SHAFIUR RAHMAN, J.--Leave to appeal was granted in eight appeals raising the same question of law viz. Whether the judgment of the High Court, dated 6th of March, 1984 disposing of the eight regular second appeals does not correctly give effect to the decision of the Federal Shariat Court in Muhammad A Ishaq v. Federation of Pakistan PLD 1981 Federal Shariat Court 278 upheld by the Shariat Appellate Bench of this Court in Federation of Pakistan v. Muhammad Ishaq PLD 1983 SC 273 and the law enacted under Ordinance No,XIII of 1983 under Article 203-D clause 3(a) of the Constitution of the Islamic Republic of Pakistan, 1973.
2. The facts of the case are somewhat simple. Ghulam Nabi, the grand-father of Ghulam Jilani was granted colony land measuring 921 kanals 11 marlas in Chak No,49/3-R, Tehsil and District Okara.
On the death of Ghulam Nabi the grandson Ghulam Jilani was inducted as a tenant under section 20 clause (a) of the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter referred to as the Act). The father of Ghulam Jilani had pre-deceased Ghulam Nabi. In the year 1952, Ghulam Jilani by an application sought permission under section 19 of the Act and obtained it for transferring the land by eight separate registered deeds to various persons. He obtained the sanction of the Commissioner and pursuant to it made the alienations in 1952 by eight registered deeds. In course of time the alienees satisfied the conditions of the grant; made payment of malkana and obtained proprietary rights over the respective portions purchased by them. In 1958, eight suits were filed by the collaterals of Ghulam Jilani claiming that the property in the hands of Ghulam Jilani was ancestral, that they had a customary supervening reversionary right in the property, that the alienations made were neither for legal necessity nor as a part of good management of the estate and were inoperative on their reversionary rights. The suit was contested and the following seven issues were framed:- "(1) Whether the suit has been valued correctly for the purposes of court-fee and jurisdiction?
(2) Whether the plaint is defective for incompleteness and vagueness? If so, what is its effect?
(3) Whether the occupancy rights in the suit land are ancestral of defendant 2 qua the plaintiffs?
(4) Whether the parties are governed by agricultural custom by which such ancestral rights cannot be transferred except in case of legal necessity?
(5) Whether the defendant 2 sold the occupancy rights to defendant No,1 due to legal necessity and for consideration?
(6) What is the effect of defendant's subsequent acquisition of proprietary rights in the suit land?
(7) Relief."
3. The main contest centred round Issue No,3, Issue No,5 and Issue No,6. It was held by the trial Court that the property was ancestral qua the plaintiffs, that the sale was for consideration not on account of legal necessity but by way of good management of his affairs. The acquisition of proprietary rights was held not to affect adversely the reversionary rights of the plaintiffs. All the suits were dismissed.
4. Eight separate appeals were filed challenging the finding on issue No,5. The respondents in those appeals challenged the findings on issues Nos.3 and 6. The First Appellate Court held that the sale of the tenancy rights was neither on account of legal necessity nor for good management and affirmed the finding that the land was ancestral and the acquisition of the proprietary rights made no difference. The suits which had been dismissed by the trial Court were decreed.
5. Eight Regular Second Appeals were preferred to the High Court which affirmed the findings of the First Appellate Court on Issues Nos.3, 5 and 6. So far as the decisions of the Federal Shariat Court and the Shariat Appellate Bench of this Court were concerned, they were taken note of but held not to apply to the inheritance of tenancy rights at all. Ordinance No,XIII of 1983 which had come into force when the hearing of appeals took place in the High Court, was not noted at all in the judgment.
