P L D 1956 (W (PLP)

RAHMAN, C. J.‑--In Bashir Ahmad alias Bashir Hussain versus Muhammad and others, Regular First Appeal No. 44 of 1948, the following two questions have been referred to the Full Bench by a Division Bench of this Court, of which my brother Kaikaus was a member:‑ (1) Whether in a suit by a person claiming to be governed by customary law, a decree declaring that an alienation shall not bind the reversionary right of the plaintiff, can be granted after the passing of the West Punjab Muslim Personal Law (Shariat) Application Act (Act IX of 1948)? (2) Whether such a decree can be passed after the amend ment of the Act in 1951? The reference was considered necessary as the decision of a Full Bench of the Lahore High Court reported as Muhammad Asghar Shah v. Muhammad Gulsher Khan (1) was attacked before the Division Bench as not laying down sound law. Subsequently similar questions arose in R. S. A. No. 97 of 1952, R. S. A. No. ' 38 of 1952, R. S. A. No. 234 of 1953, R. S. A. No. 276 of 1953, R. S. A. No. 1 of 1954 and L. P. A. No. 1 of 1953, and they too have been referred to the Full Bench for consideration, along with the points raised in R.F.A. No. 44 of 1948. The main referring order is in this last mentioned appeal and the ensuing discussion will be primarily concerned with the questions as formulated in that appeal. Necessary additional comments, however, will be made to deal with the matters, peculiar to the other appeals, in the sequel. In the Full Bench case of Muhammad Asghar Shah v. Muhammad Gulsher Khan, it was held by the Lahore High Court that section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act (Act IX of 1948) (hereinafter referred to as the 1948 Act), was not retrospective in its effect and did not preclude the grant of declaratory decrees under custom, at the instance of reversioners, for the protection of ancestral property in the hands of the holder, in suitable cases arising before the Act. The facts were that one, Khadim Hussain, a Rajput of the Sialkot District, governed by custom, had transferred certain lands, by way of sale, to Muhammad Asghar Shah defendant, and a suit was brought by Muhammad Gulsher Khan, son of Khadim Hussain, for a declaration under custom, that the sale was without consideration and necessity and would not affect the reversionary rights of the plaintiff and the other reversioners, after the demise of Khadim Hussain. The property was ancestral qua the plaintiff. The main grounds of decision in favour of the competency of the suit were that the alienor had inherited the estate under, custom and, therefore, his powers of alienation fell to be determined under that law, in so far as it had not been abrogated by the 1948 Act; that the right to sue had already accrued to the plaintiff before the passing of the 1948 Act which had no retrospective operation and that persons who had inherited under custom had not shed the limitations imposed by the customary rules on their powers of alienation by virtue of the 1948 Act. The view has consistently prevailed in the Lahore High Court that the Shariat Acts of 1937 and 1948, have not enlarged the powers of alienation of persons who had inherited estates under custom. Reference in this connection may be made to Gul Zarin Khan. v. Amir Ahmad ( P L R 1952 Lah. 65‑F. B. =P L D 1952 Lah. 1.), Barkhurdar Shah v. Rab Nawaz Shah (P L R 1952 Lah. 544‑F. B. = P L D 1952 Lah. 555.), Roshan Ali v. Mst. Rehmat Bibi (A I R 1943 Lah. 219 (D. B.)) and Ata Muhammad v, Muhammad Shafi (A I R 1944 Lah. 121 (D. B.)). It would be useful at this stage to consider the various provisions of law that have a bearing on the questions involved. The first enactment that calls for consideration in this connection is the Punjab Laws Act, 1872. The material sections of that Act are sections 5, 6 and

7. Section 5 declares as that "in questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guar dianship, minority, bastardy, family relations, wills, legacies, gifts, partitions or any religious usage or institutions, the rule of decision shall be‑-- (a) any custom applicable to the parties concerned, which is not contrary to‑justice, equity or 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 Muhammadans and the Hindu Law, in cases where the parties are Hindus, 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." The well‑settled construction of this section is that a party alleging that he is governed by custom in any matter has to establish that fact and the exact rule of custom on the point in question that can he invoked by him. Section 6 of that Act lays down that in cases not otherwise specially provided for, the judges shall decide according to justice, equity and good conscience. Section 7 declares that all local customs and mercantile usages shall be regarded as valid, unless they are contrary to justice, equity or good conscience, or have, before the passing of the Act, been declared to be void by any com petent authority. Next, in order of sequence; comes the Muslim Personal Law (Shariat) Application Act, 1937. Section 2 of this Act is in the following terms:‑ "Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talk, ila, zihar, han, khula and mubaraat, maintenance, dower, guardianship, gift, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." By section 3 of the Act it was provided that if a Muslim declared in a prescribed form, before the prescribed authority, that he desired to obtain the benefit of this Act, the provisions of section 2 would then stand modified so as to include adop tion, wills and legacies therein. Questions relating to agricul tural land were obviously excluded from the purview of the Act, because they fell within the ambit of Provincial Legisla tion and the 1937 Act was a Central enactment. The West Punjab Muslim Personal Law (Shariat) Application Act (Act IX of 1948) came into force on the 16th of March 1948. Section 2 of that Act reads as follows:‑- "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 Muslims, shall be the Muslim Personal Law (Shariat)." Section 3 deals with property held by a Muslim female as a limited owner under custom and provides that succession shall be deemed to open out on the termination of her limited interest whether by death, marriage, remarriage or otherwise, to all persons who would have been entitled to inherit the property at the time of the death of the last full owner, as if the Muslim Personal Law had been applicable at the time of his death. In the event of death of any of such persons before the termination of the limited interest, succession would devolve, under this section, on his heirs and successors, exist ing at the time of the termination of that limited interest. A legal fiction was introduced by the section to the effect that the aforesaid person would be deemed to have died at the termination of the limited interest of the female. Further, it was laid down that the share which the female limited owner would have inherited, had the Muslim Personal Law been applicable at the time of the death of the last full owner, shall devolve on her, if she lost her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law, if that interest terminated because of her death. Section 4 effected a repeal of so much of the provisions contained in section 5 of the Punjab Laws Act, 1872, as were in conflict with the 1948 Act. The repeal had in any case to be partial, as there was no intention to change the law in respect of Hindus. Section 5 makes it clear that save as expressly provided by section 3, the Act was not to have retrospective operation. Last of all comes the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act 1951 (hereinafter referred to as the 1951 Act). By this Act section 2 of the 1948 Act was substituted by the following provision:‑ "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 usage, or institutions including waqf s, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims." After section 3 of the 1948 Act, another section 3‑A was inserted by the 1951 Act, which reads as follows:‑ "Where a will made by a Muslim provides for more than one legatee succeeding to the testator's property one after the other, and the will has taken effect before the coming into force of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951, on the death of the legatee in enjoyment of the property at the time of the coming into force of that Act, the property shall devolve on such heirs and successors of the testator under the Shariat as would have inherited it had the testator died intestate, and if any person who would have so inherited the property or any share therein, had there been no will, has in the meantime died, his share in the testator's property shall devolve on such of that person's heirs and successors as may be in existence at the time of the death of the said legatee." I will first take up the question of the effect of the 1948 Act on the reversioner's suit challenging an alienation in the life‑time of the alienor. It is a fundamental principle of law and no rule of construction is more firmly established than this, that retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enact ment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. (See Maxwell on Interpretation of Statutes, Ninth Edition, page 222, et sex). It is clear from section 3 of the 1948 Act that the Legislature did not intend that female owners who had inherited a limited estate under custom, should acquire full proprietary rights and shed their customary limitations after the passing of the Act. Section 3 of the 1948 Act expressly ensures that result. It is only on the termination of the limited estate held by a female that succession opens out under the Muslim law, to heirs of the last male owner. Nothing is, however, expressly said as to the position of the male owner who may have inherited under custom and who may be alive at the time of the passing of the Act. The question arises:‑ did the Legislature evince an intention of doing away with the existing fetters on his powers of alienation imposed by custom and to make him full owner of the property in his possession under Muslim Law and does the Act of 1948 envisage such a result by necessary implica tion or intendment? It is to be remembered that section 4 of that Act does riot sweep away the provisions of section 5 of the Punjab Laws Act, 1872, at one stroke, but merely provides for their repeal in so far as they have become repugnant to the new legislation. Unless, therefore, the inference be inescap able, I would be reluctant to hold that a person who had inherited under custom with all the disabilities incidental thereto, had been suddenly clothed with the rights of a full owner under Muslim Law, untrammelled by any customary rules. It is pertinent in this connection to remember that while taking the estate, he had himself excluded other Muslim Law heirs, to the penultimate male owner. The main tenor of the argument raised on behalf of the alienee in derogation of the right of customary reversioners to bring a declaratory suit to control the alienation of a male owner inheriting under custom, is that "alienations", as such, find no mention in section 5 of the Punjab Laws Act, 1872, which provides the mandate for application of custom to matters enumerated therein; that for the purpose of these customary suits, alienations have been regarded as an aspect of succession; that after the enactment of the 1948 Act, succession is to be governed by Muslim Law; that the right of customary reversioners to succeed to the male owner having been taken away by the new Act, the very basis of the declaratory suit had vanished, inasmuch as Muslim Law did not contemplate such actions as a part of the right of succes sion and that the right of Muslim Law heirs to succeed the male owner on his death, is a mere sees successionis which could not be pressed into service in support of such a decla ratory suit, It was pointed out that the estate held by a male owner under custom is a full estate and there was only a .customary limitation on his powers of alienation in the interest of succession by the reversioners on his death, because of the agnatic theory which was a special feature of custom. Under that theory the reversioners claim to inherit the property, through the last male owner, from their common ancestor. It was argued that henceforward succession was to be governed by Muslim law and the agnatic theory of custom would no longer be available to sustain a declaratory suit. In his referring order, my brother Kaikaus has expressed the view that the right of succession by the reversioners under custom, was not even a contingent interest in property and that that right has disappeared with the passing of the 1948 Act. He has also opined that if it is held that the male owner who inherited under custom, holds a limited estate in some sense, then the difficulty would arise as to how the Muslim law heir, who has to inherit him, would get a better estate. After the cases were referred to the Full Bench, there has been one decision of the Federal Court of Pakistan and two decisions of the Supreme Court of Pakistan, which may afford some guidance in determining the difficult questions that have been raised. The Federal Court decision is reported as Mst. Sardar Bibi v. Abdul Latif (PLD 1956 FC 137). The facts of that case were that one, Allah Jowaya, made a will on the 6th of Febru ary 1928, by which he bequeathed his entire land to his daughter, Mst. Sardar Bibi. Subsequently, on the 9th of April 1934, out of the land which was the subject of the will, he made a gift of two squares to her. The usual reversionary suit was brought by Sardar Khan and Rahmat Khan, praying for a declaration that the gift would not affect their rever sionary rights. The trial Court dismissed the suit on the ground that as the will in favour of Mst. Sardar Bibi had not been challenged within the period of limitation allowed by law, it had become indefeasible and, therefore, the granting of a declaration in respect of the gift had become in-fructuous. On the 16th of February 1945, Allah Jowaya gifted away the rest of his land covered by the will to Mst. Sardar Bibi, with the implied consent of Sardar Khan and Rahmat Khan. Mst. Sardar Bibi in turn gifted the entire property to her sons, Khurshid and Bashir Ullah, on the 13th of February 1945. The