Asim Hafeez, J. This regular second appeal, under section 100 of the Code of Civil Procedure, 1908, ("The Code") is directed against judgment and decree dated 29.02.1996, by learned Additional District Judge, Multan, whereby appeal of the appellants was dismissed and judgment and decree of 08.03.1989, by learned Civil Judge, Multan was upheld, where suit for declaration of the respondents was decreed.
'Controversy in issue'
2. In the light of the submissions made, the controversy hinges on following elemental questions, which are; i) What custom was prevalent and / or followed by the family of Nabi Baksh regarding the succession and alienation. ii) Whether Mst. Jag Sabahi - who inherited property of her deceased son, Muhammad Bakhsh - had a limited or full interest in the property in question. iii) Whether alienation by Mst. Jag Sabahi to her son-in-law and nephew through Mutation No.1338 dated 27.03.1964 constitute a valid and legitimate exercise of customary law and rights in terms thereof - which allegedly prejudiced the rights of the reversioners, who claimed share in the estate of deceased Muhammad Bakhsh iv) Whether alienation by Mst. Jag Sabahi - who claimed to have full / absolu te interest in the property and alienated the property for good consideration and legal necessity - was contrary to the mandate of sections 2-A and 3 of the W est Pakistan Muslim Personal Law (Shariat) Application Act 1962 ('Act 1962) v) Whether the alienee of the property - son-in-law and nephew of Mst. Jag Sabahi in terms of Mutation No.1388 dated 27.03.1964 - could be termed as bona-fide purchasers for consideration.
'Essential Facts'
3. The contesting claims relate to land measuring 23 Kanals 15 Marlas, situated at Mauza Binda-Sandhila, Tehsil & District Multan ('property'). Undisputedly , property , at one point in time, was owned by Mr. Nabi Baksh, which was inherited by his grandson Muhammad Bakhsh under customary dispensation- on account of pre-deceased death of Muhamad Baksh' s father Karim Baksh, son of Nabi Baksh. Nabi Bakhsh died on 15.10.1942 and Muhammad Bakhsh died on 15.12.1943. After the death of Muhammad Baksh, the property was inherited by his mother , Mst.
Jag Sabahi through Mutation No.795 dated 16.05.1944 under custom. Later on, Mst. Jag Sabahi alienated the property in question, against consideration and on account of alleged legal necessity , to her son-in-law (Ghulam Ali, predecessor of present appellants) and nephew vide Mutation No.1388 dated 27.03.1964. The respondents - claimants as reversionary in the estate of deceased Muhammad Baksh - filed declaratory suit, alleging termination of limited interest of Mst. Jag Sabahi in property and also questioned alienation by Mst. Jag Sabahi, which action was contested on multiple grounds. Learned trial court framed issues and recoded evidence, whereafter suit of the respondents was decreed on 12.01.1977. The judgment and decree were set aside by the learned appellate court vide judgment dated 28.02.1982, which remanded the matter while framing two additional issues. Upon conclusion of post-remand proceedings, learned trial Court decreed respondent' s suit on 08.03.1989, which decree was unsuccessfully appealed and same was dismissed by learned appellate court on 29.02.1996. Hence, this second appeal.
'Submissions of the counsels'
4. Learned counsel for the appellants submits, that concurrent findings by the courts below and decisions made thereupon were erroneous and contrary to the law; determinations were carried out without appreciating material aspects of the case. Adds that simplicitor suit for possession was filed and Mutation No.1338, dated 27.03.1964 - alienation by Mst. Jag Sabahi - was not impugned; respondents had pleaded custom however , failed to substantiate through convincing evidence the existence of any custom, its contours and let alone applicability thereof. Adds that, inheritance Mutation No.795 contained no indication to any alleged custom, as basis of said mutation. Learned counsel emphasized that suit was barred by limitation, as inheritance Mutation No.795 was recorded on 16.05.1944 and suit was filed in September 1968. Referred to judgments reported as "Mst. LADO AND ANOTHER v. KARAM DAD AND OTHERS" (PLD 1956 Lahore 528), ("GHULAM RASOOL and 5 others v.
