1. ' NASIM HASAN SHAH, J.--This is an appeal by Mst. Zeenat Begum against the judgment of a learned Single Judge of the Lahore High Court accepting the Regular Second Appeal of Muhammad Sarwar respondent No,2.
2. ' The brief facts of the case are that the land in dispute situate at village Borgi Karam Chand belonged to Bostan who was Kashmiri by caste. He died issueless before partition and was succeeded by his widow Mst. Iqbal, the present respondent No, 1, who on 20-8-1958 sold the land in dispute in favour of Mohd Sarwar, present respondent No,2. Mst. Zeenat Begum, appellant herein, who claimed to be a step-sister of Bostan deceased, challenged the sale by a declaratory suit under customary law on the ground that Mst. Iqbal respondent No,1 held the land as limited owner and was not competent to transfer the land and that the sale was without consideration and legal necessity. The suit was contested by both respondent No,1 and respondent No,2, who challenged the locus standi of the appellant/plaintiff and maintained that Bostan deceased was not governed by Custom in matters relating to succession and alienation and that Mst. Iqbal respondent No,1 was full owner and also that the sale was for legal consideration and legal necessity.
3. ' On the pleadings of the parties the following issues were framed:-
(1) Is not the plaintiff competent to bring this suit? O.D.
(2) Did Bostan the husband of the defendant No,1 follow Custom in matters of succession and alienation and what was that custom? O.P.
(3) Was Mst. Iqbal defendant No,1 the full owner of the land in dispute? O.D.
(4) Was the sale in dispute effected for consideration and legal necessity? O.D.
(5) Relief.
4. ' After recording the evidence and hearing arguments, the trial Judge held issues Nos. 1, 3 and 4 against the respondents/defendants and issue No,2 against the appellant/plaintiff. In the light of the finding on issue No,2, the suit of the appellant/plaintiff was dismissed.
5. ' Being aggrieved by the above judgment, the appellant/plaintiff preferred an appeal before the District Judge, Rawalpindi. Before the appellate Court arguments were only addressed on issues Nos. 2 and 3. The learned appellate Judge held that Bostan was governed by Custom in the matter relating to succession and not alienation and Mst. Iqbal respondent No, 1 got the property as limited owner and that the learned counsel for the appellant was unable to cite any authority from which it could be gathered that a widow inheriting the entire land of her husband could transfer that land. The learned Judge, therefore, reversed the finding of the trial Judge on issue No,2 and upheld his findings on issue No,3. Since the findings on issues Nos. 1 and 4 were not challenged, he accepted the appeal, set aside the judgment and decree of the trial Judge and decreed the suit of the appellant/plaintiff.
6. ' Being aggrieved by the above judgment, Muhammad Sarwar respondent No,1/defendant filed a Regular Second Appeal before the High Court, which was allowed by a learned Single Judge on the ground that it was not possible to hold on the evidence that Bostan was governed by custom.
7. Leave was granted in this case to consider whether it was not common ground between the parties that Mst. Iqbal respondent No,1 had succeeded to the estate of her husband under the custom and, if so, whether she became full owner without the usual restraints imposed by the custom.
8. ' On behalf of the appellant it is submitted that Mst. Iqbal respondent No,1 succeeded to the estate of her deceased husband Bostan under the custom and, therefore, the interest thus acquired by respondent No,1 was usual limited estate under custom and, therefore, she could not transfer any part of her inheritance, except on the grounds of necessity for consideration. It is submitted that the finding has been wrongly reversed by the High Court, as it was common ground between the parties that Mst. Iqbal respondent No,1 had succeeded to the whole of her husband's estate and the only disputed question between the Court was whether she had become full owner without the usual restraints imposed by custom or could only alienate for necessity and consideration.
9. ' It was an admitted position between the parties in the lower Courts that the whole of the property of Bostan deceased namely 28 kanals 19 marlas bearing Khasra Nos.228, 247, 212, 249 in Khata No,64/101,72/112 and 84/128 situate in village Borgi Karam Chand was transferred to Mst. Iqbal, respondent No,1, widow, to the exclusion of his real sister and step-sister, as is shown by copy of the Mutation No,1693 (Ex.P/2) and in this background leave to appeal was granted to consider whether respondent No,1 (Mst. Iqbal), who inherited the estate under custom. Could become the full owner without the usual restraints imposed by custom?
10. ' This question was considered by the High Court in Amir Hussain Shah v. Mst. Shahzadan Bibi and others PLD 1953 Lah. 247 and it was held that where a female has inherited under custom the power of alienation shall also be controlled by custom i,e, she would not have the power to alienate the property at her own free will.
11. ' However, after the commencement of the process of Islamisation of Laws in Pakistan, the situation has changed further. Thus, in Federation of Pakistan v. Muhammad Ishaq PLD 1983 SC 273 it was held that restrictions placed on the power of alienation of persons inheriting the agricultural land under the Customary Law (as prevailing in the Punjab before 16-3-1948, namely before the coming into force of the West Punjab Muslim Law (Shariat) Application Act, 1948) were opposed to the Injunctions of Islam. It was, accordingly, directed that amendments be carried out for removing all such restrictions, which has since been done. In view of this approach of the Law Maker in regard to the existing laws, we consider that the impugned judgment of the High Court wherein the prayer for setting aside the sale was refused a view taken which is consistent with the spirit of the judgment subsequently delivered by this Court, referred to above and in consonance with which all law- making is being done; does not need any interference.
12. ' In the result, we would dismiss this appeal, leaving the parties to bear their own costs.