ZAFFAR HUSSAIN MIRZA, J.-- This appeal by Abdul Khaliq, since deceased and represented by his legal representatives, arises out of the judgment dated 14th May, 1976, by a learned Single Judge of the Lahore High Court, accepting the regular second appeal filed by Bashir Ahmad (respondent No.1 herein) and setting aside the judgment and decree passed by the learned District Judge.
2. The dispute in this appeal is concerned with agricultural land comprising 9 Kanals 9 Marlas fully described in the plaint of a suit filed by Abdul Khaliq in the Court of Civil Judge, Rawalpindi. This land originally belonged to Faz.Il Khan son of Makhan Khan, who was real brother of Abdul Khalfq.
On the death of the aforesaid owner Fazal Khan in the year 1936, since the deceased was an agriculturist governed by custom in the matter of inheritance, alienation, etc. The entire land was mutated in the names of his two surviving widows, namely, Mst. Kaloo and Mst. Dewan Bias limited owners. Fazal Khan also left him surviving two daughters, namely, Mst. Manawar Jan and Mst. Fazal Jan. The case of appellant Abdul Khaliq is that by means of a registered deed dated 17th August, 1958, Mst. Dewan Bi widow and Mst. Manawar Jan and Fazal Jan daughters of Dewan Bi, purported to relinquish their rights in the land in question in favour of the appellant. Subsequently Mst. Kaloo the other widow of the deceased last full owner, also sold the land in suit by a registered deed dated 28th February, 1962, in favour of Bashir Ahmad (respondent No.1). Being dissatisfied by the alienation made by Mst. Kaloo, the appellant filed a civil suit on 28th May, 1962, seeking a declaration that the sale was void and ineffective, inasmuch as, the widow being a limited owner under the Customary Law was not competent to alienate the land in the circumstances of the case.
3. In his plaint the appellant pleaded that since Mst. Kaloo could not competently alienate the property, the same would revert to the appellant as the sole heir and successor of the deceased full owner in case of the death or remarriage of Mst. Kaloo. Another important plea taken by the appellant in his plaint, which forms the main controversy between the parties in the present appeal was to the effect that Mst. Dewan Bi, Mst. Manawar Jan and Mst. Fazal Jan, who were the widow and daughters of Fazal Khan had surrendered all their rights in favour of the appellant but they were being impleaded as pro forma defendants.
4. The suit was contested by Mst. Kaloo and Bashir Ahmad whereas Mst. Dewan Bi and her two daughters admitted the claim of the appellant. In the events that happened, however, Muslim Personal Law (Shariat) Application Act, 1962, was promulgated and the appellant amended the plaint with the permission of the Court with the result that the suit for declaration was converted to one for the relief of joint possession of 15/16 share in the suit land. In the further written statement filed in response to the amended plaint Mst. Dewan Bi and her daughters contested and denied the validity of the relinquishment deed on the part of the three ladies. The trial Court framed the issues on the points whether the alienation effected by Mst. Kaloo was for legal necessity and for consideration and whether Mst. Dewan Bi and her daughters had relinquished their right to inheritance in the property in favour of the appellant or whether the transaction was, void in law.
The trial Court on the aforesaid issues held that the sale in favour of Bashir Ahmad by Mst. Kaloo was without any legal necessity and was therefore, illegal. As regards the other transaction relating to relinquishment of rights by the other widow and her daughters, the Court held that the document having been executed in August, 1958, that is long before the promulgation of the Muslim Personal Law (Shariat) Application Act, 1962, the transfer amounted to spes successionis, which is void in law and is of no legal effect. The argument based on section 43 of the Transfer of Property Act on the principle of feeding the estoppel was also repelled by the Court as not applicable in the facts of the case. On these findings and conclusions the trial Court decreed the suit of the appellant for joint possession to the extent of 5/24 share only in the suit lands in favour of the appellant.