fourth‑degree collaterals of Allah Jowaya then instituted a suit to challenge the gift made by Allah Jowaya on the 16th of February 1945 and the subsequent gift by the daughter in favour of her sons. It was found that the property was ancestral qua the plaintiffs and that no special custom existed in support of the gifts. The suit was, consequently, decreed by the trial Court. On appeal, a Division Bench of the High Court took the view that the will which had been dec lared to have become final in the earlier suit, must be deemed to have been revoked by the subsequent gift by the testator, and that, in any case, the finality of the will had been affect ed by section 2 of the 1948 Act. The finding of the trial Court about the ancestral character of the property was upheld. The view taken by the High Court that the will had been revoked by the testator by the subsequent gift was not assailed before the Federal Court. The contention was, however, raised that after Allah Jowaya's death, the validity of the gift had to be determined by Muslim law, by reason of the provisions of the 1948 and 1951 Acts. The Federal Court expressed doubt whether the proposition adopted by the Division Bench of the High Court to the effect that succession under section 2 of the Act of 1948 included estate succession, was correct. It was pointed out by their Lord ships that the question did not arise in the case. Whatever the position regarding wills may be, their Lordships made it absolutely clear that the validity of the gift made before the enforcement of the Act of 1948, had to be decided under custom and not under Muslim Law. The general principle was laid down 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. The first Supreme Court case which calls for considera tion is Mst. Shahzadan Bibi v. Amir Hussain Shah (P L D 1956 S C (Pak.) 227). It was held in that case that sections 2 and 3 of the 1948 Act, have not, in any way, or in any degree, enlarged the rights of a limited owner and any alienation by a female, would be liable to control in the same manner and to the same extent as before the enforcement of the Act. The fact that the person entitled to challenge under custom, an alienation by a female with limited rights, ceased to be the immediate heir under personal law, would not, according to their Lordships, make any difference. A declaratory suit of this kind is of a repre sentative character and the decree enures for the benefit of all those who could take the property on the termination of the alienor's interest in the property. That was a case of an alienation by the widow of the last male owner, in favour of her daughters, by way of gift. The parties were Sayyed Hashmi, of District Mianwali, and were undoubtedly, govern ed by custom in matters of succession. It was held per Muhammad Sharif, J. that alienation is nothing more than an attempt to divert the normal course of succession and to defeat the natural expectations of those entitled to succeed. His Lordship observed further that the Legislature must have been aware at the time of the passing of the 1948 Act that there was a large number of females with limited interests in possession of property, that the Legislature could either abolish the limited interest forthwith or allow it to exhaust itself and that it had adopted the latter course. It was added by his Lordship that the limited interest, which the female owner possessed, came into existence by the application of the provisions of customary law and so long as the interest had not come to an end, the same body of law should continue to exercise a check over its disposal and that so long as there is in existence, a body of persons entitled to succeed on the termination of the limited interest, the estate of the female must continue to suffer from its inherent weakness. It was immaterial that that body of persons was, before the Act of 1948, determined by the rules of custom applicable to the parties and after that Act shall be ascertained in accordance with the personal law. His Lordship pointed out that disastrous consequences might follow if it be held that the limited female owner had become a full owner overnight. In that case no property whatsoever might be let for distri bution among the heirs of the last male owner, as the female owner might fritter it away during her lifetime. The second decision of the Supreme Court was recorded in Abdullah v. Mst. Bakhto Mai (Civil Appeal No. 2 of 1956) (P L D 1956 S. C. (Pak.) 321) on the 14th of May 1956. In that case, a Division Bench of the High Court on an appeal, had dismissed the appellants' suit for a declaration that a gift of the suit land by a widow, governed by custom, would not affect their right to succeed to the land, on the termination of her interest. The impugned gift was made on the 25th of December 1949, and the fifth‑degree collaterals of the last male owner, institut ed a suit for the usual declaration. The trial Court had decreed the suit, but the Division Bench of the High Court took a different view and held that the appellants had no locus standi to challenge the alienation in question. The main ground of decision was that the daughter was a preferential heir under custom and, therefore, the appellants had no locus standi to question the gift in her favour. In the Supreme Court it was conceded that on the termination of the limited interest of the widow, succession would be governed by the Muslim Personal Law and that the appellants and the donee, would both be heirs of the last male owner. It was further admitted that Mst. Allah Wasai having succeeded under custom, her interest in the land was limited in the sense that she was not entitled to make any alienation, testamentary or otherwise, of the property of her husband, without legal necessity. The question that fell to be decided, therefore, was whether an alienation by a widow, which is invalid under customary law, can be questioned by a person or persons, who, on the termination of her interest, would succeed to the property under the Muslim personal law, by reason of section 3 of the 1948 Act. It was urged before their Lordships on behalf of the alienee that until the death of the person to whom the Muslim heir succeeds, the latter's right is not a vested right but mere sees successionis which does not entitle him to claim a declaration on the assumption that he will succeed to the estate. The correctness of the first part of the proposition was conceded by their Lordships but they added that it did not follow that such an heir could not sue for a declaration that an alienation made by the widow was invalid. The following observations made by the learned Chief Justice in this connection are instructive:‑-- "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 sees successionis as that of a Muslim heir. It has, however, never been doubted that a suit by a rever sioner governed by the Punjab custom or by Hindu Law to get rid of an alienation made by a limited owner is compe tent, 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. 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 avail able 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 claimant 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". The Full Bench decision in Muhammad Asghar Shah v. Muhammad Gul Sher Khan was also referred to in this judg ment with approval, though it concerned an alienation by a male owner and not by a female owner. The observations of his Lordship the Chief Justice of the Supreme Court appear to me to be apt not merely in the case of a female limited owner but also that of any male owner with limited rights. The question then is whether a male owner inheriting under custom, is in reality a full owner, as he has been sometimes described or a limited owner to whom the dictum of the Supreme Court would apply with as much force as to a female limited owner. There are two Full Bench decisions of the Punjab Chief Court reported as Gujar v. Sham Das (107 P R 1887) and Sadhu Singh v. Secretary of State for India (18 P R 1908) which would be helpful in determining the exact status and rights of a male owner, inheriting under custom. In 107 Punjab Record 1887 case Plowden, J. remarked as follows:‑ "The question which lies at the root of cases of the kind now before us, is one of principle. Ownership has been described by Austin as a right over a determinate thing, indefinite in point of user, unrestricted in point of disposi tion, and unlimited in point of duration The component rights of ownership have been classified under the three heads of possession, enjoyment and disposition. "Ownership as above described is certainly known to custom, as in respect of movable property, and in most cases of self‑acquired immovable property. But custom does not universally recognise it in respect of ancestral immovable property". The learned Judge went on to say that in respect of ancestral immovable property in the hands of any individual there exists some sort of residuary interest in all the descendants of the first owner or body of owners, however remote and contingent may be the probability of some among such descen dants ever having the enjoyment of the property and that the owner in possession is not regarded as having the whole and sole interest in the property and power to dispose of it, so as to defeat the expectations of those who are deemed to have a residuary interest and who would take the property if the owner died without disposing of it. In the opinion of the learned judge, custom generally regards the sons as having an interest in that property which the father is not competent wholly to defeat by an arbitrary Act. The right of such sons to restrain dispositions of ancestral property was, therefore, recognised. In the 1908 case Clark, Chief judge, made the following observations:‑ The owner in possession is undoubtedly often described a 'full owner', but such descriptions must be taken with reference to the facts of the case in which his title is dis cussed. "To account for his power to alienate his land for necessity, without consulting his reversioners, it was necessary to hold him a full owner from that point of view. "In my opinion we must consider his ownership from an independent point of view with reference to the facts of the case before us. It does not follow that because he was held to be a 'full owner' to explain certain of his powers, he must therefore be held to be a full owner for all purposes. "It is established that the owner in possession can only alienate ancestral land for necessity, and other alienations of his are not binding on his heirs. This implies to my mind some interest in the estate on the part of the reversioners, whether it be called 'residuary' or 'inchoate' or 'vested' or 'contingent'‑it is some definite interest". The learned Chief Judge then referred to the definition of reversionary interest in Sweet's Law Dictionary as "any right in property, the enjoyment of which is deferred", and added that the right of the reversioner under customary law, seemed to him to amount to a right in property, the enjoyment of which was deferred; and that it was vested interest, according to the meaning of the term under the heading "estate" in that dictionary. Chatterji, J. in the course of his own judgment in that case expressed himself as follows:‑- "I agree with the learned Chief Judge that a Jat agricul turist in the Punjab governed by Customary Law, having sons or collaterals, is not a full owner in the strict sense of the term, of ancestral land in his hands". The expression "full owner" used with reference to a male owner under custom, according to Chatterji, J, was resorted to, in order to bring out the rights of the male owner in contradistinction to the estate of a widow and was really a relative term. This view of the Punjab Chief Court has been recently referred to with approval by a Single Judge of the Punjab (India) High Court in Nathu v. Ralla (A I R 1951 Pb. 445) I res pectfully agree with the observations quoted above. In my, opinion, from the juristic point of view, it is incorrect generally to describe a male owner holding ancestral property under custom, as a full owner. Custom imposes in the case of most tribes and localities, substantial restriction on his powers of disposition of ancestral property and to that extent the full rights of ownership are detracted from, The right of unfettered disposition is an important element of the right of ownership. These restrictions however, are not in the nature of restrictive covenants running with the land. They connote, in my view, a personal disability of the holder of ancestral property. On this view, the difficulty envisaged by my brother Kaikaus that the Muslim‑Law heir inheriting the property of such a customary owner, may not get a full or absolute estate, would disappear, as the personal disability of the last holder would end with his death, not being inherent in the property. That this is so, would be clear from the circumstances that the restrictions imposed in this connection by custom, depend on the existence of reversioners and that an alienation made for legal necessity would none‑the‑less be valid. Moreover, the alienation would become indefeasible, if, on the death of the alienor, no reversioner competent to take the property, survives. The difficulty caused by the fact that the word "alienation" does not occur in section. 