1. ' MUHAMMAD AFZAL ZULLAH, J.-These four appeals arise out of cases of inheritance in the Province of the Punjab. They involve similar questions of law. They are, therefore, being disposed of together.
2. ' The facts and circumstances relevant at this stage in each case are as follows : C. A. No, 144 of 1972, hereinafter referred to ac Appeal No, I : ' In 1958 the appellant side sought by a suit, a declaration to the effect that the suit property was 'ancestral' and under the customary law, its sale by defendant No, 1 on 3-2-1958 to defendants Nos.
3. 2 to 5, not having satisfied the conditions of alienation under the said law, would not affect the right of the reversionary heirs, after the death of the said defendant No,
1. He in reply, pleaded that the alienation was due to an act of good management as permitted by the customary law and that in any case he being full owner, was competent to dispose of his property in any manner he liked- support was sought from the provisions of the Muslim Personal Law (Shariat Application) Act, 1948, hereinafter referred to as Act IX of 1948.
4. ' A Division Bench of the Lahore High Court held that the suit land was ancestral qua the concerned parties and that they followed customary law of succession, according to which such land was inalienable except for consideration and legal necessity; which stood established in this case as it was on account of good management. The defendants' plea regarding the effect of the Act IX of 1948 on succession from a person who had inherited prior to its promulgation under the customary law from a person who was governed by that law was repelled with reference to the decision of this Court in Abdullah and others v. Mst. Bakhto Mai and another (1), It was held therein that : "The difference brought by the Act of 1948 is that while the powers of a limited owner to alienate the property without legal necessity are still governed by custom, the rule governing succession to the property, on the termination of a limited estate, has ceased to be a rule of custom and by statute has been replaced by the rule that the Muslim Personal Law shall govern the succession."
5. ' The plaintiffs' right to contest the alienation was also affirmed as it stood established by law including the Punjab Laws Act of 1872. Accordingly while deciding the legal questions in favour of the plaintiffs, their suit was dismissed on findings of fact regarding legal necessity in favour of the defendants.
6. Leave to appeal was granted in this case to examine only the contention that the High Court could not set aside a finding of fact in second A appeal under section 100, C. P. C.
7. C. A. No, 159 of 1972, hereinafter referred to as Appeal No, 2: ' Musa Kban predecessor-in-interest of the respondents instituted a declaratory suit in 1954/56 seeking 4/144 share in the suit property on the ground that he was the collateral of Taj Muhammad the last male holder thereof who died in 1920 and also because Mat. Phapho Bibi the deceased widow of f Taj Muhammad was his sister. He also challenged the gift made by the widow on 23-6- 1953 in favour of her two daughters from Taj Muhammad namely Mst. Zenab and Mst. Shakran Bibi regarding of the land left by Taj Muhammad (the other half had been gifted away in 1941 to their two other daughters-Mst. Bakhat Sawi and Mst. Basran). She died within few days after making the gift. His plea that she was a limited owner under custom when Act IX of 1948 was promulgated but by virtue thereof (as ameded by Act XI of 1951) she was entitled to inherit only 1/8 share out of her late husband's estate, therefore, She could not gift more than the said 1/8 share, was accepted and his suit was decreed. The following contention was noted for grant of leave to appeal sought by the daughters (donees) : "that the West Pakistan Muslim Personal Law (Shariat) Application Act, 1948, as amended in 1951, applies to the case, and therefore, the widow on the death of her husband succeeded to 1/8th share of the property and this share she could dispose of by gift. The learned Single Judge it has been submitted, therefore, erred in holding that since the widow had inherited only a limited interest on the death of her husband, she could only transfer a limited interest by the gift in question.
8. ' With reference to Rabia v. Akbar PLD 1962 Lah. 837 it has also been contended that it is the self- acquired property of Taj Muhammad Khan deceased and as such according to the Customary law applicable to the parties the daughters succeeded in preference to the collaterals of the deceased and, therefore, the gift in question must he regarded as an acceleration of the succession. In the case
(1) PLD 1956 SC 321 under report it was held that the power to make a gift of the property which was conferred on the holder of the property under the Customary law had not been abrogated by reason of the passing of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, just as the Nwe r to make a gift has not been conferred on a person who came into possession of the property under a system of Customary law which did not give the holder the right of ownership in the property."
9. C. A. No, 48 of 1973, hereinafter referred to as Appeal No, 3: The following pedigree table will illustrate the facts. {{TABLE}} Mir Dad Wife I Wife . e- I I Mst. Hayat Bibi Mst. Fazal Bibi I I I I I --- -----1 --, I I I Mst. Begum Bibi Mst. Mehtab Bibi Din Muhammad Hakim I (Defendant 1) I Jalal ..., -__. -, I I I Fateh Muhammad Mst. Sardar Bibi Sardar Muhammad I (Defendant 3) (Defendant 2) 1 111011111 (Appellant side)
10. Sabbir Hussain Yaqub alias Arshad (Plaintiff - 2) (Plaintiff - 1)
11. (Respondent side) {{TABLE}} ' On the death of Mir Dad, one-half of his land was straightaway inherited by his two sons from Mst.
12. Fazal Bibi. The remaining half was mutated in the name of his other wife Mst. Hayat Bibi. On Hayat Bibi's death which took place after the coming into force of the Act IX of 1948 this half was mutated in favour of the appellants, her progeny from the wedlock with Mir Dad, in May 1957. In March, 1958 a suit was instituted by great grandsons of Hakim (a son of Mst. Fazal Bibi the first mentioned wife of Mir Dad) claiming that the original mutation of one-half of Mir Dad's land (which shall be described as the suit-land) was sanctioned in the name of Mst. Hayat Bibi only as by way of maintenance and on her death (which according to them took place in 1945) the mutation, instead of being effected in favour of the respondents-plaintiffs as the rightful heirs of Mir Dad under custom, was sanctioned to the appellants on account of the collusion with the revenue staff. It was also claimed that the said property was ancestral qua the parties and that according to custom the respondents were better entitled to inherit the same. The learned trial Judge decreed the suit on the finding that the suit-property was ancestral; that the parties were governed by custom ; that Mst. Hayat Bibi got the land in lieu of maintenance under custom ; and further, that on her death the land should have reverted to Mir Dad's sons as his heirs and that being so the plaintiffs/respondents side had preferential title as against the appellants. In appeal however the District Court reversed almost all these findings. Mst. Hayat Bibi was held to be a limited owner under custom ; that she died after the coming into force of the Act IX of 1948 and, that the succession would; under the said law, be deemed to have opened out on the termination of the said limited interest of Mst. Hayat Bibi. And that being so her heirs i. e., the appellant side would accordingly inherit that part of Mir Dad's property also which would have been inherited by Mst.
