' Mst. Farida and others sued Rehmatullah and another for a declaration that they were owners in possession of 12 Jaribs of the suit land and the defendants had no right therein. The suit was contested by Fazal Qadir, defendant 2, on various grounds and after recording such evidence as the parties wished to adduce it was dismissed by the learned lower Court. The plaintiffs took an appeal but could not succeed and have now come on revision to this Court.
2. The gravamen of the petitioners' claim was that Nadir Khan, father of the parts, owned the suit land and on his death a few years back was succeeded by them. The petitioners were under Muslim Law entitled to 6/14 share as his daughters whereas the remaining 8/14 was to be inherited by the respondents as its owners. They enjoyed the usufruct of the land jointly but the respondents had recently denied their title. Rehmatullah, respondent 1, confessed judgment whereas Fazal Qadir stoutly denied the claim of the petitioners. He averred that the suit land was owned by their father who died 9 years back when custom governed succession and since Shariat was not applicable the petitioners were not entitled to any share in the estate of the deceased. Both the learned Courts below turned down the claim of the petitioners mainly on the ground that at the time of the death of Nadir Khan his estate was to devolve on his sons under custom to the exclusion of the daughters altogther. The solitary question that falls for determination is whether it was Muslim Law or custom which shall govern the inheritance of Nadir Khan.
3. The suit land was situate within the limits of Village Sakha Kot which is located in Provincially Administered Tribal Area, The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was extended to the Provincially Administered Tribal Areas of Chitral, Dir, Kalam, Swat and Malakand Protected Area by Provincially Administered Tribal Areas (Application of Laws)
Regulation, 1975 (Regulation I of 1976) with effect from 15th of January, 1976. The petitioners had brought the suit on 3-6-1978 and it is in evidence that Nadir Khan had died some years back. Gulda Ali Khan, agent for the petitioners, admitted that Nadir Khan died 5-6 years back whereas, according to the respondent Fazal Qadir, his father had died 10 years ago. Be that as it may, it is common ground between the parties that the death of Nadir Khan had taken place before Regulation I of 1976 was enforced in this area. The learned counsel for the petitioners contended that the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (hereinafter called the Act) shall have retrospective operation and the inheritance of Nadir Khan shall be governed by Shariat.
4. It would be profitable to refer to the provisions of the Act relevant to the point at issue before me and these are as under :-
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 cases where the parties are Muslims.
3. Termination of life estate under Customary Law.-The limited estates in respect of immovable property held by a Muslim female under the customary law, are hereby terminated.
4. Further operation of certain wills shall cease on the death of legatee in-enjoyment.---Whereas a will providing for more than one legatee succeeding to the testator's property one after the other is operative at the commencement of this Act, its further operation shall cease upon the death of the legatee-in-enjoyment.
5. Devolution of property on the termination of life estate and certain wills.-The life estate terminated under section 3 or the property in respect of which the further operation of a will has ceased under section 4 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner or the testator as though be had died intestate ; and if any such heir has died in the meantime, his share shall devolve in accordance with Shariat on such persons as would have succeeded him if he had died immediately after the termination of the life estate or the death of the said legatee ' Provided that the share to which a Muslim female holding a limited estate under Customary law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her.
3. Sections 3, 4 and 5 only to be retrospective.- Save as expressly provided by the provisions of sections 3, 4 and 5, this Act shall have no retrospective operation.
' It is manifest that section 2 pertains to application of the Muslim Personal Law in all questions regarding succession etc. Section 3 relates to termination of life estate under Customary law and sections 4 and 5 are with regard to certain wills and devolution of property on the termination of life estate. The provisions of section 6 are significant and envisage that sections 3, 4 and 5 only shall be of retrospective operation and no other section shall be retrospective. Section 2 falls within the mischief of the latter part and it can be said that the provisions of section 2 shall have no retrospective operation. It follows that in all questions regarding succession the rule of decision shall be a Muslim Personal Law (Shariat) in cases where the parties are Muslims. Section 6 has specifically in very clear terms excluded the retrospective operation of the provisions of section 2 and where the death of an owner took place before the enforcement of this Act and the successtion had been governed by custom the question of application of Shariat in a suit brought in 1978 would not, therefore, arise.
