' This petition for leave to appeal has been directed against the judgment and decree passed by the Shariat Court on 18-5-2001, whereby the appeal filed by the petitioner herein was dismissed.
2. The necessary facts, precisely stated, are that Mushtaq Hussain. Khan, petitioner herein, filed a suit for restitution of conjugal rights in Family Court, Rawalakot on 23-12-1996. A cross-suit for dissolution of marriage was also filed by Mst. Haffeeza Aziz, respondent No,1 herein, wherein she averred that the petitioner has been treating her with cruelty and despite lame promises did not change his attitude and finally turned her out from his house. The learned Judge Family Court consolidated both the suits and after completion of proceedings the suit filed by the petitioner for restitution of conjugal rights was dismissed whereas the suit filed for dissolution of marriage on the basis of cruelty was decreed in favour of respondent on 27-5-2000. The petitioner herein availed the right of appeal before the Shariat Court which was dismissed vide the impugned judgment and decree, dated 18-5-2001 and the findings thus recorded by the Family Court were upheld. It is the aforesaid judgment and decree of the Shariat Court which are the subject of present petition for leave to appeal.
3. In support of petition for leave to appeal it was vehemently contended by Mr. Imdad Ali Mallick, the learned- counsel for the petitioner, that the decree was passed in favour of respondents against the pleadings of the parties as there was no plea with regard to maltreatment nor to-the effect that there was no mental co-ordination or coherence between the parties to live as spouses.
The learned counsel contended that-he took a specific plea in para. No,2 of his memo. Of appeal before the Shariat Court that the Family Court has not framed the issues according to the pleadings of the parties as such the judgment and decree were liable to be set aside. The learned counsel also urged that the Shariat Court committed the same illegality which was committed by the Family Court as the judgments and decrees of both the Courts proceeded on the same findings which were not the part of the pleadings of the parties nor the issues in this regard were framed by the trial Court.
4. After hearing the learned counsel for the petitioner and perusing the relevant record, it may be pointed out that the learned Judge Family Court framed two issues after consolidating the suits which may usefully be reproduced:- "Issue No,1. Whether the plaintiff (Mst. Hafeeza Aziz) on account of maltreatment and because of absence of mental coordination is entitled to a decree for dissolution of marriage? OPP (Mst.
Hafeeza Aziz).
Issue No,2 Whether the suit of the plaintiff being premature is liable to be dismissed? OPP ' While discussing Issue No,1 learned Judge Family Court on the basis of evidence brought on record came to the conclusion that defendant= petitioner had been maltreating the respondent and many quarrels took place between them. As a result of quarrel even the firing took place and the relatives of defendant-respondent were arrested in criminal cases. On account of these disputes, a total absence of mental coordination or coherence has emerged between the parties.
Therefore, it had become impossible for the parties to live as wife and husband. Thus the suit for dissolution of marriage was decreed in favour of respondent on the basis of absence of mental coordination or coherence between the spouses. It may further be added that when the issues were framed by the learned Judge Family Court both the parties and their counsel were present and they were fully alive to the issues who produced their respective evidence in support and against the issues. Thus it could not be said by any stretch of imagination that the petitioner was not aware of the issues framed by the learned Judge Family Court. After having led the evidence on the issues it is too late in the light of the day for the petitioner to claim that the issues were not framed in accordance with the pleadings of the parties.
5. It is indeed correct that the petitioner in para. No,2 of his memo. Of appeal has specifically taken the stand that issues have not been framed in accordance with the pleadings of the parties but the same was not urged before the Shariat Court at the time of arguments. The abovementioned fact does not find any mention in the judgment under appeal of the Shariat Court nor an affidavit to this effect has been placed on record by the petitioner or his learned counsel that the said point was raised and argued but the same was not resolved by the Shariat Court. Thus the point having not been argued before the Shariat Court would be deemed to have been waived. Therefore, the contention raised by the learned counsel for the petitioner being devoid of any legal force is hereby repelled.
6. Another factor for disallowing the petition for leave to appeal is that under section 14(5) of Family Courts Act, 1993 it has been provided that an appeal to Supreme Court of Azad Jammu and Kashmir from the judgment, decree or order of Shariat Court shall lie only if the Supreme Court of Azad Jammu and Kashmir being satisfied that the case involves a substantial question of law of public importance grants leave. When the learned counsel for the petitioner was confronted to the aforesaid provision of law, he half-heartedly contended that as the judgments of this Court are precedents for other Courts, therefore, they are of public importance. I am afraid that I cannot subscribe to the view of the learned counsel for the petitioner. If his contention is accepted then all the cases decided by the Supreme Court are of public importance as they are the precedents for other Courts. In our view a matrimonial dispute between two parties can hardly be called a question of law of public importance. The question of law of public importance is only that question which affects and has its repercussions on the public at large.
7. No other point of any substance has been argued by the learned counsel for the petitioner.
8. In the light of what has been stated above, as no case for grant of leave has been made out by the learned counsel for the petitioner, therefore, the leave stands refused with no order as to costs.
Leave refused.
