MUHAMMAD DAUD KHAN, J.-- Through this Revision Petition, the petitioners have challenged the judgment and decree of the learned District Judge, Karak dated 20.09.2004, vide which the judgment and decree passed by the learned Civil Judge-I, Karak dated 04.04.2000 was set aside and consequently petitioners' suit was dismissed.
2. The factual background leading the petitioners to file this Revision Petition is that one Bachagan was the owner of the disputed property. Bacahagn was survived by three sons, namely, Mumtala, Laiq Shah and Gulab Din. Amongst them Mumtala died issueless in the year 1935, leaving behind four widows, namely, Kanzala, Lawang, Paseena and Shogrina. The inheritance mutation (No,4030) of Mumtala was attested on 23-7-1935, in favour of his four widows only, in accordance with the custom (Riwaj) prevailing at that time.
The petitioners/plaintiffs contend that they are the descendants of real brothers of Mumtala and, according to Shari'ah, entitled to 3/4 shares in the legacy of Mumtala. Their main plea is that Mumtala, having passed away as issue less, his widows were jointly entitled to 1/4 shares only; the rest were to be devolved on them. They have challenged Mumtala's inheritance mutation # 4030, attested on 23.07.1935.
3. The defendants contested the suit by submitting written statement, raising therein variety of objections, legal as well as factual. On divergent pleadings of the parties, the learned trial court framed the following issues: ISSUES.
1. Have the plaintiffs got a cause of action?
2. Is the suit within time?
3. Is the suit incompetent in its present form?
4. Is the suit barred by res judicata?
5. Are the plaintiffs stopped to sue?
6. Has not this court got jurisdiction?
7. Is the suit bad for mis joinder and non joinder of parties?
8. Are the plaintiffs entitled to get 3/4 share by inheritance in the legacy of Mumtala died some time before 1935?
9. Relief.
4. The dispute proceeded to the trial, in which both parties produced evidence. The learned trial court decreed the suit of petitioners/plaintiffs vide its judgment and decree dated 04.04.2000. The defendants preferred an appeal against the decision of the trial Court.
5. The learned District Judge, Karak, while accepting the appeal, reversed the judgment and decree of the trial judge and dismissed the suit vide his judgment and decree passed on 20.09.2004. In this revision petition, the judgment and decree of the learned appellate court has been assailed before this Court.
6. Mr. Abdul Mabood Khan Khattak, learned counsel for the petitioners contended that judgment and decree of the Appellate Court is not maintainable because it is against law and facts. The main line of arguments of the learned counsel for the petitioners is that by virtue of N.W.F.P (now K.P.K) Muslim Personal Law (Shariat) Application Act, 1935 and West Pakistan Muslim Personal Law (Shariat) Ap.Plication Act, 1962, the share of the predecessor of the petitioners cannot be extinguished. The reason, he cited, is that both the laws had been given retrospective effect. The learned counsel argued that these laws have been given retrospective effect by the Supreme Court of Pakistan, in several judgments.
7. On the other hand, Mr. Mehboob Khan, learned counsel for the respondents/ defendants, denied the retrospective effect of the said laws. He further argued that the suit is hopelessly time-barred because it was instituted in 1992 and the impugned mutation was attested in 1935. He added that at the time of attestation of the impugned mutation, the N.W.F.P. (now K.P.K.) Muslim Personal Law (Shariat) Application VI of Act 1935, was not promulgated.
8. Arguments of the learned counsel for the parties heard and with their valuable assistance record of the case perused.
9. The fact of relation between the parties is not disputed. In other words, it is admitted that both parties are the descendents of one Bachagan, the real owner of the disputed land. The uncontro- which was instituted in 1992, was time-barred.
12. The basic question in the present us that needs to be resolved is that whether the N.W.F.P Muslim Personal Law (Shariat) Application Act (VI of 1935), has got retrospective effect? The answer to this question will help answer the issue of limitation. Versial pedigree table (EX. PW1/1) of the parties is reproduced below:-- ' As the pedigree table reflects, plaintiffs Safar Khan and Jalat Noor are the grandsons of Gulab Din and Laiq Shah, respectively. Gulab Din and Laiq Shah were the sons of Bachagan and real brothers of Mumtala.
10. It is clear from the impugned inheritance mutation No,4030 dated 23.07.1935 that the entire legacy of Mumtala devolved on his four widows according to custom (riwaj) of the time. According to Islamic Law of Inheritance, the four said widows were entitled only to the extent of 1/4 share. The remaining 3/4 shares were to be distributed amongst other Shari/legal heirs of Mumtala. Perusal of whole documentary record as well as oral evidence reveals that there is nothing which transpires that the legacy of Mumtala deceased had been devolved amongst any other categories of legal heirs: sharers, residuary and distant kindred.
