P L D 1956 (W (PLP)

KAIKAUS, J.‑--The property in dispute in the suit, out of which this second appeal arises, belonged to one Fazal Dad who died in August 1944, leaving behind him a widow, Mst. Fazal Noor, a daughter Karam Noor, from another wife, and some collaterals. On the 26th of June 1944, Fazal Dad made a will bequeathing half of his property to his daughter,) Mst. Karam Noor, and the remaining half to his widow, Mst. Fazal Noor with the condition that should she remarry or commit adultery the property bequeathed to her would] pass in full estate to Mst. Karam Noor or to the children of Mst. Karam Noor. On the death of Fazal Dad his property was mutated half and half in favour of Mst. Karam Noor and Mst. Fazal Nut. In May 1951, Fazal Noor remarried. In the meantime had come into operation the Muslim Personal Law (Shariat) Application Act, 1998, as amended by the Muslim Personal Law (Shariat) Application (Amendment) Act of 1951. Mst. Karam Noor filed the present suit claiming that, as Mst. Fazal Noor had remarried, she was entitled, according to the will, to that half of the property of Fazal Dad which stood in the name of Mst. Fazal Noor. The defendants to the suit are Mst. Fazal Noor and the collaterals of Fazal Dad. The trial Court found that the case was governed by section 3‑A of the Muslim Personal Law (Shariat) Application Act, and that the land, standing in the name of Mst. Fazal Noor was to go to all the heirs; under Muslim Law, of the last male holder, that is, Fazal Dad. Mst. Fazal Noor was held entitled to 1/8th, as widow of Fazal Dad, Mst. Karam Noor to one half as daughter, and the remaining 3/8th were held to belong to the collaterals. Against this decision, Mst. Karam Noor appealed to the District judge, who held that she was entitled to the whole of the property standing in the name of Mst. Fazal Noor, in accordance with the terms of the will. This is an appeal by Mst. Fazal Noor alone, the collaterals having been joined as respondents. The point for decision is whether the case is governed by section ;3 or section 3‑A of the Muslim Personal Law (Shariat) Application Act, in which case on the termination of the estate of Mst. Fazal Noor, the property should go to the heirs, according to Muslim Law, of the last male owner, or whether the devolution of the property is‑ governed by the will, in which case Mst. Karam Noor would be entitled to the whole estate. Section 3 of the Muslim Personal Law (Shariat) Applica tion Act runs :‑ "In respect of immovable property held by a Muslim female as a limited owner under the Customary law, succession 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 such persons before the termination of the limited interest mentioned above 'succession shall devolve on his heirs and successions 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 of the last full owner shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death." By amending Act XI of 1951 (which is a. Governor's Act) section 3‑A was added to the Muslim Personal Law (Shariat) Application Act. It runs :‑- " Where a will made by a Muslim provides for more than one legatee succeeding to the testator's property one after the other, and the will has taken effect before the coming into force of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951, on the death of the legatee in enjoyment of the property at the time of the coming into force of that Act, the property shall devolve on such heirs and successors of the testator under the Shariat as would have inherited it had the testator died intestate, and if any person, who would have so inherited the property or any share therein had there been no will, has in the meantime died, his share in the testator's property shall devolve on such of that person's heirs and successors as may be in existence at the time of the death of the said legatee." I will first consider, the application of section 3‑A which was relied upon by the trial Court. Two arguments were put forward on behalf of learned counsel for the appellant. They are (1) although in‑ section 3‑A only the word "death" is used, it should be held to include termination of the estate of the legatee in accordance with the will; (2) in the alternative even after remarriage and till her death, Mst. Fazal Noor becomes entitled to retain possession of land by virtue of this section. It is no doubt true that on principle there is no distinction between a case of death and a termination of interest other wise; and a failure to read into this section termination of estate also will lead to an anomaly and will create a situation which could not have been contemplated. However, it is not for the Court to Supply omissions of the legislature. The section is very badly drafted and is full of anomalies and absurdities, as will appear from the following considerations :‑ (1) The section will apply even to the last legatee. Suppose a will was made by a person in the year 1869 in which he provided two legatees and the first of the legatees having died, the second, who was to take the full