1. MUHAMMAD YAQUB A.I, J--This will dispose of civil Appeal No. 43 of 1971 and Civil Appeal No. 43 of 1971 in which a common question or law falls for decision.
2. The West Pakistan Muslim Personal Law (Shariat) Application Act V of 1962 was promulgated on 31st December 1962. Section 3 of the Act terminated all limited estates held by Muslim, families.
3. Under section 5 the life estates terminated under section 3 devolved on persons who would have succeeded to it, had Muslim Personal Law Shariat Application Act applied at the demise of the last tall owner. On 12 August 1963, Ahmad Din, respondent No. 4, applied to the Revenue authorities that a mutation of inheritance be entered in the Revenue Records giving 1/3 share to Mst. Ghausi and the remaining 2/3 share to him as provided in section 5. Mst. Ghausi contested the claim of Ahmad Din, but, later on, entered in a compromise with him. In pursuance to the compromise, the Revenue Officer on 13 November 1963, attested mutation No. 47 under which 1/3 share was givers to Mst. Ghausi and 23rd share to Ahmed Din, respondent, Thereafter Ahmad Din sold by a registered deed 3/4 of his share to the appellant and 1/4 to one Muhammad Maroof for Rs. 24,000. On a subsequent date the latter transferred his 1/4th share to the appellant, who thereby became owner of the 2/3rd share, which was mutated in the name of Ahmad Din. Almost, two years later, Mst. Ghausi filed a Civil Suit gainst Ahmad Din, respondent, challenging the legality of mutation No. 147 on the ground that she was absolute owner of the land allotted to her by the Rehabilitation authorities and section 3 of Act V of 1962 had no application to the land held by her. The appellant and Muhammad Maroof were joined as defendants in the suit.th rd rd th rd th th While the suit was pending Mst. Ghausi filed an appeal before the Collector from the order of the Revenue Officer attesting Mutation No. 147 and joined Ahmad Din only as respondent. The appeal was allowed on 6th December 1965, as a result of collusion between Mst. Ghausi and Ahmad Din, respondent.
4. Being aggrieved by the order of the Collector the appellant filed an appeal before the Commissioner, which was allowed and the order of the Revenue Officer attesting mutation No. 147 was restored. Against the order of the Commissioner Mst. Ghausi filed a Revision Petition before the Board of Revenue, which was accepted on 3rd June 1969, following the Full Bench decision of the High Court in Sher Muhammad v. The Additional Rehabilitation Commissioner, Multan and others (PLD 1968 Lah. 234) and the Mutation No. 147 was cancelled.
5. The appellant then filed a Writ Petition in the High Court, which was dismissed in limine by a Division Bench on 9 December 1969. Leave to appeal was granted on 13 April 1970, to consider correctness of the Full Bench decision in the case of Sher Muhammad.
6. Since leave to appeal was granted, this Court has in the case of Additional Settlement Commissioner (Land) Sargodha v. Muhammad Shafi (P LD 1971 SC 791) overruled the Full Bench decision of the High Court in the case of Sher Muhammad and held that the property allotted to a female in lieu of limited estate abandoned by her in India would on her death devolve on the heirs of the last male owner of the property and not on her own heirs. On examining the reasons given in Sher Muhammad's case this Court concluded thus "In order to ascertain the true nature of the capacity under which a widow holds the lands of the last male owner under custom and receives lands in Pakistan on migration the concept of a female's estate under custom is to be borne in mind. Merely saying that she is the present owner of the estate having absolute power of enjoyment over it, that she is not accountable to anyone as long as she is alive or her estate is not terminated and that no one else has any vested interest in it till then is not enough. It is now well settled that a female's estate under custom is analogous in nature to a widow's estate under the Hindu Law. If so then under Hindu Law the true concept of a widow's estate is that she notionally represents her husband, as if, her deceased husband is, for the purposes of the management and user of his properties, kept alive in her, and it is for this reason that it is said that during the time the widow is alive or does not re-marry, the whole estate of her husband vests in her absolutely as if the husband is for all intents and purposes alive in her. The distinctive feature of the estate is that, at her death, it reverts to the heirs of the last male owner. She never becomes a fresh stock of descent. If this be the true position then the claim that is filed by a widow, under the Punjab Refugees (Registration of Land Claims) Act, 1949, is a claim for the loss or damage suffered by her in respect of the properties left behind by her in India. Now she leaves behind no property of her own but only the properties, which she has inherited from her husband as a limited owner.
