P L D 1949 Lahore 116 (PLP)

MUHAMMAD SHARIF, J.

The question that fall for determination before the Full Bench is whether the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) renders the grant of a declaratory decree under custom infructuous. This has arisen in the following manner. One Khadim Hussin sold 95 kanals 17 marlas of ancestral land ostensibly for Rs. 4,650 in favour of Muhammad Asghar appellant on the 22nd June 1930. His son Muhammad Gul Sher Khan brought the usual suit for declaration under custom that the alienation was without consideration and necessity and as such could not effect his reversionary rights after the death of the alienor. It was dismissed by the trial Court on the 7th of July 1945. On appeal, however, the learned District judge found that the transaction was valid to the extent of Rs. 3,060 only and passed? a decree on the 8th June 1946 converting the sale into mortgage which could be redeemed on payment of the said amount on the death of the father. The vendee filed a second appeal in this Court on the 1st October 1946. It was pending when Act IX of 1948 came into force. An additional ground of appeal was, with the permission of the Court, taken that in view of the new law, the decree passed by the lower appellate Court should be set aside. The learned Single Judge who heard the appeal was of the view that it was concluded by findings of fact and would have dismissed it outright but for the new ground which would affect numerous cases pending in this and the lower Courts and considered it advisable that the point be decided by a larger Bench. On the matter coming up before the Division Bench it was referred to the Full Bench. The West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), hereinafter called the Act, received the assent on 15th March 1948 and was published in the Gazette on the 16th March 1948. The operative part is contained in section

2. It reads: "Notwithstanding any custom or usage to the contrary in all questions regarding succession (including succession to agricultural land) and in all questions regarding charities and charitable institutions and charitable and religious, endowments the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." In section 5 it was clearly declared that except as provided in section 3, which shall be noticed in due course, the Act "shall have no retrospective operation." The plain meaning of section 2 is that after the 15th March 1948, the property of a Muslim shall devolve according to Islamic Law and not according to his custom if any. It was contended that the Act destroyed the "reversionary rights" and a decree declaring such rights could no longer be made. "It would be desirable to reiterate the position of a male owner who succeeds under custom. He, in the words of Rivaz J. in 18 Punjab Record 1895 at page 77, is a full owner with an interest transmissible to his heirs, lineal or collateral, but that his power of alienation is limited, and liable to be controlled by the heirs, lineal or collateral, as the case may be . . . From this it follows that on the death of a sonless owner, the collateral heirs take the estate from him as his heirs and derive their title to possession of the ancestral land from him and through him from the "common ancestor." The learned judge continues at page 79 "His right to sue for possession in spite of the last owner's act of alienation, is derived from no individual, but from the customary rule which places a restriction upon the owner's powers of disposition of ancestral property, and renders him liable to be controlled in that respect by his collateral heirs." Such a right never accrued to the alienor himself, and is, there?fore, it seems to us, one that cannot be passed on to his successor. The "right to sue" for possession appears to us clearly to import something more than the right to possession, and a simple test appears to us to be this, could the donor in his life-time have sued to recover possession of the property on grounds similar to those which are the foundation of the present plaintiff's claim ? In our opinion, he clearly could not have done so, and we cannot, therefore, affirm that the plaintiff has derived his right to sue from the donor." In 55 Punjab Record 1903, Chatterji, J., at page 239, observed :- "In customary law inheritance does not vest in the son by birth in respect of ancestral property as in Hindu Law governed by the Mitacshara, so that the son cannot claim to set aside his father's alienation or partition in the father's lifetime. Inheritance opens out on the death of the father and not before. But a right to sue for the declaration of validity of an improper alienation vests in the son and ordinarily in all agnates descended from the common ancestors which remains potential as long, as such an alienation is not made, and comes into actual existence as soon as one is made. This is founded on the residuary rights spoken of by Sir Meredyth Plowden in Gujar 'v. Sham Dass 107 P R 1887 (F B) or is that right itself in a tangible form. It saves the inheritance if action is taken on it at the proper time. But where there is no one vested with the residuary right when the transfer takes place the whole interest passes to the alienee as it does in the case of alienations by full owners not governed by customary law." The real object of a suit to contest an alienation is "to save the inheritance, if action is taken on it at the proper time". The transfer is not void ab initio : it is liable to be set aside at the instance of those who are descended from the common ancestor and have a chance to succeed. But action must be taken within the prescribed period. The declaratory decree, if obtained, simply declares that the "the inheritance is saved" for the entire body of reversioners. As pointed out in

56. Punjab Record at page 260" it does not set aside the deed which stands good as between the parties to it, but merely provides that the plaintiffs' rights if they accrue will not be affected by it. "Again declaratory decrees are purely within the discretion of the Court. A plaintiff cannot always insist on getting it as of right. In many instances, e.g., where the claimant is not the immediate reversioner, it is generally refused." The discretion, however, must be exercised in a judicial manner and is capable of control by superior Courts. The relevant rule is contained in paragraph 67 of Rattigan's Digest of Customary Law which records, "the proper person to object to an alienation is the nearest reversionary heir. But when he happens to be a minor, or it is shown that he is in collusion with the alienor, or that he has refused without sufficient cause to institute proceedings, or has pre?cluded himself by his own act or conduct from suing, or has concurred in the alienation or the act alleged to be wrongful, the next reversioner is entitled to maintain to action." While in theory, each one of the persons descended from or con?nected with the common ancestor whose property was alienated, is entitled to impeach the alienation, the tight as a matter of practical convenience is limited only to those who have a reasonable chance to inherit. This theoretical right was further curtailed by Act 2 of 1920 which restricted it to the descendants of the great great-grand-father in the male line of descent. Another peculiarity about the declaratory decree is that the person holding the decree or the entire body of the reversioners then in exis?tence, might never actually succeed when the time came. On the death of the alienor, when a right to possession accrues, none of the rever?sioners by whom or for whom the alienation was got set aside; might be alive. The possession might be claimed by the descendants of the original reversioners and if there is no one in existence the matter ends and the alienee's possession shall not be disturbed. It would thus appear that the grant of a declaratory decree is no more than a mandate from the Court to recover, after the death of the alienor, property of the family with or without conditions. The Legisla?ture could not be unaware that a large number of such decrees existed and that a cause of action, arising on the alienation of ancestral immov?able property, could be enforced within six years. Has the Act nullified the decrees or destroyed the right? It was conceded that the Act did not say so expressly but it was claimed that it did so impliedly. Reference was made to a large number of English and Indian cases. In Q. B. page 1, Phillips v. Eyr (1870-71) the defendant who was a Governor of Jamaica was sued for damages