P L D 1952 Lahore 1 (PLP)

CORNELIUS, A. C. J.‑This reference to a Full Bench, has been made by Khurshid Zaman J. in the following terms :‑ "Counsel for the parties state that one of the points to be decided in this appeal has been referred to‑‑a Full Bench in another appeal (Regular First Appeal No. 401 of 1945) and pray that this appeal be heard along with that appeal. I have no objection to this. Let this appeal be heard with Regular First Appeal No. 401 of 1945." The present appeal arises out of a case under the Customary Law of the Punjab, between parties belonging to an agricultural tribe known as Rattial Minhas, residing in village Jairu Rattial in tehsil Gujar Khan, Rawalpindi District. It involves a question as to the succession to an estate left by one Ali Akbar, who died about 35 years ago, leaving a widow Mst. Diwan Begum and an only daughter named Mst. Nur Jan. Mst. Diwan Begum succeeded to the usual widow's estate under custom on the death of Ali Akbar. On the 4th July 1940 a mutation was sanctioned whereby Mst. Diwan Begum transferred the property to her daughter Mst. Nur Jan. In the report which led to the entering up of the mutation the allegation was made that Ali Akbar had left the property to his widow Mst. Diwan Begum by a will which conveyed full rights to her. Amir Ahmad, who is a collateral of Ali Akbar in the third degree, brought a suit to challenge the alienation on the 11th March 1946. The following pedigree‑table will be of assistance in following the facts :‑ MUSTAFA KHAN | | ________________________|________________________ | | | | Saif Ali Sher Baz Zaman Ali Hasan Ali | | Mst. Diwan=Ali Akbar Shah Wali Begum | | | | Mst. Nur Jan Amir Ahmad (daughter) It is of some importance to note that at the time of the death of Ali Akbar, Shah Wali, Zaman Ali and Hassan Ali were alive. The Trial Court found that only a portion of the suit property was ancestral, and further that the will propounded by Mst. Diwan Begum was valid in relation to the non -ancestral portion, and consequently the gift in respect of this portion was also valid. On these findings, if the suit had been decided under custom, the Court would have been required to grant the desired declaration in respect of the ancestral portion of the property, but the learned Subordinate judge dismissed it, holding that by reason of the enactment of the West Punjab Personal Law (Shariat) Application Act, 1948, the plaintiff would not be an heir of Ali Akbar at the time when the life estate of Mst. Diwan Begum terminated, and consequently he was not competent to challenge her action. An appeal was taken before a learned Additional District Judge, who reversed the finding of the Trial Court in regard to the operation of the Act of 1948. The learned Additional District judge held that on a true construction of section 3 of that Act, the estate upon the termination of Mst. Diwan Begum's life‑estate, will be deemed to devolve upon those persons, who were under the Muslim Law entitled to inherit to Ali Akbar and that if any such persons be dead, then their shares shall devolve upon their heirs and successors in existence on the termination of the life‑estate of Mst. Diwan Begum. Shah Wali being one of the persons who was entitled to succeed under Muslim Law to the estate of Ali Akbar, his share would devolve upon his heirs, among whom his son, the plaintiff, shall be one in case he be alive at the time of the termination of the life‑estate. Accordingly, it was held that the plaintiff was entitled to protect his right by means of the suit, and in consequence the learned Additional District Judge awarded him a declaratory decree in respect of his reversionary rights in the ancestral portion of the estate. An appeal having been filed in this Court, it came before my brother M. Khurshid Zaman sitting in single Bench, and he referred it to a Full Bench by means of the order reproduced above. It has not been possible to hear this case along with the other case mentioned in the referring order, namely, Barkhurdar Shah deceased represented by Muhammad Shah etc. v. Rab Niwaz Shah etc. (Regular First Appeal No. 401 of 1945), nor is it necessary to set out the facts of the latter case. It will be sufficient to reproduce here the question formulated by the learned judges of the Division Bench which referred that case to a Full Bench. The question is expressed as under :- "Whether a declaratory decree validly obtained under custom, should not be maintained in view of section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), as the reversioners shall have under the personal law no share in the property of the last male owner, on the termination of the limited interest of the female in possession?" The question, as framed, involves a supposition of fact, namely, that the reversioners will not have any share‑ in the estate under Muslim Law. By "reversioners" is meant of course those persons in whom the reversion would have vested had the succession lain under Customary Law. On the facts as they appear from the judgment of the learned Additional District judge in the case before us, it is not possible to make any such assumption, here, but on the contrary it would appear that the likelihood is that Amir Ahmad is both a reversioner under custom as well as a likely heir under the Muhammadan Law to at least a part of the estate of the deceased Ali Akbar. Therefore, in the present case, the question may be more accurately stated somewhat as under :‑ "Whether the grant of a declaratory decree