the plain language of section 2- A and the evident spirit of the provisions of Ordinance XIII of 1983 it is quite obvious that all such acquisitions under the customary law of inheritance were to be deemed to be Islamic conferring absolute ownership of all the land so acquired and through any laboured judicial interpretation such absolute ownership of the whole land acquired could not be reduced or restricted to a share of the land thus acquired.
10. For what has been discussed above we have entertained no manner of doubt that by virtue of Section 2-A introduced 'through Ordinance XIII of 1983 a male heir acquiring any agricultural land in the Province of the Punjab before March 15, 1948 under custom from a person who at the time of such acquisition was a Muslim was to be deemed to have become, upon such acquisition, an absolute owner of the entire land acquired by him as if such land had devolved on him, under the Muslim Personal Law (Shariat).
11. In view of the conclusions arrived at by us above the entire land acquired by Murad through Mutation No. 4536 attested on 29.10.1944 under the customary law of inheritance was to be deemed to have been acquired by him under the Muslim Personal Law (Shariat) and, thus, Mst.
Bano's suit filed against that acquisition had to fail and the learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan was quite justified in holding so. However, as regards Murad's suit filed against Mutation No. 5631 attested on 28.02.1959 in favour of Mst. Sehati and Met.
Bano the said suit should also have failed because the land subject-matter of that mutation had never been formally "acquired" by Murad before March 15, 1948. Section 2-A introduced through Ordinance XIII of 1983 was applicable only to those acquisitions of agricultural land which acquisitions had come about prior to March 15, 1948 and in the case of the land subject-matter of Mutation No. 5631 there was no formal acquisition of that land by Murad till attestation of that mutation on 28.02.1959 and, thus, after March 15, 1948 the said land could have devolved upon the heirs of Lai deceased only under the Islamic law of inheritance and not under the customary law of inheritance which by then had become extinct. In this view of the matter the suit filed by Murad challenging Mutation No. 5631 attested on 28.02.1959 was liable to be dismissed.
12. The learned counsel for the legal heirs of Mst. Bano has tried to argue that as a matter of fact the parties to these cases were governed by the Islamic law of inheritance and not by the customary law of inheritance but we have found that leave to appeal had not been granted to consider this aspect of the matter and, even otherwise, no evidence had been brought on the record to establish that the immediate family of Lal deceased was governed by the Islamic law of inheritance. As if this were not enough, the learned counsel for both the parties had made a statement before the learned Trial Court on .05.04.1975 admitting that the parties to these cases were governed by the customary law of inheritance. In these circumstances we have not allowed this aspect of the case to detain us any further.
13. As a sequel to the discussion made above the suit filed by Mst. Bano (Suit No. 177/1007 of 1974/1980) has been found by us to have rightly been dismissed by the learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan on 24.09.2001 and, resultantly, Civil Appeal No. 718 of 2002 is dismissed but Civil Appeal No. 719 of 2002 is allowed, the impugned judgment passed by the learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan on 24.09.2001 decreeing the suit filed by Murad (Suit No. 423/1006 of 1973/1980) is set aside and the said suit is dismissed.
Sd/- (Asif Saeed Khan Khosa) Judge For the reasons recorded in a separate note I partially agree with the judgment authored by my learned brother Mr Justice Asif Saeed Khan Khosa.
Sd/- (Ejaz Afzal Khan, Judge I agree with the separate note prepared by my learned brother Ejaz Afzal Khan, J Sd/- (Ijaz Ahmed Chaudhry) Judge I have had the privilege of perusing the proposed judgment authored by my learned brother Asif Saeed Khan Khosa, J., as well as the separate note prepared by my learned brother Ejaz Afzal Khan, J., I am in complete agreement with the proposed judgment authored by my learned brother Asif Saeed Khan Khosa, J Sd/- (Gulzar Ahmed) Judge I agree with the proposed judgment authored by my learned brother Asif Saeed Khan Khosa, J.
Sd/- (Muhammad Ather Saeed) Judge EJAZ AFZAL KHAN, J. --- I have gone through the judgment authored by my learned brother, Mr. Justice Asif -Saeed Khan Khosa. He has discussed in detail the ratio of different judgments reproduced above and their bearing on the cases under consideration, I agree with the interpretation my learned brother placed on Section 2-A of the Amending Ordinance XIII of 1983, inasmuch as it is in line with the interpretation placed thereon in the judgments rendered in the cases of "Abdul Ghafoor and others v. Muhammad Shafi and others (supra), Hakim A.I v. Barkat A.I and others (supra) and Muhammad Ismail and others v. Ghulam Qadir and others (supra), but not the conclusions drawn therefrom. While going through the judgments cited at the bar and many others, t noticed that more relevant are the provisions of the Punjab Laws Act, 1872 than those of Act IX of 1948 and Ordinance XIII of 1983 but surprisingly they have not been appreciated and interpreted in their correct perspective . Since the Act also held the field during the years the propositus of the parties died, a thorough examination of its provisions would be necessary to appreciate and interpret them in their correct perspective. A look at its preamble would reveal that this law was primarily enacted to enunciate the rule of decision in questions regarding succession etc. Section 5 of the Act, which is relevant in these cases, provides that in questions regarding succession, special property of females betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relation, will, gift, partition or any religious usage of institution, the rule of 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;
(b) the Muhammadan Law in case where the parties are Muhammadan and the Hindus Law in case where the parties are Hindus, except so far as such law has been altered or abolished by legislative enactment or is opposed to the provision of this Act or has been modified by any such custom as is above-referred to.