13. Hayat Bibi as if she originally inherited under Muslim Law.
14. ' On second appeal a learned Single Judge of the High Court allowed the appeal and restored the findings of the trial Court to the effect that Mst. Hayat Bibi was only a maintenance holder and that hers was not a life estate. Consequently on her death the property reverted to the descendants of her stepsons namely the plaintiffs/respondents.
15. Leave to appeal was granted in the above circumstances to examine : whether according to the custom prevailing in the parties' family Mst. Hayat Bibi did not succeed to life estate ; whether the respondents/ plaintiffs were able to discharge the onus regarding their assertion that she was only a maintenance holder; and lastly whether the High Court having accepted the correctness of compilation of Sialkot District" and the correctness of the case Jaswant Singh v. Khushal Singh (1) which supported the appellants' contention regarding the parties custom, should have ignored the same simply because there was some technical omission in the written statement.
16. C. A. No, 95 of 1973, hereinafter referred to as Appeal No, 4 : ' In 1951, Hussain Bakhsh the owner who had inherited property under custom and was thus governed by customary law of succession, sold 105 Kanals 12 Marlas land out of 446 Kanals owned by him to Javed Mahmood Akram appellant for Rs, 80,000. Nazir Ahmad his son who at the time of the said sale was only 9 years old on 8-10-1960 brought a suit for declaration to the effect that the land in dispute was ancestral and had been sold without any consideration and legal necessity and thus could not have effected his reversionary right, after the death of Hussain Bakhsh. It is necessary to mention here that the sale-deed, amongst others, was attested by Mehtab another son of the vendor. Appellant contested the suit. It was held by the trial Court that the land no doubt was ancestral; that the vendor had only limited right of alienation and the sale was for consideration but legal necessity was established only to the extent of Rs, 12,500' Accordingly the declaration sought for was granted with the condition that if and when succession shall open on the death of the vendor the plaintiff shall obtain possession of the land only on the payment of the amount for which no legal necessity was established. The suit was dismissed regarding one Kanal of land which in the meanwhile was exchanged by the appellant with Ramzan, Ghulam Muhammad etc. Who were not impleaded as defendants in the suit. Both the parties filed appeals.
17. The appellant seeking dismissal of the suit asserting valid necessity for the full amount and the respondent/plaintiff for the avoidance of the sale in its entirety. The District Court however dismissed both the appeals. The High Court also dismissed appellant's second appeal.
18. ' Leave to appeal was granted to consider whether in the circumstances of the case the Courts below were right to set aside the sale although
(1) 1916 I C 893 legal necessity was proved to the extent of Rs, 12,500. It may be mentioned here that the vendor having since died (the leave granting stage (July 1973), the respondents had already filed another suit for obtaining possession on the basis of the decree impugned in this appeal.
19. Notwithstanding the points noted for consideration in the orders granting leave to appeal in all these cases, they in the interest of justice shall have to be decided on due consideration of the general impact and effect in each case of a recent legislation of great public importance namely Muslim Personal Law (Shariat) Application Act-The Punjab (Amendment) Ordinance, 1983. All the leave granting orders would be deemed to have been modified and their scope enlarged accordingly. This law has, by way of amendment in The Punjab/Sind-N.-W. F. P./Baluchistan Muslim Personal Law (Shariat) Application (West Pakistan Act V of 1962), added section 2-A thereto. It was enforced on 1st August, 1983. Act V of 1962 as amended by Punjab Ordinance No, XIII of 1983 reads as follows : "Preamble.-An Act to consolidate and amend the provisions for the application of Muslim Personal Law (Shariat) in the Province of Punjab/Sind/N.-W. F. P./Baluchistan.
20. ' Whereas it is expedient to consolidate and amend the provisions - for the application of Muslim Personal Law (Shariat) in the Province of Punjab/Sind/N.-W. F. P./Baluchistan ; ' It is hereby enacted as follows :- ' Section 1. Short title and extent.- (1) This Act may be called the Punjab/Sind/N.-W. F. P./Baluchistan Muslim Personal Law (Shariat) Application Act, 1962.
(2) It extends to whole of the Province of Punjab/Sind/N.-W. F. P. And Baluchistan.
21. ' Section 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.
22. 2-A. 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 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 decree.
3. Termination of limited estates under Customary Law.-The limited estates in respect of immovable property held by Muslim females under the Customary Law are hereby terminated '
23. Provided that nothing herein contained shall apply to any such estate saved by any enactment repealed by this Act and the estate so excepted shall continue to be governed by that enactment, notwithstanding its repeal by this Act.
24. ' Section 4. Further operation of certain wills shall cease on the death of legatee-in-enjoyment.
25. Where a will providing for more than one legatee succeeding to the testator's property one after the other is operative at commencement of this Act, its further operation shall cease upon the death of legatee-in-enjoyment.
26. ' Section 5. Devolutian 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 he 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 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.
27. ' Section 6. 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.
28. ' Section 7. Repeal and savings.-(1) The following enactments are hereby repealed :- a. The Punjab Limitation (Custom) Act, 1920 ; b. The Punjab Custom (Power to Contest) Act, 1920 ; c. The Muslim Personal Law (Shariat) Application Act, 1937, in its application to West Pakistan ; d. The North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935 ; e. The Punjab Muslim Law (Shariat) Application Act, 1948 ; f. The Muslim Personal Law (Shariat) Application (Sind Amendment) Act, 1950 ; g. The Bahawalpur State Shariat (Muslim Personal Law) Application Act, 1951 ; h. The Khairpur State Muslim Female Inheritance (Removal of Customs) Act, 1952.
