P L D 1956 (W (PLP)

KAYANI, J.‑This further appeal by the plaintiffs relates to the property of Sardar Khan, who died in 1912, leaving a customary estate for his widow, Mst. Mafia, and his daughter, Mst. Maqbula. The following pedigree‑table shows his' possible heirs under the Muslim Law: _____________________________|______________________ | | | Mir Hassan Ghulam Hassan Khan Akbar Khan (died in 1905) | | |__________ | Sardar Khan= Mst. | | died on Mafia ____________|_________ | 1-12-1912. (defdt. 2) | | | | | Mir Alam Saadat Khan Sarfraz | Mst. Maqaula Khan=Aisha deceased= Khan | (defendant 1) (dfdt. 3 Rahmania died | deceased) (plaintiff 1) before | | | suit. |___________________________________ | |_____________________________________ | representatives | | | | | |_____________________ | ___________________|_________________ | | | | | | | Muhammad Latif Gul Bibi | | (defendant 6) (defendant 7) (defendant 9) | | ___________________________________| | ______________|_______________________ | | | | | | Amir Faqir Mst. Akbaro Mst. Khurshid | Muhammad Muhammad (plaintiff 4) (plaintiff 5) | (plaintiff 2) (plaintiff 3) | | ___________________________________ | ________________________|__________ | | | Muhammad Mst. Quraisha Mst. Mahru Sharif (defendant 5) (defendant 4) (died in 1937 before suit) Upon Sardar Khan's death in 1912, his daughter succeeded to a part of the estate by a will and in respect of the remainder his widow succeeded to a life estate. In 1927, Mst. Mafia remarried and her daughter succeeded to the entire estate. In 1943 the daughter also got married and thus the limited estate terminated. The suit was instituted on the 14th March 1951 by the widow and children of Saadat Khan as Muhammadan Law heirs, but was dismissed in view of section 3 of the N: W. F. H. Muslim Personal Law (Shariat) Application (Amendment) Act, No. XI of 1950. An appeal to the District Judge also failed. The provision of law governing the case is the Muslim Personal Law (Shariat) Application Act, 1935, and its two amendments in 1950 and 1953. The original Act came into force on 6th December 1935. It provided that in questions relating to succession and certain other matters, the rule of decision shall be the Muslim Personal Law. The question whether the Act would apply if the death of the last full owner had taken place before 1935, was answered variously by the Judicial Commissioners at various times. Thus, while in Fazal Haq Dilzada v. Dawar Shah (A I R 1940 Pesh. 52) the rule of decision was to be the Muslim Personal Law "in all questions which arise before the Courts irrespective of the fact that the person whose estate is being divided died before or after the Act of 1935 was enacted", a contrary view was taken in Abdul Jabbar v. Nizam Nishan (A I R 1946 Pesh. 3), where the full owner having died in 1904 and the widow in 1933, a nephew had succeeded under custom to the exclusion of daughters. Upon a suit by the daughters in 1943, it was held that the cause of action could have accrued only upon the death of the full owner in 1904 or the widow in 1933, when the daughters could not have sued under custom; but that no cause of action could have accrued under the Act of 1935, which "merely directs how cases are to be decided when they come before the Courts". Both were Division Bench cases, and both Benches were presided over by Sir James Almond, J. C. Again, in Sultan Muhammad Khan v, Risaldar Abdul Karim (A I R‑1942 Pesh. 21), it was held that if the matter had to be decided in 1932, when the widow remarried, it would have been under custom; but that since decision was to be taken in 1939, the Act of 1935 would apply. There was also uncertainty as to how the heirs were to be determined on the termination of a limited estate and whether the holder of the limited estate was herself entitled to her share under Muhammadan Law. The view taken in Sher Dad Zardad v. Mst. Shah Miran (A I R 1942 Pesh. 27) that a widow's life estate acquired before the Shariat Act and terminating in 1939 was not affected as it was preserved by the saving provisions of the General Clauses Act relating to repeals, and that the Muhammadan Law heirs who existed in 1939 would succeed, was altered in Zabita Khan v. Sherin (A I R 1942 Pesh. 91) and treated as obiter. In Mst. Malaka v. Begum Jan (A I R 1943 Pesh. 5) it was held that the right of a widow to hold property as a life estate becomes indefeasible after twelve years of her husband's death, which meant that within twelve years of death a widow's estate could be attacked after the Act of 1935 came into force and distributed according to Muhammadan Law. In 1950, therefore, the following addition were made to the Act: ‑ Section 3, subsection (2).

