1. JUSTICE AFTAB HUSSAIN, MEMBER.-This petition challenges the customary succession in the Punjab which is based on the agnatic theory.
2. "(5) 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 in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above-referred to."
3. Now according to the general custom of the Punjab ancestral immovable property held by male owners who are governed by custom, is ordinarily inalienable except for legal necessity or with the consent of male descendants, or in the absence of descendant with the consent of male collaterals of the alienor i.e., persons descended from a common ancestor of the alienor who originally held that land. An alienation effected in violation of these principles was liable to be successfully challenged in a Court of law at the instance of any reversionary heir and any decree passed in favour of the plaintiff was to enure to the common benefit of the entire reversionary body. But this decree did not allow the next reversionary heir to claim possession of the property so alienated, during the lifetime of the alienor. However the next reversionary heir was entitled to claim possession of the property from the alienee after the death of the alienor, and file another suit for the purpose.
4. By operation of section 6 of the Punjab Customs (Power to Contest), Act II of 1920, the right to challenge such alienation was confined to collaterals of the alienor in the fifth or any near degree.
5. The Punjab Custom (Limitation) Act I of 1920, fixed the period of limitation for such suits under custom.
6. One of the general principles of customary law of succession in the Punjab was that the right to succeed enured in favour of male descendants and failing them male collateral who inherited a full estate subject to the right of their descendants or collaterals to challenge as stated above, any alienation of ancestral property. Some of the female descendant ascendants and relatives could also succeed but their succession was confined to a limited interest i.e., till their death, marriage or remarriage, irrespective of whether the property was ancestral or non-ancestral and each item of the property to which they succeed remained subject to the right of the collaterals to challenge any alienation made by them except for legal necessity or with their consent.
7. Customary estate as will be discussed later, is different from the estate in Islam, in so far as Islam confers rights of inheritance of absolute property in the heirs, both male and female and consequently does not recognise the difference between ancestral or non-ancestral property or between male and female heirs. Each heirs gets the portion of the inheritance fixed by Sharia and gets an absolute right to it including the right to dispose it of, according to his free will in case he is major.
8. The first enactment substituting Sharia for custom and applicable to the Punjab was named the Muslim Personal Law (Shariat) Application Act XXIV of 1937, which inter alia provided for succession to all the properties of a Muslim except his agricultural property according to the Muslim Personal Law (Shariat) Agricultural property was exempted from the ambit of the Act and continued to be governed by rules of custom.
9. After the enforcement of the Act of 1937 a question arose whether the property in possession of full or limited owners who had succeeded to it under custom was still subject to the customary rule against alienation. Some such cases are AIR 1943 Lah. 219, AIR 1944 Lah.
121. In the first case which was in respect of at) alienation by a widow, it was held that the right accruing on the date of enforcement of the Act of 1937 could not be said to have been taken away by the enactment of the above Act. In the second case it was held that the Act not being retrospective it could not affect the estate inherited by male descendant or collateral under custom which could remain subject to the customary limitation in respect of the successor's power of alienation.
10. The Privy Council had also held in AIR 1944 P C 27 while interpreting an anaglogous Law (N.-W. F. P.
11. Muslim Personal Law Shariat Act) that; "the effect of the Act is that it has altered the course of succession in so far as to make the ordinary rule of Muhammadan Law applicable and to exclude the operation of custom. Where, therefore, succession opened after the Act came into force, a party cannot rely upon any decision based upon the rules of custom given in his favour before the Act came into force and the succession will be governed by the rule of Muhammadan Law."
12. Section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act IX of 1948 which was enforced on the 15th of March, 1948 extended the Shariat rule of succession in the Punjab to agricultural land too. It inter alia provided that the property of a Muslim shall no longer devolve according to custom ; on the other hand its devolution would be governed by the Muslim Personal Law (Shariat). Similar questions as were raised after the enforcement of Act of 1937 in regard to the restriction on the power of alienation of a Muslim male or female holding estates to which they succeeded under custom, were raised in respect of the scope of Act IX of 1948. It was held by a Full Bench in Muhammad Asghar Shah v. Muhammad Gulsher Khan and another (PLD 1949 Lah. 116) that the Act of 1948 was not retrospective and did not affect the rights of the collaterals and descendants to challenge the alienations made by existing owners for so long as the property does not devolve in accordance with the above Act.
13. The nature of the interest enjoyed by a full owner and his reversionery heirs, as well as the nature of the decree passed in a suit to challenge an alienation was discussed in the following manner by Muhammad Sharif, J.---- "It would be desirable to reiterate the position of a male owner who succeeds under custom. He in the words of Rivaz, J. In 18 P R 1895 at page 77, is a full owner with an interest transmissible to his heirs, lineal or collateral, but that his power of alienation is limited, and liable to be controlled by the heirs, lineal or collateral, as the case may be . . . . . . . . . From this it follows that on the death of a sonless owner, the collateral heirs take the estate from him as his heirs and derive their title to possession of the ancestral land from him and through him from the common ancestor". The learned Judge continues at p. 79: "His right to sue for possession in spite of the last owner's act of alienation, is derived from no individual, but from the customary rules which places a restriction upon the owner's powers of disposition of ancestral property, and renders him liable to be controlled in that respect by his collateral heirs. Such a right never accrued to the alienor himself, and is, therefore, it seems to us, one that cannot be passed on to his successor. The right to sue" for possession appears to us clearly to import something more than the right to possession, and a simple test appears to us to be this ; could the donor in his lifetime have sued to recover possession of the property on grounds similar to those which are the foundation of the present plaintiff's claim 7 In our opinion, he clearly could not have done so, and we cannot, therefore, affirm that the plaintiff has derived his right to sue from the donor.