2002 CLC 733 [Lahore] Before Tanvir Bashir Ansari, J SAJJAD MUNIR---Petitioner versus Mst. MURAD KHATOON and others----Respondents Civil Revision No,272-D of 1986, decided on 29th January, 2002. (a) Punjab Laws Act (IV of 1872)--- ----S. 5---Personal Law and Customary Law---Applicability---Muslim Law, under the provisions of S.5 of the Punjab Laws. Act, 1872, was the governing rule for the purposes of succession etc.---Such governing rule was subject to any modification made by any custom which had to be specifically alleged and proved to have modified the Islamic Law---Such proof had to be strong and creditworthy as the same was to override the Personal Law. [p. 737] A
(b) Punjab Laws Act (IV of 1872)--- - ---S. 5---Customary Law---Overriding effect---Scope---Overriding effect of the custom to the extent provided by S.5 of the Punjab Laws Act, 1872, was unacceptable as the same was against the principles of Islamic Law and through legislative intent the effect of custom was done away with in phases. [p. 738] B
(c) Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948)--- - ---Preamble---West Pakistan Muslim Personal Law (Shariat) Application. Act (V of 1962), S.2-A [added by West Pakistan Muslim. Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983), S.2]---Muslim Personal Law---Retrospective effect-Scope-Overriding control of custom upon Muslim Law was done away with by promulgation of Punjab Islamic Personal Law (Shariat)
Application Act, 1948---With the incorporation of S.2-A in West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, retrospectivity was given to the application of Muslim Personal Law in all matters including succession. [p. 738] C Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407 ref.
(d) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)--- ----S. 2-A [added by West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983), S.2)]---Muslim Personal Law---Retrospective effect---Concurrent finding of fact by the Courts below---Plaintiffs being daughters were excluded from the mutation of inheritance in the property left by deceased father of the parties---Both the Courts below, concurrently decreed the suit in favour of the plaintiffs---Contention of the defendant was that the provisions of S.2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, were not applicable retrospectively-Validity-Where the predecessor-in-interest of the parties was Muslim, upon his death, he was governed by Muslim Rule of Succession, notwithstanding that it occurred before 15- 3-1948---Defendants even failed to prove the existence of any custom whereby the female heirs (plaintiffs) had been excluded from inheritance---Estate of the predecessor-in-interest of the parties devolved upon all his legal heirs including the plaintiffs---Concurrent findings of both the Courts on facts as well as on law did not suffer from any infirmity---Revision was dismissed in circumstances. [p. 738] D Sajawal Shah and another v. Syed Rahim Shah and others PLD 1975 SC 325; Rati Ram and others v. Shera Ram and others AIR 1939 Lah. 53; Umar Din and another v. Mst. Sharifan and another PLD. 1995 SC 686; Shankar Lal and others v. Kailash Chand and others AIR 1939 Lah. 105; Sharu and 2 others v. Mst.
Fatima and others 1993 CLC 625 ref. Aejaz Ahmad Ansari for Petitioner. Sh. Hakim Ali for Respondents.
Date of hearing: 29th January, 2002.
JUDGMENT The facts are that Faiz Muhammad was the owner of the suit property (fully described in the plaint). Upon his death, Faiz Muhammad was survived by Sher Muhammad son, Mst. Murad Khatoon, Mst. Jindan Khatoon, Mst. Mehran and Mst. Azeem daughters. Instead of devolution of the estate of Faiz Muhammad in accordance with the Islamic Law of Inheritance, the entire estate was mutated in the name of his only son Sher Muhammad vide Mutations Nos.907, dated 15-6-1946, 651, dated 22-5-1947 and 336, dated 9-6-1949.
2. Mst. Murad Khatoon and Mst. Jindan Khatoon daughters of Faiz Muhammad filed a suit for declaration that being daughters of deceased Faiz Muhammad who was governed in matters of succession under the Rule of Muslim Law, they were entitled to their Muslim Law share of 1/6 each.
3. The suit was contested on the grounds that the suit was time-barred; that the plaintiffs were estopped by their word and conduct to file the suit; that the plaintiffs were out of possession and that the suit was not maintainable. On merits, it was contended that Faiz Muhammad deceased was governed by custom, according to which, the daughters are not entitled to inheritance.
4. The learned trial Court after recording evidence produced by the parties found that the suit was within time, that the defendants have not been able to prove that the deceased Faiz Muhammad was governed by custom and if so what that custom was. The learned trial Court further held that under law, the rule governing succession of Faiz Muhammad would be the Muslim Law of 'Inheritance and that accordingly the plaintiffs were entitled to their Muslim Law share. Holding, thus it was also found that the plaintiffs shall be deemed to be in constructive possession being co-sharers and that in this view of the matter, the suit was maintainable. Consequently, vide judgment and decree, dated 5-1-1986, the suit of the plaintiffs was decreed to the extent of their Muslim Law share in the estate of Faiz Muhammad. Mst. Murad Khatoon and Mst. Jindan Khatoon were together found entitled to 1/3 share in the suit property.