(2) This Act shall not apply to cases where the death of the last full owner or the termination of the life estate or the death of the legatee in-enjoyment, as the case may be, has occurred before the commencement thereof, and all such cases shall be governed by the Acts repealed in subsection
(1) according to territories in which they were operative."
29. It would be appropriate to give the historical background which has culminated in the said law.
30. After the conquest of the Indian Subcontinent by the alien power various laws were enacted to govern separate E territories as and when the need arose. A detailed discussion on evolution of sub-continental jurisprudence would be found in Haji Nizam Khan v. Additional District Judge, Lyullpur and others (1). In that context it will be relevant for the present discussion only to mention three laws : (1) section 26 of Bombay Regulation IV of 1827 ; (2) section 5 of the Punjab Laws Act IV of 1872; and (3) section 27 of the N.-W. F. P. Laws and Justice Regulation VII of 1902. Similar provisions were made in these legislative measures on the subject-matter under discussion. The one requiring particular consideration and attention would be section 5 of the Punjab Laws Act, 1872, therefore, the same is reproduced below : "5. Decisions in certain cases to be according to native laws.-In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision shall be- a. Any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority. b. The Muhammadan Law, in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to."
31. It is also necessary to notice here two more laws which have always been considered in the Punjab as complementary to section 5 of Act IV of 1872. They are : The Punjab Limitation (Custom) Act, I of 1920 and The Punjab Custom (Power to Contest) Act, II of 1920.
32. ' It would be seen that notwithstanding the fact that Custom was to be the rule of decision in matters enumerated in the purview of the section by virtue of sub-clause (a) thereof, Muslim Law was to be applied as the governing rule under sub-clause (b) in cases where parties were Muslims, except in so far as such law had been altered or abolished by legislative enactment or stood modified by any such Custom. Case-law developed in the sub-continent on the lines that the 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.
33. Attempts were made by the Muslims of India to remove the said rider regarding Custom in different phases. It is not necessary to notice all of them. It would suffice if mention is made of the North-West Frontier Province Muslim Personal Law (Shariat) Application Act (VI of 1935) and the Muslim Personal Law (Shariat) Application Act, XXXVI of 1937-a Central Statute. Section 2 of this latter Act reads as follows : "Section 2. Application of Personal law to Muslims.-Notwithstanding
(1) PLD 1976 Lab. 930 any custom or usage to the contrary in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained-under contract or gift or any other provisions of Personal Law, marriage, dissolution of marriage, including tal_.q, ila, zihar, Tian, khula and mubarat, maintenance, dower, guardianship, gifts, trusts and trust properties, and Wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in case where the parties are Muslims shall be the Muslim Personal Law (Shariat)".
34. ' It is necessary to note that the overriding control of "custom" or "usage to the contrary" on questions mentioned in the above provision including succession, was removed, except in so far as it related to agricultural land. Although other laws were later enacted including on marriage with a view to enforce Muslim Personal Law (though partially), yet it was not till Independence that the law of inheritance regarding agricultural land was changed. The first attempt was made in the Punjab with the enactment of the West Punjab Muslim Personal Law (Shariat) Application Act, IX of 1948.
35. Parallel provisions were also made in the Colonization of Government Lands (Punjab) Act (No, V) of 1912 by Punjab Act III of 1951 and in The Tenancy Act (Punjab Act XVII) of 1887 by Punjab Act IV of 1951.
36. Although in the Punjab a separate enactment was made which purported to be a Code by itself, in the form of Act IX of 1948, in Sind an amendment was made in section 2 of Act XXXVI of 1937 (reproduced above). By section 3 of the Muslim Personal Law (Shariat) Application (Sind Amendment) Act No, XXII of 1950, the phrases "save questions relating to agricultural land" and "charities and endowments" were omitted from the said section (2 of Act XXXVI of 1937). Relevant comment on the development of this branch of law in N.-W. F. P. Has been made by this Court in the case of Muzaffar Khan V. Mst. Roshan Jan and others (1). (In addition to the afore-noted laws, in the field of Rehabilitation of Diplaced Persons, necessary amendments on same lines have been made in the evacuee laws and schemes, one of them being Punjab Muslim Personal Law (Shariat)
37. Application (Removal of Difficulties) Act (No, XXV) of 1975. For Baluchistan the position can be discovered by making reference, amongst others, to the Baluchistan Civil Disputes (Shariat Application) Regulation, 1976 and the Rules made under para. 6 thereof. The Bahawalpur State Shariat (Muslim Personal Law) Application Act, 1951 and The Khairpur State Muslim Females Inheritance (Removal of Customs) Act, 1952 also are worth noticing. There might be other similar laws, but they all need not be noted here.
38. ' After the foregoing broad outline, it is essential to revert to the post-Partition development of this branch of law in the Punjab, from which Province these appeals have arisen. Punjab Act IX of 1948 as amended by Act XI of 1951 reads as follows : "The West Punjab Muslim Personal Law (Shariat) Application Act (No, IX) of 1948 (As amended by Act XI of 1951)
39. (15th March, 1948)
40. ' An Act to provide for the application of the Muslim Personal Law (Shariat) to Muslims in West Punjab in certain respects,
(1) PLD 1984 SC 394 ' Preamble. Whereas it is expedient to make provision for the application in certain respect of the Muslim Personal Law (Shariat) to Muslims in West Punjab ; ' It is hereby enacted as follows : ' Section 1. Short title, extent and commencement.-(l) This Act may be called the West Punjab Muslim Personal Law (Shariat) Application Act, 1948.
1. It extends to the whole of West Punjab.
2. It shall come into force at once.
41. ' Section 2. 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 bastard), 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.
42. ' Section 3. In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any such person before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat) ; ' Provided that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner, shall devolve on her if she loses her limited interest in the property on account of her marriage or re-marriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death.
