1. MUHAMMAp AFZAL ZULLAH, CJ. ---In this case of succession to property left by a Christian male, last holder, leave to appeal was ganted on a contest between the widow and two daughters on the one side and a son and his nephew on the other. Following points were noted for examination:- "(a)Whether, as pleaded from the- petitioners' side in the High Court, the Succession Act 1925 would not govern this case?
2. (b)Whether Punjab Laws Act, 1872 could not. Be applied to the present case?
3. (c)Whether the rule of customary law applied against the petitioners depriving these females of inheritance is not contrary to justice, equity and good conscience as understood in the Pakistani jurisprudential context?
4. (d)Whether the said rule of custom is also opposed to justice, equity and good conscience as understood in the Christian community?
5. (e)If the said rule is not opposed to justice, equity and good conscience as understood in Christian community, but is opposed to justice, equity and good conscience as understood in Pakistani Jurisprudential Context; whether the former or the latter consideration would prevail in interpreting section 5 of the Punjab Laws Act, 1872 (in case it is applicable) which reads as follows:- S.5: --In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution the rule of decision shall be- (a)any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been by this or any other enactment altered or abolished and has not been declared-to be void by any competent authority; (b)the Muhammadan law, in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to)."
6. The case having been decided by the Revenue Authorities in the mutation proceedings the present appellants (the females) without filing a civil suit, invoked Constitutional (Writ) jurisdiction of the 'High Court but without any success. It was held by the High Court that according to section 5 of the Punjab Laws Act, 1872 the question involved being one of succession covered thereunder, custom of succession would be applicable to the parties concerned if it is not contrary to justice, equity or good conscience. And further that it (custom) has not been altered or abolished by any enactment nor declared void by any competent authority. The argument that section 29 of the Succession Act, 1925 has altered/abolished the Customary Law for Christians and that specific mode of succession with determined shares as provided in the Succession Act, would cover this case, was repelled. A Privy Council judgment in the case of Kamawati v. Digbijai Singh A 1 R 1922 PC 14 which clearly supported the appellant's case was held as inapplicable and distinguishable because it was considered that there was no law parallel to section 5 of the Punjab Laws Act, 1872 in the Province of India from which the said case had arisen. Two Lahore cases: Sohan Lal v. A.Z. Makuin and another AIR 1929 Lah. 230; Sita Ram and others v. Raja Ram 12 PR 1892 and Abdul Karim and others v. Sahib Jan 5 PR 1908 were also referred.
7. The controversy in this case has at this stage been considerably narrowed down. The case before the Privy Council had arisen as is mentioned in report itself from the judgment in the North West Provinces Court, at Allahabad. It is not denied that the area was then known as "North-West Province". The "North-West Frontier Province" of course is a different Province and the learned Judges in the High Court might have been misled to believe that the said case was from the N.- W.F.P. Which is in Pakistan, while, as stated above, it was an Allahabad case having arisen in the then North-West Provinces. We have checked it from a 1940 Allahabad case involving the interpretation of the same provisions of the Succession Act (Ranbir Karam Singh v. Jogindra Chandra Bhattacharji AIR 1940 All. 134). And it is interesting to know that the same provision of the Punjab Act of 1872 was discussed and the Lahore case-law was relied upon as is involved in the present appeal. Further research was made during the hearing of this appeal. A comparative chart, of the relevant comparable laws in almost all the provinces of India showing similar provisions as are contained in section 5 of the Punjab Laws Act, 1872, has been found opposite to page 28 of the "Muhammadan Law by Tyabji, 3rd Edition". In the column relating to Oudh, Punjab, North-West Frontier, Ajmer-Merwara several laws are mentioned including Punjab Laws Act IV of 1872. With specific mention of section 5 (as amended by Act XII of 1878). North-West Frontier Laws Regulations VII, 1901 and the Laws of Ajmer-Merwara are also mentioned. In the column relating to Bengal, NorthWest Provinces and Assam Act XII of 1887 with its section 37 has clearly been mentioned as also some Bengal and Assam Laws.
8. In view of the aforenoted material and other circumstantial support from several decided cases it is clear that almost throughout India prior to 1947 similar laws had been enacted which applied custom, if not altered or abolished by any Statute Law. In addition to what has been stated above similar exercise was made in the well known Lahore case of Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lah. 930 with the result that parallel laws were found in several Provinces of India.