in an action for assault and false imprisonment of the plaintiff. It was pleaded that "since the grievances complained of an. Act of Indemnity had been passed by the legislature of Jamaica and assented to by the Crown, which enacted that all personal actions, suits, indictments, prose?cutions and proceedings, present or future, against any persons for acts done in good faith after the proclamation of martial law in the suppression of a rebellion,, which had broken out in the island, should be discharged and made vd and that any person by whom such acts had been done should be acquitted." At page 28 it was observed that "a right of action whether it arises from contract govered by the law of the place or wrong is equally the creature of the law of the place. The civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law. Therefore an act committed abroad, if valid and unquestionable by the law of the place, cannot, so far as civil liability is concerned, be drawn in question elsewhere unless by force of some distinct exceptional legislation, superadding a liability other than and besides that incident to the act itself." This has no bearing upon the point in issue. In Barber v. Pigden 1 King's Bench Division (1937) at page 66 an action for torts was instituted on 16th of August 1935 for damages in respect of slanders alleged to have been uttered by the female defendant on divers dates in 1934 and in the early months of 1935, the claim against the male defendant being that he authorized or caused the female defendant to utter the words complained of. The defendants denied the publication, and the male defendant denied that he authorised or caused the female defendant to utter the alleged defamatory words. It was held that " the Law Reform (Married Women and Tortfeasors) Act 1935, has a retrospective operation, and by virtue of its provisions the male defen?dant was not liable for his wife's tort." At page 672 it was observed: " It remains for me to deal with the most important question which was argued in the appeal, that is to say, does the statute of 1935 relieve husbands from liability for their wives' torts whenever committed, or does such relief only apply to torts committed after the date of the statute ?" The statute was construed as putting an end to the liability of the husband for his wife's torts whenever committed unless legal proceedings had been started before the passing of the Act and Maxwell's Law of Interpretation yeas referred to. In West v. Gwynne II Chancery Division (1911) at page 1 the question to be considered was whether section 3 of the Conveyancing and Law of Property Act, 1892, was of general application or whether its operation was confined to matters made after the commencement of the Act. It was construed as appli?cable to all kinds of leases executed before or after the Act in view of the different provisions of the Act. In Ex parte Kibble XLIV Law Journal Reports 1875 Bankruptcy page 63, section 2 of the Infants Relief Act, 1874, was held applicable to a contract entered into during infancy, and before the passing of the Act, by a person who attains full age after the passing of the Act, and renders it impossible for such a person to ratify a contract (not for necessaries) so entered into Section 2 declared " No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age." The action was brought after the Act and in view of the clear pro?visions of section 2 it was applicable to every person attaining the age of 21 subseqently to the passing of the Act with the consequence that the contract on the bill of exchange could not be ratified after 21 and that was equivalent to saying that there could not be any valid consideration for the deed. The effect of the Act was considered to be on the same footing as gambling debts. These English cases are not of much help to the appellant. It is a question of interpretation in each case and this is bound to vary with the actual words used in a statute. Our attention was then invited to 1925 Lah. 341 ; 1917 Privy Council 95 ; 1922 Privy Council 403 and 1929 Lah.

295. All these cases lay down that a " right of reversion" is not a right to or interest in immovable property and could not, therefore, form the subject matter of a valid transfer. As indicated above, the question before the Full Bench is wholly different. It is not a case where a reversioner transferred his chance of succession in favour of another person to entitle him to maintain ?a suit as a reversioner or to claim property as such. These cases are of no use to the appellant in his contention that right, which is in existence or has accrued, could be easily1destroyed without even the new Act saying anything about it. The general rule is stated at page 189 of Maxwell's Interpretation of Statutes "No rule of construc?tion is more firmly established than this : that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. It is chiefly where the enactment would prejudicially affect vested rights, or the legality of past transactions, or impair contracts, that the rule in question prevails. Every Statute, it has been said which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, or imposes new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature, to be intended not to have a retrospective operation. Thus, the provisions of the Statute of Frauds that no action should be brought to charge any person on any agreement made in consideration of marriage, unless the agreement were in writing, was held not to apply to an agreement which: had been made before the Act was pased." Some assistance might be obtained from some other judgments where the effect of the applicability of Shariat Law was considered. In A I R 1941 Peshawar 15 the suit was instituted after the passing of the N.-W. F. P. Muslim Personal Law Act analogous to Act IX of 1948. It was held that after the passing of the Act, reversioners have no locus standi to sue for declaration that alienation made by woman holding life estate is not binding on them. One case arising after the N.-W. F. P. Shariat Act was taken to the Privy Council. It is reported as A I R 1944 Privy Council

27. The dispute was as to property of one Mir Abdullah who died in 1938 after the passing of the Act. The suit about his property was instituted in June 1939. In view of' the phraseology of the Act their Lordships held that "the effect of the Act is that it has altered the course of succession ' in so far as to make the ordinary rule of Muhammadan Law applicable and to exclude the operation of cust6m. Where, therefore, succession opened after the Act came into force, a party cannot rely upon any decision based upon the rule of custom given in his favour before the Act came into force and the succession will be governed by the rule of Muhammadan Law." This proposition is not disputed in the present case because all that is disputed is that a declaratory decree obtained before 1948 could not cease to be of any force and it was agreed that the property to be divided after the Act was to be distributed according to the shares prescribed by the Muhammadan Law. A recent decision given by Cornelius J. in R. S. A. 470 of 1946 was also brought to our notice. In that case, on the death of one Bostan khan, his widow succeeded and on - her death; his mother Mst. Alfan entered upon the usual life estate. She made a gift in 1943 in favour of her daughters i.e., the sisters of Bostan Khan. A suit was brought in 1944 by the reversioners of Bostan Khan. It was decreed by the lower Courts and in second appeal to this Court, it was dismissed. The learned Judge in view of section 3 of the West Punjab Shariat Act of 1948 was to find out who were the heirs of Bostan Khan. His property was exhausted between the relations of Bostan Khan then alive and nothing was left for the reversioners who could succeed as residuaries under the Muhammadan Law. It was on this consideration that the suit of the reversioners was thrown out. It did not lay. down any principle that the suit of a reversioner under custom upon a cause of action arising before the Act, could not be allowed to proceed or the decree passed therein could not be maintained. If that was so, though I think it was not intended to be so laid down with the greatest respect I beg to differ from it. In R. S. A. No. 1075/45 decided by Cornelius J. the suit of the reversioners was not considered liable to be thrown out on the ground that after the Act the property was to -be distributed according to the Muhammadan Law but that the decree "such as that which has been awarded to the plaintiffs ensures to the benefit of all reversioners and it is possible that there are nearer reversioners who may stand to gain from this declaration if and when Mst. Bhag Bhari's estate falls into succession." This does re?cognise the right of the reversioners to a declaratory decree in the case of an alienation effected before the Act of 1948. The learned counsel for the respondent vehemently maintained that a decree which had been obtained or a right which had come into being, could not be taken away by the Act. Reliance was placed upon 1943 Lahore 170 F. B. ; 1943 Lahore-219; . 1944 Lahore 121 and 1946 Calcutta