43. ' Section 3-A. Where a will made by a Muslim provides for more than one legatee succeeding to the testators' property one after the other, and the will has taken effect before the coming into force of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951, on the death of the legatee-in-enjoyment of the property at the time of the coming into force of that Act, the property shall devolve on such heirs and successors of the testator under the Shariat as would have inherited it had the testator died in testate and if any person who would have so inherited the property or any share therein, had there been no will, has in the meantime died, his share in the testator's property shall devolve on such of that person's heirs and successors as may be in existence at the time of the death of the said legatee.
44. ' Section 4. Repeal of section 5 of Punjab Laws Act for certain purposes.- With effect from the date on which this Act comes into operation, (i. e. 15th March, 1948) so much of the provisions contained in section 5 of the Punjab Laws Act, 1872, as conflict with the present Act shall be deemed to have repealed.
45. ' Section 5. Save as expressly provided by the provisions of section 3, this Act shall have no retrospective operation."
46. It is important to notice that section 5 of Act IX of 1948 (as amended) provided that save as expressly provided by the provisions of section 3, that Act would have no retrospective operation.
47. Further, by virtue of the superior Courts declaration of law when interpreting various provisions of that Act with reference to the retention of Customary law as projected in the old legislations already noticed, it was ruled first by the Lahore High Court and then by this Court in several judgments dealing with various aspects of succession including widows limited estate, that, a person who had inherited agricultural land prior to the enforcement of Act IX of 1948, his or her power of alienation (treating the same as an incidence of Customary succession) will be controlled by the law of succession which applied to him or her then (prior to Act IX of 1948). In other words, if a person had inherited agricultural land under Custom as an heir (in any form) to the last full owner, then qua that heir the restrictions regarding alienation under Custom would control his power of alienation notwithstanding the promulgation of the Muslim Shariat Application Act IX of 1948. An important condition, amongst others, which was consistently spelled out was that no alienation could take place without the consent of the concerned reversioners unless it was for consideration and legal necessity. Females/widows inheriting the estate in various forms were also dealt with, on somewhat similar lines.
48. ' Some well-known Lahore cases have been noticed in Muhammad Ishaq v. Federation of Pakistan (11 and The Federation of Pakistan v. Muhammad Ishque (2). Some important cases of this Court dealing with similar and related aspects are : ' Mat. Shahzadan Bibi v. Amir Hussain Shak PLD 1956 SC (Pak.) 227 ; Abdullah v. Mst. Bakhto Mai PLD 1956 SC (Pak) 321 ; Said v. Fazal Hussain PLD 1959 SC (Pak) 356 ; Khair Din v. Muhammad Hussain PLD 1961 SC 468 ; Syed Abdur Rashid v. Pakistan PLD 1962 SC 42 ' Mir Laik v. Standard Vacuum Oil Company tEsso) PLD 1964 SC 220 ; Mst. Rehmat Bibi v. Ibrahim PLD 1966 SC 349 ; Ihsan Ilahi v. Hukam Jan PLD 1967 SC 200 ; Mst. Qaisar Khatoon v. Maulvi Abdul Khaliq PLD 1971 SC 334 ; Muhammad Yaquo v. Member, Board of Revenue PLD 1973 SC 304; vest. Khatun v. Malla 1974 SCMR 341 ; Amir Bakhsh v. Allah Yar PLD 1974 SC 124 ; Aslam v. Mst. Kamalzai PLD 1974 SC 207 ; Mst. Zarmina v. M, najawar 1975 SCMR 487 ; Muhammad Ismail v. Barkhurdar PLD 1977 SC 144 and. Zafarulluh v. Muhammad Siddiq PLD 1980 SC 76.
49. ' As would appear from the precedent law certain difficulties arose regarding the application of the Muslim (Shariat) law to the matters enumerated in Act IX of 1948. Accordingly 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 reproduced earlier, was promulgated on 31st December, 1962. It inter alia repealed and purported to re-enact laws relevant for application of Muslim Personal Law (Shariat). As would appear from the legislative history as also the discussion in some of the aforecited rulings by the superior Courts, this law had also not achieved all the purposes for which it was enacted. Accordingly another law namely the Punjab Muslim Personal Law (Shariat)
(1) PLD 1981 F SC 278 (2) PLD 1983 SC 273 ' Application (Removal of Doubts) Ordinance (No, IX) of 1972 was promulgated on 12th of April, 1972.
50. It reads as follows : "1. Short title, extent and commencement.-(1) This Ordinance may be called Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972.
1. It extends to the whole of the Punjab.
51. 2.It shall come into force at once and shall be deemed to have taken effect from the 31st day of December, 1962.
2. Removal of doubts.-(1) Notwithstanding anything contained in the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (Shariat) (Amendment) Ordinance, 1963 (West Pakistan Ordinance XXXIX of 1963), the West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act, 1964 (West Pakistan Act XXVIII. Of 1964) or any other law or any decree, judgment or order of any Court or other authority or any proceeding before any Court or other authority the limited estates in respect of immovable property held by Muslim females under the Customary law shall be deemed to have been terminated with effect from 31st day of December, 1962.
(2) All decrees, judgments, or orders passed in any suit, appeal or other proceedings by any Court or other authority which are inconsistent with the provisions of subsection (1) shall be of no legal effect and such suits, appeals or other proceedings shall be decided afresh on the application made by a person affected by such decree, judgment or order."
52. ' Before passing on to the next subject it might be of some use for completing the picture to mention that a special law of inheritance was also enacted qua grandchildren of Muslim grandparents whose parents had died during the lifetime of their grandparent, in section 4 of the Muslim Family Laws Ordinance (No, VIII) of 1961 a Central Statute. A challenge to this law as being against Quran and Sunnah, under Chapter 3-A of the Constitution failed on technical ground of jurisdiction, in the case of Federation of Pakistan v. Mst. Farishta (1).
53. ' The enforcement of Muslim Law of Inheritance in accordance with the dictates of the Constitution fell short of the intended purposes and the Customary Law continued to govern some of the questions relatable to succession and alienation by males as well as females. This situation prevailed till 1981 when the Federal Shariat Court ruled in the case of Muhammad lshaque that the Customary law and its related rules discussed above and referred to in that judgment in particular, were repugnant to the Holy Quran and Sunnah, and in exercise of the power conferred by Article 203-D of the Constitution, the Customary Law which allowed challenge by collaterals to the alienation of property inherited under Custom by a full owner, was declared as ineffective.