5 of the Punjab Laws Act 1872, has still to be resolved. The 1348 Act is not retrospective in its operation and it certainly does not affect the succession which has already taken place under custom, before its enforcement. Unless expressly so provided or at least enacted by clear implication, we need not construe the 1948 Act to mean that although the male‑holder of ancestral property, inherited property under custom subject to restrictions incidental to that law, the occurrence of the word "succession" in section 2 of the 1948 Act; has transformed the nature of the rights of such holder, so as to leave him unfettered and untram melled by customary rules. It is no doubt true that the expression "succession" in the context of Muslim Law does not import the idea of alienations being included within its scope. It is only because of the peculiar nature of customary rules that alienations were treated as an aspect of succession. Under the 1948 Act, the future heirs might take the property under Muslim Law, but it need not follow that the, "succes sion" under which the present holder has taken the benefit, is at the same time shorn of its restrictive elements. Consider that the male‑owner inheriting under custom is a "limited owner" within the meaning of that expression, as used by the a Supreme Court in its recent judgments, because the restric tions imposed on him in the matter of disposition of property held by him, have not been done away with, by the 1948 Act and continue to apply to him personally. That the Act does not effect a sudden change over from custom to Muslim Personal Law, is clear from the provisions of sections 3 and 5 of the Act. If I might use the phrase, it appears to me that sudden death of custom has not been provided for but that custom is to die by inches, as and when succession opens after enforcement of the Act. In the context of rights of a male‑holder under custom, "succession" has to receive the customary law connotation which involves the idea of restric tions on his powers of alienation, but when the future succession opens, the meaning of succession would be regulated by Muslim Law. It is true that this introduces a com posite notion of succession, but this, in my opinion, is inevitable in the transition period envisaged by the 1948 Act. The question whether the persons who will inherit under Muslim Law on the opening out of future succession, have an interest in praesenti in property, of a character which would justify a declaratory action on their behalf to protect the property, need not detain us in view of recent rulings of the Supreme Court. Section 42 of the Specific Relief Act, which is the relevant provision available for such declaratory decrees, gives the right of suit to a person entitled to any legal character, or to any right to any property, and it seems plain that the reversioner need have no right in the property, in praesenti, so long as he had a right to any property, and that is why such suits in the past were entertained by Courts despite the fact that in the words of the Privy Council, the rights of reversioners were not distinguishable, if at all, from spes successionis. The customary reversioners (and the future Muslim Law heirs should be included among that body, in the broad sense of the term "reversioners" as defined in Sweet's Law Dictionary) could say that they have an interest in protecting the property. I do not see why such suits should not be regarded as competent even after the passing of the 1948 Act. Punjab Act I of 1920 gave legislative recognition to such suits and curtailed the period of limitation for, bringing them. Without such suits being brought within the period prescribed, the alienation would become indefeasible and, therefore, in the words of the Privy Council, these suits had to be brought ex necessitate rei. It is, however, maintained that the amendment by the 1951 Act, of the provisions of the 1948 Act, has materially altered the situation. It is contended that by this amendment, the whole field previously occupied by custom by virtue of section 5 of the Punjab Laws Act, 1872, has been displaced by Muslim Personal Law, except in respect of one item, namely, partition, which is covered by the Partition Act and the Land Revenue Act. It is suggested that this indicates an intention on the part of the Legislature to apply Muslim Law to Muslims, from the date of the passing of the amending Act, in all matters enumerated in the new section introduced in the 1948 Act: These matters include wills and gifts. It is contended that if henceforth, the validity of any gift by a male holder of ancestral property inherited under custom, is to be determined under the Muslim Personal Law, the implication is clear that customary rules imposing restrictions on powers of alienation, would be rendered entirely meaningless. If those restrictions are still maintained, the position, it is argued, would be highly anamolous, inasmuch as gratuitous alienations would be upheld but those for consideration would be invalidated, by applying custom. 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 I 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 restriction on such alienations exist, the gift could not enure beyond the lifetime of the alienor. However, in the event of no other heir except the donee surviving the alienor, it may become an indefeasible transaction. As regards wills, they would be on a par with the opening out of succession in future, both events taking effect on the death of the present male‑holder. They would naturally be henceforth governed by Muslim Personal Law and not by Customary Law. I am, therefore, inclined to the opinion that the amendment of 1951 need not affect the competency of reversionary suits for declarations to challenge alienations made by a limited owner, or female. The difference in the capacities of the male and the female owners who inherited under custom, to transfer ancestral property, is one of degree rather than of kind, and the dictum of their Lordships of the Supreme Court would cover both cases, though, of course, the estate of a female limited owner differs from that of a male owner, in several other material respects. Reversionary suits of the character under consideration would finally disappear with the death of the last male owner or limited female owner who has inherited under custom. I would, therefore, answer both the questions formulated in Regular First Appeal No. 44 of 1948 in the affirmative. I may now briefly notice the other cases that have been referred to the Full Bench. In Regular Second Appeal No. 97 of 1952, the alienation was effected after the passing of the Punjab Act IX of 1948 and the two questions referred to the Full Bench read as follows:‑ (1) Whether, in respect of an alienation effected after the passing of Punjab Act IX of 1948 a suit for a declaration that the alienation will not affect the plaintiff's reversionary rights, as it is opposed to custom, is maintainable? (2) Whether the suit even if it be maintainable after the passing of the Act of 1948 is maintainable if the alienor is alive when Punjab Act IX of 1951 is passed? On the view that I have taken in R. F. A. No. 44 of 1948, the answer to both these questions should be in the affirmative. In Regular Second Appeal No. 138 of 1952, the alienation was by way of sale made by one, Sardar Khan, by a registered deed dated the 17th of March 1949. The only question referred to the Full Bench in this case is in the following terms:‑ "Is the present suit maintainable in view of the provisions of the Muslim Personal Law (Shariat) Application Act, 1948, and the Muslim Personal Law (Shariat) Application (Amendment) Act, 1951, the alienor being yet alive the alienation being of the 17th of March 1949?" I would answer the question in the affirmative. In Regular Second Appeal No. 234 of 1953 the alienation is by way of sale effected by one Muhammad Bakhsh on the 1st of August 1951. The two questions formulated in this case by my learned brother Kaikaus are:‑‑ (1) Whether a gift of ancestral property made by a person governed by custom (apart from the provisions of the Punjab Muslim Personal Law (Shariat) Application Act made after the passing of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act of 1951) can be challenged on the ground that it is opposed to the custom as the alienor had inherited the ancestral property under custom? (2) If a power of gift be held to exist, whether a power of sale is not necessarily implied? I would answer the first question in the affirmative. In respect of the second question, I would consider it sufficient to say that if a power of gift is by itself not full, power of sale is not necessarily implied. In Regular Second Appeal No. 276 of 1953, Muhammad Sarfraz, a Gujjar of Musa Kudlathi in the Campbellpur District, sold some agricultural land to his uncle Rasul Khan on the 20th of August 1951. The two questions referred to the Full Bench by Kaikaus, J. are:‑ (1) Whether a gift of ancestral property made by a person governed by custom (apart from the provisions of the Punjab Muslim Personal Law (Shariat) Application Act made after the passing of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act of 1951), can be challenged on the ground that it is opposed to custom as the alienor had inherited the ancestral property under custom? (2) If a power of gift be held to exist. whether a power of sale is not necessarily implied? The answers given in the appeal last‑mentioned, cover this case also. Regular Second Appeal No. 1 of 1954 is concerned with a suit for a declaration challenging an alienation made by a female limited owner, Mst. Jannat, and the principle laid down by their Lordships of the Supreme Court fully applies to that case. No formal question was formulated in this case by Yaqub Ali. J., and the case should go back for decision in the light of the Supreme Court judgment and the answers to questions recorded in Regular First Appeal No. 44 of 1948. The alienation in that case, it may be pointed out, was made on the 14th of November 1950 before the amendment of 1951. The point whether a declaration could be granted in respect of 1/8th share to which Mst. Jannat would be entitled in certain contingencies under Muslim Law, has not been argued by counsel before us and would have to be decided by the learned Single judge when the appeal goes back to him for disposal. Letters Patent Appeal No. l of 1953 was referred by Yaqub Ali and Abdul Aziz Khan, JJ. to be heard along with Regular First Appeal No. 44 of 1948 by the Full Bench. The learned judges did not frame any formal questions for decision. That was a case in which Mst. Moondan, a limited female owner made a gift of the entire land, which she had inherited from her husband, Khan to her daughters, Mst. Bhag Bhari and Mst. Rajan, on the 4th of June 1949. The case is fully covered by the decisions of their Lordships of the Supreme Court and shall be sent back to the referring Bench for disposal in the light of those decisions. SHABIR AHMAD, J.‑--I agree. ABDUL AZIZ KHAN, J.‑--I agree. KAYANI, J,

The questions referred to the Full Bench are:-- (1) Whether in a suit by a person claiming to be governed by customary law a decree declaring that an alienation shall not bind the reversionary rights of the plaintiff can be granted after the passing of the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948). (2) Whether such a decree can be passed after the amendment of the Act in 1951. The state of law at the time when Act IX of 1948 was passed was as follows. Under section 5 of the Punjab Laws Act, 1872, "in questions regarding succession" and certain other matters, the rule of decision was to be any custom that was found applicable to the parties. The word "alienation" was not mentioned in this list, but indeed declaratory suits by the reversioners that an alienation of ancestral property will not bind them after the reversioner's death were a feature of the customary law. In 1937, the Central Legislature, within its legislative limitation passed the Muslim Personal Law (Shariat) Application Act, applying the Muslim Law to all the matters enumerated in section 5 of the Punjab Laws Act, except (1) matters which were solely within the competency of the Provincial Legislature questions relating to agricultural land, charities and charitable institutions and charitable and religious endowments and (2) matters which were not covered by any express provision of Muslim Law, such as betrothal, adoption, minority, bastarday, family relations. Then came the West Punjab Shariat Act IX of 1948. Section 2 of the Act is as follows:‑ "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)". It would appear to have been the intention to confine the Act to purely Provincial subjects and thus to make it complementary to the Act of 1937, which dealt with all the concurrent subjects susceptible to the rule of Muslim Law. So far as we are concerned here the Act said that in 211 questions regarding succession to agricultural land the rule of decision was hereinafter to be the Muslim Law. Section 3 specifically provided for estates held by Muslim females for life. Firstly, these estates were to terminate, as indeed they did under custom, on the termination of the limited interest. So far, the section may be regarded as making a statement of fact according to existing law. Secondly the persons entitled on the termination of the interest would be the Muslim Law heirs of the last full owner at the time of his death. To this extent, the Act takes us back to the death of the last owner, and to this extent it is retrospective. With the other parts of section we are not concerned. Section 4 provides that the provisions of section 5 of the Punjab Laws Act shall be deemed to have been repealed in so far as they conflict with the present Act. Section 5 says that "save as expressly provided by the provisions of section 3, this Act shall have no retrospective operation". The reason why it was necessary to say, more or less expressly, that section 3 was retrospective in effect, and quite expressly, than the rest of it was not so, was to prevent speculation from falling into error as it had done in the case of the N. W. F. P. Shariat Act of 1935 as to whether Muslim Law would apply immediately or from the date of the next succession. It may sound remarkable, but in the present context the use of the word "immediately" carries with it the sense of retrospectivity, for if the immediate holder of the estate did not come into it under the Muslim Law, we must go back to the time when he succeeded and correct the error. Take an example. A died in 1940 and left behind a nephew, B, and a sister, C. when according to custom, was excluded from inheritance by the nephew. When in 1948 the Muslim Law came into force the sister could very well say that with effect from the date of its operation she was entitled to a part of the inheritance and her claim was not time‑barred. The Legislature, however, profiting by the experience of the N. W. F. P., thought it fit to bury the past and apply the new law from the date of the next succession. It was in this sense that the sister's claim, although it was apparently a claim in praesenti, involved in actual fact a retrospective operation, and it was this that section tried to avoid. By referring