' MUHAMMAD RAFIQ TARAR, J.---This appeal is directed against the judgment of the Lahore High Court dated 3-9-1990 passed in RSA No,6 of 1971.
2. The facts of the case briefly stated are that one tuba Khan, the predecessor-in-interest of the parties to this appeal died somewhere in 1933, leaving behind a widow Mst. Gouhri and two sons namely Lal Khan (father of Ghulam Qadir plaintiff/respondent and Mst. Sarwar Jan and Sadiq Jan defendants/respondents) and Gohar Din (father of Ameer Khan plaintiff/ respondent) and Mst.
Bashir Jan and Nazir Jan defendants/respondents. The estate left behind by Suba Khan was mutated in the names of his two sons and widow in equal shares. The widow died in 1968. The land left by her was mutated in the names of all her heirs, now parties to this litigation, under the Muslim Law. The plaintiffs Ghulam Qadir and Ameer Khan challenged the mutation on the ground that Mst.
Gouhri was holding the land only for maintenance and not as a limited owner under custom, therefore, the mutation in favour of the appellants was unlawful.
3. The short question for decision in the Courts below was whether Mst. Gouhri, at the time of her death, was holding the land in dispute as a limited owner or only for her maintenance under the agricultural custom. The trial Court dismissed the suit of Ghulam Qadir (now represented by respondents (i) to (vi) and Ameer Khan plaintiff/respondent No,2 herein holding that Mst. Gouhri was a limited owner and the mutation of her holding had rightly been sanctioned under the Muslim Law. The learned lower Appellate Court held that as Suba Khan, the last male holder, had left two sons, as male lineal descendants, his widow (Mst. Gouhri) got the share of property only for her maintenance and on her death the property reverted to the male lineal descendants.
Consequently by reversing the finding the suit was decreed. In the second appeal filed by Mst.
Fazal Nishan and Noor Nishan defendants Nos.5 and 6, the High Court maintained the finding of the lower Appellate Court and dismissed the appeal.
4. Learned counsel for the appellants contended that the entries in the Rattigan's Digest of Customary Law and the "Riwaj-i-Aam" of district Attock were applicable only to the ancestral property but in the present case it was neither pleaded that the land in the suit was ancestral qua them nor there was any proof of its ancestral nature. It was further submitted that the case should have been decided in accordance with the Muslim Law. The learned counsel for the respondents, however, vehemently supported the impugned judgment.
5. The short question for decision is whether the devolution was governed by custom or the Islamic Law. Paras. 11 and 16 of the Rattigan's Digest Customary Law and answer to question No,20-A of Customary Law of District Attock were taken into consideration by the Courts below which read as under:-- Para.
11. --"In the absence of male lineal descendants the widow of the deceased ordinarily succeeds to a life estate."
Para.
16. --"In the presence of a male descendant of the deceased his widow is ordinarily only entitled to suitable maintenance, whether such descendant is the issue of the surviving widow, or of any other wife."
Answer to Q. No,20-A. --It would appear to be a well-established custom among all tribes, that a widow, of whatever caste, in the absence of male issue, inherits the property of her husband for life or till re-marriage; having consequently no power to alienate except in the special circumstances considered under question 49.
' Custom, however, becomes more complex and less certain in the presence of male issue, and it is doubtful if any really well-established custom exists, so varied are the opinions of the tribes. As a general rule the question scarcely arises, the widowed mother living as a matter of course with her sons. The property in such cases may be entered jointly in the name of mother and sons or only in the name of sons, but the practical result is the same.
' When the question does arise, the majority of tribes agreed at last settlement that the widow will share for life equally with her sons but without power of alienation. The majority of tribes is now in favour of allowing her maintenance only, portion, of the property being specially set apart for this purpose. Examples arc quoted in favour of both practices, and Courts will have to consider the circumstances of each case in the absence of any well-established custom on this point.
' In the Tallagang tehsil the sonless widow is entitled to maintenance only."
6. Reversing the finding of the trial Court the lower Appellate Court held that: "A widow who succeeds in the absence of male lineal descendants, is a limited owner within the meaning of S.3 of the Muslim Personal Law (Shariat Application) Act, 1948, but a widow surviving her husband in the presence of son of her deceased husband, is entitled merely to maintenance and the property having devolved on the sons of the last male holder at the time of his death, would revert to the sons and S.3 of the Act would have no application."
' The High Court also upheld the above finding:
7. The second appeal in the High Court was filed in 1971 but it was decided in 1990. Meanwhile a very important development had taken place in the statutory field. On 12th of April, 1972 the Legislature promulgated Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance IX .Of 1972. As the Customary Law continued to govern some of the questions relating to succession and alienation by males and females despite promulgation of successive Shariat Acts/Ordinances the Federal Shariat Court in exercise of its powers under Article 203-D of the Constitution in Muhammad Ishaq's case ruled that the Customary Law and its related rules, as discussed therein, were repugnant to the Holy Qur'an and Sunnah. The Court further directed that the necessary amendments in law be made by 30th June, 1981. This decision was upheld by the Shariat Appellate Bench of the Supreme Court on 17th May, 1982 directing that the necessary amendments be made till 20th June, 1983 (See Federation of Pakistan v. Muhammad Ishaq PLD 1983 SC 273). In pursuance of the said decisions, the West Pakistan Muslim Personal Law (Shariat) Act (Amendment)
Ordinance, 1983 was enforced by adding section 2-A to the West Pakistan Act V of 1962 which reads as under:-- "2-A. Succession prior to Act IX of 1948.--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);
(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 or 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 MIA decrees."
8. Not much after the enforcement of the above law a case of similar nature, as before us, came before the Supreme Court (Civil Appeal No,159 of 1972). The facts of that case were that one Taj Muhamamd died in 1920. Musa Khan, a collateral, filed a suit in 1954/56 seeking a share in the property of Taj Muhammad, the last male holder. He also challenged a gift made by his widow in favour of her two daughters. The Supreme Court, in 1985, when it was seized of the case (Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407) interpreted the relevant part of section 2-A reproduced above as under:-- "(r) The position that develops thus is that a 'male heir' who acquired agricultural land under custom from a Muslim prior to 15 March, 1948, is held to have inherited under the Muslim (Shariat)
Law. His heirs, after his death meanwhile, would be discoyered in accordance with the Muslim Law.
They could be male and female heirs. But if a female deriving the limited interest from any such 'male heir' (now under section 2-A, deemed to be an 'absolute owner under Muslim law' since the time of his acquisition) would not be able to keep any land in excess of her share as an heir under the Muslim Law. She will act as a conduit so as to pass the remaining land to the other heirs of such a 'male heir' and so on how low-so-ever, under the Muslim (Shariat) Law of Inheritance."
' Applying the rule deduced above from section 2-A, the Court observed as under:-- "By virtue of section 2-A as interpreted above, Taj Muhammad would be deemed to have inherited the land under Muslim (Shariat) Law and would be deemed to be its full owner. On widow's death in 1953, the estate would have (and did) devolve, straightaway on Muslim heirs of Taj Muhammad under the then existing law namely, Act IX of 1948."
' This decision was then followed in Ismail and another v. Ghulam Qadir and another (1990 SCMR 1667) and Lal and three others v. Rehmat Bibi and another (PLD 1991 SC 582). This view of this Court is, therefore; well-established and as the case before us is on all fours with that case, the decision must follow the same rule.
' For the foregoing reasons we allow this appeal, set aside judgments and decrees of the lower Appellate Courts and restore that of the trial Court with no order as to costs.