1992 PLP 82 (SCMR)

ABDUL SHAKURUL SALAM, J.‑‑‑This appeal by leave arises in the following circumstances.

1. A small pedigree‑table may be useful which is as follows:‑‑‑ NIZAM DIN | | ______________________________|__________________________________ Ilam Din Mirza Mst. Samoo (Died in 1947) (Died in 1944) (Died in 1954) | | Mst. Nehmat Bi Sardar Khan Widow Appellant | Mst. Fatima Bi Daughter (Died in 1942)

2. Relevant facts are that Ilam Din held some agricultural land. On his demise in 1947 it was mutated in favour of his widow Mst. Nehmat Bi. On the enforcement of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the limited estate held by Mst. Nehmat Bi was terminated and a mutation was finally sanctioned on appeal in favour of the widow of the deceased Ilam Din, Mst. Nehmat Bi, his sister Mst. Samoo and his pre deceased daughter Mst. Fatima Bi's children. Mst. Fatima had died in 1942, Sardar Khan appellant, a son of the pre‑deceased brother of Ilam Din namely Mirza who had died in 1944, filed a suit claiming inheritance. It was dismissed by the learned trial Court on 30‑11‑1966. He succeeded on appeal and was given 1/4th share in the estate, excluding the children of the pre deceased daughter Mst. Fatima Bi. The latter filed a second appeal in the Lahore High Court which was accepted on 5‑12‑1987 and the appellant was excluded. Hence this appeal by leave.

3. The contention of the learned counsel for the appellant is that on the termination of the life estate of Mst. Nehmat Bi under section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the devolution was to take place under section 5 of the said Act which provided that `property shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of last full owner..., and if any such heir has died in the meantime, his share shall devolve in accordance with Shariat on such persons as would have succeeded him if he had died immediately after the termination of the life estate..., provided that the share to which a Muslim female holding limited estates under Customary law would have been entitled under the Muslim Personal Law Shariat) upon the death of the last full owner shall devolve on her." The precise contention is that on the termination of the life estate of Mst. Nehmat Bi under the aforesaid Act which came into force on 31‑12‑1962, the property was to devolve upon, persons who would have been entitled to succession under the Muslim Personal Law (Shariat) upon the death of the last full owner, and if any one had died in the meantime, on his heirs. The last full owner Ilam Din died in 1947. His heirs under the Muslim Personal Law.(Shariat) would be his widow Mst. Nehmat Bi, his sister Mst. Samoo and the residue was to go to his brother's son who is the appellant. Pre‑deceased daughter of Ilam Din, 'last full owner, namely. Mst, Fatima Bi or her children would not be entitled to inherit anything.

4. The contention of the learned counsel for the children of the pre deceased daughter Mst. Fatima Bi, on the other hand, is that the Muslim Family Laws Ordinance, 1961 provided in section 4 that `in the event of the death of any son or daughter of the propositus before opening of succession, the children of such son or daughter, if any living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be would have received, if alive'. The submission is that notwithstanding the earlier death of their mother Mst. Fatima Bi the daughter of the propositus Ilam Din, her children the respondents shall get the share of their mother.

5. In a reply, the learned counsel for the appellant submitted that section 4 of the Muslim Family Laws Ordinance, 1961, is no part of Muslim Personal Laws (Shariat) and, therefore, on the termination of the life estate the devolution is to take place under section 5 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 in favour of such persons who would be entitled to succeed under Muslim Personal Law (Shariat).

