P L D 2012 Supreme Court 217 (PLP)

MIAN SAQIB NISAR, J.

This appeal, with leave of the Court, is directed against the judgment of the Lahore High Court dated 28-7-2003, whereby while setting aside the judgment of the first Appellate Court and upholding that of the trial Court, the suit of the respondents for the joint possession of the property was decreed.

2. By virtue of the L.G.O. the question for the consideration before this Court is, if section 4 of the Muslim Family Laws Ordinance, 1961 (hereinafter referred to as the Ordinance) is attracted to the instant case and also has a retrospective effect.

3. The afore-said question needs resolution in the context of the facts, that Ilam Din died in the year 1956 leaving behind him a son Sajawal and three daughters, namely, Mst. Akbar Jan, Mst. Begum Jan and Mst. Imam Bi. His another son, Imam Din had died during his life time in the year 1955 and the respondents, Mukhtar Ahmed, etc. are the legal heirs of his pre-deceased son. The respondents on 19-11-1984 brought a suit against the legal heirs of Ilam Din claiming inheritance to the estate of the deceased (Ilam Din) on the basis of their succession in terms of Section 4 of the Ordinance. The suit was decreed by the trial Court, but on appeal of the appellants, which was accepted, by reversing the decision of the said Court, the suit was dismissed; however, on revision petition initiated by the respondents before the Lahore High Court which was allowed, the judgment and decree of the first Appellate Court was set aside and that of the trial court was upheld.

4. Learned counsel for the appellants, has argued that the Ordinance came into force in the year 1961, which has prospective application and shall not apply retrospectively to undo and reopen the successions which were settled before the promulgation thereof. In support of his contention, he has relied upon the judgments reported as Muhammad Yaqub and others v. Muhammad Ibrahim and others (2002 CLC 819) and Muhammad Murad and 12 others v. Allah Bakhsh and 34 others (2006 MLD 286)

5. Learned counsel for the respondents however, while placing reliance on the judgment reported as Sardar v. Mst. Nehmat Bi and 8 others (1992 SCMR 82), the dictum of this Court, on which the learned High Court has also based the impugned judgment, has argued that in the said case the legal heirs of a pre-deceased daughter, were granted inheritance from the estate of their grandfather by applying section 4 ibid retrospectively, therefore, the present case is squarely covered by this dictum.

6. Heard. It is a settled law that the succession to the estate of a Muslim under the Mohammedan Law shall open the moment a person departs from this world. It is his legal heirs, as per the Shariah, who are alive at that time, shall be entitled to inherit his estate. Learned counsel for the respondents has not been able to argue, if under the Shariah, the legal heirs of a pre-deceased child would be entitled to inherit the estate of a deceased grandparent. He is also unable to controvert that except for Section 4 ibid there shall be no such right of inheritance vested in them. However, it is reiterated, that the respondents shall have the right of inheritance as per the principle of law enunciated by the judgment reported as Sardar v. Mst. Nehmat Bi and 8 others (1992 SCMR 82). As the entire case of the respondents is rested on this decision, therefore, it seems expedient to examine the proposition in hand, in the light of the facts and the ratio of Sardar's case. The relevant facts whereof are, that one Ilam Din died in 1947, agricultural land left by him as his estate was mutated in favour of his widow under the custom. On the promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (hereinafter referred to as the Act) the limited estate of the widow terminated and the inheritance was awarded to the surviving legal heirs of Ilam Din, including the children of his pre-deceased daughter, namely, Fatima, who had died in 1942. A collateral of Ilam Din challenged this inheritance granted to Fatima's children. It is how the matter came up before this Court for the adjudication of inheritance entitlement of the said children. Thus, considering the effect of Section 4 ibid which at that time was in force along with certain provisions of the Act, it was held as under:-- "Section 4 of the Muslim Family Laws Ordinance, 1961 allows inheritance to the children of the pre-deceased son or daughter to the extent that the son or daughter would have got. Section 3 of the latter Ordinance 1961 also provides that 'The provisions of this Ordinance shall have effect notwithstanding any law, custom or usage. Therefore, it appears to us that the learned Judge in the High Court was right in holding that by providing for devolution of the property under section 5 of the Muslim Personal Law (Shariat) Application Act, 1962 on termination of the life estate, the children of pre-deceased daughter of the last full owner will inherit the share which their mother would have got as if she were alive at the time of the opening of the succession, (emphasis supplied) that is to say, on the demise of her father Ilam Din in 1947. (11) Finally if the statutory provisions i.e. section 5, section 2 and section 2-A of the Muslim Personal Law (Shariat) Application Act, 1962 and section 4 of the Muslim Family Law Ordinance, 1961 are read together and the rule of interpretation for harmonizing statutory provisions is applied, it is quite clear that on the termination of the life estate of Mst. Nehmat Bi, inheritance will open with reference to the full owner namely Ilam Din who died in 1947. He would be succeeded by his heirs the widow, sister and pre-deceased daughter's children (emphasis supplied). The claim of the appellant to exclude children of the pre-deceased daughter of Ilam Din is untenable." From the above, it is absolutely clear that the question of inheritance in that case was determined and resolved by this Court not on the touchstone of section 4 ibid simpliciter, rather predominantly on the basis of the provisions of the Act. It has been categorically held that "on the termination of the life estate of Mst. Nehmat Bi, inheritance will open with reference to the full owner namely Ilam Din who died in 1947" obviously meaning that when the customary rights of the widow terminated in 1962 that the succession would open, though with reference to Ilam Din, considering the land as a estate left by him. The Ordinance was in force at the time of such termination, therefore, the retrospective application of section 4 was not an issue in the case. However, in the instant matter there is no element of any limited holding of the estate by a female under the custom which would terminate on the enforcement of Act, resultantly, the judgment supra has no relevance qua the present proposition.

7. In order to examine if as per its own force section 4 ibid has a retrospective effect, it is settled rule that any statute or a provision thereof forming part of substantive law, which creates or extinguish or affect the rights of the persons/citizen shall ordinarily have a prospective effect, except where by the clear command of the law, it is made applicable retrospectively. From the language of section 4 ibid we do not find such to be the intention of the legislature, therefore, in our considered view, the application of the section for all intents and purposes is prospective in nature and by no rule of interpretation can it be given a retrospective effect, so as to undo or reopen the past and closed settlements of inheritance, which had been concluded prior to the coming into force of the Ordinance, otherwise, there shall be no sanctity and conclusiveness attached to all or any of the successions, which have been settled under the Mohammedan Law, much before the enforcement of the Ordinance, 1961, even those successions finalized 50 or 100 years prior thereto shall have no protection. This has never been the object of section 4 ibid and the intendment of the legislature. Thus, considering this case in the light of the above rule and criteria, Ilam Din in the case died in 1956 and the legal heirs of his pre-deceased son would not be entitled to inherit his estate, under the Mohammedan Law. As the learned High Court and the trial court have erred in construing the said section and have passed the impugned judgments and decrees in favour of the respondents by misapplying the same, therefore, such decisions being illegal and violative of law cannot sustain.

8. Resultantly, this appeal is allowed and the judgments and decrees impugned herein are set aside. No order as to costs. S.A.K./S-56/S Appeal accepted.