' This is an application on behalf of the respondents for recording a formal order of abatement in respect of an appeal arising out of a suit filed under the custom. The facts are these: Long before Independence on the death of his father one Mutalli succeeded to 2/1-2 squares of land. His family was governed by agricultural custom. By a registered sale-deed, dated 7-7-1966 he sold 89 Kanals out of the said land in favour of the respondents for a sum of Rs, 20,000. On 3-1-1972 the appellant who is the son of Mutalli brought a suit to challenge the alienation on the ground that it was without consideration and legal necessity. The trial Court decreed the suit, holding, that though the sale was for consideration, it was without legal necessity. On appeal the Additional District Judge dismissed the suit after finding that the sale was for legal necessity as well. The appellant then came in second appeal to this Court.
2. The application before me is based on section 2-A (c) of the West Pakistan Muslim Personal Law (Shariat) Act, V of 1962, which was introduced in the Act by Ordinance XIII of 1983. But before 1 consider the effect of this provision on the appeal filed by the appellant it will add to clarity if I take notice of the position of law which existed before its enactment. Prior to Independence almost all agricultural tribes in the Punjab were governed by customs. Under the custom a male heir would succeed to property as full owner subject to the limitation that he could not alienate the same without consideration and legal necessity. His power in this regard was liable to be controlled by his agnatic heirs, both lineal and collateral. Soon after Indepedence the Provincial Legislature enacted the West Punjab Muslim Personal Law (Shariat) Application Act No, IX of 1948. It came into force on 15th March, 1948. It did away with the custom and provided that in the case of Muslims the succession would be governed by the Muslim Personal Law applicable to them. An incidence of succession under the Personal Law was that a person inheriting property thereunder was the absolute owner thereof without any limitation on his power of disposition. However, the Act was prospective in operation and did not affect succession which had already taken place before its enactment. Resultantly, the male owners who had succeeded under the custom continued to suffer from the same restriction in the matter of alienation of ancestral property as they did before the Act came into force. See Muhammad A sghar Shah v. Muhammad Guisher Khan (1) and Bashir Ahmad v. Muhammad (2).
3. The Act of 1948 continued to remain in force with some amendments till 1962 when it was replaced by the West Pakistan Muslim Personal Law {{FOOT NOTE}}
(1) PLD 1949 Lab. 116 (2) P L PR 1956 Lail. 934 {{FOOT NOTE}} ' (Shariat) Application Act, V of 1962. Apart from dealing with certain other incidents of the Customary Law such as limited estate, the new Act reiterated the provision of the Act of 1948 with regard to succession where the parties were Muslims. However, this Act did not in any way improve the position of the male owners who had succeeded under the custom for it did not enlarge their power of disposition in respect of ancestral property. Consequently, the reversioners continued to challenge alienation made without consideration or legal necessity.
4. On 1-8-1983 the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 was promulgated. It inserted a new provision as section 2-A in Act V of 1962. This section reads as follows :-- "Notwithstanding anyting 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 the 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) Act ;
(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 of 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."
As a consequence of making a male owner who had inherited land under custom as the absolute owner thereof and equating him with the person who inherited land under the Shariat the restrictions from which he hitherto suffered in matter of disposition of ancestral property stand removed by this new provision, for a person who inherits property under the Personal Law is not subject to any such limitation. Further, the language in which clause (a) has been worded indicates that the restrictions have been removed with retrospective effect, beginning right from the time he inherited property under the custom. This position is further apparent from clause (b) which states that '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 of possession of agricultural land on such basis shall void, -inexecutable and of no legal effect to the extent it is contrary to the Muslim Persona! Law (Shariat) Act'. An exception has however been made in respect of past and closed transactions where possession has already been transferred in pursuance of a final decree. But then this exception is not relevant to the case before me.
5. The plea of abatement raised by the respondents is based upon clause (c) of the new section which states that all suits or other proceedings of such a nature pending in any Court shall stand abated. There can be little doubt that the suits and proceedings referred to in this clause are such actions as have been brought to question the power of disposition; of owners who inherited property under the custom. The plea seems to have been well taken for on the face of it the appeal before me appears to be hit by the said clause. However, on behalf of the appellant it is argued that as clause (c) does not expressly make a mention of appeals, its provisions cannot be invoked to throw out appeals which already stand admitted to regular hearing. This argument cannot be accepted for a number of reasons. To begin with, an appeal is continuation of a suit. Again, male owners succeeding under the custom have been made full owners from the very day they inherited the land, and by operation of clause (b) any alienations made by them have been made valid with retrospective effect. In view of this legal position even if the word "suit" be construed sticto senco so as not to include an "appeal", the expression "other proceedings of such a nature" is wide enough to include appeals also. Any other construction of clause (c) would lead to an incongruous result in that though the decrees already in existence have been declared void and of no legal effect, yet, in case of appeals already admitted the Court can still pass decrees in derogation of the power of alienation enjoyed by the male owners. I am therefore quite clear that the appeal preferred by the appellant is hit by the provisions of clause (c) and for that reason it stood abated on the day when Ordinance No, XIII of 1983 came into force. Accordingly, I record a formal order to that effect. There will be no order as to costs.