1987 PLP 2900 (MLD)

Ch.Khurshid Ahmad for Petitioners. Kh.Mushtaq Ahmad for Respondents. This Civil Revision calls in question the judgment/decree dated the 17th of May, 1984, of the learned Addl. District Judge, Kasur, whereby the petitioners-plaintiffs' appeal was dismissed as having abated under the West Pakistan Muslin, Personal Law (Shariat) Act (Amendment) Ordinance, 1983.

2. The land in question belonged to the petitioner's father Din Muhammad who sold it in favour of the defendant Khair Din on the, 9th of February, 1939. The alienor's son Rehmat Ali challenged it under Custom and his suit was decreed on the 25th of July, 1940, holding that the alienation will not affect his reversionary rights under Custom inasmuch as it was made without any legal necessity. The alienee Khair Din preferred an appeal before the learned District Judge who accepted the same on the 5th of May, 1941, upholding the alienation in R.S.A., this Court in its judgment dated the 23rd of June, 1944, held that the sale would be converted into a mortgage for a sum of Rs.850 when the plaintiff would seek its possession after the demise of his father. It appears that the plaintiff Rehmat died in the meantime but the suit was maintained by his sisters.

3. The alienee Khair Din who also died in the meantime resisted the suit as was being done now by his successors-in-interest. An objection was taken that due to promulgation of the West Pakistan Muslim personal law (Shariat) Act (Amendment) Ordinance, 1983, the suit/appeal being based upon reversionary right had abated. The courts below accepted the objection holding that those had abated.

4. Ch. Khurshid Ahmad for the petitioners laid considerable stress in urging that the sale which had been initially challenged under Custom no more remained in the field, in that it had been converted into a mortgage by this Court and that the same being governed by ordinary law relating to mortgages could not be deemed to have been subject to the incidence of Custom. I regret I am not persuaded. The decree of this Court dated the 23rd of June, 1944, clearly provides that the sale after being converted into mortgage will not affect the plaintiff's reversionary rights who will bring a suit for recovery of the possession of the land only after the demise of the alienor/mortgagor. Undeniably this restriction was imposed by Custom. Otherwise if it were a simple mortgage, it could have been redeemed initially by the mortgagor Din Muhammad himself or his successors any time by offering the mortgage debt. But this was not done perhaps due to the difficulty created by the judgment of this Court. It provided that the petitioners or for that matter their predecessor will have a right to get the possession of the land only after the alienor Din Muhammad dies. Deferring the remedy of getting possession till after the mortgagor's demise was visualized by no law except Custom. It is a well understood concept that the alienor himself is bound by such an act inter was and he could not come forth to challenge it merely because Custom did not permit him. It is always for the reversioners and in case, they succeed to get an alienation set aside, it becomes effective only after the alienor dies. In other words, they have not any interest in the property in present. They will have to wait till the expiry of the alienor. Judging from this angle, the order of this Court dated the 23rd of June, 1944, was clearly falling under Custom insofar as it allowed the petitioners to get the land redeemed after the demise of their predecessor Din Muhammad. The courts below were right in applying the afore-mentioned Ordinance to the suit as also appeal. As pending proceedings, these had abated.

5. Kh. Mushtaq Ahmad on behalf of the respondents called at limine stage argued at length that the aforesaid Act very much applied to the suit as also appeal and that both of them had been rightly held to have abated.

6. There is no substance in the revision petition and the same is dismissed in limine. H . B . T . /J-16/ L . Revision dismissed.