to section 3, it also made clear that in the case of a female holder, when on the termination of her limited interest we go back to the death of the last full owner, we make the Act operate retrospectively. Consequently, I have no doubt that although the Act, came into force "at once" (section 1), it made no immediate difference to the estate, and many an indignant sister like` C was asked to revolve in her mind the paradoxical propo sition that although custom had been repealed by Muslim Law, the time for its application had not arrived. And now they ask us, and they have asked us for years, now, by the application of forensic talent to the unforeseen complexities that have arisen out of the situation, that the Muslim Law applies immediately. A reversionary estate, it is argued, is an incident of customary law, and as customary law is dead, any suit based on the notion of the existence of such an estate is based on non existent foundations. The Legislature surely could not have intended to keep alive a customary estate until the next succession opened. As I have intimate knowledge of the time when this Act was drafted and passed, it makes me uncomfortable when I hear "intentions ascribed to the Legislature beyond the words stated in the Act. So far as one can see, there was that intention in sections 3 and 5 which I have endeavoured to deduce from the language employed. If any absurd result follows we should avoid it. If any inconvenient result follows we must put up with it. In the change‑over from one system to another, the occurrence of unforeseen consequences is not a rare experience. There are things in the heaven and earth of enactments which neither the economy of the draftsman nor the philosophy of the Legislature can dream of. We than resort to justice, equity and good conscience. We should, therefore, confine ourselves to the language of section 2 and the patent intention of sections 3 and 5 Section 2 says that in questions regarding succession to agricultural land the rule of decision shall henceforth be the Muslim Law. Until the time comes for succession, we are not to think of applying Muslim Law at all. The estate has not become a Muslim Law estate, as opposed to a customary estate if it had undergone any such metamorphosis, sister C would have been the first to step forth in the field of claim. But if the holder can say to C that she has no claim because the estate will take the Muslim hue only from the date of next succession, why should be clear an alteration in its character for his own purpose? Why should he be allowed to say, if there is no immediate devolution under Muslim Law, that any concept of a reversionary interest in the Muslim Law context is fantastic? There is no Muslim Law context until succession opens. In fact, the results that follow from the emphasis on non‑retros pectivity in section 5, expressly exclude such context. We cannot say that although it is not yet a Muslim Law estate, it cannot be a customary estate either. For it must be some sort of an estate, and if it was originally a customary estate; and it has not been altered by law, it will continue to retain: its previous qualities. The conclusion of the Full Bench in Muhammad Asghar Shah's case that the power of alienation continues to be restricted until the next succession whatever be the reasoning on which it is based‑appears to present a just view of the situation, if I may say so with great respect. It is also an equitable view because, firstly, the "full owner" had himself succeeded to an estate which was subject to customary restrictions and he cannot claim a larger estate unless the new law expressly confers it on him; secondly, in the instance of the sister cited above, he denies the benefit of enlargement to the sister and should not be allowed to avail of it himself. Since the questions referred to us were formulated the Supreme Court has taken a decision in Abdullah v. Mst. Bakhto Mai (P L D 1956 S. C. (Pak,) 321) which, if it had been taken earlier, might have vitally affected the frame of the first question, That was a case in which a widow, whose husband had died before 1948, had made a gift to her daughter after 1948, and the collaterals of the fifth degree had brought a suit for declaration that on the termination of the widow's interest the gift would not affect their right to succeed as heirs under Muslim Law. It should be explained here that under custom collaterals of the fifth degree were excluded from inheritance by the daughter, so that a suit could not lie on the basis of reversionary interest. The High Court had dismissed the suit on the ground that the daughter being a preferential heir under custom, the collaterals had no locus standi to question the gift. In the Supreme Court also it was contended that the right of Muslim Law heirs was not a vested right but a mere spes successionis. Their Lordships pointed out that a reversioner under custom has no higher interest than a Muslim heir and his interest is as much a sees successionis as that of a Muslim heir; yet he could bring a suit for preserving his reversionary interest, 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 but in section 42 of the Specific Relief Act", which was as much applicable to a situation where a collateral had expectations under the Muslim Law as when he claimed a reversionary interest under custom. Now apart from the fact that Their Lordships acknowledged the right of Muslim Law heirs to resort to section 42, Specific Relief Act, for the preservation of the estate, there is this to be noticed, that a suit for the preservation of the estate was made competent. By necessary inference therefore, the rever sioners may file such a suit if they expect to succeed under Muslim Law. They need not say they want to protect their reversionary interest. In fact, it would be more proper for them to say that they are protecting their interest as Muslim Law heirs, though on the ground that the law under which the present owner holds restricts his power of alienation. That is why I said that the frame of question number one might have been different after the decision of the Supreme Court. I have said that under the Act of 1948, Muslim Law comes into operation only when the next succession opens. It is argued in reply to this view of the Act that since alienations are included in the term succession, whenever an alienation takes place after the Act of 1948, the law applicable to it will be the Muslim Law, not custom. In other words, since the Muslim Law does not restrict alienations, there can be no suit under custom to avoid them. This, I admit, is a reasonable and formidable objection. It is true that although section 5 of Punjab Laws Act does not mention alienations, declaratory suits under custom to restrict alienations continued to be instituted after that Act had come into force and it is reasonable to assume that alienations were treated as falling under the head succession because they diverted the normal course of succession. It is, therefore, argued that the term succession used in the Shariat Act of 1948 should be held to include alienations. The argument seems to me, however, to be based merely on the use of the same expression in the two Acts, and takes no notice of the context. It may be that suits by reversioners to restrict alienations were such a common feature of the law as it was applied even before 1872 that the Courts entertained them as "suits of a civil nature" under section 1 of the Code of Civil Procedure, Act VIII. of 1859, and continued to entertain them after 1872 without reference to the term "succession" in section

5. In that case the decision would be taken in pursuance of justice, equity and good conscience which, under section 6 of the Punjab Laws Act, guided the Courts in matters not expressly provided for. It may be that succession was understood to be affected by alienations, which were, therefore, treated as question "regarding succession". In the latter case, it was the peculiar notion of custom which gave the term succession a peculiar meaning. Why should it have the same meaning in Muslim Law if that law is devoid of such peculiar notion? Sales and gifts are unrestricted in Muslim Law and although there is a restriction upon wills, they can be questioned only when they become operative, that is to say, upon death; and that is the time when succession opens. Under Muslim Law, therefore, an alienation does not divert the course of succession. The effect of this argument that alienation is a part of succession is that a customary estate can at once be converted into a Muslim Law estate by the very alienation which it was the right of the reversioner to prevent. Then consider how ridiculous it is for the holder I revert to the instance of the sister, C to tell C that she cannot claim inheritance under Muslim Law because the estate is still held under custom, but to alienate the property himself because thereby he is opening or hastening succession. I think we are definitely in danger of being smothered by the tyranny of words if we adopt that meaning. The Supreme Court, in Shahzadan Bibi v. Amir Hussain Shah (P L D 1956 S C (Pak.) 227) dealing with the case of a daughter who had made a gift after 1948 made observations which are equally applicable to a "full owner" with restrictions on his power of alienation:‑ "Surely it was not 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 provision 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 (P L D 1949 Lah. 116 (F B)) in the following words:‑ `Customary Law which has so long held the field to the detriment of females, is to yield place to the Shariat which recognises their rights in the property. The Act lays down the mode in which the property is to be divided after its operation, it says nothing as to the source from which and the manner in which the property comes. Declaratory decrees make available the property and the Act does not want to reduce or diminish this profitable source. To hold otherwise would give the alienee an undue advantage at the cost of the heirs of the alienor and nothing could be further from the intention of the legislature". The only difference in principle between the case of a female and a male owner as regards alienation is that there are larger limitations on the former than on the latter. The observation, therefore, that "so long as the interest has not come to an end, the some body of law should continue to exercise a check over its disposal" will apply equally to both. It is significant that the passage from Muhammad Asghar Shah v. Muhammad Gulsher Khan on which the Supreme Court relies relates to a male holder. My answer to the first question, therefore, is that a suit contesting an alienation of ancestral land will be com petent after the Act of 1948 was passed, but I shall not confine myself to the exact words of the question. The plaintiff should not be a mere reversioner; he should expect to inherit under Muslim law. He need not necessarily ask for the preservation of the reversionary interest, for it may be any interest which an heir can claim. The second question relates to the change in the circum stances 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 or 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 ever-ride 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 fulness 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. The fact that the Act of 1951 will not have improved the position may be regrettable, if that was the intention of the draftsman. The only intention of the amendment patent on the face of the Act is to apply the Muslim Law now to all matters, instead for confining it to succession, and we need `not conduct an investigation into 'the question whether the draftsman was or should have been alive to these implications. As I have already said, unforeseen results are not rare, and what we ought to do is to avoid absurdities and minimise inconsistencies. My answer to the second question is also in the affirmative. KAIKAUS, J.‑--These are seven references to the Full Bench relating to the Muslim Personal Law (Shatiat) Application Act, 1948, hereinafter called the Shariat Act of 1948. Five of these relate to power of alienation by Muslims holding ancestral property and two to the powers of females holding limited estate. To explain the circumstances leading to these references, it is convenient to quote here the relevant legal provisions:‑ Section 5 of the Punjab Laws Act I questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institu tion, the rule of decision shall be‑ (a) Any custom applicable to the parties concerned, which is not contrary to justice, equity, or 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 Muhammadans, and the Hindu Law, in cases where the parties are Hindus, 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 sti6h custom as is above referred to. Muslim Personal Law (Shariat) Application Act, 1937 1. (1) This Act may be called the Muslim Personal Law (Shariat) Application Act, 1937. (2) It extends to the whole of British India excluding the North‑West Frontier Province.

2. Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talak, ila, zihar, lian khula and mubaraat, maintenance, dower, guardianship, gift, trusts and trust properties, and waqfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat). The West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) This Act may be called the West Punjab Muslim Personal Law (Shariat) Application Act, 1948. (2) It extends to the whole of West Punjab. (3) It shall come into force at once.

2. 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).

3. In respect of immovable property held by a Muslim female as a Limited owner under the Customary Law, succession shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner, had the Muslim Personal Law (Shariat) been applicable at the time of such death and in the event of the death of any of such persons before the termination of the limited interest mentioned above succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat) Provided that the share which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death.

4. With effect from the date on which this Act comes into operation, so much of the provisions contained in section 5 of the Punjab Laws Act, 1872, as conflict with the present Act shall be deemed to have been repealed.