7. Therefore, if her claim is in lieu of what she has left behind then it is in lieu of her estate in her husband's properties, which, according to the concepts of Hindus Law, she holds as a representative of her husband. The claim filed by her, therefore, is also in her capacity as representative of her husband or, in other words, as if the husband who is alive through her is notionally filing a claim in respect of his properties left behind in India, for, no one else has the right to file any claim in respect of the said properties. It is important to remember that the loss or damage which she has suffered is the loss or damage arising by reason of the fact that she has been deprived of the user of the inheritance which she received from her late husband and held as an owner not in her own right, but rather as a representative of her husband. This appears also to find confirmation from the provisions of paragraph 29 of the West Pakistan Rehabilitation Settlement Scheme itself, which postulates that rights under this Scheme should be given to a claimant only fin accordance with the entries in the special Jamabandis received from the prescribed areas of India. The Jamabandis received from India describe her as holding only ath th widow's estate and nothing more and are accompanied by a Shajra Nasab of her late husband and not in respect of her own family. It is in respect of this estate, therefore, that she is first given a temporary allotment and if she dies while still holding such a temporary allotment succession under paragraph 46-A of the Scheme is to 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 Shariat Law been applicable at the time of such death". This rule is not changed merely by reason of the fact that the temporary allotment is in the meantime confirmed or permanently settled on the claimant. If the intention had been to exclude reversioners altogether from the right of succession then one would have expected some express provision in that behalf in the Rehabilitation Scheme. The argument that since the Scheme did not lay down any special rule of succession the property allotted to a widow would descend according to the general law does not lead to the conclusion that the general law contemplated a change in the stock of descent. Even under the West Pakistan Muslim Personal Law (Shariat) Application Act of 1962 the rule of devolution as laid down in section 5 thereof is that the property would 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." This view is further confirmed by reason of the fact that trustees or mutawallis who were also entitled under paragraph 56 of the Rehabilitation Settlement Scheme to file claims and to obtain allotments with all their legal attributes and consequences under the Scheme do not take the allotted property as their personal estate but the allotted property remains subject to the ordinary incidents of a trust or a waqf even through there is no special rule laid down in the scheme itself with regard to such properties. If the High Court's reasoning be valid then even such mutawallis or Managers of trusts would be logically entitled to claim that they have received the allotment in their own personal right and, thus, deprive the beneficiaries of the trust or the waqf of their beneficial interests in the allotted property. This could not have been the intention of the framers of the Scheme, and it is difficult to accept the view propounded by the High Court in the Pull Bench decision in the case of Sher Muhammad v.
8. Additional Rehabilitation Commissioner PLD 1968 Lab. 234."
9. The principal question raised in this appeal thus stands disposed of by the decision in the Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shafi.
10. A new point was, however, taken up by the learned counsel for the respondent that so long as Mst.
11. Ghausi was alive she was entitled to retain the entire area of land entitled on her by sections 15 and 16 of the Land Settlement Act. Reliance was placed on a Single Bench decision of the High Court in the case of Sarwar Bibi v. Said Ahmad and others (PLD 1969 Lah. 412). It was pointed out that leave to appeal had already been granted in the connected case Badar Din v. Mst. Jiwan to consider this very point. st December 1962, the Muslim Personal Law (Shariat) Application Act V of 1962 came into force, which as mentioned earlier terminated limited estates in respect of immovable property held by Muslim families under the customary law. Under section 5 1/4 of the life estate held by Mst. Jiwan in 456 kanals of land devolved upon her and the remaining 3/4 share devolved upon Badar Din, appellant. Accordingly the Revenue Officer sanctioned a Mutation to this effect on 11-4-1964.
12. On 13-3-1963 Mst. Jiwan sold her 1/4 share in the land to Khuda Bakhsh Badar Din, appellant, thereupon filed a suit for pre-emption, which was decreed by a compromise on 7-9-1965. In the meantime the Collector set aside the Mutation under which 1 /4 share in the land left by Faqir Muhammad was entered in the name of Mst. Jiwan and the remaining 3/4 in the name of the appellant. Consequent upon it the appellant filed a Civil Suit on 19-11-1969 for a declaration that he was owner of 1/4 share in the land under the compromise decree passed in the pre-emption suit and of the remaining 3/4 share by inheritance.th th th th th th th The suit was dismissed by the Civil Judge in pursuance to the judgment of the High Court in Sarwar Bibi v. Said Ahmad and others. It was held in this case by a learned Single Judge that as a result of the enactment of the West Pakistan Muslim Personal Law (Shariat) (Amendment) Ordinance, 1963, the existing limited estates held by Muslim females were not terminated.