5. Neither Mst. Kaloo nor Bashir Ahmad challenged the decision of the trial Court holding that the sale in favour of the latter was void. Therefore, the finding on this issue is no longer in dispute and that matter stands concluded. However, the appellant challenged the judgment of the trial Court to the extent that decree in respect of the shares of Mst. Fazal Jan and her two daughters in the inheritance from the last full owner was refused. In regard to the view of the trial Court that the relinquishment deed executed by Mst. Dewan Bi and others was an attempt to transfer a mere chance of succession (spes successionis) and therefore void, it was contended by the appellant before the first appellate Court that the view was untenable as the Transfer of Property Act was not applicable to the transaction and that the same was governed by the customary law under which alienation of reversionary rights is not void. On the other hand on behalf of the respondents 3 to 5 the submission was that even if the Transfer of Property Act as such is' not in force, the mere chance of a Muhammadan heir apparent to succeed is not transferable on the analogy and the principle underlying section 6 (a) of the Transfer of Property Act. Precedents were cited by both parties in support of their respective contentions. The learned District Judge resolved the controversy raised in the arguments addressed before him in the following words:- "I have, however, also come across a still later ruling of the Lahore High Court 1951 P L R 293, in which it was held that the transfer or surrender of reversionary rights has been uniformly upheld in the Punjab to which the Transfer of Property Act has not been extended. In view of that ruling, issue No.2 must be decided in favour of plaintiff, and I decide it accordingly." thshare in the land in dispute".
6.Against the judgment and decree passed by the learned District Judge, dated 22nd September, 1964, Bashir Ahmad went up before the erstwhile High Court of West Pakistan, Lahore, in second appeal and a learned Single Judge who decided the same disagreed with the approach adopted by the learned District Judge as in his view there was no question of surrender of the reversionary rights in respect of the relinquishment deed, in that the three ladies who purported to relinquish their rights cannot be said to be the reversioners of the last male holder. They had no share 'under the customary law in the property and were holding the property as limited owners. It was held that they could have share in the inheritance under the Muslim Law which, however, did not permit the relinquishment of the rights as heirs apparent to the mere chance of succession to an estate. The learned Single Judge while expounding his view observed:-- "Admittedly the deed of relinquishment was executed by the three ladies long before the promulgation of Act V of 1962, which terminated their limited interest and under which succession opened. So admittedly at the time of relinquishment, the three ladies had only a chance of succession but had not become the owners of the property in dispute. According to Islam, only that right can be transferred by relinquishment which a person possesses because it cannot be said that the person transferring any right which he does not possess at the time of transfer is made will survive till the time the succession opens. This is noteworthy that the respondent No.1 claimed benefit of relinquishment under the Mahomedan Law. On 14-5-1963 he filed the amended plaint with the permission of the Court converting his declaratory suit into a suit for joint possession. In para. No.8 he gave the ground that under Act V of 1962 succession had opened. It is clear that he was claiming the property not under custom but under Muhammadan Law and when under the said law transfer of mere spes successionis is not allowed, he could not take benefit of it. No doubt Transfer of Property Act is not applicable to Punjab and thus its section 6 (a) does not apply but because under Muhammadan Law transfer of spes successionis is not allowed, the respondent had no case in this respect and the learned District Judge wrongly allowed to him its benefit.
Learned counsel for the respondents had cited AIR 1933 Lah. 378. The observations made are that:- "The Transfer of Property Act not being in force in the Punjab, alienation of reversionary rights is not void.
The term reversionary is known to the Customary Law but not to the Muhammadan Law. It is thus obvious that the allenation of reversionary right was held to be valid."
7. As a result of the finding arrived at by the learned Judge in the aforesaid manner, he accepted the appeal by the impugned judgment and set aside the judgment and decree passed by the learned District Judge, with the result that the decree passed by the trial Court was restored and the share of the appellant was once again reduced to 5/24 in the suit property.
8. Being dissatisfied the appellant petitioned to this Court and leave was granted to him to appeal from the judgment of the High Court in order to consider the contention firstly that as the Transfer of Property Act did not apply to the Punjab, the transfer or surrender of reversionary rights was valid under custom; secondly that if the provisions of Act V of 1962 are read alongwith those of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, the position that emerges is that a limited estate held by the Muslim female under the Customary Law having been terminated, Messrs Dewan Bi and her two daughters became vested with the ownership of property in dispute according to the share under Shariat Law and therefore, the relinquishment of their interests in favour of the appellant was valid.