ALLAH BACHA YA AND 17 others" (1985 SCMR 416), "FAZAL KARIM v. MEMBER BOARD OF REVENUE and others" (1985 CLC 64) and "Mst. ZEBA and 12 others v. MEMBER-III BOARD OF REVENUE BALUC HIST AN and 2 others" (1986 CLC 233) in support of submissions - regarding failure to prove existence of custom and question of limitation.
5. Learned counsel appearing for the respondents controverted the submissions, who made reference to other agricultural lands of deceased Muhammad Baksh in Mauza' s of Alamdisura and Akbarpur , Tehsil Multan - which was inherited by Mst. Jag Sabahi as limited owner - wherein shares of the reversioners were acknowledged in terms of Muslim Personal Law, which Mutations were admitted and accordingly exhibited. Submits that suit was within limitation, wherein inheritance was claimed by the co-owners and challenge was thrown to alleged alienation, prejudicing rights of the reversioners. Learned counsel made reference to judgments reported as "MOHSIN KHAN and 3 others v. AHMAD ALI and 2 others" (PLD 2004 Lahore 1), "Mst. UMRI v. MUHAMMAD BOOT A and others" (1993 MLD 1620 ), "GHULAM ALI and 2 others v. Mst. GHULAM SAR WAR NAQVI" (PLD 1990 SC 1), "DOST MUHAMMAD and another v. RANJHA through Legal Heirs and 7 others" (1989 SCMR 1014 ), "ABDULLAH v. Mst. JANNA T BIBI and others" (1989 SCMR 735), "MUHAMMAD SHAM v. MUSHT AQUE AHMED through Legal Heirs and others" (1996 SCMR 856), Mst. FOORAN v. MEMBER, BOAR D OF REVENUE AND OTHERS" (1983 CLC 3134 ), "BAGH ALI and 3 others v. Mst. ZAIBAN and 11 others" (1989 CLC 1721 ), "AHMAD HUSSAIN v. HAQ NAWAZ and others" (1989 CLC 795), "MUHAMMAD DIN etc. v.
ALLAH DITT A etc." (1994 CLC 1788 ), "ISMAIL and another v. GHULAM QADIR and others" (1990 SCMR 1667 ), "ALI BEGUM and 2 others v. ZARDA D KHAN and 4 others" (1994 SCMR 1140), "LAL and 3 others v.
REHMA T BIBI and another" (PLD 1991 SC 582) and "ABDUL GHAFOOR AND OTHERS v. MUHAMMAD SHAFI AND OTHERS" ( PLD 1985 SC 407 ).
6. Arguments heard. Available record perused.
7. Learned counsel for the appellants emphasized that in view of lack of evidence, regarding existence of any special or general custom, the claim of exclusive inheritance of Mst. Jag Sabahi - being mother of deceased Muhammad Baksh - and her right of alienation cannot be questioned or dismissed. I have examined the judgments by the courts below and read the findings of facts recorded, which showed that evidence, pro and contra, was led by the parties in support of their pleading s. The evidence led by predecessors of the appellants [DW-1 to DW-4] - including Mst. Jag Sabahi [DW-4] and Ghulam Ali [DW-3] - acknowledged existence of custom prevalent in 'Binda- Sandhila', which allegedly entitled her and reinforced full / absolute interest of Mst. Jag Sabahi in the property . On the contrary , respondents alleged in the plaint that family of Nabi Baksh was governed and followed Riwaj Zamindara Multan, which assertion was endorsed by their witnesses, i.e. PW-9, PW-2, PW-3. Mst. Jag Sabahi (DW-4) admitted following of Riwaj of Binda-Sandhila and further averred that she was not obligated by the Riwaj of Multan. It is critically noted that she admitted that Nabi Baksh, when died, was beholden by the custom and Shariat. Mst. Jag Sabahi admitted that property of Muhammad Baksh was in 3 Mauzas and in Mauza' s of Alamdisura and Akbarpur , Tehsil Multan, she inherited 1/8th share only. She also admitted that alienee Ghulam Ali was her son-in-law and resided with her. In short, there was no dispute that subjec t matter property was ancestral land, inherited by Muhammad Baksh under prevalent custom, as grandson of Nabi Baksh. It was not the case of Mst. Jag Sabahi that she inherited the property of her deceased son, Muhammad Baksh, under Muslim Personal Law.