estate in the land bequeathed was still alive at the date of the coming into force of the Amending Act of 1951. Then, according to the section, in spite of the fact that that man is a full owner under the will and has been a full owner for about a century, on his death the property will not go to his own heirs but the heirs of the person who made the will in his favour. There is no reason which could justify this extraordinary course of devolution of property in a case where a person has already become a full owner of the property long before the Shariat Act came into force. (2) The section makes no provision as to what is to happen when the subsequent legatee is to take any property on the happening of particular event during the life of the first legatee, for instance remarriage or the attainment of a particular age, or the failure to marry (This is the point arising in this very case). If we are to assume that in the absence of section 3‑A the property would have gone in accordance with the terms of the will, there is nothing, in principle, to differentiate between the case where one legatee takes his property on the death of the other or where he takes on the happening of any other event. On the plain wording of the section, if the subsequent legatee is to take under the will on the happening of an event, then on the death of the first legatee the property will go to the heirs of the testator, even though the second legatee has taken it in the meantime. It requires some explanation, but a reference to the present case itself will clarify the matter. In the present case, Mst. Fazal Noor is a legatee who is in possession of the property in terms of section 3‑A at the date of the commencement of the amending Act of 1951. Section 3‑A says if she dies the property would go to the heirs of the last testator. The result would be that, although this property may now go to Mst. Karam Noor or the collaterals wholly or partly, when Mst. Fazal Noor dies, the property should again devolve upon the heirs of the testator which is absurd. (4) The section says " in enjoyment of property ". Suppose the property is, at the time when the Act of 1951 comes into force, in possession of some other person, would the section in that case cease to apply? This is to some extent technical, but the word is there. Suppose the legatee has in the meantime transferred all his rights to some other person, would the section then cease to apply? (5) The section speaks only of Muslim and not of Muslims governed by custom. The result is that the section applies even to wills by Muslims who were governed by Muslim Law. Of course, it says as if the will has taken effect which means that according to the law which governs the will property is in fact going to more than one legatee, and the will is valid. But even a Muslim governed by the Muslim law of succession can make a valid will in favour of more c than one legatee. This proposition is established by the judgments of their Lordships of the Privy Council in Sardar Nasir Ali Khan v. Muhammad Ali Khan (AIR 1932 PC 172) and Sardar Nawazish Ali Khan v. Sardar Ali Raza Khan (75 IA62) where a will in favour of more than three successive legatees was upheld. The result could be that in case of a will, which is made by a Muslim and is perfectly valid, the course of succession shall change by virtue of this section. There is no reason for thinking that the Shariat Act intended to interfere with the shariat but that would be the effect of the unfortunate wording of this section. There are so many defects in this section that it is not possible to cure them by any reasonable interpretation of the words used. I would, therefore, hold that section 3‑A does not in terms apply to this case. The next question to be considered is whether section 3 can apply. It is argued and with force, that section 3 is not intended to cover the case of the creation of estate in favour of successive legatees, and that it is intended only to apply to the case of the special limited interest of a female well known to customary law. The section speaks of property held by a Muslim female under the customary law. These words are not appropriate for the interest that a legatee takes and any possible doubt on the question would be set at rest by section 3‑A which applies to legatees. The estate which Mst. Fazal Noor took under the will is not, therefore, governed by section

