1979 PLP 699 (CLC)

MUHAMMAD HAB[BULLAH, J.-This is an appeal from a judgment and decree of S. Muhammad Shafi, Senior Civil Judge, Sheikhupura dated. 23-10-1968, dismissing the appellants' suit for a declaration that the sale of the land in dispute, made by Pir Bux respondent No. 2, in favour of Lt: Col. S. Mazhar Hussain, respondent No. 1, does not effect the reversionary rights of the appellants.

2. The facts of the case are that Pir Bux had sold agricultural land measuring 590 kanals 8 marlas, situate in Chak No. 37, Tehsil Ferozewala, District Sheikhupura, to Lt.-Col. S. Mazhar Hussain Shah by a registered sale-deed dated 9-6-1964. The appellants who are the sons of respondent No.2, filed this suit on 3-6-1968, contending that their father had acquired this land in exchange for ancestral property, and as such it was also ancestral in character qua them. They also contended that their family was governed by custom in matters of succession and alienation, according to which defendant No. 2 could not alienate the property in dispute without consideration and without legal necessity. It was asserted in the plaint that the property had been sold without consideration and without legal necessity, and it was prayed that a declaration be granted that after the death of respondent No. 2, the alienation in question will not effect the reversionary rights of the appellants.

3. Respondent No. 1 in his written statement raised a preliminary objection that after the promulgation of the Shariat Act of 1962 ; suits under custom were no longer competent. It was also denied that the property in dispute was ancestral or that the family of the appellants was governed by custom. However only the following issue was framed in the case: . "Whether the suit can proceed in view of Act V of 1962 ?" No evidence was lead on either side. The learned trial Judge observed that the intention of the Legislature in introducing Act V of 1962 was to finish custom in toto, and finding that the suit had been filed after the promulgation of the said Act, he decided the issue in favour of the respon dent, and dismissed the suit.

4. The principal question which arises for decision in this appeal is whether Act V of 1962 has enhanced the limited powers of alienation possessed by the present holders of Customary estates. Learned counsel for respondent No. 1, contends that the powers have been enhanced indirectly, because the effect of the new legislation is that no one can now challenge sales made by limited owners. fie argues that reversioners, under the Customary law, had a peculiar right to institute declaratory suits, and since now the rules of Muslim Law are to be applied in all questions of inheritance, new heirs inheriting under Muslim Law, will not have any right to challenge sales made by their predecessors in interest. It is also submitted that under Muslim law, right to inherit being a mere spes succession is, the would-be heirs do not have a locus standi to file a suit;

5. The case of the respondent is that after the promulgation of the West Pakistan Muslim Law (Shariat) Application Act, 1962, the reversioners do not have a cause of action any longer, to challenge a sale of ancestral property, made by a limited owner, because the same is now to be inherited by heirs under Muslim Law. It is argued that under the customary law, the reversioners could file declaratory suits to challenge these sales but with the repeal of custom, the right to file declaratory suits has come to an end along with their right to inherit. It is also submitted that with the repeal of the Punjab Custom (Power to Contest) Act, 1920, effected by section 7 of the Shariat Application Act of 1962, the right of the collaterals to contest alienations is in any case taken away. Under that Act, it is argued, a limited class of collaterals was empowered to file such suits, and the effect of the repeal is that even that limited class is left with no such right. Similarly it is argued that previously under the Punjab Limitation (Custom) Act, 1920, declaratory suit could be filed within a specified period from the date of the sale, but with the repeal of this Act, by the Shariat Application Act of 1962, the law which has now become applicable is Article 120 of the Limitation Act, which prescribes period of 6 years for filing a suit, which period is to be computed from the date of "cause of action". It is submitted that under Muslim Law, an heir acquires a right only at the time of the death of the prepositus, and therefore no cause of action arises until, the limited owner dies. That being so, the point of commencement of period of limitation for filing a declaratory suit is not reached at all, till the death of the prepositus, which must imply that no declaratory suit can now be filed in these matters.

6. In our view these submissions are without any force. There is no basis for the view, that any Rules of Customary Law, or any provisions of the Punjab Laws Act, empowered the filing of declaratory suits. Customary law merely defined the rights of holders of limited estates, and the reversioners. Even section 5 of the Punjab Laws Act (IV of 1872), did not empower the filing of any suits. It merely laid down that in the case of Muslims, the rule of decision in matters, inter alia, of succession, shall be custom, if parties were governed by custom, otherwise Muslim Law would apply. Section 5 is reproduced below for reference In questions regarding succession the rule of decision shall be (a) any custom applicable to the parties concerned, which is not contrary to justice, equity and good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority ; (b) the Muhammadan Law in cases, where the parties are Muhammadan .................... except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to." According to the rules of customary law a holder of ancestral property, could not alienate it except for legal necessity. Where these rules were applicable, the holder owned Iris property subject to this limitation. This limitation was placed for the benefit of the reversroners, so that after the death of the limited owner, they might inherit the property. Any sale that was made without legal necessity was therefore challengeable by the reversioners. This was their substantive right. However the law under which they could bring a suit is section 42 of the Specific Relief) Act, 1877, which empowers filing of all declaratory suits. Illustration (d)I to this section is reproduced below, which suggests that declaratory suits under custom were filed under this section 1 (d) A alienates to B property in which A has merely a life interest. The alienation is invoked as against C, who is entitled as reversioner. The Court may in suit by C against A and B declare that C is not entitled." Therefore even now sales made by holders of estates, who cannot normally alienate them, so that they remain preserved for a body of heirs to inherit, can still be challenged under section 42 of the Specific Relief Act. Under the circumstances, unless the rights of holders of customary estates are enhanced so as to confer upon them the right to alienate without legal necessity, sales made by them must remain subject to challenge. It can be argued that the limitation placed on the rights of the holders of limited estates being for the benefit of the reversioners only, heirs under Muslim law cannot challenge the sales. This question does not arise in this case, because the appellants are the sons of the vendor, and they are therefore not only - his heirs under Muslim law, but are also the reversioners under Customary law, provided the property in dispute be ancestral qua them.

