Khawaja vs Abdur Razzaq & others

MUHAMMAD FAHEEM WALI, J. The petitioner, Khawaja, through this Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 has called in question the vires of Judgment and Decree dated 24.05.2017, passed by the learned Additional District Judge-IV, D.I.Khan, whereby his appeal, filed against Judgment & Decree dated 26.04.2014, of learned trial Court as to dismissal of his declaratory suit, was dismissed.

2. Concise facts of the case, as narrated in the plaint of petitioner, are that the actual owner of the property, described in the head-note of plaint, was one Siddique son of Bakhtawar, who was paternal uncle of petitioner; and at the time of his uncle's death his widow Mst. Bakhtan, daughter Mst. Sardaran and brother Ghulam Sarwar (i.e. father of petitioner) were alive. As, Siddique was having no male issue, therefore, his brother Ghulam Sarwar was entitled to inherit his property as a male residuary; instead, the entire legacy of Siddique was devolved upon his daughter Mst.

Sardaran through mutation No.1360 dated 20.02.1928; therefore, the said mutation No.1360 and all subsequent transfers are invalid to the extent of share of Ghulam Sarwar and thus are liable to be cancelled.

3. Respondents No.1 to 9 (then defendants) filed their written statement wherein they raised a specific denial of the fact that Ghulam Sarwar was not the brother of Siddique. The learned trial Court on divergent pleadings settled issues and called upon the parties to adduce evidence in support of their respective claims, which they did. After trial, the suit of the petitioner was dismissed vide judgment dated 26.04.2014; and the appeal of petitioner also met with the fate of dismissal vide Judgment and Decree dated 24.05.2017. Dissatisfied from the dismissal of his suit as well as appeal, the petitioner has impugned findings of both the learned Courts below before this Court through the instant Revision Petition.

4. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.

5. Perusal of the record reveals that the petitioner, in essence, has challenged the mutation attested during the customary period, prior to promulgation of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935, on the ground that his father, Ghulam Sarwar, being the male residuary of Siddique s/o Bakhtawar, was entitled to inherit his Shari share from the legacy of Siddique. Petitioner instituted the suit on 22.08.2011, calling in question, the authenticity of mutation No.1360 dated 20.02.1928; now the moot questions before this Court are that, upto what extent the K.P. Muslim Personal Law (Shariat) Application Act, 1935, helps the petitioner to claim share from an estate devolved during customary era, and as to whether he succeeded in proving his stance.

6. To resolve the first query, it would be appropriate to have a resume to the provisions of K.P.

Muslim Personal Law (Shariat) Application Act 1935. Prior to the Act of 1935, provisions of N-W.F.P.

Laws and Justice Regulation VII of 1902, were in the field and according to its Section 27, custom was to be the rule of decision and 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. Meanwhile on 6th December 1935, North-West Frontier Province Muslim Personal Law (Shariat) Application Act (VI of 1935) was enacted and its Section 2 & 3 provide as under:

2. Decision in certain cases to be according to Muslim Personal Law.- In questions regarding succession, special property of females, betrothal, marriage, divorce, dower guardianship, minority, bastardy, family relations, wills, legacies, gifts or any religious usage or institution including waqf (trust and trust property), the rule of decision shall be the Muslim Personal Law (Shariat), in cases where the parties are Muslim.

3. Repeal of provision of previous law.

(1) 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 replaced in so far as the Muslims are concerned.

(2) Whenever a question relating to the succession upon the death of a Muslim arises in any court, the rule of decision shall be according to Muslim Personal Law (Shariat) as if that law had been applicable at the time of such death.

7. It is clear from the above extracted provisions of the Act 1935 that Section 27 of N-W.F.P. Laws and Justice Regulation VII of 1902, stood repealed. This Act of 1935 was further amended by Amendment Act XI of 1950 and following addition were made to the Act: - Section 3, subsection (2).-"Whenever a question relating to the 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)."

Section 4.-"(1) In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, the persons entitled to succeed to such property upon the termination of the limited interest of the female shall be those persons who would have., been entitled to succeed at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been the rule of decision governing the succession upon such death.

(2) If any person entitled to succeed under sub section (1) dies before the termination of the said limited interest the share which he would have taken had he succeeded and the heirs entitled to succeed to that share shall be ascertained as follows, that is to say, he shall be deemed to have died immediately after the termination of the said limited interest and the rule of decision governing the succession upon his death shall be deemed to have been the Muslim Personal Law (Shariat).

Provided that the share which the female limited owner would have taken had the Muslim Personal Law (Shariat) been the rule of decision governing the succession upon the death of the last full owner shall devolve on her if her limited interest in the property tenninates by reason of her marriage or re-marriage, and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates by reason of her death."