54. Necessary amendment in the Muslim Personal Law (Shariat) Application Act. 1962 was directed to be made by 30th of June, 1981. It was however clarified that this declaration would not affect any rule regarding the right of reversions to challenge any alienation made by female holders of limited estates before the enforcement of the said Act of 1962 which put an end to all limited interests as the considerations regarding thereto were different.
55. ' The Federation of Pakistan preferred an appeal from the judgment of the Federal Shariat Court before the Shariat Appellate Bench of this
(I) PLD 1981 SC 120 Court which was dismissed on 17th May, 1982. The decision is reported as The Federation of Pakistan v. Muhammad Ishque. The direction of the Federal Shariat Court for amendment of the relevant law was upheld. However further time was allowed for making the amendments till 20th June, 1983. We have not been informed whether any amendment has been made in any other Province but a law has been enacted in pursuance of the said decisions of the Federal Shariat Court and the Supreme Court of Pakistan, in the Punjab. It is Muslim Personal Law (Shariat) Application Act (The Punjab Amendment Ordinance No, XIII) of 1983, which has already been reproduced. It has added section 2-A to the Act V of 1962.
56. ' Before discussing the implications of the new Punjab law, it would be appropriate to mention that by item No, 11 2nd Schedule of Federal Laws (Revision and Declaration) Ordinance (No, XXVII) of 1981 PLD 1982 Central Statutes 12, an amendment was made in section 5 of the Punjab Laws Act IV of 1872 as follows : "11. The Punjab Laws Act, IV of 1872.-1. In section 5, i. In clause (a), for the words "Any custom" the words and comma "Where the parties are not Muslims, any custom" shall be substituted ; and ii. In clause (b), the words and commas "the Muhammadan law, in cases where the parties are Muslims, and" shall be omitted."
57. ' By virtue of section 3 of this Ordinance, the repeal by this Ordinance shall not affect the previous operation of any law so repealed.
58. All the learned counsel while interpreting the latest Punjab law of 1983 have tried to point out certain omissions, technical or otherwise, shortcomings and/or so-called defects in this law. Be that as it may, it has undoubtedly achieved the major object contained in the directions of the Federal Shariat Court and the Supreme Court in the aforecited two judgments. It is highly important to note that in the opening clause of the newly-added section 2-A (to Act V of 1962) it has been made absolutely clear that notwithstanding anything to the contrary contained in section 2 of 1962 Act "or any other law for the time being in force"; and further, notwithstanding "any custom or usage or decree, judgment or order of any Court", the governing law shall be Muslim Personal Law (Shariat) ; if, any male "heir" had "acquired" any agricultural land under custom before the application of Act IX of 1948 on I5th March, 1948; provided the person from when the said heir had acquired the land, was a Muslim. In order to make it more clear it has been provided that the said heir shall be deemed to have become, upon the said acquisition "an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat)".
59. ' Section 2-A has several implications. It would, amongst others, also lead to the following results in so far as these four cases are concerned:-
(a) Wherever a male heir had acquired by way of inheritance (if there is other acquisition also it is not relevant here) agricultural land from any Muslim before 15th of March 1948 he shall be deemed to be an absolute owner having the power of alienation as enjoyed under the Muslim Law. a. The power of alienation, even if it takes place before 15th March, 1948, shall not be controlled by any rule of customary law because the deeming provision makes it clear that the male heir had become `upon such acquisition' (prior to 15th March, 1948) an 'absolute owner of such land'. b. The foregoing two conclusions and consequences flowing from section 2-A shall not be controlled by what is contained in any law for the time being in force. This is without any exception.
60. Thus section 5 of the Punjab Laws Act IV of 1872 and the Punjab Limitation Customs Act (No, 1) of 1920 and the Punjab Customs (Power to Contest) Act (No, Ii) of 1920 or any other law mentioned in section 7 of 1962 Act as also similar other laws, even to the extent they were previously held by the superior Courts to be applicable, would not effect the operation of the law enacted and declared in section 2-A. c. The phrase in section 2 of the 1962 Act; 'subject to provisions of any enactment for the time being in force' and similar other expression in section 7 (2) thereof has lost its purpose and efficacy in these cases though the proviso to section 3 will not suffer simila erosion in so far as it gives effect to the judgment of the Federal Shariat Court and the Supreme Court regarding the limited estate which were earlier held by females. The same result has been provided in the opening part of section 2-A. That is, 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 or judgment or order of any Court, the said law shall have operation. d. Therefore, this new law has a far-reaching effect. Subject to the provision contained in its sub-clauses (b) and (c) it nullifies all orders, judgments and decrees as also neutralizes custom and usage and further to the extent any law is in conflict with the new law, it overrides the same. In this context, therefore, all rules of custom and all previous laws to the extent they remained alive not with standing earlier partial or ineffective repeal and despite the previous decisions of Courts would, by virtue of this new law and to the extent it makes a new provision to the contrary, would lose effect.
61. ( f ) The questions of retrospectively in ordinary technical sense is not relevant as this provision itself relates to a period prior to 15-3-1948 and is being enacted nearly half a century later. Such an operation of this provision would come only in a seeming conflict with section 6 of the 1962 Act but there can be no hurdle in reading section 6 in its own context and not affecting the retrospectivity inherent in section 2-A. When both are put in juxtaposition to each other the following two important re-arranged positions of section 2-A would emerge : 1) If 'a male heir had before the commencement of the Punjab Muslim Personal Law (Shariat)
62. Application Act, 1948......Acquired any agricultural land under Custom from the person who at the time of such acquisition was a Muslim'
(2) he 'shall be deemed to have become..,......An absolute owner as if such land had devolved on him under the Muslim Personal Law (Shariat)'. a. Thus, it will neutralize the effect of section 6 on 2-A. Not only this, sub-clause (b) of section 2-A also makes it more clearly retrospective because it not only affects pending suits but also proceedings which have culminated into final decrees. They, if contrary to the purview of the main substantive provision in section 2-A or in any way coming in conflict with any of the provisions of the Muslim Personal Law (Shariat) Act, 1962 as amended, would now become inexecutable and of no legal effect under sub-clause (b). b. Same is the effect of sub-clause (c) which provides that all suits or other proceedings including the execution proceedings seeking possession of land under such decrees shall abate forthwith. !-(1) Notwithstanding the foregoing reading of section 2-Avisualisin it in substance as having application prior even to 15th March, 1948 as well and in this sense being retrospective, the proviso to sub-clause (c) thereof clearly excludes its operation in so far as the past and closed transactions are concerned. They, as explained therein would include only those cases where possession of the land has also already been delivered under such decree as is referred to in sub- clauses (b) and (c). To this limited extent, therefore, the inherent retrospectivity of section 2-A has been controlled by the proviso to clause (c).
