P L D 1957 (W (PLP)

A. R. CHANGEZ, J.

The question raised in this second appeal is one of considerable importance and has not so far been the subject of any express decision. The facts bearing upon the question are no longer in controversy between the parties and are as follows. One Muhammad Bakhsh, a Jat of Chak Mitha, Tahsil Phalia, District Gujrat, was the owner of 196 kanals and 14 marlas of land. He died many years ago leaving behind his widow Mst. Faizan. On his death, the property was mutated in the name of his widow under custom. On the 24th of May 1952, she made a gift of the entire property by a deed of gift, Exh. D-1, in favour of her daughter, Mst. Rabia, and got it registered on the 16th of June 1952. She subsequently died. The plaintiffs, who claim to be the collaterals of Muhammad Bakhsh, instituted this suit challenging the validity of the gift on the ground that it was opposed to custom and was also in contravention of the provisions of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, as amended by Act XI of 1951. Originally the suit was brought merely for a declaration, but on an objection having been raised by the defendants about the maintainability of the suit in that form, the plaint was amended and a relief for possession of the land to the extent of 3/8th share was added. The suit was contested by Mst. Rabia alone. She pleaded that the gift in her favour was made in lieu of services rendered by her to Mst. Faizan which was valid and binding under custom governing the parties. On the pleadings of the parties, a number of issues were framed, but the following two issues are material for the purpose of deciding the points involved in this appeal :- (1) Was the gift by Mst. Faizan in favour of defendant No. 1 made in lieu of services and is it valid under custom ? (2) Are plaintiffs collaterals of Muhammad Bakhsh and his heirs under the Shariat ? If so, to what extent ? Although the point was specifically raised in the plaint that the gift was in contravention of the provisions of the Shariat Act, no separate issue was framed. The trial Court held that the gift was made in lieu of services and was valid under the special custom of the parties. It was also held that in case the gift was held to be void, then the plaintiffs, who were proved to be collaterals of Muhammad Bakhsh, were entitled to 3/8th share in the property. In view of the finding, however, that the gift was valid under custom, the suit was dismissed with costs. The plaintiffs preferred an appeal before the District judge who affirmed the findings of the lower Court and dismissed the appeal. The plaintiffs have now come up in second appeal before this Court. The learned counsel for the appellants did not challenge before me the 'findings of the lower Courts on the issues referred to above, but he maintained that after the amendment of the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) (hereinafter referred to as the Shariat Act of 1948) by the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act XI of 1951 (hereinafter referred to as Act XI of 1951). a widow holding a life estate could not make a gift of the property even if allowed by custom, so as to enure beyond the lifetime of the alienor and could not pass a better title to the donee than what she herself possessed. It was argued that after the amendment of the Shariat Act of 1948 by Act XI of 1951, the validity of a gift made by the holder of a life-estate is to be determined in accordance with the Muslim Personal Law and not by custom. He relied on section 2 of the Shariat Act of 1948 which now runs as follows:

"Notwithstanding any rule of custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions including waqfs, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims." Before 1951,section 2 of the Shariat Act of 1948 was in the following terms : "Notwithstanding any custom or usage to the contrary in all questions regarding succession (including succession to agricultural land) and in all questions regarding charities and charitable institutions and charitable and religious endowments the rule of decision in cases where the parties are Muslim shall be the Muslim Personal Law (Shariat)." The gift in the present case was undoubtedly made after the Shariat Act of 1948 had been amended in the year 1951. This amending Act came into force on the 10th of March 1951. The gift was made on the 24th of May 1952. The learned counsel for the appellants laid special emphasis on the opening words of the substituted section and maintained that now the rule of decision in all questions specified in the section including gifts is to be the Muslim Personal Law notwithstanding any rule of custom--or usage to the contrary. If this interpretation is correct, then it was argued that even though the widow in the present case could have gifted the property under custom she could not have under the Muslim Law passed a better title to the donee than what she herself had possessed and the gift could not have enured beyond the lifetime of the alienor. He reinforced his contention by placing reliance on certain observations of their Lordships