1. NASIM HASAN SHAH, J.--This order will govern Civil Petitions Nos.403, 501, 502, 503, 528, 529, 530, and 542 of 1984, as a common question of law arises for determination in all these petitions.
2. The facts briefly are that one Ghulam Nabi, grand-father of Ghulam Jillani (the predecessor-in- interest of the respondents) was granted agircultural land as " ~" in Chak No.49/3-R, Tehsil Okara, District Montgomery under the Colonization of Government Lands Act, 1912. He did sometimes in 1935/36 and Ghulam Jillani, predecessor-in-interest of the plaintiff /respondents succeeded to his estate (the father of Ghulam Jillani had pre-deceased). Ghulam Jillani, aforesaid, sold this land in various parcels and to various persons (who are petitioners in the 7 petitions for leave to appeal in this Court) in the year 1952. After the sale, the vendees obtained proprietary rights by payment of Malkana dues to the Government. The respondents, who are the legal heirs of Ghulam Jillani deceased, filed suits in the year 1958 challenging the alienations as being contrary to the custom, without consideration and legal necessity and, therefore, were ineffective against their rights and interests. The suits were contested by the vendees petitioners and the pleadings of the parties gave rise to various issues, of which the following to are of relevance in these proceedings:- (4)Whether the parties are governed by agricultural custom by which such ancestral rights cannot be transferred except in the case of legal necessity?
3. (5)Whether the defendant No.2 sold the occupancy rights to defendant No.1 due to legal necessity and for consideration?
4. The learned trial Court decided Issue No.4 in favour of the plaintiffs, but Issue No.5, namely, whether the sales were for legal necessity and for consideration was decided in favour of the defendants.
5. The suits were, accordingly, dismissed. The appeals filed by the plaintiffs/ respondents, however, were accepted by the learned Additional District Judge, Montgomery on the ground that the sales, though for consideration, had been effected without any legal necessity. The petitioners/ vendees, therefore, filed second appeals in the Lahore High Court.
6. In the High Court an important legal question was raised namely, that in view of the judgment of the Federal Shariat Court in the case of Muhammad Ishaq v. Federation of Pakistan PLD 1981 F SC 278 whereby the collateral's powers to throw challenge to the alienation of the property by an owner was held to be repugnant to the injunctions of Islam, the right to question the validity of the sales in dispute, also stood extinguished. The learned Judge, however, did not accept this contention and held that the judgment in question did not cover the issue which arose in the present case. According to the learned Judge, the precise point dealt with by the Federal Shariat Court in the precedent case was that the custom allowing challenge of collaterals powers to the alienations of the property inherited under custom by a male full owner was repugnant to the injunctions of Islam. In the said case the Court had not considered the question pertaining to the rights and powers of the collaterals to challenge the alienation by a tenant of the tenancy rights, which are granted to or which devolve upon the alienor in accordance with the provisions of Colonization of Government Lands (Punjab) Act, 1912, the question that was arising in the present case. The learned Judge, further observed that a perusal of the judgment in the precedent case showed that "the Court limited the application of its declaration to alienations of property inherited under custom by a male full owner. It did not extend its scope to the alienations of tenancy rights by a tenant". He, therefore, held that the judgment of the Federal Shariat Court. And of this Court, which upheld the said judgment, were not relevant f-- the purposes of the decision of the appeals before him, which dealt with the alienations of the tenancy rights by a tenant. He, accordingly; dismissed all the appeals preferred before him. Hence the present petitions for leave to appeal..
7. Mr.S. M. Zafar, in support of these petitions, has, inter alia, contended that the distinction sought to be drawn by the learned Judge in the High Court in the judgment of the Federal Shariat Court and the present case was not rightly drawn. He submitted that the alienations of the tenancy rights under the Colonization of Government Lands Act, 1912 by the tenant could only be challenged by the reversionary under the general custom applicable to agricultural land and the tribes. The said custom having been found to be against the injunctions of Islam and the existing law having been amended by the promulgation of West Pakistan Muslim Personal Law (Shariat) Act (Amendment)
8. Ordinance XIII of 1983 to give effect to this finding, the High Court was not; justified in restricting the scope of the decision of the Federal Shariat' Court only to cases of alienations of the property inherited under custom by a male full owner but should have given full effect to the reason underlying the said judgment, which was also upheld by this) Court, namely, that the Customary Law of the Punjab, which placed restrictions on the right of alienation of a holder of property was against the injunctions of Islam and could, therefore, no longer be tolerated.
9. The question raised is one of the law and is of general public importance. Leave to appeal is, accordingly, granted.
10. Security in the sum of Rs.1,000 in each case.
11. The appeals will be made ready on the present record, with liberty to the parties to add further documents, if any and shall be put up for hearing as early as possible.