P L D 1966 (W (PLP)

2. In this regular second appeal the two daughters of respondent No. 3 have challenged the finding of the Courts below to the effect that they had no locus standi to sue in this matter. The whole argument of the learned counsel for the appellant is that by virtue of the promulgation of section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act IX of 1948 the appellants, as the daughters of respondent No. 3 would be entitled to succeed to their share in his estate and as such could be considered to be invested with the right to control and challenge the alienation made by him during his lifetime in order to preserve that estate. This argument is misconceived and has no force.

3. Primarily the reversioner's right to contest an alienation under custom is based on the agnatic theory as propounded in Dasundhi Ram v. Pir Chand (108 P R 1887). The daughters or for the matter of that any other female heir cannot be considered to be an "agnate" deriving any right under Customary Law from the common ancestor to control an alienation made by the last male holder. In Mussammat Ram Kaur v Bhagwana and another (127 P R 1894); it was held that a widow cannot possibly claim an interest in the land on the ground of descent from a common ancestor. Her interest arises solely from her right to maintenance, like the other female members of her husband's family. "In no case could it be asserted that she is in a position to control her husband in his dealings with his estate, and a suit by a wife during the lifetime of her husband for a declaration that an alienation by him is invalid is, as far as we are aware, unknown." It was emphasized in Sher Muhammad Khan v. Muhammad Khan (5 P R 1895) that it must be remembered that the power of a daughter to contest a gift stands on a very different footing from the power of a male to do so. It was observed in that case that "the whole principle of the power of male kinsmen to interfere, rests on the idea that land belongs not to the individual, but to the family group, and that every member of the group holding a part of the estate holds it subject to the rights of the other members, the "warisan yak jaddi." Now a daughter is not generally, . . . . . . . one of these "warisan". In the absence of true "warisan," she may be allowed to succeed to the estate; but it by no means follows that the mere expectations of thus succeeding gives her the power possessed by a true "waris" of controlling the acts of the present holder of the estate." It has been consistently held in Milkha Singh and another v. Ram Kishen and others (A I R. 1934 Lah. 725), Mst. Basso and others v. Harnam Singh and others (A I R 1937 Lah. 636) and Mst. Niamat Bibi v. Nur Mohammad and others (P L D 1954 Lah. 571) that under Customary Law female heirs cannot challenge an alienation made by the last male holder. They do not derive any right to succeed from the common ancestor and are not agnates. The fact that under certain circumstances a female like a daughter is entitled to succeed to his own father does not imply that under custom she has any right to control the alienation made by him. The right to challenge an alienation under custom stands on an altogether different footing than her right to succeed to the property left by her father. In this connection in Waryam Singh and others v Ishar and others (A I R 1932 Lah. 330) the following dictum from 84 Punjab Record 1898 was cited with approval :- "Moreover, the right to inherit land and the right to protect that land from improper alienation, do not stand on the same footing under Customary Law. The former is derived through the immediately preceding ancestor, but the latter is a right which accrues to every descendant of the original holder of the land." In fact section 6 of the Punjab Custom (Powers to Contest) Act II of 1920 had placed a statutory limitation on the right to contest alienations. It provided that no person shall contest any alienation of ancestral immovable property unless he is descendant in male lineal descent from the great-great-grandfather of the person making the alienation. This was in recognition of the agnatic theory under custom and the females were denied any right to contest the alienation.

4. As a matter of fact the learned counsel for the appellants before us did not challenge the proposition that under Customary Law prevailing in this part of the country the daughter has no right to contest an alienation of the ancestral land made by her father. However, his case is that with the promulgation of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948 the position has been altered to the advantage of the female heirs. He has been unable to support his argument by reference to any of the express provisions of the Shariat Act. He has endeavored to rest his argument on some observations in certain decided cases, which will be discussed presently. It is quite apparent that by the introduction of the Shariat Act of 1948 in matters of succession Customary Law, which had all along held the field, was abrogated. Thereby the powers of reversioners to contest an alienation made by a limited owner under custom remained un-effected. Similarly that Act did not confer any new power on a female heir to contest an alienation of ancestral property made by the last male holder. It cannot be said that those- powers under Customary Law to control and contest alienation have, by any process of reasoning, been augmented by the promulgation of the Act. If, as is the case here, the female heirs had no power to challenge an alienation under custom before the introduction of the Act, they did not acquire that right with its promulgation either. It must not be forgotten that they succeed to the last male holder on his death merely as hi personal heirs and not as successors to the common ancestor. W are, therefore, convinced that they have no locus standi to challenge an alienation made by the last male-holder under custom and the position in this respect has not changed with the promulgation of the Shariat Act.