of the Federal Court of Pakistan in Mst. Sardar Bibi v. Abdul Latif (P L D 1956 F C 137). In that case, the learned counsel for the appellant had raised the contention that after the death of the donor the validity of the gift which had been made in the year 1945 should have been determined by the Muslim Law by reason of the provisions of the Shariat Act of 1948 as amended by Act XI of 1951. While dealing with this question, their Lordships observed as follows : "Whatever the position regarding wills may be, we unhesitatingly repel the contention that after the passing of the Act of 1948 the validity of gifts has to be decided with reference to Muslim law and not under custom. And we do so on the general principle that, in the absence of any indication to the contrary in the relevant statute, the legality or validity of a transaction has to be determined according to the law in force at the time of the transaction." Relying on the last lines of the aforesaid observations, the learned counsel vehemently urged that as the gift in the present case was made after the Shariat Act of 1948 had been amended by Act XI of 1951, its validity should be determined by Muslim Personal Law and not by custom. He also referred to the judgment of Kayani J. in the Full Bench decision in the case of Bashir Ahmad and others v. Muhammad and others (P L D 1956 Lah. 934) where at page 980 it was observed as follows : "The second question relates to the change in the circumstances arising out of the Amending Act of 1951. It does not confine itself to succession; it mentions all matters which are mentioned in section 5, Punjab Laws Act, except partitions, (for which there is a provision in the Partition Act, IV of 1893). In all matters enumerated therein, the rule of decision is to be Muslim Law now. The result is that if the holder of the estate wants to make a gift now, the rule of Muslim Law will apply. In other words, if the Muslim Law permits the making of an unrestricted gift, it can be made now. Originally I was of the view that this freedom from restriction would override the incident that the estate being held under custom, its holder could not confer on the donee any fuller power of enjoyment than he himself possessed. I was inclined to that view for two reasons. The first was that just as under the Act of 1948, the Muslim Law was to come into full play at the time of the next succession, so under the Act of 1951 it was to have full force at the time of the next gift-that is to say, whenever a gift was made after 1951. If, however, the gift were limited to life even under the Muslim Law, the position would be no better than it was after the Act of 1948, when a gift that was not permitted by custom could be controlled by the reversioners through a declaratory suit. The second reason was that the fullness of detail with which the amendment of 1951 has followed the language of section 5, Punjab Laws Act left no room for doubt that custom was not to be followed in any aspect, and since under the Muslim Law there is no restriction on alienations, there can be no suit for avoiding them after 1951. If, however, (as I have held in answer to the first question) there is no Muslim Law context until succession opens, and until then the customary estate retains its qualities, then the circumstance that a gift also can now be made will not alter the character of the estate, and the donor cannot give more to the donee than he himself has." As against this, counsel for the respondent argued that the amendment of the Shariat Act of 1948 by Act XI of 1951 has not brought about any change in the limited estate which continues to be governed by the same body of customary law under which it came into being. If it did not enlarge the powers of the holder of a life estate who is subject to the same checks and limitations under which the limited estate was acquired, then, he argued, that it is legitimate to presume that the Shariat Act did not curtail the powers of the holder of such an estate to gift away the property if permitted by custom. In support of his contention he placed reliance on Mst. Shahzadan Bibi and others v. Amir Hussain Shah (PLD1956 SC (Pak.)227) where their Lordships of the Supreme Court, while dealing with the effect of the various provisions of the Shariat Act of 1948 and after analysing sections 2 and 3 of the Act, observed as follows :- "It will readily appear from the above that the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, does not at all allude to as to what is to happen if the female in possession of her limited interest during her lifetime chooses to transfer the property or creates for consideration or otherwise interests in some third persons which, if not challenged within the prescribed period of limitation, might become unassailable. Surely, it was riot and could not be the intention of the Act that the property itself might be allowed to be frittered away without any let or hindrance and by the time the limited interest terminates by the marriage or death of the female in enjoyment of the limited interest, no property whatsoever may be left for distribution among the