5. Save as expressly provided by the provisions of section 3, this Act shall have no retrospective operation. Punjab Muslim Personal Law (Shariat) Application Act, 1951 For section 2 of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, (hereinafter called the "said Act"), the following shall be substituted, namely:‑

2. 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. Punjab Act XI of 1951 After section 3 of the said Act, the following new section shall be inserted, namely:‑ 3‑A. Where a will made by a Muslim provides for more than one legatee succeeding to the testator's property one after the other, and the will has taken effect before the coming into force of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951, on the death of the legatee in enjoyment of the property at the time of the coming into force of that Act, the property shall devolve on such heirs and successors of the testator under the Shariat as would have inherited it had the testator died intestate, and if any person who would have so inherited the property or any share therein, had there been no will, has in the meantime died, his share in the testator's property shall devolve on such of that person's heirs and successors as may be in existence at the time of the death of the said legatee. Vide Punjab Act XI of 1951 By virtue of section 5 of the Punjab Laws Act, succession was governed by custom and, according to the customary law of succession, at the death of a person holding ancestral property, his heir qua whom the property was ancestral was entitled to succeed even to that property which the holder had alienated during his lifetime, except that which was for necessity and consideration or was of a nature recognised by the customary law as not being subject to the right of reversioners to succeed to it. When there was an alienation of ancestral property by a male the reversioner would file a suit for a declaration that the alienation would not affect his reversionary rights. Before 1900 such a suit was optional. After .the enactment of the Punjab Limitation (Ancestral Land Alienation) Act, 1900, a suit for a declaration became compulsory except in a case where limitation for suit for possession had not yet expired. The Act of 1900, it need not be stated, was succeeded by Act I of 1920. In 1937 was enacted the Central Shariat Act. It provided, inter alia, that with respect to intestate succession Muslim Law was to be followed. The Act did not apply, however, to agricultural land and had no direct effect upon the question with which we are concerned except that cases under that Act may be relevant for decision of the questions of law that arises. Then came the Shariat Act of 1948 which applied only to the Punjab. Succession was hence forth to be governed by Muslim Law so far as Muslim are concerned. The question arose whether Courts could pass a declaratory decree with respect to an alienation of ancestral immovable property by a male holder even after the enactment of this Act. This matter came up before a Full Bench of this Court in Asghar Ali Shah v. Gul Sher Khan (P L D 1949 Lah. 116) and it was held that the Act did not bar passing of such decrees. The suit with which the Full Bench was dealing was one relating to aliena tion effected before the passing of the Act. The suit had been filed and a decree obtained before the Act came into force and in fact an appeal to the District judge had already failed, but the reasoning adopted by the Full Bench applied equally to an alienation made after the Act, if the person, who effected the alienation, had inherited ancestral property at a time when customary law was still in force. The main basis of the judgment was that the powers of alienation of a person are governed by the law under which he inherited the property which he alienates. In Regular First Appeal No. 44 of 1948, I, sitting with Khurshid Zaman, J., came to the conclusion that the Full Bench decision was not correct. In the meantime, the amending Act of 1951 had come into force. By virtue of this Act, gifts were henceforth to be governed by Muslim Law. A power of gift should logically imply to a power of sale and a further question, arose whether in cases where the alienor was alive after the passing of the amending Act of 1951, the alienation would not, assuming it was liable to challenge at the time when it was made, become indefeasible on the doctrine of estoppel. In view of this, I and Khurshid Zaman, J. referred the two following questions to the Full Bench:‑ (1) Whether in a suit by a person claiming to be governed by customary law a decree declaring that an alienation shall not bind the reversionary right of the plaintiff can be granted after the passing of the West Punjab Muslim Personal Law (Shariat) Application Act (Act IX of 1948)? (2) Whether such a decree can be passed after the amendment of the Act in 1951? In Regular Second Appeal No. 97 of 1952 there was a gift of land after the sing of the Shariat Act of 1948. I framed the following two questions for reference to a Full Bench:‑ (1) Whether, in respect of an alienation effected after the passing of the Punjab Act IX of 1948, a suit for a declara tion that the alienation will not affect the plaintiffs' reversionary rights, as it is opposed to custom, is maintain able? (2) Whether the suit, even if it be maintainable after the passing of the Act of 1948, is maintainable, if the alienor is alive when Punjab Act XI of 1951 is passed? In Regular Second Appeal No. 138 of 1952, there was a sale after the passing of the Shariat Act and I framed the following question for reference to a Full Bench:-‑ (1) Is the present suit maintainable in view of the provisions of the Muslim Personal Law (Shariat) Applica tion Act 1948 and the Muslim Personal Law (Shariat) Application (Amendment) Act 1951, the alienor being yet alive and the alienation being of 17th of March 1949? In Regular Second Appeal No. 276 of 1953 the alienation in dispute was a sale effected after the passing of the amending Act of 1951 and I referred the following two questions to a Full Bench:‑ (1) Whether a gift of ancestral property made by a person governed by custom (apart from the provisions of the Punjab Muslim Personal Law (Shariat) Application Act) made after the passing of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act 1951, can be challenged on the ground that it is opposed to custom, as the alienor had inherited the ancestral property under custom? (2) If a power of gift be held to exist, whether a power of sale is not necessarily implied? Regular Second Appeal No. 234 of 1952 was a case similar to Regular Second Appeal No. 276 of 1953 and I referred the same two questions to a Full Bench. These five cases are of alienations made by males. The remaining two questions are with regard to alienations made by females holding limited estate under custom. In Regular Second Appeal No. 1 of 1954 there was a sale by a widow on the 14th of November 1950. It had been contended on behalf of the vendor that no suit for a declaration was com petent and that in any case with respect to 1/8th share, which the widow could herself have inherited under Muslim Law a decree could not be granted. Yaqub Ali, J, referred both these points to a Full Bench without framing specific questions. In Letters Patent Appeal No. 1 of 1953, there was a gift in 1951 by female who had inherited under custom as a deceased's widow and it was directed that the case be heard by a Full Bench along with Regular First Appeal No. 44 of 1948. The last two cases of alienation by female will be the subject of a short discussion at the end of the judgment because the points involved in them are governed by a judgment of their Lordships of the Supreme Court. I will begin with the discussion of the two questions referred to in Regular First Appeal No. 44 of 1948. As will appear from the discussion, the decision of these two questions will also determine the answers to questions referred in the other cases. I have read the judgment which is being delivered by my Lord the Chief Justice and I regret my inability to agree. My reasons for not accepting the arguments that have appealed to my Lord will be found at appropriate places in this judgment. I take up the first question referred in Regular First Appeal No. 44 of 1948. This is the question which has been the subject of reference in Asghar Ali Shah v. Gul Sher Khan, and the discussion has in the main to be as to the correctness of that judgment. Before the Full Bench in that case, various arguments were put forward on behalf of the alienee. They included: (1) The question before the Court was one relating to succession and had to be decided in accordance with Muslim Law by virtue of section 2 of the Shariat Act of 1948. (2) After the Shariat Act, it could not be said that any reversionary rights still remained in the heirs, and. no decree relating to declaratory rights could be granted. (3) Any restrictions on the power of alienation of the holder of ancestral land would disappear because the so- called restrictions had been imposed by the customary rule of succession which is no longer in force. The Full Bench rejected these contentions. It found that the alienor having inherited an estate under Customary Law, the restrictions which custom imposed on his powers of alienation continued, for they were part of the estate which he took. The new Act, it said, was not concerned with the power of transfer at all. It found also that a cause of action for the suit having arisen already could not be taken away by an Act which had no retrospective effect. The reasons on the basis of which the Full Bench found in favour of the heir may be thus stated:‑ (1) The alienor had inherited an estate under custom and his powers of alienation were to be judged under (2) The Shariat Act of 1948 did not deal with transfers at all and therefore, could have no effect on transfers. (3) A right to sue had already accrued to the plaintiff before the passing of the Shariat Act of 1948; and as the Act had no retrospective effect, the right to sue remained unaffected. (4) The whole of the customary law of succession had not been abrogated. The meaning of word "succession" in section 5 of the Punjab Laws Act was not identical with its meaning in section 2 of the Shariat Act of 1948. In the earlier Act it included "alienation" while in the later Act it did not. It may be stated here that the fourth reason mentioned above is found only in the judgment of Sir Abdur Rahman and had been advanced in reply to the argument of the alienee that the question with which the Court was concerned was one relating to succession and was, therefore, to be decided according to Muslim Law. Before I begin a discussion of the proposition accepted by the Full Bench, I will refer in brief to the circumstances relating to the various attempts made by the Legislature to apply Muslim Law in super-session of custom. This will help us in realising the significance of the various attempts. For the purpose of my own argument this review would not have been necessary but an argument has been put forward on behalf of the plaintiffs that this is not a case of murder at the spot but of slow poisoning of custom, and to assess the value of that argument it is necessary to refer to the circum stances relating to such legislation. The first attempt at super-session of custom (so far as the Punjab is concerned) was made by the Central Shariat Act of 1937. The substantial effect of this Act was that custom was abolished except with respect to (1) agricultural land (2) charities and charitable institutions, charitable and religious endowments. (3) wills and adoption and (4) partition, alluvion and diluvion. The first two subjects were excepted because they are in the Provincial list of the 7th Schedule to the Government of India Act (Items Nos. 21 and 34) and the Central Legislature was not competent to legislate with respect to them. With respect to wills and adoption, a provision was made in the Act that they too would be governed by Muslim law if the person concerned made a declaration in a prescribed form that he wanted to be governed by Muslim Law in respect of these matters. The reason for the distinction in the case of these two subjects is not clear. It may be pointed out, however, that between wills and adoptions there is not much difference. It is well‑established that adoption in customary law is only the appointment of an heir. In Rattigan's Digest of Punjab Custom, the chapter which deals with this subject is headed "Appointment of an heir" and not adoption. The appointment of an heir is nothing but a form of will. So far as partition alluvion and diluvion are concerned, they are not mentioned in any of the Acts, not even in the amending Act of 1951 which otherwise purports to do away with the whole of custom. The reason for this appears to be that there is no particular Muslim Law relating to partition alluvion and diluvion and the primary intention was to apply Muslim Law. Then came the Shariat Act of 1948 with which we are now concerned. The background of this Act is that, as will be quite clear from the speeches in Council relating to this Act, there had been a public clamour for the application of Shariat. There was a large section of the public demanding not only that Muslim Law be applied to those matters which were so far governed by custom but to all matters civil or criminal, and whether of substantive law or of procedure. The Muslim League had made declarations that 'When they came into power they would enforce the Shariat and the Muslim League Government accepted the principle that the whole of the Shariat was to be codified and applied. They pointed out, however, that that would take time and, at the same time, the whole of the Shariat could not be enforced by the Assembly of a Province. This Act of 1948, they said, was the first instalment of the application of Shariat and the object of it was to remove the defects of the Shariat Act of 1937 (referred to generally and in the speeches as Kazmi Bill) and to abolish custom with respect to those matters which were not governed by the Central Act. The statement of objects and reasons for this Act read: "The Muslim Personal Law (Shariat) Application Act (Indian Act XXVI of 1937) leaves out agricultural land and thus deprives the entire agricultural community of the benefit of Shariat. It also does not apply to cases of adoption, wills, and legacies except through a process of declaration in a prescribed form. The North‑West Frontier Province has been enjoying personal law for some years now, with satisfactory results. The present Act is intended to be an improvement both on the Indian Act and the North West Frontier Province Act." The Bill then moved in the Assembly was obviously one which was intended to abolish the whole of custom (except partition, alluvion and diluvion). Section 2 of the Bill said:‑ (2) "Notwithstanding any custom or usage to the contrary, in all questions regarding succession, special property of females including personal property inherited or obtained under contract or gift or any other provision of Personal Law, betrothal, marriage, dower, dissolution of marriage (including Talaq, Ila, Zihar, Lian; Khula and Mubaraat), maintenance, guardianship, minority, bastardy, family relations, gifts, wills, legacies, trusts, trust properties wakfs, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." The Finance Minister, who moved the Bill in the West Punjab Assembly said: "On the day on which this Assembly commenced, the Chief Minister had, in unmistakable language, proclaimed that the Muslim League Ministry would, in all its actions, keep in view Muslim traditions and Muslim Laws and it would make an effort to base its administration on Islamic principles. I do not think that it was even necessary for the Chief Minister to say so, for this has been the basic principle of the Muslim League . . . . . . . . . . . The public is waiting how we fulfil our