5. It is true that the Courts presume as a canon of construction that a statute is not intended to be given retrospective effect unless the intention is made clear by express words or necess iry implication. The Legislature of a State is a sovereign authority in the sphere of Legislation on State subjects, and in the exercise of that authority it has competence to enact Legislation with retrospective effect as remarked in Tamboli Boghalal Chhotalal and another v. Mohanlal Chun'lal Kothari and others (1). Crawford in the Construction of Statutes (1940 Edition) has observed at page 564 that :- ' But where an intention properly appears that the statute was intended to operate retroactively, such operation must be confined as closely as possible. Still, if the legislative intent clearly requires it, complete retroactive effect must be given, and it does not matter how the statute or its legality is affected. This principle is equally applicable where the retroactive effect is required through implication. But, as we shall hereafter see, a retrospective law is not necessarily void, so that, as a result, it is apparent that retrospective operation may affect more than the legality of the statute.
' It is in Craies on Statute Law (1952 Edition) at page 357 that :- ' A statute is to be deemed to be retrospective which takes away or impairs any vested right acquired under existing laws, or creates a new duty, or attaches a new disability in respect of transactions or considerations already past.
It is at page 359 that "it is obviously competent for the Legislature, in its wisdom, to make the provisions of an Act of Parliament retrospective". The competency of the Legislature to pass retrospective statutes if they think fit C cannot be denied.
6. Maxwell on the Interpretation of Statutes (1969 Edition) at page 215 observed as under :- ' Upon the presumption that the Legislature does not intend what is unjust rests the leaning against giving certain statutes a retrospective operation. They are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.
' Thus, there is consensus of opinion that it was within the competence of the Legislature to enact certain provisions of the Act with retrospective and D certain provisions with prospective effect.
6. It is an undisputed fact between the parties that prior to the enforcement of the Act in the Provincially Administered Tribal Areas where the suit land is situate the succession was governed by custom. The respondsnts were engaged in litigation viz-a-vtz the estate of their father and a look at the order dated 6-8-1975, copy Exh. P. W. 2/2, passed by Assistant Collector 1st Grade, Malakand Agency at Dargai shows that they had mutually agreed that 2 Jaribs of land shall be allowed to each of their minor sisters, the petitioners, as limited owners and the share or each shall devolve on both of them equally on her death or marriage whichever was earlier. The respondent Rehmatullah went on appeal but the same was dismissed by the Political Agent/District Collector, Malakand Agency per his order dated 20.9-1975, copy Exh. P. W. 2/3. It is not denied that the petitioners have been sharing the produce of the land under the terms and conditions of the aforesaid agreement. It follows that section 2 of the Act being not retrospective the petitioners could not claim a share under the Muslim Law in the estate of their deceased father who had died during custom. The
7. {{FOOT NOTE}}
(I) AIR 1957 Born. 130 {{FOOT NOTE} ' finding of both the learned Courts below in this context is well-founded and merits no interference.
8. Both the learned Courts below, however, fell into an error in ignoring a salient feature of the pleadings. It escaped their notice that the respondent Rehmatullah had confessed judgment. It was, therefore, imperative for the learned lower Court to have decreed the suit of the petitioners qua the share of Rehmatullah. Now it is well-settled that where a defendant admits the claim of the plaintiff the Court can decree the suit on the basis and to the extent of such admission.
In the result, I would partly accept the revision, modify the judgments and decrees of both the Courts below and grant the petitioners a declaration that they are entitled to their 'Shari' share as daughters of Nadir Khan in G half of the estate which had devolved on the respondent Rehmatullah. The rest of the suit stands dismissed and the parties, in vim of their partia success and the legal point involved, are left to bear their own costs.