3. This however, does not end the matter. We are still to consider whether Mst. Fazal Noor was not taking an ordinary estate under customary law at the time of the death of Fazal Dad, in spite of the will. This depends upon an interpretation of the will. The words used are :‑ Meri wafat ke bad meri tamam matruka jaidad ki Mst. Karam Noor dukhtaram wa Mst. Fazal Noor zowjaam bahissa mussavi malik hongi. Magar sharat yeh keh jab tak Mst. Fazal Noor nek challan reh kar mere haq men baithi rahi meri jaidad ghair manqula ke nisf hissa ki paidawar hasil karti rehgi. Agar woh nek challan nah rahi our mere hag men nah baithe to salim jaidad ki malik meri dukhtar Mst. Karam Noor hogi . . . . . . . . . . . Lekan aurtam Fazal Noor ko khwah woh nek challan reh kar mere haq men baithi nah rahi isko meri jaidad matruka ke kissi cisam ke intiqal ka hag hasil nah hoga. Mst. Fazal Noor ke challe Jane ya wafat pa jane per Mst. Karam Noor our iski aulad qatai malik hogi". With respect to these words, two interpretations can be suggested. The first is that the corpus was in fact willed in favour of Mst. Fazal Noor, that is, she was made owner of one half of the property, but a condition was attached that in case of not remaining of good character or remarriage, the property would pass to Mst. Karam Noor. The second interpretation which can be suggested is, that the intention was only to grant Mst. Fazal Noor a life estate and not to make her the owner of the property. Looking at the will as a whole, the only proper interpre tation is that the testator intended to grant Mst. Fazal Noor only a life estate. He has given her no powers of alienation at all. He does not use the word malik in the beginning but read along with the clause relating to alienation this would only mean owner for the time being That is a layman's way of expressing it and in fact in the Urdu language I do not know of any other appropriate word. For a life estate the words generally used are "malik to hayat". It is to be observed 'that when he intends full estate the testator uses the words "qatai malik". I would hold, therefore that the testator granted her only a right of usufruct terminable upon death, remarriage or adultery. The next point to consider is: if by the will she only got a right of usufruct to whom did the corpus of the property go at the death of Fazal Noor? Property never remains without an owner. Mst. Karam Noor was not made an owner of this half of the property at the time of the death of Fazal Dad. The result is that though the usufruct went by the will the corpus remained unwilled and, therefore, had to go by the ordinary law of intestate succession. By intestate succession this half of property of Fazal Dad went to Mst. Fazal Noor by virtue of customary law with the usual limited powers of alienation. It should be noted‑that what Mst. Fazal Noor got by intestate succession was something much superior to mere usufruct. The result is that till her remarriage Mst. Fazal Noor was the owner of the property under custom and the recipient of usufruct under the will. If by the will it had not been provided that on her remarriage Mst. Karam Noor or her children would get the property, inheritance to her would be governed by section

3. But while the will of Fazal Dad did not dispose of the corpus (as regards this half) at the time of the will it did dispose of the corpus at the time of the remarriage of Mst. Fazal Noor. There was no legal bar to the testator making such a provision. Just as he could will the property to Mst. Karam Noor so that the 'disposition took place at death he could will it so that Mst. Fazal Noor took it at some later date. From the moment of the remarriage of Mst. Fazal Nut the corpus will go in accordance with the will. Section 3‑A is, intended only to provide for the situation that is created by the termination of the limited interest of a female under custom. Under custom the property was to go to the heirs of the previous male owner at the death of the female. That cannot now happen, as Muslim Law of succession is applicable and it should be remembered that the widow as held more than once by their Lordships of the Privy Council, is an owner and not the holder of a life estate. In the application of the N: W. F. P. Shariat Act and also the Central Shariat Act of 1937, difficulties had been encountered in the case of succes sion to limited owners. It is to meet those difficulties that section 3 had been enacted. It does not apply where course of succession is already validly determined by a will. It may, be said that the words of section 3 apply, there being termina tion of estate of widow: That is not a correct interpretation. It is only where the female was holding the whole interest of a female and where that interest terminated by customary law. Mere her interest as to usufruct came from a will and the termination was not by custom but by a direction in the will. The testator could have mentioned any event from which Mst. Fazal Noor might have become entitled to the property. It may have been the attainment of an age for instance. The mere fact that the event mentioned in the will is an event otherwise productive of results under the customary law does not give to that event a different status. A simple way of looking at the matter is that there is valid will in favour of Mst. Karam Noor that she would inherit on the happening of a particular event and there is nothing in section 3 to prevent this will from taking effect. I hold that section 3 is applicable only to a case where an estate has been inherited under custom and has no application to the case of a will. This appeal is dismissed with costs. A. H. Appeal dismissed.