promises and implement our declarations . . . . . . . . . . . The Bill does not need any great discussion. There is one point, however, which I want to make clear and that is that the Shariat Bill is in the form of a declaration. It enforces Muslim Shariat so far as it is possible. With regard to the codification of the Shariat, that will be effected gradually. This is not some thing which can be accomplished in a day." The Government had moved that the Bill be passed. However, one of the members, i.e., Malik Feroze Khan Noon, was of the opinion that the bill as proposed did not go far enough. Whereas it did away with custom, it did not do away with those statutes which were opposed to the Shariat. He moved that the Bill be referred to a Select Committee, saying:‑ " Whatever we have been doing till today in accordance with custom is something which I deeply regret. We have been opposing God and His Prophet. By this Bill we will be atoning for all that. I, therefore, from the bottom of my heart, support this Bill. With respect to the Bill there have been discussions in our party meetings and I have been expressing an opinion to the effect that this Bill in its present form does not fully apply the Shariat. It is defective for whereas it does say that if there is anything in custom or usage which is opposed to Shariat Law, the Shariat Law will govern it; it does not, at the same time, say that if there be a statute whether enacted by the British, or by us, that will also stand repealed. I wish we should enforce Shariat in such a way that it should even override statute . . . . . . . The Qaid‑i‑Azam had, on a number of times in his speeches, said that we will recast all our laws in the light of Islamic principles. I wish, there fore, that a Select Committee be constituted which may remove the defects in this bill and may present it in a correct and complete form." There was some opposition to the reference of the Bill to the Select Committee on the ground that that would delay matter. However, an undertaking was given that the report of the Select Committee will not take long. On the 9thf January, 1948, this Bill was moved and it was resolved that the Select Committee should submit its report by the 20th of January 1948. When the Bill emerged from the Select Committee, section 2 had been altered in the manner given below:‑ "Notwithstanding any custom or usage to the contrary in all questions regarding succession (including succession to agricultural land) and in all questions regarding charites and charitable institutions and charitable and religious endowments the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." The reason given by the Select Committee as to why the form was changed was this:‑ The committee, after fully considering the Bill and taking into account the other enactments applicable to the matters mentioned in the Bill, make the following recom mendations." And then followed the new section 2 as amended. It will be quite clear if one considers all the circumstances that the reason why a number of subjects had been taken out of the original section 2 was that these subjects had already been dealt with by the Central Shariat Act of 1937. What has been stated above fully supports this conclusion, but it is clear also from the minute of dissent of Khan Abdus Sattar Khan Niazi who was a member of the Select Committee and from the speeches in Council that followed. Khan Abdus Sattar Khan Niazi, who represented that section of the public which demanded the immediate enforcement of all the Shariat Laws civil and criminal, had recorded a dissent not because the Bill did not apply Muslim Law to those subjects which were mentioned in the Central Shariat Act because it did not apply the whole of the Shariat civil and criminal and because it did not, at the same time appoint Kazis and Muftis for replacing the High Court. He was also opposed to it because no provision was made in the Bill for the codification of the whole of the Shariat. He said it was only a marriage and inheritance Bill. Now marriage is not mentioned in the new section, and if the only subjects which were governed by Shariat were those that appeared in section 2. then marriage would also not be governed by Muslim Law. If one just considers the atmosphere that prevailed at the time, it is utterly unimaginable that there was any intention to retain any part of custom in a matter in which there did exist a rule of Muslim Law. Begum Shah Nawaz, who was also one of the members of the Select Committee, explained in the Assembly what exactly this proposed Bill meant and she made it quite clear that it was only the Kazmi Bill with this addition that the defects in the Kazmi Bill had been removed. Referring to the Central Shariat Act of 1937, which, she said, was the result of the efforts of ladies, she said: "But unfortunately by the efforts of some members, a clause was inserted in that Bill that it would not apply to agricultural lands and to charitable institutions". and then said: "He conceived an idea that we will approach the ministry and will request them to pass a law by which the Kazmi Bill should also be applicable to agricultural lands and charitable institutions" She said further (referring to the new Bill); "It is only the Kazmi Bill. The Kazmi Bill did not apply to agricultural lands and charitable institutions . . . . . . . . . I am grateful to the ministry that the Bill that has emerged from the Select Committee is a Bill which amends the Kazmi Bill". If one puts the Central Shariat Act of 1937 and the Shariat Act of 1947 side by side, one would find that the later Act applies just to the exceptions of the earlier Act. For "intestate succession", "succession" has been substituted and the other subjects mentioned are only those which are contained in the brackets of section 2 of the Central Act, (The brackets contained the exceptions). It is obvious that when the Bill went to the Select Committee somebody suggested that it will be wrong to retain section 2 in its original form and to mention those subjects which are already apart of the Central Shariat Act. That is why they said they had altered the original clause in view of other statutes applicable to the subjects concerned. It cannot be suggested that the Select Committee deliberately excluded these subjects because they were of the opinion that Muslim Law should not as yet be applied to marriage, dower, divorce, guardian ship, etc. To accept any other interpretation of the present form of section 2 would mean that as yet custom was deliberately allowed to be applied to all those subjects which are not mentioned in section 2 of the Shariat Act of 1948. It would, at the same time, mean that by some strange coincidence the Select Committee just considered those subjects fit for the application of Muslim Law in preference to custom as had been excepted by the Central Shariat Act. Nor can one think of any reason why custom should be particularly applied to charities, charitable institutions, charit able and religious endowments and not to marriage, dower, divorce, gifts, wills etc. What I want to show is that even when passing the Shariat Act of 1948, there was not on the part of Legislature any intention deliberately to continue the application of custom to any subject on which there existed a rule of Muslim Law. Whether the Legislature succeeded in giving full effect to its intention to override custom is a different matter. That will depend upon proper drafting, but about the intention there cannot be any doubt. Under the circum stances it will be quite reasonable to regard the amending Act of 1951 as intended to clarify the law and to give full effect to the original intention of applying Muslim Law by curing the defects or supplying omissions in the existing Law. The amending Act includes all subjects on which custom was applicable except partition, alluvion and diluvion, and these have been excepted because there does not exist any rule of Muslim Law on the subject. It should be remembered that the primary intention is not the abolition of custom as some thing in itself improper but the enforcement of the Muslim Law so that there is no need to abolish custom in respect of matters on which no rule of Muslim Law exists. It was urged before us, in support of the proposition that there was no intention to supersede custom altogether that the Shariat Act of 1948 did not repeal the whole of section 5 of the Punjab Laws Act and only said that section 5 was repealed to the extent of its repugnancy. The argument surprises me. It should be obvious that:‑ (1) section 5 does not apply to Muslims alone; (2) partition alluvion and diluvion are still subject to custom; and (3) the Shariat Act was not by itself referring to all subjects. Is it possible to urge that the last section of the Shariat Act of 1948 should have said: "The whole of section 5 ad of the Punjab Laws Act is repealed". I will take up now the first proposition accepted by the Full Bench, namely, that the power of alienation of the male holder of ancestral property is to be judged by the law under which he took the estate. Before I deal however with the proposition on its own merits, I propose considering in my own way whether the result of the change in law could possibly have been that which is claimed on the basis of this proposition. The effect claimed is that his power of aliena tion remained restricted in spite of the change in law. My approach to the problem will be to consider what exactly was the law in force relating to restrictions on power of alienation just before the Shariat Act of 1948 came into existence, then to see what was the change effected in the law and finally determine the effect of the change. What was the law in force before the Shariat Act of 1948 as regards restrictions on alienation of ancestral land? The only law in force was that when a male holder of ancestral land died, the heir qua whom the land was ancestral could succeed to the land even if it had been alienated in the meantime, except in specified cases (for instance, if the alienation was for consideration and necessity). This, I say, was the only law in force relating to restriction on a male holders' power of alienation of ancestral land. The word '`alienation", it will be observed, did not occur in section 5 of the Punjab Laws Act and any customary rule, assuming there was one, which related to alienation as such, would not be law. (Gifts and Wills were no doubt mentioned in section 5 of the Punjab Laws Act. I will later in this judgment show that the impeachability of even gifts and Wills was the outcome of the rule of succession contained in the agnatic theory. But for the present, to avoid any confusion, I will use the word alienation as excluding gifts and wills). If a custom said "an alienation without consideration and necessity will be void", it would be the custom and not the alienation which would be void, for custom had no power to legislate as to 'alienation'. Custom, however, had the power to regulate 'succession' and there was no bar to its providing a rule that an heir will succeed even to alienated property. It did provide such a rule. It laid down that on the death of a male holder, his male descendant or collateral shall succeed even to the ancestral property alienated by him except in certain specified cases. The result of this customary rule was that an alienation, which could not as such be invalidated, became subject to a right of succession of an heir and, there fore, liable to be defeated. But the only defect in the alienation was that it was subject to a right of succession of an heir to ancestral land who succeeded by virtue of a peculiar rule even to property which had been alienated. The point to be borne in mind is that whatever the words which we might use to describe an alienation which is liable to be defeated in this manner, the true legal situation was only this that there existed a rule of succession by which even alienated property could be inherited. Custom neither intended to create any further rule nor was it empowered to do so. I repeat and this is the whole basis of the argument I am putting forward just now that regarding alienation of ancestral property, the only customary rule in force before the passing of the Shariat Act of 1948 was that a male descendant or collateral was entitled to succeed even to alienated property, except in certain specified cases. We find it stated in commentaries on Customary Law "ancestral property is ordinarily inalienable except for con sideration and necessity". We find it stated sometime that alienation of ancestral property is invalid. The use of such words may possibly have been intended only to convey that there was 'a possibility of the alienation being defeated if and when a particular right of succession occurred, and I do not say that one may not, for the sake of brevity, employ such language if there be no risk of confusion. But to the minds of some at least these words have conveyed an entirely wrong impression of the rule of customary law. "Alienation" too has been regarded as a subject on which custom could lay down rules and alienations of ancestral property have been regarded as bearing some defects in themselves. We find it stated in some judgments that though a tribe may follow custom in matters of succession, it may not do so in matters of alienation and vice versa and this argument, we find, coming from lawyers too. All this, however, is based on a mis conception as to the nature and applicability of the customary rules. Let me clarify here that not only custom could not make a rule directly invalidating an alienation, it never purported to do so. But with this aspect I will deal when I come to the authorities. At present I am putting forward a simple argument on the basis of statute. To bring out the point more clearly, I would say that the situation before the passing of the Shariat Act of 1948 was the same as if there had been a statute saying:‑- "On the death of a male holder of ancestral land, his heir if he be a male descendant or a collateral shall succeed even to ancestral property alienated by the holder, except in specified cases (alienations for necessity etc.)