6. It was in this background that these appeals have come to this Court.
7. Mr. S.M. Zafar, Senior Advocate, the learned counsel for the appellants has referred to the aforementioned decisions of the Federal Shariat Court and Shariat Appellate Bench of the Supreme Court, not with a view to seek the direct application and enforcement of the law laid down therein but to establish the background and the amplitude of the issue involved therein, the nature of the declaration made and the extent to which the invalidity of the custom was declared. He has placed ultimate reliance on section 2-A introduced by Ordinance No,XIII of 1983 in the West Pakistan Muslim Personal Law (Shariat) Application Act 1962 (V of 1962) (hereinafter referred to as the Shariat Act), for giving effect to the decisions of the Court under the Constitutional mandate. The learned counsel has also referred to a decision of this Court in Mst. Began v. Mst. Bai 1983 SCMR 80 to establish that custom formed the basis of even the statutory provisions contained in sections 20(b) and 30-A of the Act. He had made two distinct parts of section 2-A. The one complete with clause(a) of section 2-A and the second independently of the preceding provision contained in clause (b). The latter, according to the learned counsel, operates of its own force and independently of the preceding provisions and the indications with regard to such alienation, has reference to the decisions of the Federal Shariat Court and the Shariat Appellate Bench of this Court. Finally, he has contended that on the question of fact the legal necessity was established from the evidence on record particulary the application made and the sanction granted which showed that the legal necessity for the alienation had received directly the attention of the statutory functionary namely, the Commissioner before the necessary permission was granted to the grantee.
8. The question which was touched during the course of the argument was whether customary right of reversioners restraining the alienations of the ancestral property can find a place in the grants made and the permissions granted under section 19 of the Act. There are decisions of the High Court giving an impression that such a custom finds a place as for example in Masood Ali v.
Ali Haibat Khan and 2 others PLD 1958 Lah. 340 having its basis in Karam Din v. Sharaf Din No,89, Punjab Record, 1898. In this connection the Government Grants Act which in very peremptory words excluded any rule of law based on custom in respect of grants and the terms and conditions governing them and the decision of this Court in Mst.Zardar Begum v. Sultan Mahmood and 5 others PLD 1971 SC 580 deserved attention. However, as this point was not taken up in any of the Courts below nor was the subject-matter of an issue or argument, we would not give any conclusive finding on this aspect of the matter. We would rather assume for the purposes of the present appeals, as was done by all the three Courts and the parties, that the reversioners' customary interest controlled the power of alienation even of a statutory tenant who was controlled by section 19 of the Act.
9. Mr. Ehsanul Hach Advocate, the learned counsel for the respondents referred to Articles 203-D and 203-H of the Constitution to show that the decision of the Court did not affect the pending proceedings but took effect from a date in future specified by the Court. He proceeded to read the same limitations as are on Court's power with regard to dealing with the pending proceedings etc., on the legislative power, consequential to the declaration having been made by the Court. In other words, the learned counsel contended that Ordinance No,XIII of 1983 in so far as it makes section 2- A retrospective in nature affecting pending proceedings and concluded decisions it is ultra vires the provisions of the Constitution. According to the learned counsel, as the action of legislation follows a decision of the Shariat Court and the Shariat Court had certain limitations on its powers, the same shall be read as continuing in the power of the legislature as well. The learned counsel has relied on the observations of Dr. Nasim Hasan Shah, J., in Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 at page 354, to the following effect:- "The law is well-settled that where the rights of the parties have been judicially determined with reference to the terms of a law in force at the time of the adjudication, the finality of such a judgment will not be affected merely because the law on the basis of which that decision was rendered has subsequently been altered unless a provision is expressly made in the changed or modified law destroying the finality of the aforesaid judgment."
10. As regards the merits of the case, the learned counsel for the respondents contended that legal necessity or good management was not established from the evidence on the record and the Courts have concurrently found these to be absent in the case of alienations made. Such concurrent finding, according to the learned counsel, is not liable to disturbance simply because another view could be taken of the same material.
