' MUHAMMAD ,BASHIR KHAN JEHANGIRI, J.---This petition for leave to appeal is from the judgment of a learned Single Judge of Peshawar High Court, Peshawar, in Civil Revision No,420 of 1992 maintaining the judgment and the decree of the Appellate Court whereby, while accepting the appeal, the judgment of the trial Court non-suiting the plaintiffs-respondents was reversed and their suit was decreed.
2. The facts of the case as narrated in the impugned judgment of High Court are: re The successors-in-interest of Khial Mir brought a suit in the Court of Senior Civil Judge, Peshawar, for a declaration that the plaintiffs were owners in possession of the whole of the property left behind by Sher Baz to the total exclusion of Suleman and Usman, defendants Nos.1 and 2 in that the latter's father Zarin Mir had predeceased Sher Baz and as such were not entitled to any share in the estate of Sher Baz according to Shariah. It was also prayed that the entries in the Revenue Record aforementioned be declared as incorrect and against the law. Permanent injunction was also prayed for the purpose of restraining the defendants from claiming any title in the estate of Sher Baz. Written statement was filed by defendants Nos.1 and 2 wherein the claim of the plaintiffs was contested and it was averred that Sher Baz had predeceased Zarin Mir. Issues were framed, evidence of the parties was recorded and the suit of the plaintiffs was dismissed by the trial Court, holding that although Zarin Mir had predeceased Sher Baz but the latter had died before the enactment of Shariat Application Act of 1935 and the succession of the estate of Sher Baz was to be regulated by the Customary Law which recognized the shares of defendants Nos.1 and 2 in the estate of Sher Baz. This conclusion was drawn by the learned trial Judge on the strength of Punjab Customary Law. The learned Appellate Court disagreed with the trial Court on the ground that Shariat Application Act of 1935 was given retrospective effect by subsequent amendments and as such the distribution of the property of Sher Baz was to be regulated in accordance with Shariah and not the Customary Law.
3. Feeling aggrieved, the answering-respondents herein assailed the findings of the Appellate Court by filing the revision petition.
4. In support of the revision petition, reliance was placed on Mst. Sahib Jan Bibi v. Wali Dad PLD 1961 (W.P.) Pesh. 9 to contend that the suit of the plaintiffs was hopelessly barred by time, in that, the Inheritance Mutation of half of the land in dispute in favour of the defendants was attested on 24-1- 1927 from which date the limitation would start against the plaintiff while the suit had been brought on 5-12-1987 after more than sixty years. It was also urged before the High Court that by the time the Act was amended by its two amendments in 1950 and 1953 which gave retrospectively to the Act, the succession to the estate of Sher Baz was past and closed chapter. On behalf of the petitioners before us the reasoning that found favour with the Appellate Court was adopted.
5. The learned Judge in Chambers of the High Court formulated two points for resolution; firstly, whether Sher Baz had predeceased Zarin Mir and, if not, secondly, whether the suit of the plaintiffs was barred by limitation notwithstanding the retrospective operation of the Act. The first controversy was answered in the affirmative holding that the very attestation of impugned Mutation No,1733 dated 24-1-1927 copy Exh.2/11 determined that Zarin Mir, father of Usman and Suleman predeceased Sher Baz otherwise they would not have inherited the estate of the latter.
Thus, the concurrent findings of the two Courts below on the controversy was affirmed by the learned Judge in Chambers of the High Court.
6. On the second controversy, the learned Single Judge invoked subsection (2) of section 3 of the N.-W.F.P. Act (IX of 1950) and another amendment of the Act in 1953 according measure of retrospectively to the Act providing that where dispute came before a Court of Law relating to the succession of the estate of a deceased Muslim, it would be determined in accordance with Shariah notwithstanding his death having occurred before the coming in force thereof on 6-12-1935, and held that "succession is to be determined in accordance with Shariah and, therefore, the petitioners whose father had predeceased his brother Sher Baz, were not entitled to a share in the latter's estate.
7. Mr. Abdul Samad Khan (Zaida), learned Advocate-on-Record appearing on behalf of the petitioners, contended that the learned Judge in Chambers of the High Court had erred to ignore the law laid down in Mst. Sahib Jan Bibi and others v. Wali Dad and others PLD 1961 (W.P.) Peshawar 9 that notwithstanding the retrospective operation of the N.-W.F.P. Muslim Personal Law (Shariat)
Application Act (VI of 1935) providing that whenever a dispute comes before a Court of Law with respect to succession to the estate of a deceased Muslim, he will be deemed to have died under the domain of Muslim Law even if the death had occurred at any time before the afore mentioned Act came into force, such claims are subject to law of limitation.
8. Leave to appeal is granted to consider the law of public importance whether the learned Judge in Chambers of the High Court has erred to ignore the dictum of this Court in Aslam and another v.
Mst. Kamalzai and others PLD 1974 SC 207 and reiterated in Mst. Zarmina and others v. Munawar and another 1975 SCM R 487 holding, firstly, that it could not have been the intention of the Legislature under section 4(1) of the N.-W.F.P. Muslim Personal Law (Shariat) Application Act (VI of 1935) to re-open the inheritance, even in cases where the heirs had taken an absolute vested estate under the custom and that only the limited estate taken under the custom, which were, in any event, to terminate on the death or remarriage or under a statute were to be distributed according to Muslim Personal; and, secondly, approving the ratio in the case of Mst. Sahib Jan Bibi that claim by Muslims law heirs, preferred after the enactment of Act VI of 1935 (ibid) could be entertained only if law of limitation offered no impediment.