P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑The point of law that requires determina tion in this appeal, Regular Second Appeal No. 438 of 1954 and Regular Second Appeal No. 112 of 1955 being precisely the same, the three appeals will be disposed of together by this order.

2. The point of law that arises is this: If a widow, who has come into possession of his property on the death of her husband, makes a gift of the property which would be valid under the customary law by which she was governed at the time when she came into possession of the property, would the gift be considered valid if it is made after the passing of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act (Punjab Act XI of 1951). This Act which amended the West Punjab Muslim Personal Law (Shariat) Application Act of 1948, amended section 2 of that Act. As amended by Punjab Act X1 of 1951, section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, reads as follows: ‑ "Notwithstanding any rule of 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 institu tions including waqfs, trusts and trust property, the rule of deci sion shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims."

3. The Letters Patent Appeal is directed against the judg ment of my brother Changez who held in Regular Second Appeal No. 256 of 1954, the judgment in which is reported as Akbar and others v. Mst. Rabia Bibi (P L D 1957 Lah. 588), that the power of making a gift would be governed by the provisions of section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, as amended by the Act of 1951, if the gift was made after the passing of the latter Act. His finding, therefore, was that even though the customary law of Gujrat District by which the widow was governed at the time when she came into possession of the property allowed a gift in favour of a daughter for services rendered to the widow, the gift would be invalid because of section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, as it stands after amendment by means of Act XI of 1951. The reasoning adopted by my learned brother was that the power to make a gift would depend upon the decision of the question whether at the time when the gift was made the donor was competent to dispose of the property by gift and as the widow had only a life estate in the property the gift made by her could not enure for the benefit of the donee after the death of the donor.

4. In Regular Second Appeal No. 438 of 1954 the decision appealed against was that of the Additional District Judge, Gujrat, who had affirmed that of the trial Court wherein it had been held that a widow in possession of property could gift away the property of her husband in her hands to the nearest reversioner of her husband. The gift had been made on the 16th of December 1951 and at that time the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, had been amended by means of the Punjab Muslim Personal Law (Shariat) Application (Amend ment) Act of 1951. The appeal came up for hearing before a learned Single Judge of this Court who ordered that it should be considered with Letters Patent Appeal No. 30 of 1957. In Regular Second Appeal No. 112 of 1955 the decision appealed against was that of the Senior Civil Judge, Gujrat, who had reversed that of the trial Court wherein it had been held that a widow in possession of her husband's property could not gift it away to their daughter for services rendered to her. This appeal also came up for hearing before a learned Single Judge of this Court who passed an order that it should be disposed of by the Division Bench which was to dispose of the Letters Patent Appeal No. 30 of 1957.

5. Raja Said Akbar Khan, who appeared for the appellants in the Letters Patent Appeal, contended that the learned Single Judge has erred in holding that the law applicable to the gift under consideration was the law which was in force at the time of the gift and added that the correct position under law was that the donor continued to enjoy the power given by the customary law to dispose of the property and the fact that at the time the gift was made the power had been curtailed on account of the amend ment in the Provincial Shariat Application Act, the result could not be the curtailment of the powers to make a gift. He held, however, that if the customary law were applicable to the case, the gift under consideration would be perfectly valid because the customary law for the Gujrat District allowed gifts of the type under consideration.

6. It is too late in the day now to urge that the property which came to a person under the customary law at once became subject to Muslim Law on the passing of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, because in more than one decision the Court of ultimate jurisdiction in Pakistan, namely, the Supreme Court of Pakistan and its predecessor the Federal Court of Pakistan, has held that a person to whom property bad come under the customary law did not become its full owner on the passing of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, while every person to whom property comes under the Muslim Law of inheritance is its full owner. If this dictum of the highest Court in Pakistan, whose declarations of Law are binding on all Courts in Pakistan, is applied to a gift which would be valid under the customary law but not so under the Muslim Law, the result has to be that the gift would be valid if it would have been valid if the West Pakistan Muslim Personal Law (Shariat) Application Act, 1948, had not been passed. Learned counsel for the respondents tried to distinguish the decisions of the Supreme Court of Pakistan by saying that they applied to cases in which the right of disposition of property was controlled by custom and not by the Muslim Law and the decisions could not be invoked in case where the right of disposition of property was uncontrolled under custom but controlled under the personal law. Logically, this argument is patently unsound. If the incidents of customary law continued to apply to property in the case of a person whom the customary law does not give the property as a full owner, I do not see how the same principle should not be followed where the position is the reverse, i.e., where though under the customary law there was power of disposition of property under the Muslim Law there was none. The contention of the learned counsel who wanted the gifts to be held to be invalid was that the widow held the property for her life and, therefore, was not competent under the Muslim Law to make a gift of that pro perty to anyone but at any rate could not make a gift which would enure to the benefit of the donee after the death of the donor. No convicing argument could, however, he advanced to support this contention. It would be strange if Courts were to hold that the passing of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, did not abrogate the restrictions on the disposal of property which were applicable by reason of the customary law under which the property was inherited, but the restrictions under the personal law would be applicable if the holder had come into the property under the customary law which allowed the transfer of property by gift or otherwise. In each of the three cases under consideration, the gift which was challenged would be valid under the customary law which was applicable to the property which had been gifted at the time when the property came into the possession of the donor, and I would, therefore, hold that the power to make a gift of the property which was conferred on the holder of the property under the customary law has not been abrogated by reason of the passing of the West Punjab Muslim Personal Law (Shariat) Application Act, 19"18, just as the power to make a gift has not been conferred on a person who came into possession of the property under a system of customary law which did not give the holder the right of absolute ownership In the property. The view I am taking receives ample support from a decision of their Lordships of the Supreme Court of Pakistan in Khair Din and another v. Muhammad Hussain and others (P L D 1961 S C 468) and that decision cannot be held to be inapplicable by reason of the fact that it dealt with a case in which a transfer had been made by a person whose powers of alienation were limited under the custo mary law which was applicable at the time he came into the property though those powers were unlimited under the Muslim Law. It is true that it was in extremely rare cases that the customary law of a district allowed the transfer of the property which had come to a widow but as the remarks of their Lordships of the Supreme Court in Khair Din and another v. Muhammad Hussain and others, are general in character, I am not prepared to accept the contention that the decision could not apply to the present case.

7. In view of what I have said above, I would hold that the gift under consideration in the Letters Patent Appeal and the two Regular Second Appeals, which are being disposed of by this order was valid because the customary law which was applicable at the time at which the donor came Into possession of the property allowed the gift. The result, therefore, would be that while this Letters Patent Appeal and Regular Second Appeal No. 112 of 1955 will be accepted, Regular Second Appeal No. 438 of 1954 shall stand dismissed, but the parties shall bear their own costs through out in all the three appeals. MUHAMMAD DAUD KHAN, J.‑I agree. K. B. A. Appeal accepted.