337. In 1943 Lahore 170 (F. B) it was held that " Exempting property from sale is not a mere matter of procedure. It is a matter affecting the rights of the decree-holder and the obligations of the judgment-debtor. Act 12 of 1940 has thus taken away a substantive or vested right in the decree-holder who had attached property before the Act came into force. Since there is no express provision in the Act which makes section 35 retrospective and since there is nothing' in the wording of section 35 which compels a Court to hold that it was intended to have a retrospective effect, the section is not retrospective and does not apply to execution pro?ceedings pending at the time the Act came into force where attach?ment had already been effected." This shows that where a right had accrued it could not be lightly taken away and in construing a statute, it would not be taken to have any retrospective effect. 1943 Lahore 219' dealt with a case of succession to an estate which was held by a widow. The learned Judges held that the right of a reversioner to maintain a suit for declaration in respect of an alienation by a widow " could not be said to have been taken away by the enactment of the Muslim Personal Law (Shariat) Application Act, 1937, subsequently. There was nothing in the Act which would show that it was to have a retrospective action either expressly or by necessary implication ". This is definitely against the contention of the appellant and if -the Act IX of 1948 be substituted for the Act of 1937 in the above passage the observations shall stand and be equally applicable. Similarly in 1944 Lahore 121 the effect of the Shariat Act 1937 upon the alienation before the Act was considered. It was held " Where the disputed alienation has been made in the year 1931 and the alienor has inherited this property under customary law his powers of alienation must be judged under the law under which he took the estate, and not under a different law. The provisions of the Shariat Act do not deal with transfers and have no relevancy. But when succession opens out regarding this property after the death of the alienor, the person who takes his estate under the provisions of Shariat Act would certainly inherit an absolute estate and in that case the power to contest alienations regarding the house pro?perty would automatically disappear." I am in respectful agreement with these observations. It might be added that the Act does not by one stroke of pen, convert owners of property with restricted powers of alienation into full and absolute owners whose powers of alienation were wholly unfettered. The Act nowhere says that all Muslim male owners had by virtue of the Act become absolute owners in the same sense as they would have been if Muhammadan Law had applied and they had succeeded in accordance with Muhammadan Law. The estate of a person who took it under customary law would continue to be subject to the limitations imposed by it till its devolution is made under the Act of 1948 i.e., after the 15th March 1948. It has been mentioned above that there is only one matter in respect of which the Act was o have retrospective effect. This is contained in section 3 of the Act which is as follows :- In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any of such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat): " Provided that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death." Where an estate is held by a female for her life its distribution shall be made in the same manner as it would have been according to Shariat at the time of the death of the last male owner and the share of the female would still be available to her and her own heirs. Here is an indication of the solicitude of the Legislature not only to protect the interest of the females in property hose succession opens out after the 15th March 1948 but also as to property where the last male owner bad died before the Act. There could be no doubt as to the purpose and scope of the Act. Customary Law which has so long held the field to the detriment, of females, is to yield place to the Shariat which recognises their rights in the property. The Act lays down the mode in which the property is to be divided after its operation ; it says nothing as to the source from which and the manner in which the property comes. Declaratory decrees make available the property and the Act does not want to reduce or diminish this profitable source. To hold otherwise would give the alienee an undue advantage at the cost of the heirs of the alienor and nothing could be farther from the intention of the Legislature. There is not a word about the illegal transactions being legalised nor is there anything to suggest that the male owners succeeding under Custom with certain limitation, had over-right shed these limitations and become absolute owners in the fullest sense of the term. The Act of 1948 can be worked and enforced without importing any considera?tions in favour of the alienee and the Courts duty is not to amend the Act but to construe as it is. My answer to the question before the Full Bench is that the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) does not preclude the grant of declaratory decrees in suitable cases arising before the Act. CORNELIUS J.-The question which has been referred to the Full Bench has arisen in three civil appeals, of which the facts may be briefly stated. The first of these appeals is Mohammad Asghar Shah v. Mohammad Gulsher Khan (R. S. A. No. 2108 of 1946), where the facts were that Khadim Hussain, defendant, a Rajput of the Sialkot district, governed by Custom, had sold certain land to Mohammad Asghar Shah defendant ; and a suit was brought by Mohammad Gulsher Khan, son of Khadim Hussain, for a declaration that the sale was without consideration and necessity and would be ineffective against the reversionary rights of the plaintiff and other reversioners after Khadim Hussain's death. The sale was by registered deed for a sum of Rs. 4,

650. It was held by the first Court that the land was ancestral qua the plaintiff, and that out of the total price, the alienee had failed to establish consideration and necessity in respect of a sum of Rs. 395 only. Accordingly the plaintiff's suit was dismissed, but in appeal before the District judge, where the finding regarding the ancestral nature of the land was not challenged, it was held that out of the sale price only Rs. 3,062 was for consideration and necessity and accordingly the learned District judge granted the plaintiff "a decree declaring the alienation to be a mortgage with the stipulation that a sum of Rs. 3,062 will be treated as a charge on the property and that he would be able to recover possession of the property on the death of the alienor subject to the payment of this amount". When the case came up for arguments before my Lord the Chief Justice in Single Bench, the argument was raised that in relation to a transaction of some age, strict proof of necessity should not have been demanded, but His Lordship repelled the argument holding that the finding of the lower appellate Court had been arrived at after con?sideration of the evidence and could not be assailed in second appeal in the circumstances of the case. It was then urged by learned counsel for the appellant that as a result of the passing by the Legislature of the Province of the West Punjab Muslim Personal Law (Shariat) Application Act. 1948, which received the assent of His Excellency the Governor-General on the 15th March 1948, suits by reversioners under Custom for declarations in regard to the rights when the succession ultimately opened out must necessarily be dismissed. My Lord the Chief Justice, in view of the importance and far-reaching effect of the point which had been raised referred it for decision to a Division Bench, and the matter coming up before the Division Bench, has now been referred to this Full Bench on account of its "far-reaching effect on a larger number of appeals pending in