11. The reasoning of the learned Appellate Court is that in light of the amendment of section 3 of the N.W.F.P (now K.P.K) Muslim Personal Law (Shariat) Application Act (VI of 1935) in 1950, the petitioners/ plaintiffs could claim the share of inheritance of Mumtala, within 12 years, after the amendment. Hence, the learned Appellate Court found that the suit,
13. The N.W.F.P (now K.P.K) Muslim Personal Law (Shariat) Application Act (VI of 1935) provides rule of decision in questions regarding succession, special marriage, property of female, betrothal, divorce, dower, guardianship, basterdy, family relation, will, legacies, gift or any religious usage or institution including waqf (trust and trust property). Section 3 of this Act as originally enacted, reads as under:-- "On and from the day of the enforcement of this Act, Section 27 of the N.W.F.P Law and Justice Regulation (No,. VII of 1901) shall be repealed insofar as the Muslims are concerned. "
' It appears from the above that the customary law with regard to succession etc was not to be applied in the case of Muslims.
14. In 1950, an amendment was introduced in the 1935 law, adding the following subsection (2) in section 3:-- "(2) Whenever question relating to succession upon the death of a Muslim arises in any court, the rule of decision shall, whether such death has taken place before or after the commencement of this Act, be the Muslim Personal Law (Shariat). "
15. This subsection (2) was again substituted by the Act II of 1953. It is reproduced below:--
(2) Whenever a question relating to the succession upon the death of a Muslim arises in any court, the rule of decision shall be the Muslim Personal Law (Shariat) and where such death has taken place before the 6th December, 1935, the rule of succession shall be according to the Muslim Personal Law (Shariat) as if that law had been applicable at the time of such death".
16. The law reproduced above clearly depicts that when the question of succession of a Muslim arises before any court, it would be resolved according to Muslim Personal Law (Shariat)
Application Act, 1935, and deeming it to be applicable at the time of such death, the legacy of a Muslim is to be divided amongst his/her heirs according to the Islamic law (Shari'ah) even though the deceased might have died prior to the promulgation of the Act. In short, retrospective effect is to be given to the Muslim Personal Law (Shariat) Application Act, 1935.
17. In a number of cases, the superior courts have gilen retrospective effect to the said law.
Reference to some rulings may be appropriate. The Hon'ble Supreme Court of Pakistan has held in the case "Muzaffar Khan v. Mst. Roshan and others" (PLD 1984 SC 394): "as there is now no doubt left that the N.W.F.P., Act of 1935 is to be given retrospective effect and that whenever a dispute comes before a Court of law with respect to succession to the estate of a deceased Muslim the deceased will be deemed to have died under the domain of Muslim Law, even if the death' had taken place before the coming into force of the N.W.F.P Muslim Personal Laul (Shariat) Application Act of 1935. "
' The dictum was followed in two cases of 1991, such as, "Habibullah Khan and others v. Muhammad Hassan Khan and 6 others" (PLD 1991 SC 93), and "Mst. Farida and others v. Rehmatallah and others"
(PLD 1991 SC 213). In the latter case, the hon'ble Court observed:- "In so far as the question of retrospetivity is concerned the position both in Punjab and N.W.F.P.
In this behalf would not be dissimilar. It was also held that as soon as the decision of this Court in its Shariat Appellate Bench took effect as from 30th June, 1983, the words "subject to the provisions of any enactment for the time being in force" in section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962; "ceased to have effect". As a result amongst others one consequence visualized and held in the case of Muzaffar Khan was that "the N.W.F.P Act of 1935" is to be given retrospective effect and that whenever a dispute comes before a Court of law with regard to succession to the estate of a Muslim deceased, he will be deemed to have died under the domain of Muslim Law, even if the death had taken place before coining into force of the West Pakistan Muslim Personal Law (Shariat) Application Act of 1935. "
' The question has again come up before the superior courts in recent years. The dictum was followed by hon'ble the Supreme Court in a 2008 case and this court in a 2012 case. They are "Muhammad Anwar and others v. Khudayar and others" (2008 SCM R 905) and "Abdur Rehman v.
Mosam Khan" (2012 YLR 2710 Peshawar).
18. It is thus fully established that the Muslim Personal Law (Shariat) Application Act, 1935, is given retrospective effect. Indeed, entitlement of shares in inheritance is recognized by the divine law.
Such entitlement cannot be extinguished by any other instrument. The plaintiffs are treated to be co-sharers in the entire property left by the Mumtala. They are deemed to be in possession of the property. Hon'ble Supreme Court of Pakistan has held in many cases that the question of limitation would not arise in disputes over inheritance. In this respect, reliance may be placed on "Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi" (PLD 1990 SC 1), "Muhammad Qasim Khan and 6 others v.
Mst. Mehbooba and 6 others" (1991 SCM R 515), "Muhammad Anwar and 2 others v. Khudayar and 25 others (2008 SCM R 905). In the light of ratio of these rulings, the suit of the petitioners/plaintiffs being a matter of inheritance and petitioners being joint owners of the suit property, the suit is within time.
19. As sequel to my above discussion, I have reached to the conclusion that the judgment and decree of the learned Appellate Court is against the law. Hence, I accept the instant revision petition. Resultantly, I set aside the judgment and decree of the Appellate Court and restore that of the learned trial Court, with no order as to cost.