9. Learned counsel for the appellants obviously armed with this new found legal position in the North West Provinces (Allahabad) from where the Privy Council case of Kamawati had arisen heavily relied upon it and argued that the main distinguishing features mentioned in the Lahore High Court judgment not being available, the writ petition in the High Court merited to be accepted. He also analysed section 29 of the Succession Act and other related provisions which specify also the shares under the said Act and argued that the Custom in Punjab having been abolished by the Succession Act for the parties herein, was no more applicable and hence the appellants are entitled to the shares in accordance with the Succession Act.
10. Learned counsel for the respondents, however, for considerable time during the arguments insisted that there was no law comparable to section 5 of the Punjab Laws Act in the local area from which the Privy Council case had arisen. When subsequently faced with the abovenoted material, he could not press this point any further and at one stage also agreed that if there was such law applicable in the said local area, the Privy Council judgment could not be held to be distinguishable. As we had not announced the order and had reserved the judgment, the learned counsel was permitted to advance arguments even on the assumption that the ratio of the Privy Council judgment was not attracted to the present case -- it being distinguishable as held in the impugned judgment.
11. He then read and relied on some verses from the Holy Taurat and contended that the Personal Law of the Christians did not permit a sister or a widow to inherit in presence or along with male child or other male descendants. The reading by the learned counsel himself, undoubtedly shows, that if there is no male child a daughter would definitely get a specific share. He, however, remained unable to rely upon any other verse dealing with the male and female; namely, when the deceased leaves his son and a daughter. His inferential argument, however, was that vice versa was not mentioned; namely, that in presence of his son the daughter would inherit. Because as he argued it was "very obvious". May be with the further study of this subject more light can be thrown on the Christian Law of inheritance. But it is not necessary for us to do so in view of the two conclusions, we have reached as a result of the foregoing discussion.
12. One, that the Succession Act did alter the customary succession in so far as Christians are concerned; and also for them it abolished customary law in Punjab, therefore, the same would not be applicable.
13. Secondly, that the Privy Council judgment in the present case is fully attracted. Even if we are not otherwise bound to accept the Privy Council view today as binding on this Court; yet there is nothing therein not to commend itself as a correctly laid down legal proposition. The Christian females, similarly as in the present case, were allowed to inherit in presence of the male heirs. It is thus a case of the application of the Succession Act, which by statutory dispensation having determined the mode of succession when a Christian male dies, neither the question of custom nor any other law relied upon by the learned counsel, would be applicable.
14. Before closing this judgment it needs to be mentioned that the learned counsel for the respondents vehemently opposed this appeal on two technical grounds as well. One, that the consistent law laid down by the superior Courts in Pakistan being that no writ lies against an order of mutation, in this matter the High Court, in any case, could not have interfered. And secondly, that the appellants having deliberately allowed their appeal before the Revenue Authority to be dismissed for non-prosecution, (as it was otherwise timebarred) neither sought its restoration nor challenged the order of dismissal for non-prosecution, therefore, no writ was competent.
15. There is some force in any one of the objections raised by the learned counsel but it cannot be said that there is no distinguishing feature in this case, vis-a-vis, the nature of the proceedings before the authorities concerned or with respect to the peculiar dismissal for non-prosecution.
16. However, (i), it being a case involving important questions of law and that also of public importance; and (ii), further it related to the fundamental right of property; and that too (iii), being claimed by females; and above all (iv), they are members of minority community; who (v), in Pakistan and Islam are additionally protected; we told the learned counsel that (vi), we treat this case covered also by the original special jurisdiction of this Court under Article 184(3) of the Constitution; which can be invoked for the enforcement of fundamental rights. In addition, (vii), we considered it an amply fit case for exercise of the power of the Supreme Court to do complete justice. For all these reasons the objections stood overruled.
17. In the light of the foregoing discussion this appeal is allowed and the impugned orders and judgments are set aside. The appellants shall be treated as lawful heirs of the deceased Rehmat Masih. Thus, as the lawful heirs of Rehmat Masih, along with respondents they shall also inherit.
18. This decision and declaration shall be given due effect -by all concerned. It may be added that the learned counsel for the appellants has submitted a certificate showing the particulars of the heirs who would inherit. The authorities concerned shall after due verification of the assertion and statement made from the appellants' side in the said certificate, shall allot and allocate the shares accordingly. The said certificate which is signed by the learned counsel and initialled by the Court Associate has been placed on record.