this Court and a still large number of suits pending in the subordinate Courts". The second case is Ghulam Mohammad v. Ghulam Mohammad (R. F. A. No. 404 of 1945) where also the suit was by a son, to obtain a declaration regarding a sale of land by his father, a Bhatti Rajput of Gujranwala district, governed by Custom, that it was without con?sideration and valid necessity and would be void as against the plaintiffs reversionary rights after the death of the father. The land was held by the trial Court to he ancestral, and this finding has been challenged in the grounds of appeal. The suit was dismissed by the trial Court and thereupon the plaintiff appealed to this Court. Learned counsel on behalf of the respondents urged at the hearing before a Division Bench that by virtue of the new Provincial Act, cited above, the appellant could not succeed in obtaining the declaration which he sought. In view of the importance of the question thus raised their Lordships of the Division Bench referred it along with the similar point which had arisen in the first case, to this Full Bench. The third case is Barkhurdar Shah v. Rab Niwaz Shah (R. F. A. No. 401 of 1945) in which nineteen collaterals of one Murad Shah, a Qureshi agriculturist of the Jhang Tahsil, who was governed by Custom, sued for a declaration that a sale of land inherited from Murad Shah by his daughter Mst. Saleh Bibi to certain persons was without considera?tion and necessity, and would be void as against their reversionary rights upon the termination of the life-interest of Mst. Saleh Bibi. The case being one of alienation by a female, the nature of the property was immaterial. The Court granted the plaintiffs the decree which they sought, and the appeal was brought before this Court by the alienees. When the appeal came up for hearing before a Division Bench, the argument was raised on behalf of the appellants that in view of section 3 of the Provincial Act, cited above, persons who would be entitled to succeed upon the termination of Mst. Saleh Bibi's limited interest were already known and they did not include any of the plaintiffs, for which reason, no declaration as prayed should have been granted to the plain?tiffs, and the declaration already granted ought to be set aside. Although the question thus raised was not in all respects the same as that raised in the other two appeals, their Lordships of the Division Bench which heard this appeal directed that the parties should, if they choose, appear before the Full Bench, to which the other two cases had been referred, and that the Full Bench should deal with the question raised on behalf of the appellants as stated above. Arguments have been presented by counsel in each of these three cases. There is no question but that in each of these cases, the alienor inherited his estate under Custom, arid' that his actions in respect thereof would be governed by Custom, subject: however, since the passing of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, to the effect of that Act. Briefly, the provisions of Custom as applicable to the cases before the Full Bench are as follows : Ancestral immovable property held by male owners, who are governed by Custom, is ordinarily inalienable except for necessity or with the consent of male -descendants, or, where there is no descendant, of the male collaterals of the alienor i.e. persons descended, from a common ancestor of the alienor and such persons, such common ancestor having held the land in dispute. Where an alienation of ancestral immovable property by male proprietor takes place, it tray be objected to by the next reversionary heir, unless he be a minor? or being a major is shown to be in collusion ,with the alienor, or to have refused without sufficient cause to institute proceedings, or to be estopped through his own act or conduct from suing, or to have concurred in the alienation, in which case the next reversioner may maintain an action to avoid the effect of the alienation. Where the next heir is a female, her presence is not always a bar to a suit by a more remote male reversioner. By operation of section 6 of the Punjab Custom (Power to Contest) Act, 1920, it has been provided that no person shall contest such an alienation by a male proprietor unless he is a collateral of the alienor in the fifth or any nearer degree. Similar rules apply to the case of an alienation by a female with the difference that the estate of a female is ordinarily a limited estate, whether the property be ancestral or non-ancestral, and further that an alienation by a female may be challenged by the next reversioner, however remote he may be. It is in the exercise of this power to contest that each of the three suits, which have given rise to the appeals which are before the Full Bench, was instituted by the respective plaintiff or plaintiffs and it may be mentioned that in each case, that suit was instituted long before the West Punjab Shariat Act (I adopt this name for the sake of brevity) was enacted. Now, there can be no manner of doubt that in relation to suits of the present nature the declaration which is sought, and which alone can be given, is a declaration in regard to the rights pertaining to the status of the plaintiff at the time when he brings the suit. On this point, an authority of this Court which is very similar in essential respects to the present cases may be cited with advantage, viz. : Ata Muhammad v. Muhammad Shafs (A I R 1944 Lah. 121). That was a suit brought by collaterals of an Arain proprietor of certain land and house property situated in Mozang, a suburb of Lahore, to contest an alienation of-such property on the ground that the alienor was governed by Custom and that the alienation was without consideration and necessity, The suit was instituted in October 1939. On that date, there was in force an Act of the Central Legislature entitled. "The Muslim Personal Law (Shariat) Application Act, 1937," in which it is provided in -section 2 that notwithstanding any custom or usage to the contrary, in all ques?tions (save questions relating to agricultural land) regarding intestate succession, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat). The property was found to be ancestral by the trial Court, and the mortgage in the case to be without consideration or necessity but the suit was dismissed on the ground that the plaintiff's family was governed by the Muslim Personal Law, and not by Custom. This decision was reversed in appeal, 'it being held that the alienor's family was governed by Custom to matters of alienation. In arguments before the Division Bench which heard the appeal, the point was raised that as regards house and shop property, the provisions of the Central Shariat Act, 1937 (this description is adopted, again for brevity) were applicable and consequently the collaterals had no right to challenge any alienation of that property since Personal Law was applicable. In dealing with this argument, Mahajla J. observed as follows :- "It seems to me that the learned counsel's contention was not made after a full consideration of this matter, and has no force.' The disputed alienation was made in the year 1931 and the alienor inherited this property under Customary Law, and, therefore, his powers of alienation must be judged under the law under which he took the estate, and not under a different law. When succession opens out regarding this property after the death of the alienor then the person who takes his estate under the provisions of the Shariat Act, would certainly inherit an absolute estate, and in that case the power to contest alienations regarding the house property would automatically disappear, but so far as the present case is concerned, the provisions of Shariat Act which do not deal with transfers at all have no, relevancy and, therefore, this last contention of the learned counsel is also repelled". Although the Central Shariat Act was expressly confined in it operation to property other than agricultural land and in the relevant respects, to intestate succession, comparison with the provisions of the West Punjab Shariat Act will show, that the principle laid down, by Mahajan J. in the ruling cited above is fully applicable to the present cases as well. The relevant section in the West Punjab Shariat Act runs, as follows :- "Notwithstanding any custom or usage to the contrary in all ques?tions regarding succession (including succession to agricultural land the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)". In favour of the contention that this new law is without effect in relation to declaration of the relevant kind, passed in suits brought before the Act was passed into law, the argument was raised that this section con?tained no reference to transfers at all. To this the reply was made that neither did section 5 of the Punjab Laws Act, 1872, contain any reference to transfers and yet it has been under the provisions of that section that very numerous cases seeking declarations of the relevant kind have been decided ever since 1872. Section 5 of the Punjab Laws Act runs as follows (the irrelevant portions are omitted) :-- "In questions regarding succession the rule of decision shall be