under custom, as sought in the present case, is affected by the operation of section 3 of the Act of 1948?" It is settled law following a decision of a Full Bench of this Court in Muhammad Asghar Shah v. Muhammad Gulsher Khan (Pak. L R 1948 Lah. 241) that section 2 of the Act. Of 1948 is no retrospective in its operation and does not preclude the grant of declaratory de decree under custom in suits arising before the Act came into force. In that case, the suit had been instituted about our years before the Act came into force. The present suit was instituted on the 11th March 1946, about two years before the Act and in this respect, it stands on the same footing as the precedent case. In other words, apart from the question arising specifically in the present matter, regarding succession of a female holding a life‑interest under custom, the two cases are in material respects parallel to each other, and consequently there need be no doubt regarding the competency of the present declaratory suit under custom. The special contention which is raised in the present case is that by virtue of the provisions in section 3 of the Act of 1948, the plaintiff Amir Ahmad has no legal right or interest in the estate, and consequently he is not competent to sue; it the alternative it is argue that the‑effect of the aforesaid section 3 is to confine 1n the‑right of suit under custom to such persons as are heirs under the statute, in which category the plaintiff Amir Ahmad does not fall. It will be convenient at this stage to set out the statutes which have been referred to in the course of arguments, and ‑on a proper construction of which the decision of the question before this Full Bench largely depends. Section 3 of the Act of 1948. runs as follows :‑ "In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succes sion 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 or the last full owner shall devolve on her if are loses her limited interest in the property on account of her marriage or re -marriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death". Reference has also been made to the opening words of sec tion 42 of the Specific Relief Act, which runs as follows :‑ Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled. * * *." Taking first the challenge to the competency of the plaintiff to contest the alienation by the widow, the argument is that Amir Ahmad as a reversioner under custom does not possess any right in the suit property, and his relationship to such property does not confer upon him any such legal Character as can entitle him to sue under section 42 of the Specific Relief Act for a declaration of his right. It is argued that a reversioner under custom has no right in the property, whether vested or contingent, but he merely possess a spes successionis, and that this is not sufficient to confer upon him any legal character of the kind necessary to enable him to sue for a declaration. As a reply to this argument, it will be 'sufficient to quote certain relevant passages from the judgment .of Sir Abdur Rahman, A. C. J. in the Full Bench case cited above, with which we are in respectful agreement. On page 277 of the report, the following observations occur :‑ "It is true that a reversioner does not, both under the Hindu Law and under the Customary Law of the Punjab, possess any right or interest in praesenti 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 sees successions. 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 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‑grandfather in the male line of descent." And again on page 279. the learned Acting Chief Justice observed as under:‑ "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 they disappeared from the scene and the property devolved on one or more of them according to the rule of the Customary Law. This was because the body of reversioners were, on account of the agnatic theory, found to have an inchoate interest in the property which had 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 un -necessary to extend the term 'succession' to the alienations made by the last male holder. An attempt was to made to argue that the position of a rever sioner under custom has been materially altered in respect of succession of property held by a female owner on a life‑estate, by the enactment of section 3 of the Act of 1948. As a reference to that section will show, the position now is that if, after the passing of the Act of 1948, the interest of such a female‑holder, being a Muslim, terminates, succession is to be deemed to open out to the persons who would have been entitled, under the Muslim Personal Law, to inherit the property at the death of the last full owner, and if any such person be not in existence at the time when the succession opens out, then his rights are to devolve upon his heirs and successors in existence at the time when the succession opens out. It is contended that Amir Ahmad is not an heir or successor under the Muslim Law to any person who an heir of Ali Akbar at the time of the latter's death. On this question of fact it is not possible to pronounce, without mule evidence than is available on the record nor is it necessary or us to arrive at a decision in this respect, in order to furnish a proper reply to the question before us. We would, however, refer here to the finding of the learned District judge that Amir Ahmad would qualify to succeed as an heir to his father Shah Wali, who would have ranked as one of the heirs had succession