2. Custom, according to the said Section, could only be the rule of decision if it is not contrary to justice, equity and 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 other competent authority. It provided that the rule of decision in questions regarding succession etc. Shall be the Muhammadan Law where the parties are Muhammadans. Now the question arises whether a Muhammadan has been given a freedom to choose either custom or the Muhammadan Law as the rule of decision in questions regarding succession etc. Section 5(b) of the Act provides the answer to the question which clearly and unequivocally says that the rule of decision in questions regarding succession etc. Shall be the Muhammadan Law where the parties are Muhammadans. It is, however, believed and fallaciously so that before a Muhammadan claims to be ruled by Section 5(b) of the Act, he has to swim across the river of custom flowing in-between Section 5(a) and 5(b). But the fact is that a Muhammadan straightaway lands in the domain of Section 5(b). The words "the rule of decision shall be the Muhammadan Law in case where the parties are Muhammadan" sounding mandatory in their tone and tenor, leave no other option with a Muhammadan, but to submit to the Muhammadan Law. In a marked contrast to that custom, in the first instance, stands altered and abolished by 5(b) of the Act. If at all it lurks in any corner, it has to pass through the crucible of justice, equity and good conscience to qualify itself as a rule of decision in questions regarding succession etc. What is "justice", what is "equity" and what does the expression "good conscience" mean? The word "justice" according to the ordinary dictionary, means "the quality of being just; just treatment; fairness; fair play; evenhandedness and propriety. The expression "equity", according to Black's Law Dictionary means "justice administered according to fairness as contrasted with the strictly formulated rules of common law", it also denotes the spirit and habit of fairness, justness and right dealing which would regulate the intercourse of men with men. The expression "good conscience" is held to be a synonym of equity. In law, this means probity, justice and honest dealing between man and man.
3. Custom in these cases stands for a rule of decision in the matters of succession which excludes female co-heirs from succession to agricultural property left by their propositus. As it excludes the female co-heirs from succession, it is shorn of the quality of being just, just treatment, fairness, fair play, evenhandedness, right dealing, justness and probity are the virtues which would never uphold a custom with such attributes. Therefore, custom which fails to pass through the crucible of justice, equity and good conscience cannot qualify itself to be a rule of decision in question regarding succession etc.
4. The words "has not been this Act or any other enactments altered or abolished" too are quite meaningful. They not only have the effect of altering or abolishing the custom, but have in fact altered and abolished it. The words "except so far as such law has been altered or abolished or Is opposed to the provision of this Act" appearing in 5(b) of the Act, when read carefully leave no scope for custom to hold the field. It is, indeed, the Muhammadan Law which alone would reign supreme; firstly because it is not opposed to any of the provisions of the Act and secondly because no legislative enactment has altered or abolished it till its repeal by Act IX' of 1948. The words "has been modified by any such custom as is above-referred to" appearing in the concluding part of 5(b), too, are by no means, less meaningful. These words have a reference to a custom, which, in the first instance, is not contrary to justice, equity and good conscience and then has not been by this or any other enactment altered or abolished. There is, however, not even a single word in the whole Act which could even remotely suggest that custom has modified or tended to modify the Muhammadan Law. There is also nothing in the Act which raises or tends to raise a presumption in favour of custom. It is, therefore, not correct to say that succession to agricultural land taking place under the Act would mean succession under custom.
5. In the case of Daya Ram v. Sohel Singh (1906 Punjab Report page 59), though the Lahore Chief Court did not examine in detail the provisions of the Act in general and Section 5 in particular yet the ratio of the judgment is not far off their letter and spirit. The relevant paragraph merits a look which reads as under:--- "It has sometime apparently been assumed that because in Section 5 of the Punjab Laws Act; clause (a) which deals with custom conies first, and clause (b), which treats of personal law, comes second that some peculiar preference of custom as opposed to personal law is indicated.