(a) any Custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been by this or any other enactment altered or abolished, and has not been declared to be viod by any competent authority; (b) the Muhammadan Law in cases where the parties are Muham?madans except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the pro?visions of this Act, or has been modified by any such Custom as is above referred to". There is no reference in this section to transfers of immovable property by persons, who are governed by Custom, or to any right of challenge vested in any persons in relation to any such transfers, but it was contended with force that any question concerning the right of a member of the agnatic family to challenge the validity of an alienation, on the ground that it was contrary to Custom, was a question, "regarding succession" to the alienated property, inasmuch as the person raisins the challenge was required to show that, if not a proximate heir, he was at least an ultimate heir, to such property. No answer was, however furnished to the further argument upon which the decision of Mahajan J, was based, namely, that a declaration was competent because the alienor had inherited the property under Customary Law and, therefore, his powers of alienation must be judged under, which he took his estate and not under a different law. In the case before Mahajan J the contest was raised after the coming into force of the Central Shariat Act, but this fact did not stand in the way of the conclusion, which, speaking with great respect, appears to me to be perfectly sound. That con?clusion applies with increased force to the present cases, where also, alienations by present holders have been challenged in the exercise of rights possessed under Custom by persons who in two cases are proximate heirs and in the third case are ultimate heirs, under Custom, on the same grounds vie., lack of consideration and necessity, but with the difference that in each of the present cases, the contest was raised prior to the coming into force of the West Punjab Shariat Act. On behalf of parties, who were contending against the grant of declarations, it was urged that by virtue of section 2 of the West Punjab Shariat Act, the nature of all holdings including holdings of agricultural land, by Muslims, had been altered so that the restraints of Custom were no longer applicable to such holders, and, therefore, declaratory suits were no longer competent. In the alternative, it was urged on behalf of these parties that in the event of the alienor's death, the question of succession to his estate would be governed exclusively by Muslim law and at that stage there would be no scope for the satis?faction of the rights of reversioners under Custom, including reversioners who had obtained declaratory decrees. On the latter point, reliance was placed on a decision of the Privy Council published as Abdul Rahman v. Muhammad Ashraf (A I R 1944 P C 27), which will be considered in greater detail presently. Taking these arguments in the order in which they were presented, it is at once clear that the first argument takes no account of the fact that suits here involved were all instituted, and decrees for declarations had been awarded in two of them long before the West Punjab Shariat Act came into force. That Act by section 5 lays down expressly that certain sections including section 2 "shall have no retrospectives operation". Moreover, there are no words in section 2 or anywhere in the Act which purport to alter the present status of persons holdin4i agricultural land, in respect of such land. The argument in reply i;, that section 2 of the West Punjab Shariat Act lays down a rule o: decision for questions of the kind specified in the section which include questions regarding the validity of transfers of immovable property by present holders raised by the persons who claim to be heirs, whether proximate or ultimate, which must be applied whenever such a question comes up for decision and irrespective of that question having beer, raised before or after the Act came into force. The argument overlook the principle that final decision of a question raised in a litigation relate back to the time when the question was initially raised i. e. to the date of institution of the suit: Three English authorities were relied upon in support of this contention, none of which appears to me to bear the slightest resemblance to the facts of the present cases. Phillips v. Eyre (L R (1870) 6 Q B 1) is an authority of the Court of Exchequer Chamber relating to an action brought in the Courts in England claiming damages for assault and false imprisonment of the plaintiff, such assault and false imprisonment having allegedly been committed in the island of Jamaica and under the orders of the defendant who was at the time Governor of the said island. When the alleged wrongs were committed, an insurrection was in progress in that island, which had been overcome by the Governor and his subordinates by force of arms. Thereafter, an Act was duly passed by the Legislature of the island which indemnified the Governor and all those who had acted under his authority in respect of all acts done by them to put an end to the rebellion, and went on to provide that all such acts were "thereby made and declared lawful, and were confirmed". This Act of Indemnity was pleaded in bar to the plaintiff's action. It was held by the Court that although the Act of Jamaica was a foreign law, and affected the liabilities of the parties to the case in respect of a past transaction, the law was clear that if such a foreign law extinguished the rights upon which the action sought to be brought was bassed, then no action lay in the Courts of England, but such an action would lie if the foreign rule merely touched the remedy or procedure for enforcing the obli?gation. It is quite clear that section 2 of the West Punjab Shariat Act does not either expressly or by necessary implication operate to absolve from any liabilities, and consequently this decision had no application to the facts of the present cases. The second case cited was Barber v. Pigden (L R (1937) 1 K B 654) which related to the liability of a husband for the torts of his wife. By the Law Reform (Married Women and Tortfeasors) Act, 1935, which came into operation on the 2nd August 1935, it was provided that a husband should no longer be liable for the torts of his wife. On the 16th August 1935, the plaintiff, a married woman, sued the two defendants who were husband and wife for damages in respect of slanders alleged to have been uttered by the female defendant on dates prior to the coming into force of the Law Reform (Married Women and Tortfeasors) Act, 1935. The question of the liability of the husband in relation to the relief granted by the Law Reform Act 1935 argued, and it was held by the Court of Appeal that that Act contained intrinsic evidence to show that it relieved husbands from their existing liability for their wives' torts even if such torts were committed before the date when the Statute came into force. This again is a case where the Statute expressly relieved persons of liability, and the suit which was brought to enforce that liability was of later date than the Statute ; as pointed out above, the Statute, in this case does not support to relieve any person of any liability and, moreover, the suits in question are of a date prior to the Statute. The last of the English cases cited was West v. Gwynne (L R (1911) II Ch. D 1) where the question related to section 3 in the Conveyancing and Law of Property Act, 1892. This section laid down that in respect of all leases which include a covenant against under?letting or assignment without consent or licence of the landlord, that unless such a lease expressly provided that the landlord would be entitled to charge a fine or a sum of money for such licence or consent, the lease should be deemed to provide that no such fine or sum of money should be charged. The