6. Both the learned counsel argued at length and supported their submissions with precedents. Learned counsel for the appellant referred to Mst. Farishta v. The Federation of Pakistan through Ministry of Law, Islamabad PLD 1980 Pesh. 47 to contend that the Muslim Family Laws Ordinance, 1961 is un Islamic. However, he pointed out that the judgment has been set aside by the Supreme Court (Shariat Bench) vide Federation of Pakistan v. Mst. Farishta (P L D 1981 SC 120) wherein it was held that Muslim Family Laws Ordinance was part of Muslim Personal Law and, therefore, exempt from examination by the Federal Shariat Court established under Article 203(B) of the Constitution. He then referred to Yusuf Abbas and others v. Mst. Ismat Mustafa and others PLD 1968 Kar. 480, Sakhi Muhammad v. Ahmad Khan and 3 others 1980 CLC 1006 and Mst. Mumtaz Mai v. Ghulam Nabi PLD 1969 BJ 5 to contend that the Muslim Family Laws Ordinance, 1961 is prospective and not retrospective. He also referred to Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407, Islam and another v. Ghulam Qadir and others 1990 SCMR 1667 and Lat and 3 others v. Rehmat Bibi and another PLD 1991 SC

582. Learned counsel for the appellant then referred to historical incorporation of Muslim Law in statutory provisions in the sub‑continent. He first referred to Punjab Laws Act, 1872 wherein it was laid down that where parties are Muslims, Mohammaden Law shall be applied if not contrary to justice, equity and good conscience. Then, the Muslim Personal Law (Shariat) 1937 which was made applicable to Muslims in matter of succession other than agricultural land. This was included under the West Pakistan Muslim Law (Shariat) Application Act, 1948 as amended in 1951. Then comes Punjab Muslim (Shariat) Application Act, 1962 as amended by Ordinance XIII of 1983 and lastly the Shariat Act of 1991.

7. On the other hand, learned counsel for the respondents has referred to an article reported in PLD 1989 Journal 49, by Lucy Carroll of Centre for Asian Studies, University of Texas under the title `A Succession Problem': 'Ibrahim v. Nehmat Bi', the case under appeal, and pointed out anomalies in distribution of shares. He also referred to `Mst. Zainab v. Kamal Khan alias Kamala (P L D 1990 SC 1051).

8. It would be useful to straightaway reproduce relevant statutory provisions. The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, as far as relevant, is to the following effect:‑‑ Section 2.‑‑ Application of the Muslim Personal Law. Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority legitimacy' or bastardy, family relations, wills, legacies, gifts religious usages or institutions including Waqfs, trusts and trust properties, 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 cases where the parties are Muslim. Section 2(A): ‑ Succession prior to Act IX of 1948. Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force or any custom or usage or decree, judgment or order of any Court where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition .was a Muslim:‑‑ (a) he shall be deemed to have become upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat). (b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent if is contrary to the Muslim Personal Law (Shariat) Act; (c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith; Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees. Section 3.‑‑ Termination of limited estates under customary law. The limited estates in respect of immovable property held by a Muslim female under the Customary Law, are hereby terminated; Provided that nothing herein contained shall apply to any such estate saved by enactment repealed by this Act, and the estates so excepted shall continue to be governed by that enactment notwithstanding its repeal by this Act. Section 5.‑‑ Devolution of property on the termination of life estate and certain wills. The life estate terminated under section 3 or the property in respect of which the further operation of a will has ceased under section 4 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner or the testator as though he had died intestate; and if any such heir has died in the meantime, his share shall devolve in accordance with Shariat on such persons as would have succeeded him if he had died immediately after the termination of the life estate or the death of the said legatee; Provided that the share to which a Muslim female holding limited estate under customary law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her. Section 4: ‑‑ The Muslim Family Laws Ordinance. 1961. In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter as the case may be would have received, if alive. . 8‑A. The controversy revolves around as to who is to inherit the land on the termination of the life estate of Mst. Nehmat Bi by operation of law vide section 3 of the Muslim Personal Law (Shariat) Application Act, 1962. The case of the appellant is that the property is to devolve upon such person as would have been entitled to succeed under the Muslim Personal Law (Shariat) Application Act, 1962 upon the death of the last full owner. If any heir has died in the meantime his share will devolve in accordance with Sharia on such person as would have succeeded him as if he had died immediately after the termination of the life estate. In other words, his case is that the property is to devolve on such persons who would have succeeded in 1947 when the full owner Ilam Din died and if anybody had died since then and the opening of the succession in 1962, that person could also inherit. According to the learned counsel for the appellant since Mst. Fatima daughter of the full owner Ilam Din had predeceased him in 1942 she could not inherit. On the other hand, the case of the children of the predeceased daughter Mst. Fatima is that under section 5 of the aforesaid Act the devolution is to take place in favour of such' persons who would have been entitled to succession under the Muslim Personal Law (Shariat) upon the death of the last full owner and section 4 of the Muslim Family Law Ordinance 1961 provided that `in the event of the death of any son or daughter of propositus before opening of succession that is to say before the propositus's death, the children of such son or daughter living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter would have got". It was submitted that the devolution under section S of the Muslim Personal (Shariat) Application Act, 1962 is' on' persons succeeding under Muslim Personal Law (Shariat). Muslim Personal Law (Shariat) is not a specific statute. It is a compendious term to include all laws relating to personal matters of Muslims. Therefore, the Muslim Family Law Ordinance, 1961 is covered under the umbrella of the Muslim Personal Law (Shariat).