11. A reference to the case of Muhammad Ishaq in the Federal Shariat Court shows that the petitioner therein was a purchaser of property from a full male owner who had succeeded to that property in custom and he challenged the vires of the custom limiting the rights of alienation of the full owner. The Court after examining its repugnance or otherwise to the injunctions of Islam held therein that the custom allowing challenging by the collaterals to the alienation of the property inherited under custom by a full owner, was repugnant to the Injunctions of Islam. It directed that necessary amendment shall be made in the Shariat Act by the 30th of June, 1981. The same case came in appeal before the Shariat Appellate Bench of the Supreme Court. The Appeal Bench rejected the claim that "restrictions on the right of alienation imposed by custom on persons inheriting agricultural land before 16-3-1948 can be imposed in Islam". It, therefore, upheld the judgment of the Federal Shariat Court and directed that necessary amendment should be made in the Shariat Act upto 30th June, 1983 instead of 30th June, 1981, as ordered by the Federal Shariat Court.
12. On the 1st of August, 1983 was promulgated Ordinance No,XIII of 1983. It provided as hereunder:-- "In West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (V of 1962), after section 2 of the following new section shall be inserted, namely,-- "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) Act;
(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."
13. Two of its features have to be noted at this stage. One is that the very problem or the issue which was brought before the Federal Shariat Court and the Shariat Appellate Bench related to a matter which was past, namely inheritance under Custom of ancestral agricultural land prior to 16- 3-1948. There was no question of inheriting in future such a property with such a limitation as was under examination in the Courts and is the subject-matter of legislation under consideration. The retrospectivity was in issue itself and was a part of the decision. The second is that this law had its basis notwithstanding the wide language used here and there, in a specific problem which had been for about a century dealt with by the Courts and there was much thought and literature governing these. To substantiate this point one may refer to the exhaustive review made of the subject and the decisions thereon in the case of Abdul Ghafoor PLD 1985 SC 407 at pages 422 and 423 where the following observations were made while discussing the several implications of section 2-A:-- "(f) The question of retrospectivity 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) .............
(2)....................
(g) 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 inexcutable and of no legal effect under sub-clause (b)."
' The amplitude of the law was further illustrated at page 426 in the following words:-- "Neither the purview of section 2-A nor any of its clauses including clause (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."
14. From an examination of the decisions referred to on the subject it is clear that the Ordinance No,XIII of 1983 was directed at removing that vestige of custom which persisted on the rights of a Muslim inheriting ancestral property and the limitation being founded not on the statute but on the custom recognizing an interest of the reversioners in the ancestral property. It is specifically the same interest which was sought to be eliminated by Ordinance No,XIII of 1983 which was recognized by the Courts in favour of the respondents within the statutory frame-work of the Act notwithstanding its not being specifically mentioned therein.
15. Literally construed the opening words of section 2-A introduced by Ordinance No,XIII of 1983 "a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim" do not apply to the case of Ghulam Jilani because he had not acquired the estate of his grandfather under custom but had done so under clause (a) of section 20 of the Act. Besides, he could_ not be on the strength of Ordinance No,XIII of 1983 treated as an absolute owner of such land because the statute limited his interest which was not absolute.
However, the provision which directly hits the claim allowed in the suit is clause (b) of section 2-A introduced by Ordinance No,XIII of 1983 which provides that any "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" fully governs the situation. The right which the respondents have been granted by the three Courts by the impugned judgments is the customary right of the reversion to call in question an alienation of the description prescribed in the law and it has been nullified by the law itself.
16. As regards the larger question raised by the learned counsel for the respondents that the powers of the legislature in implementing a decision of the Federal Shariat Court or of the Shariat Appellate Bench of the Supreme Court is co-extensive with the power of the Court in the matter of not disturbing the existing proceedings and giving effect to the new law from a prospective date, the same has been dealt with in numerous decisions of this Court.