"Whenever a question relating to the succession upon the death of a Muslim arises in any Court, the rule of decision shall, whether such death has taken place before or after the commencement of this Act, be the Muslim Personal Law (Shariat)." Section 4.‑--"(1) In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, the persons entitled to succeed to such property upon the termination of the limited interest of the female shall be those persons who would have., been entitled to succeed at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been the rule of decision governing the succession upon such death. (2) If any person entitled to succeed under sub section (1) dies before the termination of the said limited interest the share which he would have taken had he succeeded and the heirs entitled to succeed to that share shall be ascertained as follows, that is to say, he shall be deemed to have died immediately after the termination of the said limited interest and the rule of decision governing the succession upon his death shall be deemed to have been the Muslim Personal Law (Shariat). Provided that the share which the female limited owner would have taken had the Muslim Personal Law (Shariat) been the rule of decision governing the succession upon the death of the last full owner shall devolve on her if her limited interest in the property terminates by reason of her marriage or re‑marriage, and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates by reason of her death." Nevertheless, the Judicial Commissioners held in C. A. No 11/2 of 1950, Mst. Makhmala v. Ali Gauhar which had been instituted before 1950, that what the amendment means is that "the rule of decision shall be the Muslim Personal Law whenever a question relating to the succession upon the death of a Muslim arises in any Court in any suit brought on or after the date of the enforcement of the Act." Now this was a remarkable decision, because if it was not a case of succession upon death, it certainly was a case of succession, the question being "who is to succeed Mst. Makhmala, a daughter holding a limited estate"? and if the amending Act of 1950 did not apply, the Act of 1935 at least did. However, in 1953, the Legislature altered section 3 subsection (2) to read thus: ‑ Section 3, subsection (2).`Whenever a question relating to the succession upon the death of a Muslim arises in any Court, the rule of decision shall be the Muslim Personal Law (Shariat), and where such death has taken place before the 6th December 1935, the rule of decision shall be according to the Muslim Personal Law (Shariat) as if that law had been applicable at the time of such death." Our own impression of the Act of 1935 is that what the Legislature intended was that from the date of the Act cases of succession, as they arise, would be governed by, Muhammadan Law. It is never intended to reopen the past, except when express words are used to that effect. It would have been fair to assume that if succession was to come upon death, then death should have taken place after the Act came into force. For instance, if a person had left behind brothers and married sisters (assuming that married sisters did not succeed under custom) and the brothers bad succeeded under custom before the Act came into force, the matter ended there and succession could not be re‑opened There would, however, be some estates held by widows or daughters in the manner limited by custom. If the widow married or died after 195, how would succession be determined? It is obvious that since she was not a full owner, the property would revert to the last full owner, and from him, therefore, succession would be determined according to Muhammadan Law. Now since such owner had died before 1935, if we looked for the persons who would be heirs at the time of his death, we would be giving the measure retrospective effect. We should, therefore, determine the heirs existing at the time when the limited interest terminated. Section 4 (1) of the amendment of 1950, however, pro vided that on the termination of the limited interest, the heirs of the last full owner at the time of his death were to be determined, and if such heirs were themselves dead, subsection (2) provided that they should be deemed to have died immediately after the termination of the life interest, so that they could be succeeded by their own Muhammadan Law heirs. Beyond this measure of retrospectivity, it will be noticed, neither of the two amendments provided that they should be deemed to have always been part of the Act of 1935. We should, therefore, hold that the provisions of section 4 applied only to limited estates, which would terminate after the amendment of 1950. And Mst. Maqbula's estate terminated by marriage in 1943. If she had been married in 1951, we should have gone back to 1912, when her father Sardar Khan died, and determine Sardar Khan's heirs' in 1912. As it is, we should determine his heirs in 1943. In short, section 4 is helpless in the present case. But the addition of subsection (2) to section 3 places retrospectivity on a different footing. We should at once say that in our opinion the amendment of this provision in 1953 does not carry the matter any farther than it was in 1950. The intention in 1950 was that even if the full owner had died before 1935, if the question of his succession arose after the Act of 1935, the Act should apply. It should be understood that such a question was to arise only lawfully, that is to say, the law of limitation, for instance, did not intervene. A person had died in 1928 and had been succeeded by collaterals under custom. In 1938, if any sisters existed, they could claim their share under Muslim Law, notwithstanding that succession had once been determined. The words "whenever a question ..arises in any Court" do not rely on any extraneous cause of action they themselves create the cause of action. When a question arises relating to succession upon death, the cause of action comes into being. That was the plain meaning of the amendment of 1950. The amendment of 1953 merely introduced verbosity, under the compulsion of Makhmala's case. We have already noticed that the amendments were not made to operate from 1935. The words "whenever a question arises in any Court" should, therefore, apply when the question arises after 1950. Now since the suit was instituted it, 1951, the question arises in Court after the amendment and the question is one of succession. It is also one relating to succession upon death", though not im mediately for immediately, it is one of succession upon the termination of a life‑interest, But since upon the termination of such interest there is a reversion to the last full owner, the ultimate question is one of succession upon death. We, therefore, hold that the question of succession has arisen in Court now and the question relates to the death of a Muslim. We should go back to 1912, when Sardar Khan died. His heirs then were his widow Mafia to the extent of one‑eighth, his daughter Maqbula to the extent of one‑half (apart from the property covered by the will) and his uncle Ghulam Hasan to the extent of 3/8. The other uncle, Mir Hasan, had pre‑deceased Sardar Khan, and since the plaintiffs claim title through Mir Hasan, their suit is without substance. This appeal is consequently dismissed with costs. A. H. Appeal dismissed.