2002 PLP 733 (CLC)

The facts are that Faiz Muhammad was the owner of the suit property (fully described in the plaint). Upon his death, Faiz Muhammad was survived by. Sher Muhammad son, Mst.‑Murad Khatoon, Mst. Jindan Khatoon, Mst. Mehran and Mst. Azeem daughters. Instead of devolution of the estate of Faiz Muhammad in accordance with the Islamic Law of Inheritance, the entire estate was mutated in the name of his only son Sher Muhammad vide Mutations Nos.907, dated 15‑6‑1946, 651, dated 22‑5‑1~94~7 and 336, dated 9‑6‑1949.

2. Mst. Murad Khatoon and Mst. Jindan Khatoon daughters of Faiz Muhammad filed a suit for declaration that being daughters of deceased Faiz Muhammad who was governed in matters of succession under the Rule of Muslim Law, they were entitled to their Muslim Law share of 1/6 each.

3. The suit was contested on the grounds that the suit was time- barred; that the plaintiffs were estopped by their word and conduct to file the suit; that the plaintiffs were out of possession and that the suit was not maintainable. On merits, it was contended that Faiz Muhammad deceased was governed by' custom, according to which, the daughters are not entitled to inheritance.

4. The learned trial Court after recording evidence produced by the parties found that the suit was within time that the defendants have not been able to prove that the deceased Faiz Muhammad was governed by custom and if so what that custom was. The learned trial Court further held that under law, the rule governing succession of Faiz Muhammad would be the Muslim Law of Inheritance and that accordingly the plaintiffs were entitled to their Muslim Law share. Holding, thus it was also found that the plaintiffs shall be deemed to be in construct possession being co‑sharers and that in this view of the matter, the suit was maintainable. Consequently, vide judgment and decree, dated 5‑1‑1986, the suit of the plaintiffs was decreed to the extent of their Muslim Law share in the estate of Faiz Muhammad. Mst. Murad Khatoon and Mst. Jindan Khatoon were together found entitled to 1/3 share in the suit property.

5. The petitioners preferred an appeal which was dismissed vide judgment and decree, dated 18‑6‑1986. The learned Appellate Court while coming to this conclusion held that the Wajib‑ul‑Arz Exh. D. 1 along with the other evidence produced by the defendants was not sufficient to prove the alleged custom whereby daughters were excluded from inheritance. It was also held that in matters of inheritance the parties were governed by the Muslim Law of Inheritance and that it was not proved on the record‑that the daughters including the plaintiffs had relinquished their share or waived their right of inheritance.

6. The only material ground urged in this civil revision is that as Faiz Muhammad died prior to the enforcement of the West Pakistan Muslim Personal Law (Shariat) Application Act (IX of 1948), he would be governed by ‑customary law and as such his daughters would not be entitled to inherit.

7. Mr. Aejaz Ahmad Ansari, Advocate for the petitioners contended that section‑ 2‑A which was incorporated 4n the Punjab Muslim Personal Law (Shariat) Application (West Pakistan Act (V of 1962)) by Punjab Ordinance NOXIII of 1983 did not have retrospective effect. His precise contention is that the said section 2‑A shall only be prospective in application and shall not operate to effect past and closed transactions. He further contended that the petitioners had brought sufficient evidence on the record to prove that Faiz Muhammad deceased was governed by custom in matters of inheritance, according to which, the daughters did, not inherit. According to him, such evidence fulfilled the yardstick laid down in, law. He further contended that the copy of Wajib‑ul‑Arz produced on the record has sufficient probative value to prove custom Reliance in this respect was placed on the cases of Sajawal Shah and another v. Syed Rahim Shah and others PLD 1975 SC 325, Rati Ram and others v. Shera Ram and others AIR 1939 Lah. 53 and Shankar Lal and others v. Kailash Chand and others AIR 1939 Lah. 105.

8. On the other hand, Sh. Hakim Ali, Advocate for the respondents submitted that section 2‑A incorporated by the Punjab Ordinance No. XIII of 1983 was a declaratory piece, of legislation and would thus be prospective in nature. According to him, 'it would be immaterial if the predecessor‑in‑interest of the parties who was a Muslim had died before or after the Shariat Application Act of 1948 as the effect of section 2‑A incorporated by Ordinance No.XIII of 1983 would be that a Muslin owner shall be governed by Muslim Personal Law (Shariat) o: Inheritance, no matter when he died. He also contended that it was immaterial whether the property in question was ancestral or self, acquired of the deceased predecessor‑in‑interest. Upon the question o1 adequacy of proof of custom, the learned counsel for the respondent: insisted that the petitioners were legally bound to prove such custom by strong, clear and unambiguous evidence which in the present case, the petitioners have failed to prove. In support of this contention, he has placed reliance upon the cases of Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407; Umar Din and another v. Mst. Sharifan and another PLD 1995 SC 686 and Sharu and 2 others v. Mst. Fatima and others 1993 CLC 625.

9. Arguments have been heard and record perused.

10. In order to appreciate the respective contentions of both the parties, it would be appropriate to refer to section 5 of the Punjab Laws Act, 1872 which is reproduced as under:‑‑ "Decisions in certain cases to be according to native laws.‑‑‑ In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, basterdy, family relations, wills, legacies, gifts, partitions or any religious usage or institution, 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 void by any competent Authority; (b) the Muhammadan Law, in cases where the parties are Muhammadans, and the Hindu Law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to ‑ the provisions of this Act, or has been modified by any such custom as is above referred to." According to this provision, Muslim Law was to be the governing Rule for purposes of succession etc. However, this was subject to any modification made by any custom which had to be specifically alleged and proved to have modified the Muslim Law. Obviously, such proof had to be strong and creditworthy as it was to override the Personal Law.

11. The overriding effect of the custom even to the extent provided by section 5 of the Punjab Laws Act, 1872, was obviously unacceptable as being against the principles of Islamic Law and through legislative intent the effect of custom was done away with in phases. Muslim Personal Law (Shariat) Application Act (XXXVI of 1937) was promulgated in this respect which was subsequently followed by the Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) which was promulgated on 15‑3‑1948. The effect of this Act, 1948 was to do away with the overriding control of custom upon Muslim Law. With the incorporation of section 2‑A by the Punjab Ordinance No.XIII of 1983 retrospectively was given to the application of Muslim Personal Law in all matters including succession.

12. The effect of retrospectively was observed in the case of Abdul Ghafoor (supra) wherein it was held that retrospectively is inherent in the provisions of section 2‑A itself. This is so, as section 2‑A itself provides that if a male heir has acquired any agricultural land before the commencement of Punjab Muslim Personal Law (Shariat) Application Act, 1948, he shall be deemed to have become an absolute owner under Muslim Personal Law. The retrospectively of this provision of law was further acknowledged in Sharu's case (supra) by holding this provision to be declaratory in nature, and thus retrospective in its effect.

13. The cumulative effect of the above discussion is that Faiz Muhammad being a Muslim would be governed by Muslim Rule of Succession and upon his death, notwithstanding, that it occurred before 15‑3‑1948, his estate shall devolve upon all his legal heirs including the respondents/plaintiffs. It is further concluded from the record that the petitioners have been failed to prove the existence of any custom whereby the female heirs have been excluded from inheritance.

14. The concurrent findings of both the learned lower Courts on facts as well as on law do not suffer from any infirmity. The civil revision is without any merit which is hereby dismissed. No order as to costs. Q.M.H./M.A.K./S‑365/L Revision dismissed.