8. The dispute inter-se the parties may spill over to various questions, regarding which custom was applicable and followed by the family , whether the Zamindara custom Multan was different from the custom of 'Binda-Sandhila' and what were the contours / features of each of the alleged custom. These disputes seemingly have significance for the parties and rights claimed by each of them but these disputes - regarding the custom - have lost their significance, efficacy and relevance in view of section 2-A of Act 1962 [inserted in terms of Ordinance XIII of 1983 dated 01.8.1983]. It is expedient to reproduce section 2-A of Act 1962, which reads as; "[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 on 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."] [Emphasis supplied]
9. Upon promulgation thereof, the applicability and persuasive effect of custom stood eradicated for the purposes of disputes relating to succession, amongst the claimants / reversioners of "a male heir", who had acquired any agricultural land under the custom from the person, who at the time of acquisition was a Muslim. The disputes inter- se the parties were not with respect to acquisition of property by Muhammad Baksh - male heir - but amongst the reversioners, who claimed succession / inheritance in the estate of the Muhamma d Baksh - Mst jag Sabahi was one of the reversioners. In this behalf guidance is solicited from the judgment reported as "LAL and 3 others v.
REHMA T 8I8I and another" ( PLD 1991 SC 582 ), relevant portion whereof is reproduced hereunder as; "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 of 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 custo m. In several subsequent judgments of this Court including Ismail and another v. Ghulam Qadir and others 1990 SCMR 1667 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 the 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 subsection (a) of section 2-A, become an absolute owner of the land as if such land devolved on him under the Muslim Personal Law .
[Emphasis supplied]
10. In somewhat, similar circumstances, the alleged claim of Mst. Hussainan, in the case of "ISMAIL and another v. GHULAM QADIR and others" (1990 SCMR 1667 ) was denied, upon construction of Section 2-A of Act 1962.
The question of limitation was also addressed therein. It is expedient to reproduce relevant portion thereof hereunder as; "Learned counsel for the appellants, however, also reiterated the point of limitation. In view of the above stated changed position, vis-a-vis, the promulgation of Muslim Law of inheritance, Mst. Hussainan shall be deemed to have held the property as custodian and co-sharer on behalf of all the other heirs who were entitled under the Muslim Law to inherit the property of Nawahi Dad at the time of his death. As held in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, the property devolved instantaneously on the heirs and thus the suit of the respondents as held in the said judgment would have to be treated as within limitation . This is an additional ground for over-ruling the objection regarding limitation though the learned Judge in the High Court gave different valid reasons for coming to the conclusion that the suit in this case was not time-barred".
[Emphasis supplied]
11. It is pertinent to note that since the acquisition of property by Muhammad Baksh - being male heir - is not disputed therefore, limitations prescribed under section 2-A of Act 1962 were not applicable. Mst. Jag Sabahi, upon promulgation of section 2-A, ibid, filed application seeking abatement of pend ing suit, which application was dismissed by learned trial court vide order dated 22.09.1988 in view of the command of section 3 of Act 1962 - regarding termination of limited interest of Mst. Jag Sabahi. The cases of GHULAM RASOOL and 5 others (supra) and FAZAL KARIM (supra) and Mst. LADO and another (supra) as referred by learned counsel for the appellants have no application to the facts of this case. In view of section 2-A, ibid - having retrospective effect - succession of Muhammad Baksh would open on the date of his death, which estate would be distributed amongst reversioners according to Muslim Personal Law. Reference is made to the judgment in case reported as "MUHAMMAD YOUSUF through Legal Heirs and 2 others v. Mst. KARAM KHA TOON through Legal Heirs and 2 others" 2003 SCMR 1535 , relevant portion whereof is reproduced hereunder as; "It was observed that a male heir who acquired agricultural 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 heir 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."
