1993 PLP 2058 (CLC)

2.Dissatisfied with the decision of the Board of Revenue, Mst Noor Begum respondent No.1 brought a suit in the Court of a Civil Judge at Toba Tek Singh, challenging various decisions 'of the revenue authorities referred to above and asserting herself as full owner of the suit property.

3. The suit was resisted by the brothers and sisters of Niaz Muhammad, including their legal representatives, who are now the appellant and respondents Nos.2 to

16. In their written statement they asserted that Mst. Noor Begum respondent No.1 was a limited owner and since her limited estate had terminated, the inheritance of Naiz Muhammad had opened out.

4. On the pleadings of the parties, the trial Court framed the following issues:‑‑ (1) Whether the Civil Court lacks jurisdiction to entertain the suit? (2) Whether the plaintiff has locus standi to institute the suit? (3) Whether the suit is maintainable in its present form? (4) Whether the plaintiff is owner in possession of 1/3rd share in the suit land? (5) Relief.

5. The learned trial Judge, after recording the evidence of the patties, vide judgment and decree, dated 3‑10‑1970, decreed her suit, after coming to the conclusion that her limited estate had not terminated and she could continue in the possession of the entire property as such. He restrained her opponents from interfering in her possession. Aggrieved by these findings, the appellant, who is the sister of Niaz Muhammad (deceased) went up in appeal before the District Court but her appeal was dismissed by the learned Additional and District .Judge, Lyallpur, vide his judgment, dated 8‑10‑1971. Dissatisfied with the findings of the Courts below, she came in second appeal to this Court.

6. The main question involved in this case is as to whether the limited estate of Mst. Noor Begun respondent No.1, which she had acquired on the death of her issueless husband Niaz Muhammad in the year 1938, still survives or it stands terminated on account of Muslim Personal Law (Shariat)?

7. Learned counsel for the appellant with reference to the provisions of section 19‑A of Colonization of Government Lands Act, 1912 and section 2‑A of West Pakistan Muslim Personal Law (Shariat) Act, 1962, as inserted by Ordinance XIII of 1983, contends that on account of these legislative measures, the limited estate acquired by an issueless widow under custom terminated and the estate of Niaz Muhammad (deceased) has to be now distributed amongst his Muslim Law heirs, including his widow Mst. Noor Begum respondent, who shall inherit her own Msulim Law share therein. In support o f his contentions, he has cited Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 SC 407); Jalal v. Muhammad Shafi and others (1989 SCMR 1129); Amir Din and 5 others v. Bahadur Hussain (PLD 1990 SC 816) and Ilam Din through Legal Heirs and others v. Muhammad Ishaque (1991 SCMR 1911). Learned counsel for the respondent, on the other hand, with reference to first proviso to section 19‑A of the Colonization of Government Lands Act read with section 20(b) thereof, contends that Mst. Noor Begum respondent had succeeded to the tenancy of her husband Niaz Muhammad (deceased) as a limited owner under section 20(b) of the said Act like a limited owner on account of general customary law of the Punjab and as such West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, including section 2‑A thereof, which was subsequently inserted by Ordinance XII1 of 1983, remained unaffected. To re-enforce his arguments he has referred to Karam Bibi v. Abid Ali (PLD 1977 Rev. 54) and Barkat Ali v. Mst. Sughran Bibi and another (NLR 1982 Revenue 110).

9. To my mind, in this case two other enactments are also relevant. They are the Punjab Muslim Law (Shariat) Application (Removal of Difficulties) Act, 1975 and the Enforcement of Shariah Act, 1991. Section 2 of the former law terminated, in unambiguous terms, the limited estates in respect of immovable property held by Muslim females under customary law with effect from 31‑12‑1962. Section 3(1) of the latter enactment declares Shariah i.e. the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah, to be the Supreme Law of Pakistan. Subsection (2) of this section, however, excludes from the purview of Shariah, the present political system, with which we are not concerned at the moment. Section 20(2) read with first proviso to section 19‑A of the Colonization of Government Lands Act, 1912, no doubt, creates a special tenancy of limited character in favour of the widow of a Government tenant and describes it as a limited owner under the Act but it cannot be said that this limited estate, being a creation of special law is not within the purview of Shariat Law being repeatedly enacted by the Legislatures to being to an end the limited estates of Muslim females. Mere reading of section 20 of the Colonization of Government Lands Act, 1912 would show that it embodied the rule of customary succession and it ran counter to the basic concept of Muslim law of succession as enshrined in the Injunction of Islam. On the death of a Muslim, his heirs, according to their entitlement so clearly and lucidly stated in the Holy Qur'an and Sunnah of the Holy Prophet, immediately inherit his estate and their right of inheritance is not deferred even for a moment for any reason whatsoever, but under the customary law, on the death of a sonless male holder of the property, his inheritance, as in the instant case, stood deferred for his reversioners until the death or re‑marriage of his widow or marriage of his daughter or daughters. Since some case‑law on the question of termination of the limited or life estate of Muslim females had made the application of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, doubtful, the Legislature had to enact 1972 Ordinance for the removal of doubts and its non obstante clause, clearly excluded the application of first proviso to subsection (19‑A) and Clauses (a), (b) and (e) of section 20 besides similatr other provisions of the Colonization of Government Lands Act, 1912. I can quote the following massage of the judgment of the Supreme Court reporrted as Mst. Began v. Mst. Bai (1983 SCMR 80) with advantage:‑‑ "It cannot be denied that the rules of successsion contained in clauses (a), (b) and (c) of section 20 although provided by the statute itself, is mainly derived from the rule of customary succession. Particularly the conditions under which a widow inherited the tenancy under section 20(b) were referable to the then prevailing law of customary succession; and in essence by imposing the condition that she will hold the estate only till she remarries or dies or otherwise loses her rights under the provisions of the Act, the (estate being conferred on her was only limited. There was no such condition in the Muslim Law of Succession therefore, it could legitimately be assumed that the widow tenant held the rights under section 20(b) as a customary limited owner. To say that the character of this limited estate was determined only by the statute and was really not based on the rule of customary law, might not be in accord with the underlying intention." 10. ‑Besides, section 3(1) of the Enforcement of Shariah Act, 1991, which declares Shariah as the; supreme law of Pakistan, rmakes the matter further clear Section 5 of this Act binds down all Muslirm citizens of Pakistan to observe Shariah and act accordingly. This being so, no other law, as contained in the Colonization of Government Lands Act, 1912, can still have preference or precedence over the Muslim law of inheritance.

11. In view of the above, the appeal is accepted,, the judgment and decree of the trial Court are set aside, and the suit of Mst. Noor Begum respondent is dismissed. As a result, the inheritance of Niaz Muhammad (deceased) shall be distributed amongst his Muslim law heirs, including Mst. Noor Begum, who shall also get her Sharip share therein. No order is made as to costs. AA./G‑148/L Appeal accepted.