8. However, in 1953, the Legislature further altered section 3 subsection (2) vide Amendment Act II of 1953 which reads: Section 3, subsection (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 decision shall be according to the Muslim Personal Law (Shariat) as if that law had been applicable at the time of such death."

9. At this juncture, it was settled that the Muslim Personal Law (Shariat) Application Act of 1935 is retrospective in effect. 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 Muhammadan Law, even if the death had taken place at any time before the 6th of December 1935; however, any claim under the said enactment was subject to law of limitation, like other claims; and a bar under the provisions of Limitation Act, 1908, prevented the claim under the Muslim Personal Law (Shariat) Application Act, 1935, from being entertained. While rendering this view, I am fortified by the wisdom of this Court already expressed in the cases of "Mst. Rehmania and others VS. Mst. Maqbula and others" (PLD 1956 (WP) Peshawar 115) and "Mst. Sahib Jan Bibi and others Vs. Wali Dad and Others" (PLD 1961 (WP) Peshawar 9).

10. After the partition, in the province of Punjab, 'The West Punjab Muslim Personal Law (Shariat)

Application Act (No. IX) of 1948 was enacted w.e.f. 15th March, 1948, and its Section 2 reads as under: 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.

11. Section 5 of Act IX of 1948 provided that save as expressly provided by the provisions of section 3, that Act would have no retrospective operation. Finally, in order to further streamline the matters related to Shariat Laws, West Pakistan Act V of 1962 under the name and title of the Punjab/Sind/NWFP/Baluchistan Muslim Personal Law (Shariat) Application Act (West Pakistan Act V) of 1962, was promulgated on 31st December, 1962. It repealed Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 and Punjab Muslim Personal Law (Shariat) Application Act, 1948, besides other law.

12. Thus, the scenario changed with the change of law on 31 December 1962, when 'The West Pakistan Muslim Personal Law (Shariat) Act, 1962 was promulgated, containing Section 6 where only retrospective effect was given to Sections 3, 4, & 5 which only pertained to limited estates under the customary law, while rest of the provisions of the Act 1962 were not given any retrospective effect. Meanwhile, on 14.08.1973 the present Constitution of Pakistan was promulgated, one unit was dissolved and the Acts adopted and devolved on the provinces. The situation remained the same till the year 1981 when the Federal Shariat Court, vide Judgment dated 19.05.1981 in Shariat Petition No.13-R of 1980 directed Government of Punjab to carryout necessary amendment in Section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.

This Judgment of the Federal Shariat Court was upheld by the worthy Shariat Appellate Bench of the Apex Court and thereby directions of the Federal Shariat Court were reiterated. Reference in this context may be sought from the reported judgment in the case of "The Federation of Pakistan through Secretary, Law & Parliamentary Affairs, Islamabad vs. Muhammad Ishaque and another"(PLD 1983 Supreme Court 273).

13. Accordingly, Section 2-A was inserted in the Act of 1962 through Punjab Ordinance No.XIII of 1983 which reads 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 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.

14. This amendment opened a floodgate of litigations entirely converged on the interpretation of Section 2-A of the Act, 1962, and in particular Clause (a) of Section 2-A wherein it had been provided that where a heir acquired any agricultural land under 'Custom' from the person who at the time of such acquisition was a Muslim, then he shall be deemed to have become an absolute owner of the land on the basis of such acquisition as if such land devolved on him under the Muslim Personal Law ibid. Although the proverbial storm had been blowing across the province of Punjab but other provinces including the Province of Khyber Pakhtunkhwa (erstwhile N-W.F.P.) could not remain unaffected for a longer period in aftermath of the decision given by the Shariat Appellate Bench in the supra case of Muhammad Ishaque and matter pertaining to situation came up for hearing before the august Supreme Court regarding applicability of the law in the Province of Khyber Pakhtunkhwa, in view of the changed scenario in the case of "Muzaffar Khan Vs. Mst.

Roshan Jan and others" (PLD 1984 Supreme Court 394). The relevant excerpt from Muzaffar Khan case is as under: "The above decision of the Federal Shariat Court was challenged by the Federation of Pakistan before this Court, but the said appeal too was dismissed by this Court in Federation of Pakistan v.

Muhammad Ishaq and another PLD 1983 SC 273, and the direction. of the Federal Shariat Court for making the above amendment in the law, was upheld. It was noted that the Federal Shariat Court had ordered this to be done by the 30th June, 1981, but since this direction was stayed by this Court pending the disposal of the appeal, it was accordingly ordered, after the dismissal of the appeal by this Court, that the necessary amendment should be carried out by the 30th June, 1983.

The necessary amendment has, indeed, been carried out in the Punjab by promulgating the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983. But somehow, the N.- W.F.P. Government, in the belief that this was not necessary in their Province, presumably in view of the law laid down in Sahib Jan v. Wali Dad, has not carried it out.