7. Learned counsel for the respondent has laid great emphasis on the fact that after the promulgation of the latest Shariat Act, only heirs under Muslim Law have a right to inherit property, and as the said right arises only on the death of the limited owner, they cannot during his life time control alienations made by him, although made without legal necessity. We are not persuaded to hold this view. The Shariat Application Acts have not in any way improved the rights of limited owners. Their Lordships of the Supreme Court, in Rehmat Bibi acrd others v. Ibrahim (PLD1966SC349~), have observed in this behalf as follows :- "The replacement of custom by Islamic Law in the matter of succession, by statute, has neither enhanced nor deminished the powers of alienation possessed by a holder under custom. The restrictions imposable on such power must be found within the scope of custom under which he inherited the property " The next question is who can challenge the sale. This question is also answered by the Supreme Court in the same judgment, in the following terms :- "In accordance with what is called the agnatic theory the male holder for the time being of property which had descended from tile common ancestor could not alienate it so as to defeat the right of suc cession of other descendants of the common ancestor except in circum stances in which an alienation was permitted by custom. The descen dants of the common ancestor were regarded as deriving their rights to succeed to ancestral property from the common ancestor which right could not be adversely affected by the descendants in enjoyment of the property. But this restriction on the power of alienation was intended only to protect the interest of descendants of the common ancestor qua whom the property was ancestral and such descendants alone would impeach the alienation which remained otherwise a good and valid alienation not only between the alienor and the alienee but also as against the whole world except those entitled to impeach it. Act II of 1920 having -been repealed, all persons who are collaterals of the limited owner can now file a declaratory suit, and the decree obtained would entire for the benefit of all collaterals, who if they are also heirs under Muslim Law, would be entitled to inherit the property.

8. Learned counsel for the appellants has referred to the following case law to submit that the declaratory suit filed by his clients was competent ; Muhammad Asghar Shah v. Muhammad Gulsher Khan (P L D 1949 Lah, 116), Khair Din and another v. Muhammad Hussain and others (P L D 1961 S C 468), Mst. Rehmat Bibi and others v. Ibrahim (P L D 1966 S C 349), Sarwar Bibi v. Said Ahmad and others ; P L D 1969 Lab. 412 ), Lt.-Col. Safdar Ali Malik and another v. Khadim Hussain and others (P L D 1970 Lab. 629) and Fattan Bibi v. Fateh Muhammad (P L D 1974 Lab. 458). Learned counsel for the respondent has tried to distinguish all these cases on facts. He submits that in most of these cases the effect of repeal of Act I of 1920 and Act 11 of 1920 has not been considered. He also submits that none of these cases related to a period subsequent to the promulgation of the Shariat Application Act of 1962.

9. We do not agree with the submission that the cases which relate to periods earlier than the year 1962 are of no help in determining the controversy in this case. An examination of the relevant provisions of the various Shariat Application Acts would reveal, that cases decided tinder the earlier enactments provide a useful guidance for interpreting the corresponding provisions of the later Acts. The first Muslim Personal Law (Shariat) Application Act came into force in the year 1937. It was a Central Act, and by virtue of it, in certain matters, Muslim Personal Law was made the rule of decision, including matters of succession to immovable property, excluding agricultural land. Section 2 of the Act is reproduced below. "Notwithstanding any custom or usage to the contrary in all questions (save . questions relating to agricultural land) regarding interstate succession, the rule of decision in case where the parties are Muslims shall be the Muslim Personal Law (Shariat)." Section 5 of the Punjab Laws Act was repealed to the extent of repugnancy to the Shariat Act, IS-37. Later on, in Punjab Muslim Personal Law (Shariat) Application Act of 1:48 was promulgated. Section 2 of this Act, in so far as it relates to abrogating custom as a rule of decision in matters of inheritance, is similar to section 2 of the Act of 1937, with the only difference that the later Act applied to agricultural land also. Section 2 of this Act is reproduced below "Notwithstanding any rule of custom or usage, in all questions regarding succession (whether testate or intestate) .., the rule of decision shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims." Likewise section 2 of the 1962 Shariat Application Act is as follows :- "Notwithstanding any custom or usage, in all questions, regarding succession (whether testate or intestate) the rule of decision subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law.(Shariat) in cases where the parties are Muslims." We find that the words used in the 1962 Act are identical in terms with those in the corresponding sections of the earlier enactments, in so far as the question of replacement of Customary Law with Muslim Law in matters of succession to property is concerned. This does not apply to widow's estates, but as we are not dealing with that situation, the distinction in that respect is immaterial. If declaratory suits by collaterals to challenge sales made by limited owners, were competent after promulgation of the Shariat Application Act of 1937 in respect of immovable property other than agricultural land owned by limited holders under custom, and after the Shariat Application Act of 1948 in respect of all immovable property, then there is no reason to suppose that section 2 of the latest Act bars such suits. In our view, the law laid down in decisions under the earlier Shariat Application Arts provides useful guidance for interpreting section 21 of the latest Act.