." This statute exhausted the law relating to the so‑called restrictions on the power of alienation of the male holder of ancestral land. This is the first step in my argument. The next step is this. By the Shariat Act of 1948, this law was repealed. By the Shariat Act of 1948, succession was henceforth to be governed by Muslim Law and the customary rule of succes sion, therefore, that the heir was entitled to succeed to alienated property vanished. It can hardly be urged that the law was not repealed. There could not be any further succession in accordance with custom. It is unnecessary for the purpose of my argument to assert that the Shariat Act was intended to do away ,with the whole of the customary law (except partition alluvion and diluvion) by complement ing the Shariat Act of 1937. I need only refer to the word "succession" in the Shariat Act of 1948, and say that what ever otherwise be the effect of the Act, succession henceforth could not be governed by custom. Now, if all that has happened is that there was a law relating to succession and that law has been repealed, if that be the simple and the whole truth of the matter, is there any room for the argument that there still exists any restriction on the powers of alienation of a male holder of ancestral land? Direct restriction there never was any and the aliena tion was good except that it could be defeated if and when the right of succession arose. That right of succession is no longer there. I have already stated that the correct approach to the problem is to find out the exact law that was in force and the exact change that has come about and then determine the result. It can hardly be urged, just because there was a customary rule of succession which has disappeared, that a male holder of the ancestral land cannot even now alienate his ancestral property. According to the customary rule previously an heir used to get alienated property when his right to succeed arose. As that law is no longer there, he will not now succeed to alienated property on the death of the alienor. This is the simple and the whole result of the change in law. That is the conclusion which one would reach if one looked at the law itself. But then we get into the maze of some legal terms. We begin to talk of "limited owner", "restrictions personal or running with the land", "estate" and so on, and (I say so with great respect for all those who have so proceeded) we get lost. We refer to judgments where if the male holder of ancestral property is described as a limited owner, forgetting that by whatever name you might remember the poor male holder, the legal situation relating to his ownership is just what I have stated above and will not be altered by the employment of any terminology. I am not objecting to the use of legal terms. We have to use them all the time to express the law. But then we should be careful to ascertain the precise import and implication of the term we employ if we are to avoid confusion. And I do say that it is a proper approach to look to the law itself, the law which is the mandate of the state and which alone is binding on us, and whenever a person says an alienation is invalid to ask him if there is a law in force which says expressly or by necessary implication "an alienation of ancestral property shall be invalid" which is that law? What are the words of that law? Is that law in force? The argument before us has not proceeded just on the lines of the Full Bench judgment in Muhammad Asghar v. Gulsher Khan. The main argument before us is based on the male holder of ancestral land not being a full owner but a limited owner while the Full Bench 'had conceded that he was a full owner. As will appear later in this judgment, the position of the male holder remains wholly unaffected by his description as full owner or limited owner. I will be dealing with the propositions accepted by the Full Bench and during the course of the discussion I will also deal with all the arguments raised on behalf of the plaintiffs before us. I will proceed now to consider the correctness of the first proposition accepted by the Full Bench. The proposi tion is that the powers of alienation of a person are to be judged by the law under which he took the estate. This proposition is based on a dictum of Mahajan, J., in Ata Muhammad v. Muhammad Shafi (A I R 1944 Lah. 121) where, while dealing with a case arising out of Central Shariat Act of 1937, the learned judge said:‑ "The alienor inherited this property under customary law and his powers of alienation must be judged under the law under which he took the estate and not under a different law". Will this proposition bear examination? In the case with which we are dealing, there was no direct restriction upon alienation, but let us see whether this proposition will hold good even in cases of direct restrictions. Suppose there is a law which says that no person shall transfer immovable property if he has a descendant alive and a person inherits the property when this law is in force. The law is then repealed. If that person makes an alienation after the repeal. can his son say "you inherited this property when there was a restraint on the power of alienation that law may be no longer in force but you cannot alienate the property for your powers of alienation are still to be governed by that an agriculturist case which is the converse the whole Suppose governed of Muslim Law is made applicable by statute, and that agriculturist inherits some property while Muslim Law is in force. Muslim Law is then repealed and custom restored. Will his power of alienation be governed by the law under which he inherited the property? He inherited the property under Muslim Law. Under the Muslim Law a will for more than one‑third of the property cannot be made in favour of an heir it cannot be made at all, and a gift of musha too is invalid, Will that agriculturist be unable to make a will of more than one‑third of the property, will he be powerless to make a will in favour of an heir, and will he be debarred from making a gift of musha, because he took the estate under Muslim Law? Also, under Muslim Law, a gift is revokable even after delivery of possession except in certain cases specified in para. 167 of Mulla's Muhammadan Law. Will the gift of this person be also subject to revocation though the Muslim Law of gifts is no longer in force? Or take the case of a person who was alive in 1872 when section 5 of the Punjab Laws Act was enacted. Assume that he had in herited his ancestral property before 1872 and that according to the law in force at the time when he inherited the property he was entitled to alienate the property. If he effected an alienation after 1872 and his reversioners filed a usual suit for a declaration, could it be argued that the power of alienation of that person was to be judged by the law as it stood when he inherited the property and although, according to custom as applicable since 1872, the heir was entitled to succeed to alienated property, to this property which had been inherited by the alienor before 1872, he could not succeed and the suit did not lie. Suppose custom is applicable to pre‑emption also and a person inherits the property at a time when his alienation is subject to the right of pre‑emption by the collaterals. (As Plowden, J. points out in Gujar v. Sham Das and another (107 P R 1887 (F B)), pre‑emption too is a kind of restriction on alienation.) Assume now, that pre‑emption is excluded from the subjects to which custom is applicable. Can it be said that sales made by the person who inherited property when pre‑emption was in force will be liable to be pre‑empted by his collaterals because the powers of alienation of the vendor are to be judged by the law under which he took the estate? Or take a case where a Muslim becomes a convert to Hinduism and is henceforth governed by Hindu Law. Will he not be able to will away more than one‑third of his property, will he not be able to will it away at all in favour of an heir, because he inherited the property under Muslim Law? And now I will give an example, directly relevant to the question before us, which will bring out the full implications of the proposition put forward and demonstrate its utter impossibility. If powers of alienation are governed by the law under which a person took the estate, what about non -ancestral property? Suppose a Muslim who inherited non-ancestral property under custom makes a will of the whole of the property today, in 1956. Consistently with this pro position, the will be valid in spite of the provisions of Muslim Law to the contrary, for the law under which he took the estate gave him the fullest power of alienation by gift, will or otherwise. And the matter will not stop here. If he can will away the whole of his property, why can his heir not do so? He was an owner of the property with full powers of alienation. His heir will inherit all the rights he had and will also be entitled to will it away. Muslim law of inheritance does not say that an heir takes less than his predecessor. So the institution of non‑ancestral property will be perpetuated (as I say you are perpetuating ancestral property for if the person who holds ancestral property now cannot transfer it, his heir, who takes only his right, should not be able to do so.) The examples cited above would show that the pro position is unsound. No argument or authority in support of this proposition is mentioned in the Full Bench judgment except the dictum of Mahajan, J. in Ata Muhammad v. Muhammad Shafi. I have made as thorough a search as was possible for me to find out if the dictum of Mahajan, J. could have any support from any authority, and commentary on jurisprudence or elements of law or any decided case, and I have found none. I have tried to reason out this proposition logically and I find it cannot be supported. In civilised societies, restrictions on alienations of various kinds are always being imposed. But these restrictions do not persist after the law which imposed the restriction disappears. If a law were to be enacted today which says no person shall alienate his immovable property" and the law were then repealed, it could not be said that all those persons who acquired property while the law was still in force, will be unable to alienate their immovable property. The Alienation of Land Act imposes restriction on the powers of transfer of a member of an agricultural tribe. If the law were repealed, it could not be said that those who had acquired the, property while the law was in force would be still bound by the same restrictions as were imposed by that Act. The argument advanced is that somehow a restriction on alienation gets embedded in the estate and that the person on‑whose powers of alienation there is a restriction has not the whole ownership but only an `estate' so that after the law expires his estate remains the same. The argument is based on a misconception. If a person is to be prevented from alienating what belongs to him the law which is to prevent him has to be a living law. If there be in existence no law which says "you cannot transfer", then there is no bar to transfer. It should be remembered that by saying that there is a restriction on transfer, you necessarily imply that the thing which a person cannot transfer belongs to him. If it did not belong to him there would be no meaning in saying there is a restriction on his power of alienation. And if the thing does belong to him, he will be able to transfer it unless a law which is in force prevents him. The law forbids the transfer of a bottle of whisky without a licence. If this law is repealed the restriction would disappear. It cannot be said that in the bottle of whisky the owner had only an estate and, therefore, even after repeal of the law which for bad transfer of whisky he will be unable to transfer the bottle of whisky to another. A person may have medicines or other articles which are subject to price control. When the price control is removed, it could not be said that restrictions on the sale of those articles would still remain and that they can only be sold at the price to which they were subject when they were acquired. Before us there has been an argument in support of this proposition which when properly analysed consists of the following steps:‑ (1) There were restrictions on the powers of alienation of the male‑holder of ancestral land. (2) According to Austin's definition of ownership unrestricted power of disposal is an ingredient of ownership. Therefore, he was not a full owner. (3) The Shariat Act of 1948 is not retrospective in effect. Therefore, the estate of the male holder did not improve by the passing of this Act and if he was previously not an owner be did not become one. The defect in his ownership continued after the passing of the Shariat Act of 1948. (4) As he was not a full owner he could not transfer full ownership to another. With the first of these steps there need not be any quarrel. The restriction was only the danger that an alienation may be defeated, but the danger can be termed a restriction. To Austin's definition too, I will not object at this stage. The definition does tend, as I will show later, to create confusion. Also, I am of the opinion that the power of transfer is not a part of ownership but only an incident of it. However, I will accept the definition for the present. The first part of the third step is also unobjectionable. The rest is, however, open to serious objection. If you accept Austin's definition of ownership then you cannot say that every defect in ownership continues and the estate does not improve unless there be retrospective legis lation. It should not be at all difficult for any person to comprehend that if the only defect in ownership be a lack of full power of alienation on account of the existence of some law, then the mere discontinuance of that law will change a defective into a full ownership and no law with retrospective effect will be requisite for this improvement in the estate. I have already quoted a number of examples to show that a restriction on alienation will disappear by the mere repeal of a law. In all such cases by the withdrawal of law which imposes the restriction, the estate does improve. If the law said "no person can alienate immovable property", no body would remain a full owner. But if the law was repealed, every body (who was not a full owner only on this account) will become a full owner. Yet there will be no retrospective legislation either when full ownership was lost or when it was gained. If a bottle of whisky could not be transferred without licence, the owner of the whisky was not the full owner according to Austin's definition, but by the repeal of law relating to licence he would become a full owner. Still there will be no retrospective legislation. The restriction on a power of alienation always relates to the future and is, therefore, not retrospective, yet the creation of a future restriction takes away the right of full ownership and the withdrawal of a future restriction restores it if we adopt Austin's definition. It may appear surprising to one that a person who is not a full owner becomes a full owner without there being any legislation with retrospective effect, yet if Austin's definition of ownership is to be adopted, the result must be that, without any legislation with retrospective effect, persons would go on either losing full ownership or acquiring full ownership. This is really the cause of the whole trouble. While Austin's definition of ownership is adopted all the time the idea is retained that removal of defect in ownership can only be due to legislation which has retrospective effect. It is for this reason that it is urged on behalf of the plaintiffs that simply by the enactment of the Shariat Act of 1948 persons who are not full owners of their properties would not become full owners. This contention involves a fallacy. If the only defect in ownership was an indirect restriction on the power of alienation brought into existence by a peculiar rule of succession the restriction vanishes by the repeal of law relating to succession and the holder acquired the status of a full and absolute owner. If we ask the question "what was the restriction on the power of alienation", the only answer can be "the rule of succession". If we put the next question "is the rule of succession in force", the only answer can be "no". The question may arise in your mind at this stage as to whether there may not be some defects in ownership which continue even after the law which created them is no longer in force. You may also begin to think of a female's estate under custom and ask: Do we not speak of "restrictions" on her power of alienation? Do not those restrictions continue even though the law which created them has come to an end? And if I reply that those so‑called "restrictions" do continue, you may ask the further question: what is the distinction between the two kind of cases? Why is it that in one case a restriction continues and in the other case it does not? While what I have already said is quite sufficient to discredit the proposition that the powers of alienation are governed by the law under which a person took the estate, I think it is but proper that these natural queries be answered. But to answer these questions, I will have to state what is ownership, and what are its component parts and then to explain a defect in which part continues after the expiry of the law that create it. I will also explain that the so‑called restrictions on the power of alienation of a female are strictly speaking, not restrictions. Ownership as stated by Salmond (p. 268 of Jurisprudence, 1947 Edition) denotes "the relation between a