5. The learned counsel has relied on Mohammad Asghar Shah v. Mohammad Gulsher Khan and another (P L D 1949 Lah. 116), Mst. Shahzadan s Bibi and others v. Amir Hussain Shah (P L D 1956 S C (Pak.) 227), Abdullah and others v. Mst. Bakhto Mai and another (P L D 1956 S C (Pak.) 321), Said and others v. Fazal Hussain r and others (P L D 1959 S C (Pak.) 356) and Khair Din and another v. Muhammad Hussain and others (P L D 1961 S C 468) in his arguments. But none of these authorities is in point. The first case Mohammad Asghar Shah v. Mohammad Gulsher Khan and another, simply lays down that the promulgation of the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) does not preclude the grant of declaratory decrees under custom in suitable cases arising before,. the Act and the estate of a person who took it under customary law would continue to be subject to-the limitations imposed by it till its devolution is made under the Act of 1948, i.e., after the 15th March 1948. This proposition of law is well established and no exception can be taken against it. Mst. Shahzadan Bibi and others v. Amir Hussain Shah has held that sections 2 and 3 of the West Punjab Muslim Personal Law (Shariat) Application Act of 1948 has not in any way or in any degree enlarged the rights of a "limited owner" and any alienation by a female would be subject to control in the same manner and to the same extent as before the Act came into force. In Abdullah and others v. Mst. Bakhto Mai and another the facts were different. The appellants in that case were the collaterals of the last male holder in the fifth degree and had brought the suit for a declaration under custom to challenge the alienation by the widow. The main question raised in that case was that the collaterals are not entitled to the declaration after the introduction of the Shariat Act as they had no vested right in the property until the death of the person to whom as Muslim heirs they are entitled to succeed and a mere spes succession is do not entitle them to claim a declaration. Repelling this contention, the Supreme Court observed: -- "It has, however, never been doubted that a suit by a reversioner governed by the Punjab Custom or by Hindu Law to get rid of an alienation made by a limited owner is competent the reason being that the necessity or justification for such a suit is not to be found in any law of procedure to Punjab Custom or Hindu Law, but in section 42 of the Specific Relief Act. And if such suits are competent under that section where the object is to have an alienation made by a limited owner declared invalid during his or her lifetime, I do not see why such remedy should not be available to persons who on the death of a widow governed by custom will succeed under their personal law to the property held by her as though it belonged to her husband who was governed by the Muslim Personal Law. 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, so 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 still 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 replaced by the rule that the Muslim Personal Law shall govern the succession. Therefore, in considering the question of locus standi the first question to consider still remains whether on the termination of the limited estate the claimants for a declaration will have the right to succeed if things remain as they were at the time of the alienation. In my opinion, section 42 of the Specific Relief Act is as much applicable to such a situation as 'it was when the right to bring a suit for a declaration was governed by custom." But with due deference, we do not interpret this authority to mean that even in those cases where a female claimant had no right or locus standi to sue, either because of the bar contained in section 6 of the Punjab Custom (Powers to Contest) Act II of 1920 or because of the old established custom, has somehow acquired that right to sue with the promulgation of the Shariat Act. Indeed, as laid down by the Supreme Court in the case of Shahzadan Bibi v. Amir Hussain Shah the Shariat Act of 1945 has not in any way or in any degree enlarged any of the rights enjoyed under custom. Similarly the case, Said Bibi and others v. Fatal Hussain and others is distinguishable. In that case also the alienation was made by a widow, a limited owner, under custom and it was challenged by a reversioners in the male lineal descent. In the circumstances of that case it was remarked by the Supreme Court that after the promulgation of the Shariat Act, the eventual Muslim Law heirs have a remedy by way, of declaratory suit to safeguard their contingent interest. The facts in Khair Din and others v. Muhammad Hussain and others arc similarly distinguishable. The alienation was challenged by the sons of the last male holder as they were aggrieved by the gift made by him in contravention of the Customary Law.

6. For the reasons discussed above, we see no force in this second appeal which is dismissed in limine. K. B. A. Appeal dismissed.