opened out upon the death of Ali Akbar. We should like to make it clear, however, that in referring to this finding we must not be taken to be confirming it, either directly or indirectly, to any extent. For the purposes of this judgment it is sufficient that there is room for believing that Amir Ahmad is not entire by devoid of all prospect of standing as an heir to one or more of the Personal Law heirs of Ali Akbar in existence at the time of the latter's death, when the succession opens out. It must not be overlooked that under the provisions of section 3, upon the termination of the widow's limited interest, only those persons will be entitled to share in the 'estate who are in existence at that time, and are either persons who were heirs of the deceased Ali Akbar at the time of his death, or persons who are heirs and successors of other persons, since deceased, who were entitled as heirs under the Personal Law to a sham in Ali Akbar's estate. The suit brought by Amir Ahmad is in so far speculative, that he may not himself be in existence on the date when the widow's limited interest terminates. There fore such a suit as the present would be wholly incompetent if the requisite for suing were the possession of a concrete right in praesenti such as that which devolves upon an heir under the provisions of section 3 of the Act of 1948. Indeed a suit of this nature is unknown under Muslim Law; the theory of represen tation finds no place in the Muhammadan Law, but under its provisions, the estate of a deceased person devolves upon his heirs at the moment of his death. The interest of each heir is separate and distinct and no one heir can represent any other. As was said in Hasan Ali v. Nazo (I L R 11 All. 456), "the Muhammadan Law does not recognise any reversionary inheri tance or contingent interest expectant on the death of another"; it is the death of the last holder which gives birth to the right of the heirs. But such a suit as the present is entirely familiar under the Customary Law of the Punjab, and it seems to me that the importation, into the examination of the competency of the plaintiff to sue, of considerations which belong exclusively in the field of Muhammadan Law, is liable only to confuse the matter. The right of suit of a person, situated as Amir Ahmad is to the property in suit, must be determined on considerations arising exclusively out of the Customary Law, under which alone such a suit is competent. Another aspect of the matter is that a suit such as the present is not confined in its effect to the plaintiff or the other parties ; the benefit of any decree awarded extends to the entire body of the reversioners, and, therefore, it is not, in the absence of any clear indication to that effect under section 3 or any other section of the Act of 1948, either possible or permissible to require the plaintiff to establish, as a matter of fact that he is one of the persons who will succeed on the termination of the widow's limited interest. To do so would be to deprive the suit of an essential characteristic, namely, that of being a re presentative suit. The only‑conceivable circumstances in which' the grant of a declaration in a suit of this nature would be altogether infructuous, and for that reason the Court might be required to consider seriously whether it should or should not make the declaration desired, are those in which it can bell demonstrated that neither the plaintiff nor any reversioner under custom can possibly be included in the list of persons who at the termination of the limited interest of the female holder would be entitled to inherit as heirs under section 3 of the Act of 1948. Learned counsel for the appellant was unable: to put forward any sufficient facts on the basis of which such a conclusion could be drawn in the present case, but on the other hand, as indicated above, there is a clear possibility that Amir Ahmad might be included, at the termination of Mst. Diwan Begum's interests, among the persons entitled to inherit. It was remarked by Sir Abdur Rahman, Acting Chief Justice, in the Full Bench case cited above (page 278) that the institution of a suit such as the present does not, by itself, affect the course of devolution in respect of the suit property. It merely has the effect of preserving the estate, until such time as it falls into possession after the termination of the limited interest of the female in possession; the property so saved from the hands of the alienees will be brought into the hotchpot for distribution amongst the Personal Law heirs under the provisions of section 3 of the Act of 1948, and such a result tends as remarked by the learned Acting Chief Justice at page 281 of the same judgment, "to give full effect to the intention of the Legislature in conferring full benefit of the Act on those whose interests it was intended to promote". And Muhammad Sharif J., in his judgment in the same case, has observed as under (p. 256). :‑ "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 further from the intention of the Legislature." Learned counsel for the appellant appeared to argue that the right to contest under the Customary Law must be held to be restricted by virtue of the Statute Law now in force, namely, the West Punjab Muslim Personal Law (Shariat) Application Act of 1948. It seems to me that such an argument confuses the right of suit with the nature of the relief eventually obtainable, in the light of the new scheme of devolution introduced by the Act of 1948. Under