17. The power of the Federal Shariat Court to make a declaration, to give effect to it from a future date and to leave the pending proceedings unaffected, was considered first in the case of Muhammad Masood Khan Bhatti v. Mst.Ghulam Fatima, 1987 SCMR 1206. It was held at page 1209 as hereunder:-- 'The very first assumption of the learned counsel that Shariat Appellate Bench of this Court enjoys under Chapter 3-A of the Constitution, particularly Article 203-D a jurisdiction in the nature of enacting declaratory statute is to say the least, wholly erroneous. The power conferred on the Courts is of examining and deciding the question whether or not any law or provision of law is repugnant to the Injunctions of Islam. Where the Court finds that any law or provision of law is repugnant to the Injunctions of Islam, it is required to set out in its decision the reasons for its holding that opinion and also deciding the extent to which such law or provision of law is so repugnant. It is clearly an adjudicatory power of applying the test of repugnancy, a new test of ultra vires. Further, a power has been conferred to specify the date on which the decision shall take effect. It is by reference to this power that it is provided that such law or provision of law shall to the extent to which it is held to be so repugnant cease, to have the effect on the date on which the decision of the Court takes effect."
' Further, in the case of Sardar Ali and others PLD 1988 SC 287 the following law was laid down:- "The combined reading of these two provisions would show that the decision of the Court shall not take effect before the day specified by it in this behalf; and further, that the law concerned shall cease to have effect only on that day. In other words prior to that date neither the decision shall take effect nor the law would cease to have effect. Thus, the law concerned shall continue to have effect till the day prior to the date fixed by the Court."
18. The limits on the power of the Courts have been specifically and expressly stated in the Constitution itself. As regards the legislative power in giving effect to the decision of the Shariat Courts, no such specific or express provision containing a limitation is mentioned. In the absence of any such provisions, express words of limitation used for the Courts cannot on any principle be extended and applied to the legislature particularly so when the amplitude and the nature of the legislative powers has been the subject-matter of numerous authoritative decisions of this Court.
For example, in Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner, Lahore and another PLD 1968 SC 101 at page 109, the following law with regard to legislature's power of retrospective legislation was laid down:-- "To give the fullest effect to this argument would operate as a prohibition against the making of laws with retrospective effect in respect of all matters that are specified in Article 2. We do not conceive that the Article was intended to produce so wide an effect in relation to the well- established practice of retrospective or retroactive legislation. It is difficult to construe Article 2 as conveying a fundamental right in every citizen of Pakistan and every person for the time being within Pakistan against the making of laws by the established Legislatures, which expressly operate retrospectively or retroactively against his interests. Reference may here be made to the Fourth Fundamental Right which gives protection against retrospective punishment and the argument was raised on the basis of this Fundamental Right that the express protection against retrospective effect being provided in one particular case, is to be construed as having the effect of maintaining the ordinary power of Legislatures to legislate with retrospective effect in cases not specified."
' Similarly, in Muhammad Akhtar Hussain and 4 others v. Government of West Pakistan through the Chief Secretary to Government of West Pakistan Lahore and 454 others PLD 1970 SC 146 at page 156 it was held as hereunder:-- "It is well-settled that legislation may be made both prospectively and retrospectively but normally legislation, which is not of a purely procedural nature, will not be given retrospective effect so as to take away vested rights unless the Legislature has used express words in that behalf or such an intention necessarily flows from the language of the statute."
19. The problem which Ordinance No,XIII of 1983 was devised to solve was itself retrospective in nature as has been noted in clause (f) reproduced above in para 13 of this judgment from the decision given in case of Abdul Ghafoor. The retrospective nature of the problem and the legislation both were also considered in the case Hakim All and others v. Barkat Bibi and others 1988 SCMR 293. It is, therefore, not possible to uphold the contention of the learned counsel for the respondent that the legislative power while implementing a decision under Clause (3) of Article 203-D of the Constitution suffers from the same restrictions and limitations with regard to its operation as does the Court giving the decision.
20. As it has been held that the statutory tenancy under the Act was also subject, notwithstanding its statutory character, to customary limitations in the matter of alienation, the law hitting at such alienation will reach the tenancy created under the Act as well. As the matter is still pending and is under adjudication in continuance of the appeals filed, the question is open to decision. In view of Ordinance No,XIII of 1983 these appeals are allowed. The judgments and decrees impugned before us are set aside and the dismissal as ordered by the trial Court is restored, though for different reasons. No order is made as to costs.