question was raised before the Court of Appeal whether this provision had application to leases executed before the coming into force of the Act of 1892. The learned judges were agreed that having regard to the circumstances relating to such leases, the section applied to all leases, whether executed before or after the commencement of the Act. The case appears to bear no, similarity to the facts of the present cases. It lays down a rule of construction for all documents of a certain kind no such question is involved here. The question in each of the cases before us is as to the right of the plaintiffs to obtain declarations that the alienations in question by the present holders of certain property in respect of which they are either proximate or ultimate heirs, are contrary to the Custom on the basis of which the properties were held by the alienors, and that upon the deaths of such alienors the rights of the plaintiffs to succeed the property will not be affected by the alienations. Unless it can be shown that by virtue of section 2 of the West Punjab Shariat Act, an immediate charge of status was effected in relation to present holders of property inherited under Custom, so that those who, under Custom, were entitled to control the actions of the present holders in relation to such property were devoided of such right, it would seem to be plain that the latter right remains unimpaired, at least so long as the alienor is alive and in any case, where the suits founded on such right have been brought before the Act came into force, there can be no question but that their decision must be on the basis of the law which existed at the time when they were instituted. To this proposition, one exception must be mentioned, namely, the case where the alienor dies during the pendency of the suit, supposing that this death takes place after the Act came into force, for then it would be necessary for the contesting reversioner to convert his suit into a suit for possession and the matter which would be a matter of actual succession in relation to the deceased alienor, which would necessarily be governed by the provisions of section 2 of the West Punjab Shariat Act. But so long as this event i.e., the death of the alienor does not take place, it seems to me that a suit brought by a reversioner, prior to the passing of the latter Act, to challenge an alienation on customary grounds is perfectly competent and is not barred by anything contained in the Act. It is hardly necessary to cite authority in support of the proposition that when the law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new Statute shows a clear intention to vary such right. The proposition is stated in this form in Maxwell on Interpretation of Statutes, ninth edition, at page 229, where also authorities in support are cited. It is quite clear that section 2 of the West Punjab Shariat Act shows no "clear intention" to vary the rights of reversioners to obtain declarations in respect of alienations by present holders of property under Custom, to which such reversioners are either proximate or ultimate heirs. The argument that the declarations sought by the plaintiffs should not be granted, because they will eventually be of no effect, invokes the principle that it is within the discretion of a Court to grant a declaratory relief as it thinks fit (section 42 of the Specific Relief Act, 1877). There can be no doubt that where it can be shown that upon the happening of a certain event, in relation to which the declaration is sought, on account of a new enactment, a result is certain to follow which will render the declaration of no effect, the Court will hesitate to grant such declaration, since, at the best, it can only lead to fruitless litigation. On this point, the provisions of section 3 of the West Punjab Shariat Act are essentially different from those of section

2. Section 3 relates to succession to the estates held by Muslim females as limited owners under Custom. Such estates terminate ordinarily upon the death or re-marriage of the female owner. Section 3 provides that upon such termination, the succession shall open out to all persons who would have been entitled to inherit the property at the time of the death of the last full owner, had the Muslim Personal Law (Shariat) been applicable at the time of such death ; it also provides that the female owner shall take a share in case the estate is terminated by marriage, such shave being that to which she would be entitled under Shariat, and where her estate terminates through death, her Shariat heirs will be entitled to that share in the estate to which she herself would have been entitled under Shariat upon the death of the last full owner. It is at once apparent that this provision expressly operates to preserve the incidents of the Customary Law in respect of the estates of females who have inherited under Custom, and provides a machinery whereby such incidents are superseded by those of Shariat, upon the termination of the limited interest of such females. This negatives the argument which was sought to be raised during the arguments that the object of the West Punjab Shariat Act was to sweep away all customary estates at one stroke and to convert all existing estates, into simple estates held under Shariat. As has been remarked already the Act does not purport to affect the status of persons owning property, or the rights of those who have raised actions to enforce their right to control the actions of present holders of Customary estates in land before the Act itself came into force. What further appears from section 3 of the West Punjab Shariat Act, however, is that in respect of every limited estate held, at the time of the passing of the Act by a Muslim female, the heirs were as ascertainable immediately, subject of course to their continued existence at the time when the limited estate terminated, and in the event of the death of any such heir his Shariat heirs would replace him, under the provisions of section 3 of the West Punjab Shariat Act and of the Muslim Personal Law Ordinarily, there is appreciable divergence between the set of reversioners under Custom and the set of heirs under Muslim Personal Law, although certain near relatives may be common to both. Therefore, in a suit to challenge an alienation by a Muslim female holding a limited interest, it would in many cases be possible to predicate with certainty that the collaterals suing to avoid the alienation would not be among the heirs to the estate under section 3 of the West Punjab Shariat Act, and in such cases, it would be a proper exercise of the discretion conferred by section 42 of the Specific Relief Act, to refuse the declaration sought by such a reversioner. This con?clusion is relevant in relation to the third of the cases ' before us, which relates to an alienation by a female, but that is a matter for the Bench' which hears that appeal to consider. Where, however, the alienation, in respect of which the declaration is sought, is by a male as in the first two cases, the position is clearly different, for the heirs are not immediately ascertained on the date when the suit is brought, the male-holder being still alive. Moreover, it is to be remembered that the property in suit can only be regarded as forming part of the alienor's estate, at the time of his death, under and on account of such a declaration as is sought in these cases, for otherwise it has been lost to the estate by the act of alienation. An alienation by a male proprietor is not void for lack of necessity and consideration, but is merely voidable and if it is left unchallenged the land is, under Custom, lost for ever to the agnatic family. Thus, at the very outset it would appear that a declaration of the nature sought in the first two cases before us is not without effect in relation to the suit property. At this stage it will be convenient to ex?amine the facts of the Privy Council case (Abdul Rahman v. Muhammad Ashraf A I R 1944 P C 27), which has been mentioned above, and which relates in part to the effect of a declaration obtained under Custom in respect of alienated property, upon the succession to that property following after the death of the alienor. One Mir Abdullah was the head or chief of a certain family in the North-West Frontier Province. He was possessed in his individual capacity of three villages, in respect of which, as early as 1874, it had been held by the Revenue Courts that they devolved in entirety with the chiefship of the family, and that the member of the family to whom the Government at each