9. Now the learned District Judge upheld the validity of the relinquishment deed in favour of the appellant, on the proposition that "transfer or surrendered of reversionary rights has been uniformly upheld in the Punjab to which Transfer of Property Act has not been extended". On behalf of the appellant this view is sought to be supported and it has further been contended that, the three ladies who executed the relinquishment deed did not purport to transfer a mere chance of succession to the estate (spes successionis), but the act of relinquishment was qua a vested right to succeed to the estate of Fazal Khan, the last full owner who had already died in 1936, by virtue of the Punjab Muslim (Shariat) Application Act, 1948 (hereinafter to be referred to as Shariat Act, 1948).
There is no dispute before us that on the date of the execution of the deed of relinquishment i.e. 17th August, 1958, the property was held by a Muslim female as limited owner under the Customary Law and the deed in question was intended to operate as a relinquishment of the rights the three ladies would have in future to inherit the property at the time of the termination of the limited interest of the said female owner under the Customary Law. The relevant sections of the Shariat Act of 1948 read as under:- "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 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 parries are Muslims."
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 remarriage and on her heirs under the Muslim Personal Law Shariat) if her limited interest terminates because of death."
10. The important fact to be noted is that the document in question was executed after coming into force of the aforesaid provisions of law. The disputed document is being supported on two grounds, firstly that it constituted a surrender of reversionary right of the executants under the Customary Law; and secondly that by virtue of Shariat Act, 1948, followed by the Muslim Personal Law (Shariat) Application Act, 1962, which had the effect of terminating the limited estates enjoyed by Muslim females under the Customary Law, the relinquishment of interests came into operation and full legal effect.
11. The general principle is that, in the absence of any indication to the contrary in the relevant statute, the legality or validity of the transaction has to be determined according to the law in force at the time of the transaction, Mst. Sardar Bibi and Abdul Latif and others PLD 1956 FC 137. Having regard to this principle the question is as to what were the rights of the three ladies who were party to the transaction in question before us on the date of the instrument. In Mst. Bano v. Mahlu PLD 1965 SC 33, it was observed that "the wording of section 3 shows that the Legislature allowed inheritance to taken place on the termination of the limited interest as it would have taken place if the Muslim Law was applicable when the last person who left a heritable estate died." Reading section 3 of the Act of 1948 in this perspective it is difficult to agree with the proposition that the three ladies had any reversionary rights under the Customary Law on the date of the transaction.
On the contrary the rights that were conferred upon them by this section were the rights of inheritance to the property of the last full owner and the right was to be vested on the opening of the succession on the termination of the limited interest of the female owner under the Customary Law. Therefore, after coming into force of 1948 Act on the termination of the limited estates, the rule of custom ceased to govern the succession to the property of a Muslim and was substituted by the Muslim Personal Law, although as long as the limited owner held under the custom alienations of property by such limited owner were governed by the rule of custom. See Abdullah and others v.
Mst. Bakhto Mai and others PLD 1956 SC 321 and Said and others v. Fazal Hussain PLD 1959 SC (Pak., 356. The conclusion, therefore, is that Fazal Jan and her daughters did not possess any reversionary right but a contingent right to succeed to the property by inheritance under the Muslim Personal Law. The rules applicable to 1 the transfer or surrender of customary right of reversion would not, therefore, be attracted in the present case. Be that as it may, it has been held in Mt. Har Naraini Kunwar v. Sajjan P.I Singh and others AIR 1940 PC 181, that reversioner's interest becomes concrete only on the demise of the female limited owner and until then is not a right or 1 interest in the property, so that until it vests in him on her death, he has nothing to relinquish. It was held that such relinquishment would be tantamount to mere spes successionis. On the same analogy even the reversionary rights of Muslim heir under the Customary Law until they ripen into concrete rights on the termination of the limited interest would constitute spes successionis. But in this case clearly the heirs would succeed to the right or interest by virtue of the Muslim Personal Law and as is well recognised the mere chance of succession is not recognised by the Muslim Personal Law even if the Transfer of Property, Act is not applicable by its own force. In this view of the matter both grounds on which the document in question is sought to be supported are untenable and it is not possible to give legal effect to the document so as to deprive the contesting respondents of their legal right of inheritance guaranteed to them under the statute. For the same reasons it is not possible to agree with the argument that the three ladies in fact possessed a vested right which they could relinquish by means of the document relied upon. We generally agree with the conclusion arrived at by the learned Judge in the High Court with the additional reasons as are hereinabove mentioned.
12. In the result this appeal fails and is accordingly dismissed with costs.