heirs of the last full owner. The 'limited interest' came into existence by the application of the provisions of the customary law and so long as the 'interest' has not come to an end, the same body of law should continue to exercise a check over its disposal. The West Punjab Muslim Personal Law (Shariat) Application Act is not opposed to this control and its purpose and scope were defined in Muhammad Asghar Shah v. Muhammad Gulsher Khan (PLD1949Lah. 116). Then after approving the principle, laid down in. that ruling, it was observed as follows :- "The conclusion is, therefore, obvious that the Act. of 1948 has not in any way or in any degree enlarged the rights of a 'limited owner' and any alienation by her would be liable to control in the same manner and to the same extent as before the 16th of March 1948, i. e., the date on which the West Punjab Muslim Personal Law (Shariat) Act came into force." He also relied on Abdullah v. Mst. Bakhto Mai (P L D, 1956 S C (Pak.). 321) where also the effect of the Shariat Act of 1948 came up for con sideration and, dealing with this question, the learned Chief Justice of Pakistan, who delivered the judgment of the Court, was pleased to observe as follows:- "Before the passing of Act IX of 1948 both questions, namely, the power of a limited owner to alienate the property and the right to sue for a declaration, were determined by custom, the determining consideration, as far as the locus standi of the claimant for a declaration was concerned, being that on the death of the limited owner he or she would succeed to the property under custom. The difference brought about by the Act of 1948 is that while the powers of a limited owner to alienate the property without legal necessity Are hill governed by custom, the rule governing succession to the property, on the termination of a limited estate, has ceased to be a rule of custom and by statute has been replayed by the rule that the Muslim Personal Law shall govern the succession." It may be pointed out that in .the aforesaid two cases of the Supreme Court of Pakistan the effect of the amending Act XI of 1951 was not considered at all. In fact the question did not arise in those cases, and their Lordships of the Supreme Court had considered only the effect of the pro visions of the Shariat Act of 1948. As such, these decisions are not of any assistance in deciding the point involved in the present appeal. The learned counsel for the respondent further urged that the Full Bench judgment in the case of Bashir Ahmad and others v. Muhammad and others fully supported his contention, where the learned Chief Justice, who delivered the majority judgment, while dealing with the effect of the amendment of the' Shariat Act of 1948 by Act XI of 1951, observed as follows :- "It is clear at the same time that the position of the limited female owner mentioned in section 3 of the 1948 Act, which has been left un amended, would remain as before and her powers to deal with the property in her possession, would continue to be regulated by customary rules. This indicates that even by the 1951 amendment, the Legislature has not effectually put an end to all customary estates that exist. But if 1 am right in holding that even the male owner inheriting under custom is not really a full owner but, in a sense, a limited owner, it would be quite logical to say that even by way of gift of ancestral property, the male holder can transfer no more than what he possesses. From the very nature of the case, a gratuitous transfer by way of gift of ancestral property, is not one supported by legal necessity and where customary restrictions on such alienations exist, the gift could not ensure beyond the lifetime of the alienor." In the light of the observations made in the above men tioned authorities, it can now be safely assumed that the Shariat Act of 1948, as it was originally enacted, had not brought about any change in the powers of alienation of the holder of a life estate acquired under custom. The character of the limited estate was not changed and the powers of the limited owner .to alienate the property continued to be governed by the same body of customary law under which it came into being. The important change, however, which was brought about by this Act was that on the termination of a limited estate the rule of custom governing succession to property was replaced by the rule that the Muslim Personal Law shall govern the succession. The question, however, is whether any change has been brought about by the substitution of section 2 in the Shriat Act of 1948 by Act XI of 1951 in the powers of alienation of such a limited owner or the holder of a life estate. The answer to this question is implicit in the wordings of the section itself. Whereas the powers of alienation in general by a limited owner have not been affected by section 2, it has certainly brought about a change in the powers of alienation by way of gifts and wills, inasmuch as the rule of custom governing such gifts and wills was replaced by Statute by the rule that Muslim Personal Law shall govern such gifts and wills. If this was not really the intention