63. ( j) In the light of the above analysis the provision being of a special character would require interpretation in peculiar context thereof. Therefore, it would not be necessary to examine the further contention advanced at the bar that declaratory legislation, a section 2-A prima facie appears to be, is ordinarily retrospective-though the examination would lead to the same result.
64. For the same reason the following cases and other authorities dealing with different facts of retrospectivity cited at the bar need not be commented upon in the present discussion : ' Mst. Fazal Begum v. Hakim Ali AIR 1941 Lah. 22 ; Nuruddin Akhan v. Kuti Baru Bibi PLD 1952 Dacca 2 2 ; Tofazzal Hussain v. The Province of East Pakistan PLD 1961 Dacca 389 ; Messrs Dreamland Cinema, Multan v. Commissioner of Income-Tax Lahore PLD 1977 Lah. 292 ; Wali Muhammad v.
65. Additional Deputy Commissioner PLD 1973 Notes (Lah.) 83 ; Abul Ka/am v. Bashir Ahmad Rana 1984 CLC (Kar.) 2997 ; Province of East Pakistan v. Muhammad Mehdi Ali Khan PLD 1959 SC 387 ; Province of East Pakistan v. Muhammad Hussain Mia PLD 1965 SC 1 ; Sayeedur Rahman v. Chief Election Commissioner. Dacca PLD 1965 SC 157 ; Begum B. H. Syed v. Afzal Jahan Begum PLD 1970 SC 29 ; Rafiuddin v. Chief Settlement and Rehabilitation Commissioner PLD 1971 SC 252 ; Commissioner of Sales Tax v. Kruddsonc Ltd. PLD 1974 SC 180 ; and Federation of Pakistan v.
66. Muhammad Siddiq 1980 SCMR 443. Craies on Statutes Law, 7th Edn., Chapter 15 ; Crawford's Statutory Construction (1940), p. 107 and Maxwell on The Interpretation of Statutes, 12 Edn., p. 224- 225.
67. Before proceeding further it needs to be clarified and emphasised that the question whether a "transaction" (distinguished from "a case"), as used in the proviso to clause (c), is past and closed will depend upon the circumstances of each case; though with one certainty in all cases namely that "possession of such land has already been delivered under such decree".
(k) Although it can be generally safely assumed that the purview of section 2-A together with its sub-clause (a) provides substantive law and sub-clauses ( )) and (c) together with the proviso to sub-clause (c) provided its procedural content, no hard and fast water-tight rule can be laid down in this behalf because there are elements of eithe type in the two sets of provisions contained in section 2-A.
68. (0 It needs to be clarified here that the word 'acquisition' which ha been used twice vis-a-vis "a male heir" in the purview and sub-clause (a) of section 2-A, in so far as the present cases are concerned, would apply to the acquisition through succession, but, whether this word is intended to be applied to other acquisitions by a male 'heir' from a Muslim predecessor, not being relevant in the present four cases, might be examined as and when proper occasion arises.
(in) No hard and fast rule would apply to question of abatement visualised in clause (c). As to whether an appeal, being generally treated as continuation of the suit proceedings, it would abate in cases of alienations, will depend upon the facts of each case. Each case would have to be looked at under the light of th purview of sub-clause (a) of section 2-A read with sub-clauses (b) and (c) of section 2-A. For example, although an appeal filed by an alienee might prima facie relate to the question of alienation generally covered by clauses (a) and (b) but he having obtained the right in the property from an 'absolute owner' as declared by this law, would in proper cases, be able to assert his right in appeal on the basis of the purview of section 2-A and thus contrary to abatement and notwithstanding what is contained in clause (b), he might be entitled to pursue and obtain a decree in appeal. But ordinarily the appeals filed by those who had failed to obtain a decree for cancellation or setting aside of alienation, depending upon the circumstances of each case, will abate. a. In yet another eventuality neither of the two foregoing postulations might be strictly relevant. It can be illustrated by visualising a decree, setting aside an alienation covered by sub-clause (b) of section 2-A, having already been passed and the same being under challenge in appeal. If the appellate Court had not issued any order staying the execution and accordingly it was executed during the pendency of appeal and the possession also delivered ; but notwithstanding the execution the pendency of appeal will keep the dispute alive and it (execution) will remain subject to the result in appeal, a further appeal or revision, if competent.