This appears to me to be quite fallacious. In all cases it appears to me under this Act, it lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove that the particular custom is. There is no presumption created by the clause in favour of custom on the contrary, it is only when the custom is established that it is to be the rule of decision. The Legislature did not show itself enamoured of custom rather than law nor does it show any tendency to extend the 'principles' of custom to any matter to 'which a, rule of custom is not clearly proved to apply. It is not the spirit of Customary Law, nor any theory of custom, or deductions from other customs which is to be a rule of decision, but only 'any custom applicable to the parties concerned 'which is not ....And it, therefore, appears to the clear that when either party to a suit sets up "custom" as a rule of decision, it lies upon him to prove the custom which he seeks to apply; if he fails to do so clause (b) of Section 5 of the Laws Act applies, and the rule of decision must be the personal law of the parties subject to the other provisions of the clause. It is not sufficient to show that in regard to certain other matters the parties are governed by, customs."
6, In the case of Muhammad Jan and another v.
Rafiuddin and others (PLD 1949 PC 18) the Privy Council by approving the judgment rendered in the case of Daya Ram v. Sohel Singh (supra) affirmed that there is no presumption in favour of custom and thus restored the decree passed by the District Judge on the basis of Muhammadan Law. The relevant paragraph reads as under:- "It was at one time held by the Courts in the Punjab that the effect of S. 5, Punjab Laws Act, 1872, was to make custom the primary law of the Punjab in relation to matters specified in that Section and to cast upon anyone alleging that he was governed by personal law the burden of so proving. But in a Full Bench decision of the Punjab Chief Court, reported in the Punjab Records Vol. 41, p. 390, this view was dissented from and in the judgment of Robertson J., it was laid down that it lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove what the particular custom is, and that there is no presumption created by the Section of the Act in question in favour of custom. The principle of this decision was expressly approved by this Board in Abdul Hussain Khan v. Bibi Sona Dero, 45 I. A., p. 10 where the material passage of the judgment of Robertson J., was quoted in extenso. It must, therefore, be accepted that in the Punjab the burden lies upon those who assert that they are governed by custom to prove the fact, and, to establish the particular custom, and if such evidence is not available the parties are governed by their personal law, which: in the present case is the Muhammadan Law."
7. In the case of Abdul Karim and others v.
Ghulam Ghous (PLD 1951 Lahore 386), a Division Bench of the Lahore High Court after considering a string of judgments repeated the same view, by observing as under:- "It is well-settled that under the provisions of Section 5 of the Punjab Laws Act, the onus lies upon the person asserting that custom should be the rule of decision in regard to a particular matter, to prove that this is so and further to establish what that particular custom is. There is no presumption created by this Section in favour of custom".
8. In the case of Mst. Qaisar Khatoon and 12 others v. Maulvi Abdul Khaliq and another (PLD 1971 Supreme Court 334), this Court by referring to the principle propounded by Robertson, held as under:- "This principle has not since been departed from. The High Court was, therefore, in our view clearly wrong in placing the onus on the plaintiffs, for, the plaintiffs in this case did not allege custom.
Custom was alleged by the defendant, Abdul Khaliq. The onus, therefore, was on him under Section 5 of the Punjab Laws Act, 1872, to prove not only that the family was governed by custom but also to prove the particular kind of custom alleged by him.
9. Regardless of what has been held in the cases cited above, once Section 5 provides that in questions regarding succession etc. The rule of decision shall be the Muhammadan Law in case where the parties are Muhammadans, we are not supposed to look around for anything to force way for custom which in fact stood altered and abolished by the Section mentioned above. It was held as back as 1916 in the case of T.G. Bhoja v. G. J. Thakur (AIR 1916 PC 182) that where the terms of a Statute or Ordinance are clear even a long and uniform course of judicial interpretation of it may be overruled if it is contrary to meaning of enactment.
10. It was also canvassed at the bar during the course of arguments by the learned counsel for the respondents that the Muhammadan law stood modified by custom. This argument, to say the least, is vacuous both legally and logically, when seen in the light of the words Section 5 is couched in. Even if it be so, it cannot qualify itself to be a rule of decision in questions regarding succession etc. On account of being contrary to justice, equity and good conscience inasmuch as it deprives female co -heirs of their right to inherit from their parents or propositus. I, therefore, rule that a custom which favours grabbing of the whole by a male to the exclusion of female heirs cannot be held to be just, equitable and conscionable by any stretch of imagination.
11. In 1937, the Muslim Personal Law (Shariat) Application Act, 1937 (Act No. XXVI of 1937) was enforced. It re-affirmed the position as to the Application of Personal Law to Muslims. Section 2 is relevant for the purpose of this case. It is thus reproduced as under:- "2. Application of personal Law to Muslims.
Notwithstanding any customs or usage to the contrary in all questions (save relating to agricultural land) regarding intestate, succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, Ha, zihar, lian khula and mubarat, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in case where the parties are Muslim shall be the Muslim Personal Law (Shariat)".