of the legislature then the use of the words "not withstanding any rule of custom or usage" in the section would be rendered meaningless. In my opinion, the principle laid down in Mst. Sardar Bibi v. Abdul Latif by their Lordships of the Federal Court of Pakistan that the validity of a transaction has to be determined according to the law in force at the time of the transaction, fully governs the gift made on the 24th of May 1952, by Mst. Faizan in favour of her daughter, Mst. Rabian. By the time this gift was made the rule of custom had been completely abrogated so far as the making of the gifts was concerned and the validity of the gifts made thereafter has to be determined by the Muslim Personal Law and not by custom. Kayani J while dealing with the effect of the Amending Act XI of 1951, has very clearly stated in the observations quoted above:-- "The result is that if the holder of the estate wants to make a gift now, the rule of Muslim Law will apply. In other words, if the Muslim Law permits the making of an unrestricted gift, it can be made now." At the end of this observation, it is specifically stated :-- "If, however, (as I have held in answer to the first question) there is no Muslim Law context until succession opens, and until then the customary estate retains its qualities, then the circumstance that a gift also can now be made will not alter the character of the estate, and the donor cannot give more to the donee than he himself has." The observations of my Lord the Chief Justice in Bashir Ahmad and others v Muhammad and others quoted above also lend support to the view that the limited owner or the holder of a life estate can transfer by way of a gift no more than what he or she possesses. In matters other than gifts and wills, the limited owner is still governed by custom and is subject to the same checks and limitations as before the 16th of March 1948, on which date the West Punjab Muslim Personal Law Shariat Act of 1948, came into force. As such, I am of the view that a widow holding a life estate can even now sell or mortgage the property if permitted by custom, but so fare as gratuitous alienations are concerned namely gifts and wills. she cannot take advantage of the customary rules. Of course, under the Muslim Law the power of gift is un restricted and surely a widow holding a life estate can gift away the property to the extent of her interest in the property without any restriction whatsoever. But having acquired the estate under custom her interest in the property does not extend beyond the time of her remarriage or death and till then the gift will certainly remain valid; but as soon as her interest terminates, succession will open out and whosoever is an heir of the last male holder in accordance with the Shariat Act of 1948, he will be entitled to succeed to the property. The amending Act XI of 1951 has not brought about any change in the character of the limited estate. The limited owner has not become full owner of the property. For obvious reasons, the legislature in its wisdom did not include alienations other than gifts and wills in the Amending Act of 1951. because the other alienations will arise only out of necessity and the legislature did not want to place any other restrictions apart from the customary rules in this respect, but the gifts and wills being gratuitous, the legislature thought it advisable to abrogate the customary rule in this respect and made the Muslim Personal Law applicable for deciding their validity. The object was to put a brake on the powers of a limited owner to alienate the property by way of gifts and wills so that event if gifts and wills were permitted by custom the limited owner was prevented from frittering away the property by applying the Muslim Personal Law to such gifts and wills with a view to keep the property intact in the hands of the limited owner for the benefit of those who would be entitled to succeed under the Shariat Act at the time of the termination of the interest of the limited owner. It appears that it was for this reason that the other alienations were allowed to be governed by the customary rules as before, and the rule of Muslim Personal Law was made applicable to gifts and wills. From the above discussion, it is clear to me that in view of the amendment of the Shariat Act of 1948 by Act XI of 1951, Mst. Faizan, even if she was permitted by custom, could not have gifted the property so as to enure beyond her lifetime and could not have passed a better title to Mst. Rabian than what she herself had possessed. Conse quently, as soon as she died the gift came to an end and became inoperative. It is not disputed that the plaintiffs are also heirs of Muhammad Bakhsh in accordance with the Shariat Act of 1948 and are entitled to 3/8th share in the property. For the aforesaid reasons. I set aside the judgments and decrees of the Courts below and grant a decree for posses sion to the plaintiffs to the extent of 3/8th share in the property in suit, but in view of the complicated question of law involved in the suit the parties are left to bear their own costs throughout. A.H. Appeal accepted