1986 PLP 45 (SCMR)

"2‑A. Succession prior to Act IX of 1948. 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 or 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; (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 decrees."

4. On the other hand the learned counsel for the respondents submitted that only suits of certain nature abated under the new law and not all types of suits, although the suit‑land in those cases may have been inherited by a male heir under Custom, prior to 1948. He submitted that after Lal died, Khuda Bakhsh, who was one of his 'male heirs', alongwith Hayat, had inherited agricultural land under Custom, prior to the commencement of the Punjab Muslim Personal Law (Shariat Application) Act, 1948 and as such he must be deemed to be the full owner under Shariat Law by virtue of the 1983 amendment. He submitted secondly that a careful reading of clause (b) of section 2‑A would show that it is only where the requisite conditions are fulfilled, i.e. (i) such a male heir had alienated or parted with the possession of any of the land inherited by him under Custom before the commencement of the 1948 Act and (ii) the reversioners (i.e. the collaterals and other persons to whom the land would have reverted after the termination of the limited estate of the said male heir under Custom) had filed a suit to challenge such alienate etc. and (iii) Where such a suit or appeal or other proceeding of such a nature are still pending in any Court the aforementioned right of a reversioner, that the suit of other proceeding of such nature (as mentioned in clans(, (b), shall abate under clause (c) of section 2‑A of the 1983 Act;.

5. Learned counsel for the petitioners asserted that, in this case, it was Hayat son of Lal who was the 'male heir' within the meaning of section 2‑A who had acquired or inherited the land under Custom before the commencement of the Shariat Act in 1948. On the other hand the counsel for the respondents asserted that Khuda Bakhsh was' also such a 'male heirs', having inherited land from his father, under Custom before 1948 and that the appeal before the High Court arising of the suit filed by the reversioner stood abated. Petitioners counsel however submitted as there was no allegation of alienations or delivery of the possession of agricultural land inherited by a 'male heir' the question involved in the suit only related to the calculation of the share of each party under the Shariat Law, therefore the clause relating to abatement did not apply to the present case.

6. The question needs consideration. Leave is, therefore, granted for this purpose. Security in the sum of Rs.2,

000. To be heard on the same record with permission to file additional documents. M. B. A. Leave granted.