9. After hearing the learned counsel for the parties and perusing the precedents cited by them, we are of the view that while enforcing section 5 of the Muslim Personal Law (Shariat) Application Act, 1962 for the purpose of devolution of the estate of the last full owner we will have to apply Muslim Personal Law (Shariat) wherein is included the Muslim Family Laws Ordinance, 1961. The contention of the learned counsel for the respondents in this behalf is supported by the judgment of the Supreme Coart (Shariat Bench) in Federation of Pakistan v. Mst. Farishta PLD 1981 SC 120 that Muslim Personal Law (Shariat) is a comprehensive term to cover all laws relating to personal matters of Muslims. Section 4 of the Muslim Family Laws Ordinance, 1961 allows inheritance to the children of the pre‑deceased son or daughter to the extent that the son or daughter would have got. Section 3 of the latter Ordinance 1961 also provides that `The provisions of this Ordinance shall have effect notwithstanding any law, custom or usage'. Therefore, it appears to us that the learned Judge in the High Court was right in holding that by providing for devolution of the property under section 5 of the Muslim Personal Law (Shariat) Application Act, 1962 on termination of the life estate, the children of pre‑deceased daughter of the last full owner will inherit the share which their mother would have got as if she were alive at the time of the opening .f the succession, that is to say, on the demise of her father Ilam Din in 1947.

10. It may be noticed that section 5 of Muslim Personal Law (Shariat) Application Act, 1962 is not happily worded in so far as it states that "the life estate on termination under section 3... shall devolve upon ...." Obviously, the life estate was not intended to devolve. Life estate was terminated vide section 3 of the Act. What was meant was that on the termination of the life estate, the property will go back to the last full owner and succession shall commence from him. Maybe without section 5, on the termination of the life estate under` section 3, the devolution of succession would have been catered for by section 2 which lays down that `notwithstanding any custom or usage, in all questions regarding succession..., the rule of decision, subject to any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims'. In this way, even the controversy raised in this appeal would not have arisen as succession to Ilam Din would have been, subject to any enactment, like the Muslim Family Law Ordinance, 1961, in accordance with Muslim Personal Law (Shariat).

11. Finally if the statutory provisions 'i.e. section 5, section 2 and section 2‑A of the Muslim Personal Law (Shariat) Application Act, 1962 and section 4' of the Muslim Family Law Ordinance, 1961 are read together and the rule of interpretation for harmonizing statutoy provisions is applied, it is quite clear that on the termination of the life estate of Mst. Nehmat Bi, inheritance will open with reference to the full owner namely Ilam Din who died in 1947. He would be succeeded by his heirs the widow, sister and pre‑deceased daughter's children. The claim of the appellant to exclude children of the pre‑deceased daughter of Ilam Din is untenable. As regards distribution of shares amongst the heirs, assigned by the Lahore High Court, no one has come up in appeal; therefore, no interference is called for in this behalf.

12. For the reasons given above, we find ho force in the appeal of Sardar Khan. Therefore, it is dismissed, but in the circumstances, the parties are left to bear their own costs. A.A./S‑647/S Appeal dismissed.