succession award the Jagir of these villages was to be held to be the Chief. This decision was based admittedly on a special custom applicable to the family, and was not in conformity with Muhammadan Law. At some later date, between 1874 and the succession of Mir Abdullah, which took place in 1904, the Jagir granted to the family was transferred from the three villages in question to some other property belonging to the family. When in 1904, Mir Abdullah succeeded to his father Ghulam, he was recognised as Jagirdar and, therefore, as Chief of the family. In or about the year 1930, he transferred one of the three villages to his wife and his two younger sons. The eldest son was at that time dead, but had been survived by a son, who disputed the transfer in the Civil Courts on the basis of Custom, and succeeded in obtaining a decree for a declaration that the three villages in question, including that which had been tranferred, appertained to the chiefship of the family and the transfer of one of those villages was, therefore, void and inoperative as against the interests of that member of the family to whom the Government should award 'the Jagir on the death of Mir Abdullah. The latter event took place in 1938 and Abdul Rahman, the aforesaid grandson, was recognised by the Govern?ment as the successor to the Jagir. The two younger sons and the wife of Mir Abdullah thereupon raised an action for a declaration that the succession of all three villages was to be governed by the Muslim Personal Law, and since the grandson had no rights in the estate of Mir Abdullah in their presence, they were entitled to succeed to the three villages in question. Their case was based upon section 2 of the N.-W. F. P. Muslim Personal Law (Shariat) Application Act, 1935, which, as to the relevant matters, runs as follows :- "In questions regarding succession the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims." The first Court dismissed the suit on the ground that the suit property appertained to the chiefship, but in the Court of the Judicial Commis?sioner this decision was reversed, and the plaintiffs were granted the declaration which they sought, upon the footing that the rule of devolu?tion under Custom laid down by Captain Wace which was the founda?tion of the declaration obtained earlier by Abdul Rahman, grandson of Mir Abdullah, had been superseded by the New Act of 1935, which made the ordinary rule of the Muhammadan Law applicable. Their Lordships of the Judicial Committee fully agreed with the view taken by the learned Judicial Commissioner and dismissed the appeal taken before them by the aforesaid Abdul Rahman. Although there is nothing in the judgment of the Privy Council to indicate the precise view taken by their Lordships as to the effect of the declaration obtained by Abdul Rahman in respect of the village which had been transferred, and regarding which Abdul Rahman had obtained a declaration preserving his right of reversion in case he was recognised as Chief on the death of Mir Abdullah, the judgment deals with all the three villages on the same footing as if each of them, including the village which was transferred, formed part of the estate of Mir Abdullah upon his death, and devolved upon his heirs according to the ordinary rule of Muhammadan Law, and it is, therefore, possible to interpret the decision as implying that where a declaration has been obtained of reversionary right under Custom, in relation to property alienated, to take effect upon the death of the alienor, the alienated property should be deemed to revert to the alienor's estate upon his demise, and then to devolve upon the heirs, at that time entitled under law. It is of course also possible to regard the matter in other lights. For example, it may be urged that declaration obtained in advance of the alienor's death has the effect of giving rise to vested rights in the agnatic family upon the alienor's death, subject to a right of present possession in that one of the collaterals who is nearest in relationship to the deceased alienor. Alternatively, may be possible to regard such a declaration as operating in favour of the reversioner, who obtained it, and other reversioners in existence at the time of the alinor's death, so as to create vested rights in each such reversioner, to the extent of the share in the property- to which he is entitled. Whichever of these three views be adopted (and it is unnessary to decide at this stage as regards the correctness of any of them), it is clear that a reversioner having in his favour a declaration of the relevant kind in the circumstances of the present cases, can put forward a strong case for possession on valuable rights in consequence of such declaration. Moreover there is another possibility always present in such cases, namely, that the alienee may riot choose so contest the right of a reversioner founded upon a declaration of the relevant kind, but upon the death of the alienor may agree to satisfy the claims of such reversioner, as they appear form the decree, without further litigation. When viewed in these lights, it becomas obvious that a declaration such as that sought by plaintiffs in the first two cases before us, cannot be held to be a mere nullity, and on that ground it is from every point of view desirable that in a proper case, notwithstanding the passing of the West Punjab Shariat Act, the Court should grant such a declaration, leaving it to the decree-holder to make such use of the declaration as he can when the succession opens out. Reference was made in the course of arguments to two cases decided by myself recently sitting in Single Bench, in which the effect of the West Punjab Shariat Act upon declarations of the kind here in question, came up for consideration. These are Mst. Alfan v. Allah Dad (S. R. A. No. 470 of 1946), decided on the 12th April 1948, and Abozar Khan v. Muhammad Hassan (R. S. A. No. 1075 of 1945) decided on the 28th April 1948. Each of these cases, related to an alienation by a female, but in the first case, heirs of the alienor's limited estate were clearly shown on the record to be in existence, who would between them take the entire estate under section 3, West Punjab Shariat Act, thus excluding all right in the collaterals to succeed, while in the second case, the facts were not so clear, and it being uncertain who would be entitled under the new law to the alienor's limited estate, it could not be stated with certainty that none of the reversioners would have a share. In conformity with the principle laid down earlier in this judgment, a declaration was refused in the first case, but was allowed in the second case. In my opinion in the third case before us, namely Barkhurdar Shah v. Rab Nawaz Shah (R. F. A. No. 401 of 1945) the question whether or not the Court should grant a declaration as prayed by the plaintiff in view of the passing into law of the West Punjab Shariat Act, 1948, falls to be decided on the basis of the answer to the question whether upon the record of the case, it is possible to ascertain with exactness the persons who will succeed to the suit property upon the termination of the limited estate of Mst. Saleh Bibi ; if none of the plaintiffs is or is likely ever to be included among such persons, the argument that the declaration will be' useless to the plaintiffs, notwithstanding that it may be admissible under Customary Law, will have considerable force, and must weigh with the Bench in the exercise of its discretion whether or not to allow the declaration, which has been granted, to stand. If, however, the case be otherwise, my view is that the declaration which has been granted is not affected merely by the provisions of the West Punjab Shariat Act. In regard to the first two cases vie., R. S. A. No. 2108 of 1946 and R. F. A. No. 404 of 1945 (Ghulam Muhammad v Ghulam Muhammad), I am clearly of the opinion that the suits having been brought long before the enforcement of the West Punjab Shariat Act, their competency is not affected by anything contained in that, and as there is considerable force in the contention that the declara?tions if granted are capable of being put to use by their holders when succession opens out, it would in my opinion be a proper exercise of discretion to award such declarations, provided the conditions necessary therefore were fulfilled. SIR ABDUR RAHMAN, C. J.