69. The execution of the decree per se notwithstanding the provision contained in clause (c) might not cause the abatement of the appeal. In such a case the execution of decree and delivery of possession would be subject to and controlled by the provisions of the C. P. C. Relating to the restitution on acceptance of appeal. b. It is correct that the newly-enacted section 2-A does not make any specific and direct provision about a female heir acquiring and holding land as absolute owner, limited owner or maintenance holder but for the time being in so far as these present cases are concerned, even if they are treated as illustrative of various disputes, which would come up for resolution, this omission does not present any difficulty nor it appears to be intended so as to exclud this branch of the litigation from the purview of the existing Ac (V) of 1962 read with the newly-added provision to it, namely section 2-A. When the Act is read as a whole as amended by the Ordinance of 1983, section 2-A would give extended meaning to the provisions contained in sections 3, 4 and 5 of the Act of 1962. Section 3 provides that the limited estates held by Muslim female under customary law stood terminated but this termination shall no affect the estates which were kept alive and governed by the law repealed under section 7 notwithstanding the said repeal. Section 5 again inter alia deals specifically with the females whose estate were terminated under section 3. It provides that the estate concerned 'shall devolve on such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner and if any such heir has died in the mean- while his share shall devolve in accordance with Shari at on such persons as would succeed him if he had died immediately after the termination of the life estate ... ... Provided that the share to which a Muslim female holding limited estate under customary law soul have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner, shall devolve on her'. Read in this context, sections 3 and 5 would now be a supplement to the newly-added section 2-A and be treated as its various extensions. a.Thus, read two seeming conflicts/omissions would be removed :
(1) the omission about the female heir would become understandable, because to an extent it already stood supplied by sections 3 and 5 and the remaining gap would be filled by taking into account all the heirs, male or female, of the 'male heir', specified in section 2-A ; and,
(ii) Section 6 would now operate in one way, as an interpretation clause for sections 3, 4 and 5 as well as for 2-A when all read together. And accordingly they shall have retrospective effect. a. It is well-known that the provisions regarding females were inter pretend by the superior Courts as implying that notwithstanding the termination of the limited interest in 1962 the previous holding of the estate and interest was subject to the restrictions imposed by the customary law if the origin of the estate or interest was in the customary law. Accordingly the alienations made by them whether in possession of the land as a limited estate or in lieu of mainte nance were subject to the challenge by the reversioners of the las full owner. The 1962 Act when terminating the limited interest did not make any major change in this behalf. Not only this the judgments rendered by the two superior Courts (Federal Sharia Court and the Supreme Court in its Shariat Appellate Bench also kept alive the law relating to the challenge to the alienations mad by the females holding limited interest; so as to keep in tact an preserve the estate for the benefit of the Muslim (Shariat)
70. Law heirs of the last full owner. Section 2-A has to be interpreted in the foregoing entire context and has to be read and reconciled wit sections 3 and 5 in so far as the females are concerned; as also, the pre-existing section 2 in so far as the general change in the law was concerned. a. The position that develops thus is that a 'male heir' who acquired agricultural land under custom from a Muslim prior to 15th March, 1948, is held to have inherited under the Muslim (Shariat) Law. His heirs, after his death meanwhile, would be discovered in accordance with the Muslim Law. They could be male and female heirs. But if a female deriving the limited interest from any such 'male heir' (now under section 2-A, deemed to be an 'absolute owner under Muslim law' since the time of his acquisition) would not be able to keep any land in excess of her share as an heir under the Muslim law. She will act as a conduit so as to pass the remaining land to the other heirs of such a `male heirs' and so on how low-so-ever, under the Muslim (Shariat) Law of Inheritance. This by and large is what has been provided in and emerges out of the combined reading of sections 3, 4 and 5 now read with section 2-A. Thus. Read in this context, the omission in section 2-A of a female holding an interest in land, is of not much significance. b. Out of the other two aspects of the new legislation commented upon at the bar as involving serious defects/omissions, in addition to the one relating to females, which has just been dealt with, one relates to the scope of the word 'acquisition' used twice in the purview o section 2-A and in sub-claus,; (a) thereof. For the present no more comment is necessary in these cases except that if this word would have been defined, it would have been much better. Be that as it may, whatever the scope of this word in section 2.A, it definitely includes acquisition by succession/inheritance. c. The next omission undoubtedly is so obvious that it cannot be lost sight of even on the assumption that in these cases this omission would not present any serious difficulty. First part of sub-clause (b) of section 2-A reads as follows :- ' 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 . "
71. ' Neither the purview of section 2-A nor any of its clauses including clans (b) provides any qualification for the words "such an alienation" nor for the words "such basis" as used in above- quoted part of clause (b). The word "such" used here shows that an intervening linking phrase, expression or sentence making the sub-clause consistent inter se has inadvertently been omitted: presumably by way of an innocent drafting or printing mistake. It can be safely assumed that the missing phrase could on the one hand qualify "such an alienation" and on the other, it would define "such basis''. Read in the context of the two judgments of the Federal Shariat Court and the Shariat Appellate Bench of this Court the connotation of 'such an alienation' could include the alienation made by any "male heir" as is referred to in the purview of section 2-A ; and "such basis" could refer to the restrictions on account of which "such an alienation" would be void, if, the succession was under Custom and the same had opened prior to 15-3-1948 (as was usually the case under the present law). This could be the only underlying purpose. To an extent it can be achieved in these cases by treating the word 'such' when used for the first time in clause (b), as redundant. Therefore, till the law is amended the Court can act accordingly.
(u) The foregoing interpretation of section 2-A as also the other provisions of Act V of 1962 when read together, takes into account the object of the Legislation in so far as it has been enacted in pursuance of the judgments of the Federal Shariat Court and the Shariat Appellate Bench of Supreme Court. In case of doubt, difficulty, redundancy or omission, the same have been removed by following the well-established rule laid down by this Court in the case of Muhammad Bashir v.
72. The State PLD 1982 SC 139 ; namely, that in such like situations only that course would be adopted which advances Muslim law and the principles of a Muslim jurisprudence.
73. ' Coming now to the controversy involved in each one of these cases, the four appeals are decided, in the light of the foregoing discussion, as follows : Appeal No,
1. The appeal in this case is by the plaintiffs (reversioner side) who tailed, as the impugned judgment shows, to obtain the annul ment of the alienation made ny the full owner on the ground that the alienation, when tested under restrictions of customary law, was not on account good management This appeal must fail on two grounds; One, the purview of newly- added section 2-A in the 1962 Act read with its clause (a) provide that any owner who as a "male heir" had inherited agricultural land before 15-3-1948 under custom shall, by virtue of the new statutory command, be deemed to have inherited it under the Muslim (Shariat) Law and was thus absolute owner enjoying full power over it under the said law. And that being so, no restriction as visualised by custom would annul the alienation. Therefore, the appeal merits to be dismissed on that ground alone. Not only this, sub-clause (c) of section 2-A provides that H all suits and "other proceedings" of the nature visualised in the clause (b) as interpreted and discussed above, shall abate forthwith. Other proceedings would also include appeals, wherever pending. This appeal, therefore, shall also be hit by clause (c) and is accordingly declared as having abated. The mere fact that it is by virtue of jurisdiction conferred by the Constitution that this appeal is pending in this Court, will not make any difference ; because in exercise of this jurisdiction a case is decided in accordance with the relevant substantive laws, provided they are valid. Laws. It is not the case of any of the parties that section 2-A suffers from any Constitutional defect as to its validity. This appeal accordingly fails, and is declared as abated.