Anyhow, this does not affect the situation.

Under sub-clause (b) of sub-Article (3) of Article 203-D of the Constitution, it is provided as follows; 203-D -

(3) If any law or provision of law is held by the Court to be repugnant to the injunctions of Islam, (a)

(b) such law or provisions shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.

Thus, as soon as the decision of this Court took effect i.e. as from 30-6-1983, the words underlined" in section 2 of the Act of 1962, namely "subject to the provisions of any enactment from the time being in force" ceased to have effect. Consequently, even if it was found that after the promulgation of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and the repeat of the N.-W. F. P. Muslim Personal Law (Shariat) Application, 1935, the present case fell to be decided on the basis of the interpretation placed on the provisions of section 2 of the aforesaid Act of 1902 by this Court in the case of Mst. Khaiun v. Mulla, namely, that the Shariat Acts neither enhanced nor diminished the powers of alienation of a holder under custom and a person taking property as ancestral property under, custom continued to be governed by agricultural custom and his powers of alienation w.-re limited, the position of Muhammad Aslam Khan would not now be affected even though he had succeeded to the property before the promulgation of the 1935 Act, when the customary law was in force because, after the above-mentioned change in the law, the appellant would not have any right to challenge the alienation made by Muhammad Aslam Khan in favour of his sisters, 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' bad taken place before the coming into force of the N.-W.F.P. Muslim Personal Law (Shariat) Application Act of 1935."

15. Therefore, by the above said pronouncement the law, so defined, was made applicable to the whole of Pakistan irrespective of the origin of the original litigation. This view was again reiterated and further fortified in the case titled "Mst. Farida and 2 others Vs. Rehmatullah and another" (PLD 1991 Supreme Court 213) putting the argument regarding non-applicability of the judgments in supra cases of Muhammad Ishaque^[1] and Muzafar Khan^[2] to the provinces other than Punjab finally to an end.

16. After passage of more than a couple of decades, the august Apex Court constituted a larger bench to resolve the question about the retrospectivity of the Shariat Application Act, 1962, which decided the issue in the case of "Ghulam Haider and others Vs. Murad through Legal Representatives and others" (PLD 2012 Supreme Court 501) whereby through an incisive judgment and after discussing all the material points and various pro & contra judgments, delivered on the point, finally determined that any acquisition made by a heir acquiring agricultural land of 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. Relevant excerpt from the supra Ghulam Haider's case is reproduced as under:

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 28-2-1959 in favour of Mst. Sehati and Mst.

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 28.2.1959 and, thus, after March 15, 1948 the said land could have devolved upon the heirs of Lal 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 28.2.1959 was liable to be dismissed.

17. Once, through this elaborate finding, pertaining to the transactions/acquisitions under customary law, had been given protection that were finalized before the year 1948; and in particular, prior to 15th March, 1948, the day when Shariat Act, 1948, was promulgated in the Province of Punjab, thenceforth, Rule of prudence would make it applicable to all other provinces by necessary implication, given the peculiar nature of aforesaid discourse, as this yardstick judgment still holds field and so far has not been deviated from by any larger or co-equal bench of the august Supreme Court. Taking an impact of the above, it can safely be held that all acquisitions by a Muslim made under Customary Law before 6th December, 1935, would be deemed to have been taken or acquired under the Islamic Law.

18. Another aspect, prevalent in the society about the subordinate status, being given to customary law on the misconception that the Divine Islamic Law somehow derecognizes the prevalent customs and traditions after the advent of Islam and that all such transactions had to be undone which had taken place earlier. Such an analogy does not find any support from any authentic source of Islam, rather conversely, traditions of Holy Prophet also supports the view that past and closed transactions should not be reopened for the reasons of elimination of harm. Guidance in his regard has been provided in the holy Hadith as quoted hereunder:

19. In holding this view, I am fortified by the judgment passed by Federal Shariat Court in the Shariat Petition No.19/I of 1998^[3], therefore, in the case in hand, the impugned Mutation No.1360 dated 20.02.1928 has become a past and closed chapter and no exception can be taken by petitioner under the veil of Muslim (Shariat) law; hence, is the answer of first query.