12. It is apt to make reference to a recent judgment by the Apex court - wherein plethora of Case Law on section 2- A of Act 1962 were highlighted and discu ssed [which construction of section 2-A of Act 1962 was agreed by their lordships though differing with the conclusion of the case on basis of facts involved therein] - in a case reported as "GHULAM HAIDER and others v. MURA D through Legal Representatives and others" (PLD 2012 Supreme Court 501), relevant portion whereof is reproduced hereunder as; "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".
13. Now I take the objection of limitation. The submissions by learned counsel for the appellants are misconceived.
It was not a suit to challenge Mutation No.795 dated 16.05.1944 but claim of inheritance by the reversioners with respect to the estate of deceased Muhammad Baksh. The respondents have had, for all intent and purposes, questioned the factum of alienation by Mst. Jag Sabahi vide Mutation No.1338 dated 27.03.1964 to her son-in-law on the premise that her limited interest in the property stood terminated in terms of section 3 of Act 1962 [whereupon the limited interest of Mst. Jag Sabahi in the property stood terminated with effect from 31.12.1962], which right to sue accrued to respondents upon alienation of property , which right was, otherwise, continuing.
Notwithstanding, upon the promulgation of section 2-A of Act 1962, the respondents became co-owners of the property and entitled to claim share in the property , which claim cannot be denied on the objection of limitation. The ratio in the case of "ISMAIL and another v. GHULAM QADIR and others" (1990 SCMR 1667 ) is apt. Reliance of the counsel of the respondents on the reasoning in case reported as GHULAM ALI and 2 others v. Mst. GHULAM SAR WAR NAQVI" (PLD 1990 SC 1) is relevant. The case of Mst. ZEBA and 12 others (supra), referred by learned counsel for the appellants is distinguishable and has no application to the case at hand.
14. The case of the beneficiaries of Muta tion No.1338 dated 27.03.1964 fails both on merits and law. The claim of bona-fide purchasers was neither established nor sustainable in view of the law, precisely in terms of section 2-A of Act of 1962.
15. The terminus quo date for the open ing of succession of Muhammad Baksh was date of his demise, i.e. 15.12.1943 whereupon estate of deceased Muhammad Baksh would ipso-facto devolved upon the legal heirs / reversioners and same become entitled to get their respective shares in accordance with the Muslim Personal Law.
I have examined the judgments by the courts below and do not find any error of law and or ignorance of the material facts / aspects of the case. The findings were neither erroneous nor contrary to law .
16. It is noted that the Courts below have decided the lis and the rights of the parties primarily on the basis of section 3 of Act of 1962 and least discussed the effects and implications of section 2-A of Act of 1962. The adjudication of the lis in the light of section 2-A is purely a question of law which does not require any investigation into facts or appreciation thereof. This Court being an Appellate Court, has the jurisdiction to entertain and adjudicate upon pure question of law. There is no cavil that enforceability of sectio n 2-A of Act of 1962 - which has retrospective effect - is a pure question of law. Guidance is solicited from ratio of the decision in case reported as "Haji ABDULLAH KHAN AND OTHERS v. NISAR MUHAMMAD KHAN AND OTHERS" (PLD 1965 SC 690), relevant portion whereof is reproduced hereunder: "We find ourselves in agreement, however , with learned counsel for the appellants that the points which had been raised as to the effect of the minority of the plaintiffs on the validity of the agreement for sale as well as on the question as to whether the agreement should be specifically enforced in a suit by a minor were such that permission to argue them ought to have been granted. They all are as we will presently show pure questions of law and we do not think the proposition is open to contest that pure questions of law can be raised at any stage. ------ It may pointed out that it is the duty of the Court itself to apply the law. A party is not bound to engage a counsel.
Whatever law becomes applicable on the admitted or proved facts law has to be given effect to whether or not it has been relied upon by a party ."
In view of the aforesaid I decide this appeal in terms of section 2-A of Act of 1962, which does not cause prejudice to any party .
17. In view of the above this appeal is devoid of any merit and same is therefore, dismissed with no order as to the costs.