12. A bare reading of above-quoted provision would reveal that Personal Law was given overriding effect, on customs or usages to the contrary. It, however, did not touch the agricultural land because the same being a provincial subject was already dealt with by Act IV of 1872,"
13, Then comes the Act of 1948. Though Section 2 is prefaced with non-obstante clause yet it reiterated the same provision incorporated in 5(b) of Act IV of 1872, The purpose behind enacting this law was to rule out the custom Irrespective of the fact whether it was contrary to justice equity and good conscience or otherwise, The law which is next in the sequence is the Punjab Muslim Personal Law (Shariat) Application Act, 1962. This Act once again incorporated the same provision with slight amendment. Relevant provision is Section 2 which is reproduced as "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 bastardy, family relations, wills, legacies, gifts, religious usages or institutions, including waqfs, trusts and trust properties, 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".
14. A cursory glance at the Section would reveal that the legislature made no significant addition except the words "subject to the provision of any enactment for the time being in force." Section 3 of the Act provided for termination of limited estate in respect of immovable property held by Muslim female under customary law.
15. In 1972, the Punjab Muslim Law (Shariat) Application (Removal of Doubts) Ordinance No. IX of 1972 was promulgated. It has already been reproduced above. The purpose behind this Ordinance was to remove the doubts arising in the previous enactments. Section 2(1) reiterated what was provided by Section 3 of the Punjab Muslim Personal Law (Shariat) Act, 1962, In Section 2(2) it provided that all decrees, judgments or order passed in any suits, appeals or other proceedings by any Court or other authority which are inconsistent with the provision of subsection (1) shall be of no legal effect and such suits, appeals or other proceedings shall be decided afresh on the application made by a person affected by such decrees, judgments or orders, 16, In 1983, West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 (Ordinance XIII of 1983) was promulgated. The purpose behind this Ordinance as far as it can be gathered from its preamble was to amend the West Pakistan Muslim Personal (Shariat) Application Act, 1962 to bring it in conformity with the Shariat. The main provision of the Ordinance is Section 2-A which for the facility of reference is reproduced below:--- "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 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".
17. A perusal of the above-quoted Section would reveal that it has done away with the restrictions imposed on alienation by a rule of customary law. A person inheriting agricultural land from a Muslim shall be deemed to be an absolute owner, having the power of alienation as is enjoyed by an heir inheriting under Muslim Law. Power of alienation, even if it takes place before 15th of March, 1948, shall not be controlled by any rule of customary law. It provided for abatement of suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree. It also provided that any decree, judgment or 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. It, however, protected the transaction past and closed where possession of such land has already been delivered under the decrees. But it nowhere approved and approbated custom as the rule of decision in the matters pending in one Courts. Nor did it lay its hand off a dispute of such a nature to give a walk over to custom as the rule of decision without examining its credentials on the touchstone of justice, equity and good conscience.
18. Then comes the factual aspect of the cases under consideration. According to Murad, the predecessorin-interest of the respondents, the rule of decision in questions regarding succession etc. Was custom. His case is that in the presence of son, females including widows are excluded from succession. The burden in view of Section 5(a) of the Act lay on him to prove that not only he was governed by custom and that the custom he was governed by was just, equitable and conscionable. But he failed to discharge the burden as required. On the contrary, Mst. Bano, predecessor-in-interest of the appellants produced sufficient evidence in the form of mutations showing that the rule of decision in the questions regarding succession etc. Is the Muhammadan Law. Granted that a statement has been made by both the parties admitting that they are regulated by custom but this being against the statute will neither bind them nor prohibit the Court from examining' the viability of the custom in the light of the criteria provided, by the Section itself.
Needless to say, there can be no estopple against statute. When considered in this background, the learned Appellate Court which is the first Court of appeal andfinal Court of fact, rightly held that the parties being Muhammadan shall be ruled by the Muhammadan Law. The view taken by the Appellate Court being correct and close to the letter and spirit of Section 5 of the Act deserves an outright and unconditional restoration.
19. For the reasons discussed above, I allow these appeals , set aside the judgments and decrees of the High Court and restore those of the Additional District Judge, D.G. Khan, with cost.
Decision of the Court
1. With a majority of three against two Civil Appeal No. 718 of 2002 is dismissed upholding the impugned judgment passed by the learned Judge-inChamber of the Lahore High Court, Multan Bench, Multan on 24.09.2001 dismissing the suit filed by Mst. Bano (Suit No. 177/1007 of 1974/1980).
2. With a unanimous decision Civil Appeal No. 719 of 2002 is allowed, the impugned judgment passed by the learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan on 24.09.2001 decreeing the suit filed by Murad (Suit No. 423/1006 of 1973/1980) is set aside and the said suit is dismissed.
Civil .