1989 PLP 1632 (SCMR)

Sh. Zamir Hussain, Advocate Supreme Court and Man‑roor Ilahi, Advocate‑on‑Record for Respondents Nos.l, 2, 4 and

7. Date of hearing: 3rd May, 1989. SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to the defendant to examine the effect of the provisions of Ordinance No. X111 of 1983 west Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 19831, on the pending proceedings of the case.

2. One Nawab sold land measuring 119 Kanals 19 Marlas situated fin Chak No. 157/RB, Tchsil and District Faisahrbad to Sawal Singh, Gurdat Singh, Kehr Singh and Mchr Singh, non‑Muslims, by means of a registered sale‑decd dated 28‑2‑1928 for ostensible consideration of Rs. 14,

000. Respondents Nos.1. G and father of respondents Nos. 2 and 3, who were all then minor sons of aforesaid Nawab, instituted a Civil suit under custom seeking a declaration that the property sold by their father was ancestral, that the sale was without legal necessity and consideration and their right under custom to inherit the property on the death of Nawab remained intact. The suit was contested, and dismissed by the trial Court. However, by judgment dated 27th of November, 1934, the appeal was accepted by the High Court in the following terms:‑ "I would, therefore, accept this appeal and grant the plaintiffs a declaration to the effect that the sale in dispute shall not affect their reversionary rights, after the death of the vendor, but inasmuch as a sum of Rs.7,874 out of the consideration had been proved to be fur necessity, they will not be entitled to recover possession of the property from the vendccs without payment of this sum. Plaintiffs will get half their costs throughout."

3. Nawab died in 1972 and a suit was instituted by the decree‑holders and the other customary heirs seeking possession of the property. The suit for possession on payment of the spccificd amount of Rs. 7,874.wa.s decreed on 13‑12‑1976. The First appeal failed on 6‑6‑1976 and the Second on 1‑1‑2‑198.1, Leave to appeal was granted for the reason that Ordinance No. X111 of 1983 had' been promulgated on 1‑8‑1983 and it contained section 2‑A having a direct bearing on the decrees of the nature possessed by the respondents. This section was worded as hereunder:‑ "2‑A. Succession prior to Act IX of 1948:‑ Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim (a) shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat); (b) any decree, judgment or order of any Court affirming the rights of any reversioner under custom or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act, (c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith: Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees.

4. The Legislature by enacting this provision has by clause (b) rendered void the decree or the judgment obtained by the respondents under the, customary law. By clause (c) all suits or other proceedings relating to such rights I which would include the enforcement of the declaratory decrees obtained, have abated. Both the results have been accomplished by the Legislature itself leaving 13 for the Court no power of adjudication or determination except of giving effect to different provisions wherever the enacted conditions are satisfied. The case in hand clearly falls under clauses (b) and (c) and the decree having been rendered void and the appeal abated, this appeal must in view of such a legislative' judgment suceced and be allowed.

5. Mr. Zamir Hussain, Advocate, the learned counsel for the respondents I attempted to argue that the legislation wits violative of the fundamental rights of equality and of property as it affected the vested rights of the respondents/plaintiffs. It has already been pointed out the law was enforced on to 1‑8‑1983, at stage when the fundamental rights were not enforceable in law and, could not adopted as a test for judging the vires of this piece of legislation. The legislation does deprive the plaintiffs/respondents of their property rights but the Legislature had al that time full authority to accomplish it.

6. The appeal is allowed. The judgments and decrees of the High Court and the subordinate Courts are set aside and the suit is held to have abated. There will be no order as to costs. M.A.K./I‑79/S Appeal allowed.