14. Another peculiarity about the declaratory decree is that the person holding the decree or the entire body of the reversioners then in existence, might never actually succeed when the time came. On the death of the alienor, when a right to possession accrues, none of the reversioners by whom or for whom the alienation was got set aside, might be alive. The possession might be claimed by the descendants of the original reversioners and if there is no one in existence the matter ends and the alienee's possession shall not be disturbed.
15. It might be added that the Act does not by one stroke of pen, convert owners of property with restricted powers of alienation into full and absolute owners whose powers of alienation were wholly unfettered. The Act nowhere says that all Muslim male owners by virtue of the Act become absolute owners in the same sense as would have been if Muhammadan Law had applied and they succeeded in accordance with Muhammadan Law. The estate of a person who took it under customary law would continue to be subject to limitations imposed by it till its devolution is made under the Act of 1948 i.e., after the 15th March, 1948.
16. This view was followed in all subsequent cases. Barkhurdar Shah and others v. Nawaz Shah and others (PLD 1952 Lah. 555), Gulzarin Khan v. Amir Ahmad (PLD 1952 Lah. 1), Khair Din v.
17. Muhammad Hussain (PLD 1961 SC 468) and Khatun v. Mulla (1974 SCMR 34).
18. The Act of 1948 was amended in 1951 in order that section 2 may cover not only intestate succession but testate succession also. A Division Bench of the Lahore High Court referred the following question to a Major Bench; "(i) Whether in a suit by a person claiming to be governed by customary law a decree declaring that an alienation shall not bind the revcrsionery right of the plaintiff can be granted after the passing of the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948).
(ii) Whether such a decree can be passed after the amendment of the Act in 1951."
19. The Full Bench answered both the questions in the affirmative. Bashir Ahmad v. Muhammad (PLD 1956 Lah. 934). It was held that the 1948 Act is not retrospective in its operation and it certainly does not affect the succession which has already taken place in custom, before its enforcement. It was further held that alienations have always been treated as an aspect of succession. This view was reiterated in Itbar Khan v . Muhammad and others (PLD 1959 Lah. 364) and Khatun Alam v.
20. Ghulam Muhammad (PLD 1965 Lah. 73).
21. PLD 1974 Lah. 458). In that case the suit was filed in 1964 to challenge a gift made by Mst. Allan Bibi a limited owner on the 28th of May, 1921. The suit was dismissed as barred under section 7 of the Punjab Custom (Limitation) Act, 1920. The District Judge held that after the repeal of the Act of 1920, the matter was governed by Article 141 of Limitation Act. The second appeal was however, allowed.
22. It was held that the matter is to be decided in accordance with the law of Limitation as in force at the time of institution of the action and not according to law prevailing at the time when the cause of action arose. This principle will not apply where the right to institute that proceeding had become barred on the date when the amended Act was enforced.
23. The principle of law, therefore, is that where a plaintiff or petitioner has lost his right to institute proceeding on the date when some other Act comes into force, that right is not revived by the repeal of statute under which the limitation for those proceedings had expired. Consequently in all those cases in which the period of limitation fixed by the Punjab Custom (Limitation) Act of 1920 had not expired before the repeal of that enactment, the limitation for suit to challenge alienation under custom would be governed by Article 141 of the Limitation Act. Such suits are, therefore, competent despite the repeal of the above-mentioned two Acts of 1920.
24. The present petitioner who is a purchaser of property from a full male owner who had succeeded to that property in custom challenges the vires of the above custom limiting the rights of alienation of the fall owner.
25. Nor does Shariat recognise spes successionis. In Abdul Hussain v. Ghulam Hussain (I L R 30 Bom.
26. 304), it was held :----- "The right of son or daughter or other heir of a person to inherit his property is not an estate in remainder or in reversion in immovable property or an estate otherwise deferred in enjoyment. It is neither a vested nor a contingent right. It does not come within the definition of a vested interest in section 19 of the Transfer of Property Act or of a contingent interest in section 21 of that Act and section 107 of the Succession Act, 1865. So far from being vested or contingent right in present or in future it is in the language of clause (a) of section 6 of the Transfer of Property Act the chance of an heir apparent succeeding to an estate or a mere possibility of succession which cannot be transferred."
27. The law of inheritance is dealt with in the Holy Qur'an in Chapter 4, Verses 11, 12 and 177. The word (Warisahu) is used is 4 : 11, the word (Yooriso) is used in 4:12 and the word (Yarisoha) is used in 4:177.
28. All these words have (Wars) as their root which connotes according to Moajjam-i-Alfaz-i-Qur'ani- Hakeem, Vol. 2, p. 838, 840 (absolute) vesting in the ownership with right to spend it in any manner one likes, like a heir.' Such ownership is not used in a restrictive sense. This is clear from the use of the word (Waris) in connection with Allah `Allah is owner of land and every thing (growing) from it - --rai mallah yatsraf feh layarzat ahad--- and has power to dispose it of without any objection from any one.
29. There is no doubt that the custom referred to above is repugnant to the Holy Qur'an. A declaration to this effect can be given by this Court in view of the Custom being enforceable in law by virtue of section 5 of the Punjab Law Act and its being included in the definition of law in Article 203-B of the Constitution. It may however be clarified that this declaration will not affect any custom regarding the rights of reversioner to challenge alienations made by female limited owners before the enforcement of the West Pakistan Personal Law (Shariat) Application Act, 1962, which put an end to all limited interests. The considerations in that case may be different.
30. The petition is allowed and the custom allowing challenge by collaterals to the alienation of property inherited under custom by a full owner, is declared to be repugnant to the Injunctions of Islam. The necessary amendment in the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, shall be made by the 30th June, 1981.