2003 PLP 1535 (SCMR)

| | Mst. Karam Khatoon | (Daughter) | | | ____________________________________| | | | | Khuda Bakhsh Allah Yar | | | | Muhammad Yousuf Fazal | | ______________________________| | | Allah Yar Noor Muhammad

3. The property belonging to Ali is in dispute. Ali had died in the year 1923‑24 leaving behind Mst. Noor Bhari widow and Mst. Karam Khatoon, the daughter who happened to be the plaintiff in the case while the defendants Muhammad Yousaf, Noor Muhammad and Allah Yar happened to be collaterals. It has come on record that Mst. Noor Bhari, the widow died in the year 1946. Karam Khatoon, it appears died soon after the institution of the present suit. Her legal heirs are the respondents herein.

4. One Mutation No. 544, whereby the property got mutated in the name of the aforesaid collaterals, has been challenged. The defendants took the plea that the customary law being prevalent in Bahawalpur at the relevant time, Karam Khatoon was not entitled to inherit her father. The trial Court, vide its judgment, dated 13‑11‑1971, non‑suited the plaintiff and so was the result before District Judge, Rahim Yar Khan, on 4‑7‑1975, who dismissed the appeal of the plaintiff. After hearing Regular Second Appeal, a learned Single Judge in Chamber of Lahore High Court, Bahawalpur Bench, set aside both the judgments aforesaid and granted the decree to Mst. Karam Khatoon as prayed for. Important question of law being involved, this Court had issued notice to the opposite side.

5. It may be recalled that West Pakistan Muslim Personal Law (Shariat) Application Act had been enforced in the State of Bahawalpur in the year 1951 whereby, while making Shariah as rule of law, section 5 of the Punjab Laws Act, 1872 was repealed. Prima facie, section 5 of the Punjab Laws Act, 1872 declared custom to be the rule of law which apparently seemed to have been repealed by Bahawalpur Shariat Application Act, 1951. For facility of reference section 5 of Punjab Laws Act, 1872 is reproduced below:‑‑ "[

5. In questions regarding succession, special property of females, betrothal, marriage, divorce, dower adoption, guardianship, minority, bastardy, family relations, will, 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 arty 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 insofar, 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]."

6. The close perusal of section 5 above would indicate that the idea that it supports the rule of custom by all means, is not correct. Even section 5.has not altogether excluded the application of Muslim Law to Bahawalpur State. The matter had long ago been dealt with by a Full Bench of Lahore Chief Court in case of Daya Ram v. Sohel Singh (1906 Punjab Report 390) where Robertson, J. (at page 410) had observed:‑‑ "It has sometime apparently been assumed that because in section 5 of the Punjab Laws Act; clause (a) which deals with custom comes first, and clause (b), which treats of personal law, comes second that some peculiar preference of custom as opposed to personal law is indicated. This appears to me to be quite fallacious. In all cases it appears to me under this Act, it lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove that the particular custom is. There is no presumption created by the clause in favour of custom on the contrary, it is only when the custom is established that it is to be the rule of decision. The Legislature did not show itself enamoured of custom rather than law nor does it show any tendency to extend the `principles' of custom to any matter to 'which a rule of custom is not clearly proved to apply. It is not the spirit of Customary Law, nor any theory of custom, or deductions from other customs which is to be a rule of decision, but only `any custom applicable to the parties concerned which is not ....and it, therefore, appears to the clear that when either party to a suit sets up `custom" as a rule ‑of decision, it lies upon him to prove the custom which he seeks to apply; if he fails to do so clause (b) of section 5 of the Laws Act applies, and the rule of decision must be the personal law of the parties subject to the other provisions of the clause. It is not sufficient to show that in ,regard to certain other matters the parties are governed by customs.

7. The above principle was approved by Judicial Committee as well as by this Court in Mst.. Qaisar Khatoon v. Maulvi Abdul Khaliq (PLD 1971 SC 334). All the above observations were once again considered and approved by this Court in Umer Din v. Mst. Sharifan (PLD 1995 SC 686). The final conclusion that can be drawn without any hesitation is that even section 5 of Punjab Laws Act did not exclude the application of Muslim Personal Law where the parties were Muslim unless it could be proved that some particular custom had consistently been prevalent in the area and among the family or tribe involved. In case any one even prior to 1951 relied upon any particular custom to be heavily the rule of law, negating the Muslim Law, justice and good conscience, the burden lay heavy on that party to prove the custom. In A the instant case, the question of fact regarding prevalence of custom negating the Muslim Law has not been proved to the satisfaction of the Court. A mere entry in Wajab‑ul‑Arz cannot be benefited from, for, it never referred to any custom prevalent in the family of Allah Yar, the grandfather of Ali and the great‑grandfather of Mst. Karam Khatoon. The learned High Court was right in rejecting the entries of Wajab‑ul -Arz.

8. From the aforesaid discussion, it appears that the principles of Muslim Law were applicable even prior to 1951 when rule of Shariat was enforced in Bahawalpur State. Even if, we do not enter into the interpretation of repealed section 5 of the Punjab Laws Act, still, after 1951 the matter of inheritance in Bahawalpur State shall be governed by Bahawalpur Shariat Application Act of 1951 and thereafter by West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. The same was repeatedly held by this Court. The matter has further been clarified by bringing an amendment in West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 with the insertion of section 2A through the Punjab (Amendment) Ordinance, 1983 that runs as follows:‑‑ "2A. 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) he 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) Act; (b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery of 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; and (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 decree." This amendment has settled the matter once for all to the effect that in matters of inheritance etc. the rule of law shall always be Muslim Personal Law and that it would be with retrospective effect. In Hakim Ali v. Barkat Bibi (1988 SCMR 293) the section aforesaid was declared to be having retrospective effect, being clear from the very language used. An elaborate discussion was further made by this Court in Abdul Ghafoor v. Muhammad Shafi (PLD 1985 SC 407) where the retrospectivity of section 2A was absolutely determined. '

9. A cursory glance over the section aforesaid is most likely to give an impression that the right involved is sanctioned to a male heir alone. It does not appeal to common sense that a drastic enforcement of Shariah Law would exclude a rightful female and would favour male heirs alone. This matter also had been dealt with by this Court in Abdul Ghafoor (supra). It was observed that a male heir who acquired agricultural land under custom from a Muslim prior to 15th March, 1948 would be held to have inherited under Muslim Law. His heirs would be discovered in accordance with the Muslim Law. Such heirs could be male as well as female. If a female derives limited interest from any such male heir (having become absolute owner, under section 2A), would not be able to keep land in excess of her Sharai share under the Muslim Law. She will act as a conduit to pass the remaining land to the other heirs of such a male heir. This Court had further observed that the conclusion aforesaid emerges out of the combined reading of sections 3, 4 and 5 read with newly‑added section 2A. If so read together, the omission in section 2A of a female, is of not much significance.

10. The net result of the above discussion is that Mst. Noor Bhari widow of Ali, even if deemed to be a limited owner, has inherited her Sharai share from her husband Ali, the residue going to her daughter and the collaterals. The above interpretations taken in the strict sense would entitled Mst. Karam Khatoon even to inherit directly from her father Ali and subsequently from her mother Mst. Noor Bhari. Her share from father comes to 1/2 and that from mother comes to half of the 1/8th, total amounting to 9/16 share in the legacy of Ali. This has rightly been decreed in favour of Mst. Karam Khatoon, the successor of present respondents. The law having properly been interpreted and there being no force in the petition, it is hereby dismissed and leave to appeal refused. M.B.A./M‑862/S Petition dismissed.