13. Aggrieved by the dismissal of the suit Muhammad Yaqub filed successive appeals before the District Judge and the High Court, which were dismissed following the decision in the afore- mentioned case.
14. Leave to appeal was granted is the interpretation placed by the learned Judge on section 3 of the Muslim Personal Law (Shariat) Application Act V of 1962 as amended by the Ordinance of 1963 in Sarwar Bibi's case called for further consideration.
15. It is categorically laid down in section 3 that the limited estates in respect of immovable property held by a Muslim female under Customary Law are hereby terminated. The learned Judge held that section 7(2) of the Act, which purported to save existing limited estates was void being repugnant to section 3. But it was further held that since section 7(2) was deleted and included In section 3 as a proviso by the West Pakistan Muslim Personal Law (Shariat) (Amendment)
16. Ordinance, 1963, it had the effect of saving existing limited estates from the operation of the substantive part of section 3. We are unable to agree to the interpretation placed by the learned Judge on section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act V of 1962 as amended by the Ordinance of 1963. It is, however, unnecessary to examine the reasons in Sarwar Bibi's case, because the Governor of the Punjab has promulgated the Muslim Personal (Law)
17. (Shariat) Application (Removal of Doubts) Ordinance IX of 1972 which has re-affirmed the declaration contained in section 3 of Act V of 1962 that life estates held by Muslim females were terminated with effect from 31st December 1962.
18. Section 2 of Ordinance IX of 1972 declares as follows: "2. Removal of Doubts-(1) Notwithstanding anything contained in the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (West Pakistan Act V of 1962), the West Pakistan Muslim Personal Law (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 proceedings pending 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, a peals or other proceedings shall be decided afresh on the application of any person affected by such decree, judgment or order."
19. Mr. Aziz Ahmad Bajwa appearing for Mst. Jiwan conceded that if the Ordinance was validly promulgated, he could not defend the appeal, but It was urged by him that the Ordinance was violative of Fundamental Right No. 14 of 1962-Constitution which provided that no person shall be deprived of his property save in accordance with law, and that no property shall be compulsorily acquired or taken possession of save for a public purpose, and save by authority of law which provides for compensation therefore The contention is wholly devoid of force. The Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance is a 'Law' and no one has acquired the limited estates held by Muslim females under customary law. Only their devolution has been regulated. Furthermore the Fundamental Rights embodied In the 1962--Constitutton were suspended by the Proclamation of Martial Law on 26th March 1959, and they remained suspended up to 21st April 1972, when the Interim Constitution came into fore. The Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance IX of 1972 which was pro-- mulgated on 12 April 1972, was saved as an existing law by Article 21 of the Constitution which is analogous to Fundamental Right No. 14 of 1962-Constitution.
20. If, following the decision in Asma Jilani's case, the Proclama--petition of Martial Law Is ignored as an illegal act of General Yahya Khan, the Court will condone Ordinance IX of 1972 under the principle that it was promulgated for ordinary orderly administration of the affairs of the State.
21. Section 3 of Act V of 1962 had, without any reservation, terminated all limited estates held by Muslim females in the Province of West Pakistan with immediate effect. The manifest intention of the Legislature was nevertheless negatived by the High Court in arriving at the conclusion that it did not apply to the existing limited estates under customary law. It was, therefore, necessary to reaffirm the rule of law embodied in section 3 that all limited estates held by Muslim families under customs had terminated as from 31 December 1962.
22. Ordinance IX of 1972 being a valid law the life estate of Mst. Ghausi in Civil Appeal No. 43 and of Mst.
23. Jiwan in Civil Appeal No. 100 terminated with effect from 31 December 1962 and the devolution to the last full owner was regulated by section 5 of Act V of 1962. In this view both the appeals must be allowed. th June 1969. Consequent upon it the order of the Revenue Offices dated 13 November 1963, sanctioning Mutation No. 147 under which 1/3 share in the inheritance of Rehmat, the last full owner of the land to dispute, was given to Mst. Ghausi, respon--dent, and the remaining 2/3 to Ahmad Din, respondent No. 4, holds good. The 2/3rd share given to Ahmad Din, respondent, was eventually transferred to Muhammad Yaqub, appellant, and he has become full owner of it.