1975 PLP 487 (SCMR)

MUHAMMAD YAQUB ALI, J.‑This appeal by special leave of the Court involves interpretation of section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act V at` 1962 which provides as under:

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3. Termination of life estate under Customary law.‑The limited estates in respect of immovable property held by a Muslim female under the customary law, are hereby terminated." One Shamat of village Yaqubi, Tehsil Swabi, District Mardan, who owned the suit land died in 1927 leaving him surviving a son, Munjawar respondent No. 1, a widow Mst. Bibi Khanam, appellant No 3 and three daughters, Mst. Zarmina and Mst. Qismata, appellants Nos. 1 and 2 and Mst. Shahzadgai, respondent No.

2. The family of Shamat was in the matters of succession governed by Customary law. In accordance with the rule then prevailing in the N‑W F. province 1\2 of the estate of Shamat was mutated in the name of Munjawar and the other in the name of Mst. Bibi Khanam. With the enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) the limited estate of Mst. Bibi Khanam came to an end. A dispute, thereupon, arose between the aforementioned heirs of Shamat as to whether Munjawar, who had already succeeded to more than his Quranic share in the estate of his father was also entitled to a state in the land held by Mst. Bibi Khanam as a limited owner. The Courts below held that succession under Muslim Personal Law (Shariat) Application Act V of 1962 was confined to the limited estate held by Mst. Bibi Khanam and out of it she, as a widow, was entitled to 5/40 share, Munjawar, as a son 14/40 share and Mst. Zarmina, Qismata and Shahzadgai to 21/40 share. It was urged on behalf of the appellants that Munjawar having already succeeded to more than his due share in the estate of Shamat under Muslim Law, was not entitled to succeed to a further share out of the limited estate hold by Mst. Bibi Khanam. Since leave to appeal was given in this case, the identical questions of law arose for consideration by the Court in Aslam and another v. Mst. Kamalzai and others (P L D 1974 S C 207). In the judgment delivered on 18th April 1974, the Court has held: "it seems to us that the contention of the learned counsel is correct, because it does not appear that it could have been the intention of the makers of the Statute to reopen the inheritance, even in cases where the heirs had taken an absolute vested estate under custom. Only the limited estates taken under custom, which were, in any event, to terminate on the death or remarriage of the female heir, were intended to be distributed according to Muslim Personal Law. The language of section 4 leaves no room for doubt that the intention was to provide for the distribution of such properties only which were notionally still the properties of the last male owner and would have otherwise gone to his reversioners on the termination of the life estate. We cannot, therefore, agree with the High Court that the share of Mst. Kamalzai had to be calculated in the entire estate left by Karam Khan but only in the estate which was taken by Met. Roshanai as a limited owner. The succession opened only in respect of this limited estate and not the entire estate. The learned Additional District Judge of Mardan was, therefore, right in the view that he took, namely, that Mst. Kamalzai was only entitled to 12/40 share in the 1/3rd of the estate of Karam Khan which was taken as a limited owner by Mst. Roshanai." Mr. A. M. Qureshi, learned counsel for the appellants reiterated the plea that Munjawar was not entitled to any share in the land held by Mst. Bibi Khanam as a limited owner. In support of the plea he cited some decided cases including Sardar Abdul Rahman Khan v. Sardar Muhammad Ashraf Khan and others (AIR 1944 P C 27) which had no bearing on the interpretation of section 3 of the Muslim Personal Law (Shariat) Application Act V of 1962 nor was he in a position to refute the reasons on which the aforementioned decision of the Court is based. Agreeing respectfully with the interpretation of section 3 of the Muslim Personal Law (Shariat) Application Act V of 1962, by the Court in Aslam and another v. Mst. Kamalzai and others, there is no merit in the plea that Munjawar, having already succeeded to more than his share in the estate of his father Shamat, was not entitled to any further share in the 1/2 share of the estate hold by Mat. Bibi Khanam, as a limited owner. The appeal is accordingly dismissed but in view of the close relationship of the parties, we leave them to bear their own costs throughout. Appeal dismissed.