74. Appeal No 2. This appeal is by two daughters of the last male owner in the case-Taj Muhammad. A gift of agricultural land was made in their favour by their mother, a widow of Taj Muhammad, in 1953. Taj Muhammad had acquired the land under Custom before 15th March, 1948. His widow the doner in this case died soon after the said gift in 1953. Musa the predecessor-in-interest of the respondents a reversioner of Taj Muhammad challenged this alienation (made by way of gift by the widow in favour of the daughters). He succeeded in obtaining the decree for annulment of the alienation on the usual ground of restrictions on alienations by female limited holder. The two points noted in the leave granting order are of not much relevance now on account of the change in law as discussed earlier. By virtue of section 2-A as interpreted above, Taj Muhammad would be deemed to have inherited the land under Muslim (Shariat) Law and would he deemed to be its full owner. On widow' death in 1953, the estate would have (and did) devolved, straightaway on Muslim heirs of Taj Muhammad under the then existing law namely, Ac IX of 1948. The two appellants would have, together with their other sisters, inherited two-third as heirs of their father Taj Muhammad because there was no male issue. They together with their other sisters would have inherited their share which on widow's death would devolve on them as her heirs out of her Muslim Law share as widow. It is true that only share of the estate left by Taj Muhammad was brought under present litigation by Musa respondent/plaintiff and the remaining half is not to subject-matter of this suit.
75. But it cannot be said that the said half appertains to what is now "past and closed transaction" because proviso to sub-clause (c) of section 2-A makes transaction past and closed only if the possession of such land has already been delivered under such decree. The other half which was not the subject-matter of this litigation was not distributed under any decree therefore for the purpose of the determination of due shares in this appeal, one-half of Taj Muhammad's land, which only was the subject-matter of the suit in the present proceedings, can be treated as available in its entirety for distribution of total share of the present two appellants in the entire land.
76. It is true that they have two other sisters ; but the one half of the entire land has already gone to the said two other sisters. Therefore, the land in dispute (or the other half of the entire land) would be available to satisfy the claim of the appellants as th Shariat Law heirs of Taj Muhammad as also of their mother's share under the Muslim (Shariat) Law, from Taj Muhammad's property. The appeal is allowed in these terms. The actual distribution in accordance with this decision shall be made by the Revenue Authorities through a proper mutation. The two other sisters of the appellants who have already obtained half of the land would not again obtain their share from the land in dispute in this appeal.
77. Appeal No,
3. The appellants side represents the daughters of the las full owner Mir Dad who having inherited property under custom before 15-3-1948, also died before that date. Half of his land which was mutated initially in favour of Mst. Hayat Bibi his widow, on her death (after 15-3- 948) came to appellants. The other half was given to his sons fro another predeceased wife - the respondent side. The latter challenged successfully the mutation sanctioned in appellants' favour on the plea that the land left With Mst. Hayat Bibi was in lieu of maintenance and that it should revert to them on her death. It is, however, clear from evidence, notwithstanding some technical omissions in appellants' pleadings that Mst. Hayat Bibi was holding customary life estate. Therefore, on her death the succession qua that land should have opened in accordance with Act IX of 1948 in accordance with-the well-settled law, on interpretation of section 3 thereof; and it shall also be governed by the foregoing newly-added section 2-A of Act V of 1962 as interpreted above vis-a-vis the females. By virtue of this new law, Mir Dad shall be deemed to be an absolute owner; because of its deeming provision, under which he shall have to be held as having inherited the land under Muslim (Shariat) Law. Thus, under Act IX of 1948 as also under section 2-A of Act V of 1962, the appellants shall inherit the property left by their father in accordance with the Muslim (Shariat)
78. Law. The same would apply to the share of their mother (as her being a Muslim Law heir of her husband). Mir Dad's sons had already been given of the entire land left by him. The remaining being with the appellants side will be utilised for the distribution of their share in the entire land as Muslim heirs. Accordingly necessary new adjustments by way of mutations will now be made by the Revenue Authorities. The appeal is thus allowed in the foregoing terms; but there shall be no order as to costs.
79. Appeal No,
4. In Appeal No, 4, the appellant side is the vendee from Hussain Bakhsh who had inherited the land in dispute before 15-3-1948 under Custom but now he shall be treated as absolute owner and deemed to have inherited under Muslim (Shariat) Law, by virtue of newly- added section 2-A to Act V of 1962. The decree in favour of the respondent side whereby the alienation by Hussain Bakhsh was set aside (conditionally) is, in the light of the foregoing discussion - (by operation of statutory bar) not now executable; as the sale could not at all be set aside. Otherwise too, that decree is subject to the result of this appeal. It is accordingly so declared.
80. The appeal is thus allowed. The decree is set aside. The suit shall stand dismissed. There shall be no order as to costs.
81. ' It needs to be observed that in view of the peculiar situation on account of the change in law and its retrospective operation, instead of remanding these old cases we have decided the same on application of section 2-A read with other relevant provisions of law. The remand would have entailed further expense and difficulties for the parties.
82. ' In the light of the foregoing discussion these appeals are decided as follows : Appeal No, 1 is dismissed on merits and also as having abated. There shall be no order as to costs.
83. ' Appeal No, 2 is allowed in the terms stated above under the relevant heading i. e. "Appeal No, 2" (at pages 35/36). The actual distribution in accordance with the said decision shall now be made through proper mutation by the Revenue Authorities. There shall be no order as to costs.
84. ' Appeal No, 3 is allowed in terms stated above under the relevant heading i. e. "Appeal No, 3" (at pages 36/37). There shall be no order as to costs.
85. ' Appeal No, 4 is allowed. The impugned decree is set aside. The suit out of which the decree arose shall stand dismissed. There shall be no order as to costs.
…and 63 more citing cases