10. The submission that it was the Punjab Custom (Power to Contest) Act II of 1920, which had vested in a class of reversioners the right to file declaratory suits is equally fallacious. Before the Act had come into force all reversioners could file declaratory suits. The change which it brought about was that the right to do so was restricted only to male lineal descendants of the great grandfather of the alienor. The effect of repeal of this Act therefore is that the restriction it had placed now stands removed. Similarly the repeal of the Punjab Limitation (Custom) Act 1 of 1920, has not taken away the rights of any class of people to institute suits because the Act had not vested any rights in any class to begin with. The same view is expressed in Lt.-Col. Safdar Ali Malik and another v. Khadint Hussain and 6 others, wherein it is observed : "The effect of this statute (Act 11 of 1920) was to curtail the categories of persons previously entitled to file suits of the present kind, to those mentioned in the Act and referred to above. As is clear from the Long Title, it is "an Act to restrict the power of descendants of collaterals to contest an alienation of immovable property or the appointment of an heir on the ground that such alienation or appointment is contrary to custom." It did not confer any new right whether substantive or merely procedural. It did not even create a new category of powers. It only placed restrictions. The right to file such a suit can therefore, not be traced back to either of these two enactments." The question of limitation in such suits is indeed now' governed by section 120 of the Limitation Act, but we are not persuaded to hold that the cause of action in such matters commences from the date of death of the limited owner, and not from the date of the sale. In our view therefore the repeal of both these enactments does not take away the power of reversioners and heirs to challenge sales.

11. It is next submitted on behalf of the respondent that Muslim Law heirs- cannot file a declaratory suit, because unlike heirs under customary law, their right to succeed is a mere spes successionis. Paragraph 53 of Mulla's Principles of Muhammadan Law (Fifteenth Edition) is referred, to submit that the expectant right of an heir apparent is not a present or vested interest, but is a mere possibility, and cannot form the basis of a suit. Reliance is also placed on Mjt Hamida Begum v. Mst. Murad Begum and others (P L D 1975 S C 624) wherein, recognizing that the son had no present interest in the estate of his father during the latter's lifetime, it was held that the son had no locus standi, to challenge a gift made by his father, on the ground of undue influence. It is indeed true that an heir apparent under Muslim law is possessed of a mere possibility to inherit, and he may inherit nothing if his predecessor disposes of the property. Therefore an owner might challenge himself a gift made by him, on the ground that it had been made under coercion. If the owner does not choose to do so, his heir apparent cannot sue the donee, because the decree if passed would only benefit the owner who again would own the property and might gift it again. No benefit would accrue to the heir apparent. He does not therefore have a locus standi to institute a suit. In the case of Customary estates the position is different. The holder has a limited interest, because the property has to be passed on to the rever sioners or heirs. They sue because the decree would benefit them alone. In any case the controversy has been set at rest in Abdullah and others v. Mst. Bakhto Mai and another (P L D 1956 S -C 321) in the following terms :- "A person who succeeds under custom or under Hindu Law as a reversioner has before his succession no Higher or more tangible interest than a Muslim heir and his interest is as much a spas successionis as that of a Muslim heir. 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 peculiar to Punjab Custom or Hindu Law, but in section 42 of the Specific Relief Act."

12. In any case in our view the alienation made in this case is challengeable by the appellants who are reversioners, because the limited owner could not sell the property to defeat their rights, and it is immaterial that they will now inherit under Muslim Law, and not under Custom.

13. The respondent has next submitted that the property in dispute was not ancestral property, and therefore the suit was liable to be dismissed, The suit having been dismissed only upon the view that after the promulga tion of the Shariat Application Act, no suit was competent to challenge sales made by a limited owner holding a customary estate, the suit requires to be decided on merits.

14. We therefore accept this appeal and setting aside the judgment and decree of the trial Court, on the question of maintainability of the suit, remand the case to the Senior Civil Judge at Sheikhupura for deciding the case on merits. The contesting respondent shall pay the costs of this appeal. . - K. M. A. Appeal accepted.