5. The petitioners preferred an appeal which was dismissed vide judgment and decree, dated 18- 6-1986. The learned Appellate Court while coming to this conclusion held that the Wajib-ul-Arz Exh.D.1 alongwith the other evidence produced by the defendants was not sufficient to prove the alleged custom whereby daughters were excluded from inheritance. It was also held that in matters of inheritance the parties were governed by the Muslim Law of Inheritance and that it was not proved on the record-that the daughters including the plaintiffs had relinquished their share or waived their right of inheritance.
6. The only material ground urged in this civil revision is that as Faiz Muhammad died prior to the enforcement of the West Pakistan Muslim Personal Law (Shariat) Application Act (IX of 1948), he would be governed by customary law and as such his daughters would not be entitled to inherit.
7. Mr. Aejaz Ahmad Ansari, Advocate for the petitioners contended that section- 2-A which was incorporated in the Punjab Muslim Personal Law (Shariat) Application (West Pakistan Act (V of 1962)) by Punjab Ordinance No,XIII of 1983 did not have retrospective effect. His precise contention is that the said section 2-A shall only be prospective in application and shall not operate to effect past and closed transactions. He further contended that the petitioners had brought sufficient evidence on the record to prove that Faiz Muhammad deceased was governed by custom in matters of inheritance, according to which, the daughters did not inherit. According to him, such evidence fulfilled the yardstick laid down in law. He further contended that the copy of Wajib-ul-Arz produced on the record has sufficient probative value to prove custom. Reliance in this respect was placed on the cases of Sajawal Shah and another v. Syed Rahim Shah and others PLD 1975 SC 325, Rati Ram and others v. Shera Ram and others AIR 1939 Lah. 53 and Shankar Lai and others v.
Kailash Chand and others AIR 1939 Lah.
105.
8. On the other hand, Sh. Hakim Ali, Advocate for the respondents submitted that section 2-A- incorporated by the Punjab Ordinance No,XIII of 1983 was a declaratory piece of legislation and would thus be retrospective in nature. According to him, it would be immaterial if the predecessor- in-interest of the parties who was a Muslim had died before or after the Shariat Application Act of 1948 as the effect of section 2-A incorporated by Ordinance No,XIII of 1983 would be that a Muslim owner shall be governed by Muslim Personal Law (Shariat) of Inheritance, no matter when he died.
He also contended that it was immaterial whether the property in question was ancestral or self- acquired of the deceased predecessor-in-interest. Upon the question of adequacy of proof of custom, the learned counsel for the respondents insisted that the petitioners were legally bound to prove such custom by strong, clear and unambiguous evidence which in the present case, the petitioners have failed to prove. In support of this contention, he has placed reliance upon the cases of Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407; Umar Din and another v. Mst. Sharifan and another PLD 1995 SC 686 and Sharu and 2 others v. Mst. Fatima and others 1993 CLC 625.
9. Arguments have been heard and record perused.
10. In order to appreciate the respective contentions of both the parties, it would be appropriate to refer to section 5 of the Punjab Laws Act, 1872 which is reproduced as under:-- "Decisions in certain cases to be according to nativelaws.--- In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, basterdy, 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."
' According to this provision, Muslim Law was to be the governing Rule for purposes of succession etc. However, this was subject to any modification made by any custom which had to be specifically alleged and proved to have modified the Muslim Law. Obviously, such proof had to be strong and creditworthy as it was to override the Personal Law.
11. The overriding effect of the custom even to the extent provided by section 5 of the Punjab Laws Act, 1872, was obviously unacceptable as being against the principles of Islamic Law and through legislative intent the effect of custom was done away with in phases. Muslim Personal Law (Shariat)
Application Act (XXX VI of 1937) was promulgated in this respect which was subsequently followed by the Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) which was promulgated on 15-3-1948. The effect of this Act, 1948 was to do away with the overriding control of custom upon Muslim Law. With the incorporation of section 2-A by the Punjab Ordinance No,XIII of 1983 retrospectively was given to the application of Muslim Personal Law in all matters including succession.
12. The effect of retrospectively was observed in the case of Abdul Ghafoor (supra) wherein it was held that retrospectively is inherent in the provisions of section 2-A itself. This is so, as section 2-A itself provides that if a male heir has acquired any agricultural land before the commencement of Punjab Muslim Personal Law (Shariat) Application Act, 1948, he shall be deemed to have become an absolute owner under Muslim Personal Law. The retrospectively of this provision of law was further acknowledged in Sharu's case (supra) by holding this provision to be declaratory in nature, and thus retrospective in its effect.
13. The cumulative effect of the above discussion is that Faiz Muhammad being a Muslim would be governed by Muslim Rule of Succession and upon his death, notwithstanding, that it occurred before 15-3-1948, his estate shall devolve upon all his legal heirs including the respondents/plaintiffs. It is further concluded from the record that the petitioners have been failed to prove the existence of any custom whereby the female heirs have been excluded from inheritance.
14. The concurrent findings of both the learned lower Courts on facts as well as on law do not suffer from any infirmity. The civil revision is without any merit which is hereby dismissed. No order as to costs,