20. Now adverting to second query that whether the petitioner has succeeded in proving his stance, in this regard suffice it to say that the foremost plea of petitioner that his father Ghulam Sarwar was the real brother of Siddique, could not be substantiated through any documentary or other trustworthy evidence. Even he had not brought on record any mutation from his purported grandfather Bakhtawar showing distribution of his estate upon Ghulam Sarwar and Siddique. The learned counsel for petitioner referred to an application for additional evidence, filed at appellate stage of the case and argued that if opportunity would be provided to petitioner on this specific issue of brotherhood of Ghulam Sarwar and Siddique, then he would have proved the same through evidence but his application for additional evidence did not find favour from the learned appellate court. This argument of the learned counsel for petitioner is not convincing as the parties are bound to prove whatever they have contended in pleadings through evidence. In his plaint, the petitioner portrayed a pedigree table and claimed that Ghulam Sarwar was brother of Siddique and both were sons of Bakhtawar; thus, it was the basic duty of petitioner to prove the correctness of pedigree table and to establish the relation between the two. Request for additional evidence, after expressing the view by the learned trial Court, is an attempt by petitioner to fill-up the lacunas of his case which request cannot be acceded to at the cost of rights of the other party; hence, rightly refused by the learned Appellate Court as the power under the provisions of Order XLI Rule 27 of CPC for allowing additional evidence are not unfettered nor the Appellate Court has the discretion to allow additional evidence per its own caprice, rather such discretion is structured & limited by the factors enunciated in the said provisions i.e. where the Court from whose decree the appeal had been preferred had refused to admit any evidence which it ought to have admitted.

Guidance in this regard may be derived from the dictum laid down by the worthy Apex Court in the case of "Muhammad Asghar Vs. Hussain Ahmad and others" (PLD 2014 Supreme Court 89), wherein it was held: From the wording of the noted rule and from the ratio of the judgments quoted above, it is quite obvious that the exercise of discretion by the Court in terms thereof is circumvented with due care and caution; it should be exercised in exceptional circumstances; party requiring the summoning of the witnesses should not be allowed to fill up the lacuna of his case, which has been left due to the negligence and lapse of such party; no new case should be allowed to be set up by the delinquent party, especially when such evidence was available at the time when the party had the opportunity to lead evidence, and it is not a case of discovery of evidence coming into being or discovered subsequently; the delinquent party have to set out reasonable and convincing grounds for recalling the witness while conducting the examination-in-chief or the cross- examination as the case may be (note: in this case we are deliberately not considering the effect of the expression appearing in the rule "subject to the law of evidence for the time being in force).

Anyhow, the true object of re-examination of the witness as a matter of fact and in law, is to clear any obscurity and/or ambiguity which might have arisen during the course of his examination/statement and it should be clarified otherwise obscurity etc. that might lead to injustice and the court shall find difficult to adjudicate the matter to do justice. But it should categorically be held that such provisions (Order XVIII, Rule 17 C.P.C.) is not meant and is not designed for the purposes of enabling a party to fill up the omissions in the evidence of a witness who has already been examined, rather the purpose, the nature and the scope of the power available to the Court under the said rule is to enable the Court to seek clarification on any issue or to have a doubt cleared in the statement of a witness which if left outstanding, it would be difficult for the Court to take a right decision. We do not find that the case set out by the petitioner in his application for re-summoning the witness under Order XVIII, Rule 17 C.P.C. qualify the aforesaid test and, therefore, the learned courts below have rightly dismissed the said application.

21. It appears from Para No.2 of the plaint that Ghulam Sarwar, father of petitioner, remained alive till 1952-53 and at that time provisions of K.P. Muslim Personal Law (Shariat Application) Act, 1935, were in field but, he did not make any effort to protect his rights, if any, deriving from the legacy of Siddque despite the fact that such rights had been accrued to him from the day one of enactment of the Act-1935. Worthy Supreme Court in a number of cases has held that if a transaction was not challenged by the father, then his son, after his death, will lack locus standi to challenge the same.

Reliance in this regard is placed on the case of Abdul Haq and another Vs. Mst. Surrya Begum and others (2002 SCMR 1330) wherein it was held: "11. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime. "

22. Same view was reiterated in the case of "Mst. Grana through Legal Heirs and others Vs. Sahib Kamala Bibi and others" (PLD 2014 Supreme Court 167). Hence, in view of the guidance derived from the above verdict of the worthy Apex Court, the petitioner has no locus standi to challenge the suit mutations as same were not challenged by his father.

23. Besides, the petitioner himself, after the death of his father, remained idle till 2011 in asserting his purported rights and no justification could be put forth for such a long silence. Even he did not question the legality of inheritance mutation No.3088 dated 31.03.1955 whereby the estate of Mst.

Sardaran daughter of Siddique was further devolved upon her legal heirs. The revenue record does not depict any sort of possession of petitioner over the suit property which may support their stance of alleged knowledge gained from purported interference by respondents; hence, the petitioner has exposed himself to the bar of Limitation Act, 1908.

24. In view of the above, this Court finds no illegality or irregularity in the impugned judgment of the learned courts below which are based on proper appraisal of the facts available on record, requiring no interference in the revisional jurisdiction by this Court. Consequently, instant revision petition is hereby dismissed with listed CMA.