1999 PLP 1257 (YLR)

Date of hearing: 12th May, 1999. A suit for declaration was filed by respondents Nos. l and 2 against the petitioners and the proforma respondents which suit was decreed by the learned trial Court on 23‑7‑1995. The petitioners filed an appeal thereagainst which was dismissed by the learned appellate Court on 14‑7‑1996. This revision petition has been filed to challenge the concurrent judgments of the two Courts below.

2. One Gehna husband of respondent No. l and father of respondent No.2 was allottee of suit land measuring 144 Kanal situated in Chak No.12/M, Tehsil Dunyapur, District Lodhran. He died in the year 1945 leaving behind respondent No.1 as widow and respondent No.2 as his daughter. A mutation of inheritance was sanctioned on 10‑2‑1946 in favour of respondent No.1 the widow. On her marriage another mutation was sanctioned in favour of respondent No.2 the daughter. When she married another mutation was sanctioned in favour of brothers of deceased Gahna as his collaterals and the entire land was mutated in their favour. This is a Mutation No.31 of 2‑12‑1950. It is the case of the petitioners that thereafter they were granted proprietary rights in the year 1979. In the year 1993 the aforesaid suit for declaration was filed by the two ladies i.e. respondents Nos.l and 2 that they have been illegally deprived of their shares in the land left by Gahna deceased. The claim of plaintiffs‑respondents Nos.l and 2 was that they were respectively entitled to 1/8 and 1/2 shares. The suit was contested by the defendants‑petitioners. It was their case in the written statement that the mutations after the death of Gahna deceased had been affected keeping in view the customary rule of succession. The learned trial Court framed the issues arising out of the pleadings of the parties. After receiving the evidence produced by the patties in support of their respective pleas the suit was decreed on 23‑7‑1995 which judgment as stated above was affirmed by the learned Additional District Judge, Lodhran vide his. judgment, dated 14‑10‑1996.

3. In support of this petition the learned counsel for the petitioners contends that succession to tenancy was governed by section 20 of the Colonization of Government Lands Act, 1912 and thus, the approach of the two Courts below in applying the rule of Muslim Personal Law in the matter of succession is erroneous. It is contended that the proprietary rights were granted in favour of the petitioners in the year, 1979 by the Provincial Government and the respondents -plaintiffs had thus, no right in the land nor a decree could be granted in their favour.

4. As against this the learned counsel for respondents Nos. l and 2 contends that Mutation No.31 of 2‑12‑1950 in favour of the brothers of Gahna deceased was void and inoperative as against the rights of respondents‑plaintiffs which was violative of section 3 of Muslim Personal Law Shariat (Application) Act, 1948 as the rule of custom could no more be applied in matters of succession. It is contended by him that it was not the case of the petitioners pleaded in the written statement that they had been granted proprietary rights, therefore, the same cannot be allowed to urge. He further contends that the findings of the two Courts below recorded concurrently in favour of respondents Nos.l and 2 are fully supported by the evidence on record and the law and thus, do no warrant interference in revision.

5. The admitted position is that Gahna was the original allotee of the land and that respondents Nos.l and 2 are respectively his widow and a daughter. But by applying the rule of custom as incorporated in section 20(b)(c) of the Act, Mutation No.31 was sanctioned on 2‑12‑1950 in favour of brothers of Gahna to the exclusion of his widow and daughter. This exclusion indeed was on account of customary law in view of their marriage. Section 20 of the Act also recognized the same rule of succession. The petitioners had also admitted and pleaded so in their written statement that the property had devolved upon the two ladies under the Customary Law as limited owners and after their marriages it devolved upon the brothers of Gahna deceased. The petitioners, therefore, cannot take a stance which is inconsistent and contradictory to their pleadings. The Courts below have, thus, correctly recorded their findings that the two ladies could not be deprived of their share by applying customary law, in derogation to the Muslim Personal Law.

6. That the Muslims of sub‑continent should in matters of succession be governed by their Personal Laws had been receiving attention of Legislatures from time to time. See for reference the North West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935. The Muslim Personal Law (Shariat) Application Act, 1937. The Punjab Muslim Personal law (Shariat) Application Act, 1948. The West Pakistan Muslims Personal Law (Shariat) Application Act, 1962 and West Pakistan Muslims Personal Law (Shariat) Act (Amendment) Ordinance, 1983. The object was to do away the tinge of customary law. As observed in Muhammad Akbar v. Iftikhar Jillani (PLD 1991 SC 71) the object of these laws was directed at "removing that vestige of custom which persisted on the rights of Muslims inheriting ancestral property and the limitation being founded not on the statute but on the customs recognizing an interest of the reversioners in the ancestral property". With reference to cases decided by the superior Courts it was also observed that "the statutory tenancy under the Act was also subject notwithstanding its statutory character, to customary limitations in the matter of alienation, the law hitting at such alienation will reach the tenancy, created under the Act as well". The appeals were accordingly decided in view of Ordinance XIII of 1983 which had been enforced pending litigation. Although, Muhammad Akbar's case (supra) arose in somewhat different context, yet the principle highlighted therein regarding the application of Personal Law in matters of succession, is instructive in such‑like matters.

7. In view of the pleadings of the parties the conclusions arrived at by them do not suffer from any factual or legal error or infirmity. I do not, thus, find any valid justification to interfere with the concurrent findings of the Courts which are upheld. In view of the above this petition has no merit which is accordingly dismissed. Revision dismissed. Q.M.H./M.A.K./L‑40/L