the latter Act, the status of an heir cannot be determined until the termination of the widow's limited interest. But qua the suit under custom, it is not necessary that the plaintiff should possess this status ; it is sufficient that he should be a reversioner, and in many cases, even a remote reversioner may sue effectively in the presence of nearer reversioners. It is obvious that to oblige every reversioner who has the right to sue under custom, to wait to exercise this right until he acquires the status of an heir upon the termination of the widow's life‑interest, would in many cases defeat the right under custom altogether as limitation is six years from the date of the alienation. Learned counsel for the appellant also tried to indicate the nature of the restraint, which, in his submission, was imposed on the right under custom by virtue of the Act of 1948. At first, he argued that only a reversioner who is a direct heir of the last male-holder could be permitted to sue for a declaration such as the plaintiff seeks in the present case. At a later stage, he was inclined to extend the right to possible heirs, but even in such a case he thought the right should be confined to possible direct‑heirs. Now. It is settled that the Act of 1948 does not sweep away all customary estates at on stroke or convert all existing estates into simple estates held under Shariat. ( M. Asghar Shah v. M. Gul Sher Khan cited above, at p. 270). In determining what effect is produced upon the right of suit under custom by the enactment of section 3 of the Act of 1948, it is necessary to regard the language of the enactment, and to see whether it, either by expression or by necessary intendment, takes away the existing right of suit under Custom possessed by reversioners, and if so, to what extent. I am Unable to see either express words or necessary implication it, the language of the Act of 1948, such as would operate to take away either in whole or in part the right under which the present plaintiff has sued. As to the argument advanced by learned counsel for the appellant, that the right should be restricted to possible direct heirs I do not see, nor was he able to convince me by any reasoned argu ment, why the right should not be allowed to all those who are possible heirs on the date of the termination of the widow's limited interest. No contention or consideration was advanced before us by learned counsel for refusing the right to the last mentioned category of persons, and restricting it to those who are possible direct heirs of the last male‑holder, and indeed the correct position, as has already been sated, is that the right of suit in such a case should be determined solely upon consider ations arising out of the Customary Law, in any case where it is not apparent that the reversioners under custom can in no circumstances inherit any part of the estate. That, as has already been seen, cannot be said in the present case. If the litigation results in the plaintiff being left with a declaration of the kind which he has sought, it will enure to the benefit of any of the reversioners including himself, who may satisfy the condition, at the date of the termination of the widow's life -interest, of being heirs in respect of the estate under section 3 of the Act of 1948. In the light of these conclusions, it becomes necessary to reconsider certain observations which find a place in any judgment in the Full Bench case "M. Asghar Shah v. M. Gul Sher Khan" cited above. These will be found at pages 271 and 276, and are reproduced below. "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 proper exercise of the discretion conferred by section of 42 of the Specific Relief Act to refuse the declaration sought by such a reversioner. In my opinion in the third case before us, namely Barkhurdar Shah v. Rab Niwaz 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 pass ing 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 ascer tain 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 declara tion 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 Art. As then advised, I was of the opinion that the competency of a suit similar to the present case, fell to be determined by the answer to the question whether the plaintiff or an plaintiff is, or is likely ever to be included among the heirs to the estate, upon the termination of the limited estate of the female in possession, as determined under section 3 of the Act of 1948. The precise question having now been more fully examined in a concrete case before this Bench. I am satisfied that this statement of the law restricts the right of suit unjustifiably and must be confined to that particular case. I am satisfied that the governing consideration are that the competes such a suit y a reversioner should be determined exclusively under Customary aw, an as such suits are representative in charac ter, unless it is proved that none of the reversioners can in an circumstances inherit any part of the estate, under section 3 of the Act of 1948, the suit cannot be defeated for lack of competency, on any ground that has been urged before us in the present case. In my view, the answer to the question propounded for consideration in the present reference should be in the negative, viz., that the grant of a declaration, as sought, is not affected in the circumstances of the present case, by the operation of section 3 of the Act of 1948. MUHAMMAD KHURSHID ZAMAN J.‑I agree. SHABIR AHMAD, J.‑I agree. K. M. A. Reference answered.