' MUNIR A. SHEIKH, J.---By this judgment, we propose to decide Civil Petitions Nos.163 and 164-L of 2000 which have arisen from a similar suit in both of which questions of law and facts are common.
2. The petitioners seek leave to appeal in both the petitions against the judgment dated 12-11-1999 of the Lahore High Court, Lahore through which Civil Revisions Nos.402-D and 388-D of 1997 filed by Mst. Ghulam Janat and Shafi Muhammad, etc., petitioners, respectively against the judgments and decrees of both the Courts below have been dismissed.
3. The facts forming the background of these petitions which have arisen from a suit filed by Mst.
Ghulam Janat, deceased daughter of Ghulam Sarwar are that Sarwar son of Khair Din was admittedly the last male owner of the disputed property. On his death, mutation of inheritance was sanctioned on 7-12-1930 in favour of Ghulam Hussain and Ashiq Hussain, his two sons. He also had two daughters, namely, Mst. Bakhto Mai and Mst. Ghulam Janat, deceased plaintiff in the suit but they were excluded from inheritance under the Customary Law.
4. On 5-6-1991, Mst. Janat Mai daughter of Sarwar filed a suit for declaration that she was owner of 1/6th share in the land of Sarwar deceased, her father as his daughter. She also averred that she had been in joint possession as a Muslim law co-sharer and her share in the produce was also given to her by her both the brothers and later his other heirs. According to her, she came to know about the contents of Mutation No,252 dated 2-12-1930 during Rabi 1991. This suit was filed against both the brothers but they filed written statements separately. Ashiq Hussain in his written statement pleaded that he had paid the share of other sister Mst. Bakhtan whereas the share of produce of Mst. Ghulam Janat, plaintiff was to be paid by Ghulam Hussain, deceased, the other brother. The heirs of Ghulam Hussain, deceased also filed a written statement and simply stated that Ghulam Janat was not entitled to any share in the estate of Sarwar. The heirs of Zulfiqar also filed a written statement conceding the share of Ghulam Jariat. The trial Court framed issues reflecting the controversies arising from the pleadings of the parties on which evidence was led by the parties. It (trial Court) through judgment dated 17-3-1993 decreed the suit of Mst. Ghulam Janat against which two appeals filed by the legal heirs of Ghulam Hussain and Ashiq Hussain were dismissed by the learned Additional District Judge, Multan through judgment dated 28-4-1997. Civil Revision No,402-D of 1997 was filed by the legal heirs of Ghulam Hussain whereas Civil Revision No,388-D of 1997 filed by the legal heirs of Ashiq Hussain against this judgment of the First Appellate Court have been dismissed through the impugned judgment dated 12-11-1999 by the High Court, against which leave to appeal has been sought by them through these petitions.
5. In this case, the Courts firstly held that it was not proved in the matter of inheritance, that Sarwar deceased the last male owner was governed by such a custom according to which the females were excluded from inheriting the agricultural land of their father. It was alternatively held that under section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application (Amendment)
Act, the daughter of Sarwar shall be deemed to have inherited under Shariat Law from her father which was retrospective in its effect, therefore,, the two brothers could not exclude them from the ownership of the land to the extent of share which Mst. Janat had inherited under the Muslim Law.
6. Learned counsel for the petitioners argued that the effect of section 2-A ibid was not to reopen the inheritance of the last male owner which took place when the West Pakistan Muslim Personal Law (Shariat) Application Act, 1948 had not been enforced whereas it only declares that any person who had inherited agricultural land before coming into force of 1948 Shariat Application Act would be deemed to be the full owner thereof. He argued that the intention of the law was to remove the limitations on the power of such a person of alienation of the land which he had inherited under custom and nothing else.
7. We are afraid, the argument in our considered view is not tenable as it is contrary to the intention and spirit of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and The Punjab (Amendment) Ordinance, 1983.
8. It may be seen that before coming into force of Shariat Application Act, 1948, in the matter of inheritance as regards agricultural land, the Customary Law was being followed in India and not Muslim Law. Laws were promulgated from time to time in order to make Shariat law applicable as to the inheritance of a Muslim as regards agricultural land. The first step taken towards this object was promulgation of 1948 Shariat Application Act. Under this Act, the Islamic Law as regards inheritance of agricultural land in India had not been fully applied, therefore, after the creation of Pakistan, Muslim Personal Law (Shariat) Application Act, 1962 was promulgated according to section 2 of which among others, in the matter of succession, the rule of decision, subject to the provisions of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims. Under section 3, thereof, it was, however, provided that the limited estate held by a female under the Customary. Law of agricultural land would continue till such time the same was terminated in accordance with law and after termination of it, the Inheritance shall be deemed to have opened on the date when last male owner had died and all those persons who would have inherited the land under Mohammadan Law as heirs would be given their due share and if anyone of them in the meanwhile had also died, his share would devolve upon his heirs. Since under this Act also, limitation on the powers of even the male heir on alienation of land inherited under the Customary Law to the exclusion of female heir was continuing and could be challenged under the rules of Customary Law being without necessity and in case the 'estate was held by a female as a limited owner under Custom, the applicability of Shariat Law of Inheritance stood postponed till the termination of the said limited estate, as such, Shariat Application (Amendment) Ordinance, 1983 through which section 2-A was added in the 1962 Muslim Personal Law (Shariat) Application Act was promulgated in order to apply Islamic Law of Inheritance with immediate effect and the intention is further clear that on the termination of life estate, the inheritance was deemed to have opened on the date of death of last male owner in accordance with Shariat Law and the estate was deemed to have devolved on all those persons who were heirs according to Muslim Law on the said date and in case of the death of any of them, his share was to devolve on his heirs. Under section 2-A, it was declared that a male heir of deceased Muslim will be deemed to be full owner thereof meaning thereby that he shall be deemed to have inherited the property not under custom with limitations on his powers to transfer but under the Mohammadan Law, as such, he was deemed to have inherited the property under Mohammadan Law as a consequence of which he could not be held to have acquired ownership rights in the entire estate but shall have to be deemed to be the full owner to the extent of his share.
9. In the present case, Ashiq in his written statement clearly stated that he had paid the share of produce to the other sister whereas Mst. Ghulam Janat, deceased plaintiff was to be paid her share by Ghulam Hussain, the other brother. The heirs of Zulfiqar conceded the claim of Mst. Ghulam Janat. It was averred by Mst. Ghulam Janat that she had been paid her share of produce till Kharif 1991 and thereafter brothers stopped paying her share when she came to know about the said mutation. Learned counsel for the petitioners submitted that daughter of Janat Bibi was married to son of Ghulam Hussain and she was divorced before the institution of the suit, as such, the suit was motivated to harass Ghulam Hussain due to this mishap in the family. If it be so, it may also equally be presumed that Mst. Ghulam Janat and the other sister as stated by Ashiq in the written statement had all long been admitted to be co-sharers in the land under Mohammad Law, payment of her share of produce was stopped after the divorce to her daughter as the relations between the brother and the sister became strained.
10. The findings of the learned Judge of the High Court that section 2-A ibid was retrospective in its operation based on the principle laid down in the case of Abdul Ghafoor v. Muhammad Shafi (PLD 1985 SC 407) by this Court do not suffer from any legal infirmity and are just and proper and the other findings that the intention of section 2-A and its effect was that the inheritance shall be deemed to have devolved on the date of death of last male owner on all the heirs of the last male owner under the Mohammadan Law who shall be deemed to have become the joint owner, therefore, the impugned judgment of the High Court, in our view, also does not suffer from any legal infirmity.
11. For the foregoing reasons, this petition has no merits which is accordingly dismissed and leave to .