--I have had the advantage of reading the judgments prepared by my learned brothers Sharif and Cornelius and find myself in entire agreement with the answer which they propose to give to the question which was referred by me in one case, without being formulated, first to a Division Bench and then to a Full Bench. When two other cases came up before me and a similar contention was advanced by counsel for the appellant in one of them, and by counsel for the respondent in the other, they were also referred to the Full Bench:for decision of the same point. The West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) came into force on the 15th March 1948. Being simple in phraseology its intendment has to be collected from the language itself used by the Legislature and neither by any variable notions of justice or expediency which different Courts may be persuaded to entertain at different times nor by any motives of the Legislature which it might have had or might be stated to have had in view which it has failed to express. It is a cardinal rule of construction that Statute is not to be regarded as retrospective in character so as to effect any existing rights, except in regard to matters of procedure "unless that effect cannot be avoided without doing violence to the language of the enactment". We would have, therefore, started with that assumption even if there had been nothing in the Act which prevented its retrospective application. But section 5 expressly states that "this Act shall have no retrospective operation". It could not, therfore, be reasonably contended that section 2 of the Act should be so construed as to apply to suits which had been instituted-even decided-before it came into force. It is true that a reversioner does not, both under the Hindu Law and tinder the Customary Law of the Punjab, possess any right or interest in era, senti in the property held by a female owner for life and that a reversioner 's right under the Punjab Customary Law to succeed to ancestral land is in the nature of a spes successionis. But that does not mean that a reversioner in the Punjab, can be, before succession has opened out, found to have lost his right to remove an "apprehended injury to the interest of all reversioners" by bringing a representative suit for declaration that he or they were not bound by an alienation made by the last male holder without consideration or/and without necessity. This right they always possessed, even before the passing of the Punjab Act (II of 1920), which gave statutory recognition of its existence although limiting it to the descendants of the great-grand?father in the male line of descent. But this did not mean that by instituting such a suit they were denying in any form how the property left by the last male holder was going to devolve on his demise. That was a separate matter anti a suit for declaration has nothing to do with the course of devolution. The Act (IX of 1948) only deals with questions regarding succession which may open out subsequent to its enactment; but does not prevent the property from being made or kept available for distribution when it does so open out. The alienor may not be entitled to get it back on account of his own voluntary transfer; but there is nothing which prevents any other person from doing something which may have the effect of bringing the property back to the last male-holder's estate or in any case made available for distribution amongst his heirs at law at the time of his death. The object of a suit for declaration is probative, so that the evidence which is available at or shortly after the alienation does not disappear with the passage of time and an alienee on whom the burden of proving consideration and necessity rests, comes to suffer an irreparable injury on account of the delay in bringing an action by those who are interested in denying its validity. That is why a suit for declaration was made compulsory and had to be instituted within six years of the date of the alienation, if the reversioners had not become entitled to bring a suit for possession in the meantime. But once the matter is decided one way or the other, every interested person would know as to whether the property was or was not to be treated as a part of the estate of the last male-holder when it comes to be distributed although he may not have been able to enjoy it on account of his own conduct during his lifetime. The Act (IX of 1948) merely provides, in my view, as to who is to succeed the last male-holder on his death and how or in what shares are his heirs to receive the property, but not to what property are they or are they not to succeed unless specific provisions in regard to that matter are to be found in Shariat e. g., gift or wills. Even it Customary rule does not allow a gift, it will have to be given effect to in accordance with Muslim Law. Similarly even if a bequest by means of a will is permissible, it will have to be curtailed to a third if is happens to be in favour of an heir in accordance with Muslim Personal Law. Subject to this, however, the question as to what property has to be divided between the heirs, would have to be determined in my view, in accordance with other provisions of law which may be found to be applicable. In other words, the rule of Customary Law which entitles a reversioner to bring a suit for the usual declaration has nor been abrogated by the Act (IX of 1948), although it declares the persons who are to succeed to the property and the proportion in which the are to succeed. It is true that the term 'succession', that appeared in the Punjab Laws Act, was taken to cover the alienations made by the last male?holder which were to affect the reversioners adversely when he dis?appeared from the scene and property devolved on one or more of them according to the rule of the Customary Law. This was because the body f of reversioners were, on account of the agnatic theory, found to have an inchoate interest in the property which has descended from the common ancestor. That is why suit for declaration to the effect that a particular alienation would not be binding on the body of reversioners was held to be competent. But since the passing of Act II of 1920, the attack on the alienations was statutorily recognised and it becomes unnecessary to extend the term 'succession' to the alienations made by the last male-holder. This was the position when Act IX of 1948 was passed. Apart from the fact, therefore, that these two Acts (Punjab) Laws Act and the West Punjab Muslim Personal Law (Shariat) Appli?cation Act were passed by different Legislatures, the latter Act having been passed by a subordinate Legislature of a different independent Dominion, there appears to be no valid reason to assign the same meaning to the term 'succession' which it was taken to possess under the Punjab Laws Act before Act II of 1920 had been placed on the Statute Book. According to my reading, section 2 of the Act (IX of 1948) has been so drafted as to apply the Muslim Personal Law (Shariat), where the parties are Muslims, to "all questions regarding succession including succession to agricultural lands" which had been expressly excluded by section 2 of the Muslim Personal Law (Shariat) Application Act., 1937 (XXVI of 1937) passed by the Indian Legislature; but not so as to deprive the heirs of deceased Muslim or any other interested person of his rights, customary or otherwise, which had hitherto existed, of attacking the alienations made by the last male-holder and of bring?ing in the property on his death for distribution amongst his heirs according to the Muslim Personal Law (Shariat). By interpreting section 2 of the Act in this manner, I shall be, I feel, giving full effect to the intention of the Legislature in conferring full benefit of the Act on those whose interests it was intending to promote and define without depriving them of any property to which they would have been or were otherwise entitled and to which it had deliberately refrained from referring. Viewed thus, the suits for declaration cannot be held to have become infructuous and would still have a useful part to play although the advantage of such a declaration, if it is granted, would be only avail?able to those who happened to be the heirs of the deceased according to Muslim Law. I am aware of the fact that this line of reasoning may also apply to suits which may be instituted after the passing of the Act (IX of 1948), but personally I cannot see how can one escape that conclusion although in the particular cases, which had been referred to the Full Bench, the suits had been instituted before the Act (IX of 1948) was passed and our reply must necessarly be confined to such suits, at least for the present. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Reference answered.