person and any right that is vested in him". I reproduce below the whole paragraph which contains the definition:‑ "Ownership, in its most comprehensive significance, denotes the relation between a person and any right that is vested in him. That which a man owns in this sense is in all cases a right. Ownership, in this wide sense, extends to all classes of rights, whether proprietary or personal, in rem or in personam, in re propria or in re aliena and it applies not only to rights in strict sense, but to liberties, powers and immunities. I may own a debt, or a mortgage, or a share in a company, or money in the public funds, or a copying right, or a lease, or a right of way, or a power of appointment, or the fee simple of land. Every man is in this sense the owner of all the rights which are his." This paragraph is entitled incorporeal ownership, but as will appear further from Salmond and other commentaries on jurisprudence all ownership is, in a sense, and the correct sense, incorporeal, for even when we say that a person owns a material object, we only mean he owns all the rights of use, enjoyment, control etc. of that material object. Referring to corporeal ownership, Salmond says (p. 270): "In its normal compass is the right to the entirety of the lawful uses of thing. "That all ownership is in a sense incorporeal is thus stated by Salmond (p. 271):‑-- "It is always possible to express corporeal ownership in terms of incorporeal ownership. Ownership as a particular kind of right can be translated into ownership as a particular kind of relation to rights of all descriptions. Thus the proposition that A has ownership in a piece of land (where "ownership" is used in its corporeal sense) is precisely equivalent to the proposition that A has ownership in a jus in re propria in respect of that land (where 'ownership' is used in its incorporeal sense)." In the footnote at page 271 there is a full explanation that all ownership is truly speaking incorporeal. Now if we look at this definition of incorporeal ownership, we find its sole requirement to be that a person has a right. If a right vests in a person or inheres in him, he is the owner of the right. As Salmond puts it. "Every person is the owner of all those rights which are his." If a person can pass on the land of another, that is, he has a right of way, when he is a owner of the right of way. It will be observed that a power to transfer the right is no part of the content of ownership according to this definition. If a person has a right he is the owner of it. "While I do not recognise any real distinction between corporeal and incorporeal ownership, I would point out that, assuming there was any distinction, an argument which is not available in the case of incorporeal ownership would not be available to the plaintiffs in these cases, for the ancestral property which is the subject matter of a suit may only be a right in land instead of the land itself. It may only be a right of occupancy or a lease right which belonged to the common ancestor. It may even be a simple right of possession or a right of pasture. Now if the definition of ownership which I have quoted from Salmond were accepted, this judgment would be simple enough. Even the total absence of a power of transfer would not detract from ownership, and the male holder of ancestral property would have all that an owner need have. So if at any time the law said "you cannot transfer your property", he would not do so, and if the law said no such thing, he would be able to transfer it. It could not be said that as he did not on account of a lack of full power of alienation have the whole of ownership, how could be transfer it even after the expiry of the law that imposed a restriction on alienation. But, it is urged for the plaintiffs there is Austin who says power of alienation is part of ownership and, therefore, no argument can be based on the definition which I would accept. I reproduce below Austin's definition on which reliance is placed with its preparatory words:- "I shall now attempt to explain the notion of absolute property, dominium pre‑eminently so called. According to the definition of the Roman lawyers, of the French Code, of Blackstone, and others, in fact by most writers, it means a right indefinite in user, unlimited in duration (that is, capable of going over to a series of successors ab intestato which may possibly last for ever), and alienable by the actual owner from every successor who in default of alienation by him might take the right." Austins purports to 'define absolute' property. He has at another place said that he is using ownership and property in the same sense (p. 371). Properly analysed. Austin's definition amounts to this:‑ An owner is a person who has‑- (1) a right, of indefinite user and unlimited duration, (2) a power to transfer such a right. I may here refer also to Rattigan's jurisprudence (para. 140) where that learned author after reproducing Austin's definition says there are two attributes of ownership (1) peaceful enjoyment, and (2) a power of transfer. I will, in the first instance accept the correctness of this definition of ownership and determine what would be the effect of a change of law on its component parts. I will then show that truly speaking a power of transfer is not a part but an incident of ownership and that the use of the word "ownership" in a sense including the power of transfer will lead to confusion and should be avoided. It will be observed that according to this definition ownership has two ingredients. The first is a right and the second is the power to transfer the first ingredient. Really it is only the definition of ownership which I have quoted from Salmond with the addition of a power of transfer. As we are dealing with proprietary rights, the first ingredient the right, has a reference to the use, enjoyment, possession or control of a material object. The second refers to the power to transfer to another the authority for such use, control, etc. The first ingredient has reference to that which a person has, or which vests in him, or which belongs to a person; the second to the power to transfer to another that which he has or which vests in him or belongs to him. The first, which has a reference, as I have stated, to the use, enjoyment etc., can be properly referred to as interest and the second the power to transfer the interest. I have analysed the ingredients of ownership to make two points: (1) that a defect in the second ingredient of ownership can be created as well as removed by legislation that is not retrospective and the estate of a person concerned in so far as it relates to the second ingredient may go on becoming‑better or worse without retrospective such legislation and (2) that for determining the first ingredient of ownership we have to look to the law as it was when the estate was acquired and for determining the second ingredient we have to look to the law as it stood at the time of the transfer. The correctness of these propositions will be abundantly clear from the examples which I have already quoted. As regards the first proposition, a person may be an absolute owner of the property but he will lose that absolute ownership if a law is enacted which limits the power of transfer. There is no retrospective legislation yet he loses 'ownership. Similarly, when there exists by the law a restriction on the power of transfer and the law is repealed he becomes an absolute owner though there is no retrospective mad legislation. The estate does improve by the mere repeal of the law which imposes restriction. As regards the second proposition, the law which imposed the restriction has to be a living law. When the law which placed the restriction expires, it cannot be said that the property can still not be alienated because at the time when the property was acquired, its alienation was subject to a restriction. So far as the `right" "interest" of a person in a property is concerned, there can be no doubt that we have to look only to the law at the time w lien he acquired that "right" or interest. If the law said that a sale for a price less than a named sum will amount only to a mortgage, a person, who took a sale while the law was in force, would only take a mortgage and a repeal of that law will not enhance his rights. The "interest" can only be enhanced by a positive acquisition or a legislation with retrospective effect while powers of transfer can be granted or taken away without such legislation. So a defect in ownership relating to power depends for its existence on the continuance of the existence of a law which imposes restriction while the defect that relates to the right enures after the expiry of the law which created the defect. Even the simple repeal of a law which imposes a restriction on transfer will make a defective owners a full owner. There is one point that should be clarified here. Although I have said that in respect of the second ingredient it is the law in force at the date of the alienation that has to be looked into, it should be remembered that in the case of an indirect restriction upon alienation ultimately the law that governs will be that in force when the so‑called restriction has an effect upon the alienation. In the case of an alienation by a male holder, for instance, it is really not the law at the date of the alienation but the law at the date of the death of the alienor that affects the rights of parties. If at the date of the alienation there did exist a rule of succession which defeats an alienation, but by the time the alienor dies that law of succession is repealed, a decree that has been passed in the meantime would have no effect, and the alienation would remain perfectly good if that right of inheritance in view of which a suit bad been allowed to be filed was in fact not existing at the date of death. The property would still remain with the alienee for there would not be in existence that right which defeats the alienation. The defect in the estate of a male‑holder of an ancestral land related only to the second ingredient of ownership, the power of transfer. It really could not directly relate to the power of transfer, for as already stated custom was not applicable to alienations, but, in any case, it was a defect only relating to power of transfer. So far as the "right" or interest" of the male‑holder is concerned, it cannot logically be urged that there was any defect in it. When I come to deal with the authorities, I will show that the fullness of his interest has always been recognised though I do not think this is a point which should be decided on the basis of authority. We should look to the .law that created the defect. The common ancestor had full interest and in the absence of a law to the contrary the heir would take the full interest. What is the law which created a defect in the ownership of the male‑holder? Only the customary rule of succession that the heir was entitled to alienated ancestral property. There was no other law affecting his ownership. This customary rule of succession created no defect in the first ingredient. Also it would be impossible to argue that his interest was not full if we look to the interest which he transferred. Did he not transfer the whole interest to the alienee? Did the alienee not get the whole of "interest" (the first ingredient) even in cases when a suit was brought and a declaratory decree obtained, but at death either the heir was not alive or the preferential heir was a female. In such cases at what time will you say full interest passed to the alienee? It could only have passed at the time of transfer. It could not pass by the death of the reversioner or the mere existence of a female heir. So it must pass at the time of transfer. The whole interest did pass, though it was liable to be defeated in a certain contingency. As the defect was only in the second ingredient of ownership and the law which created the defect is no longer in force, there is according to the proposition I have already substantiated no defect now in the ownership. It may be proper to deal at this stage with the question as to the position of a widow under customary law. Does the defect in her ownership relate to the first or to the second ingredient? Does it relate to her "interest" or the power to transfer that interest? Not that the decision as to whether a suit can be filed to impeach an alienation by a widow can in any way affect the question as to whether a suit can be filed to impeach an alienation by a male. As I will show later that is a matter which is to be decided on the basis of section 3 of the Shariat Act of 1948, and would really not affect the question before us. I am only dealing with this matter because it is generally said that there are restrictions on the power of alienation of a widow and it may create a doubt as to whether the defect in her estate too does not relate to the second ingredient, i.e., the power to transfer. In order properly to appreciate whether the defect relates to interest or the power of transfer, let us examine the nature of the estate of a widow under the customary law. Her right was originally only one of maintenance. It gradually grew into a life estate, with a power to alienate in order to maintain herself. There was, however, one difficulty. A life estate as understood in English law necessarily implies a remainder man. It involves that there is at the same time another person who was a present interest in the property of which life estate is held. Custom, however, did not look at it like this. Inheritance did not open out at the death of a male‑holder and till the termination of the estate of a widow no person had an interest in the property. The person who would succeed would be the one existing at the time of the termination of the estate of the widow. This has created an anomalous estate. As nobody had an interest in the estate during the lifetime of the widow it had to be said that her interest was that of an owner and not of a person with a mere life estate which only means a right of possession and enjoyment for life. A fiction was created to meet the situation which said that the life of the husband was deemed to continue in the widow. This is how inheritance at her death by the heirs of the last male holder was explained. However, while her right was regarded as that of an owner, it was admitted that her estate came to an end with her life. She had no interest transmissible to her own heirs. Therefore, even though her life estate was regarded as ownership it was only a right, as Austin would call it, of limited duration. The defect, therefore, obviously was in the first ingredient of ownership, i.e., "interest". The interest was not full, for it was not unlimited in point of duration. I might point out here that in all Riwaj‑i‑Ams, the words used with respect to the widow are "life estate" or to hayat. In all commentaries, including that by Rattigan it is said that on the death of a male owner without issue, the widow succeeds to a life estate. It is really only to get over the difficulty that would be created by giving her mere life estate while no person alive had an interest in the property that her right was regarded as that of an owner. Overlooking for the present, however, that it is really a life estate and accepting that her right is that of owner, it will still be clear that the defect relates to her "interest". Her interest is not fully and it is for that reason that she cannot give away the whole. That her interest is not full and that so far as her own interest is concerned, she can alienate all she has, will be apparent from the judgment of their Lordships of the Privy Council in Moniram Kolita v. Kari Kolitani (I L R 5 Cal. 776). At page 791, their Lordships say: " But, further, the widow has a right to sell or mortgage her own interest in the estate, or in the case' of necessity to sell or mortgage the whole interest in it." It will be observed that their Lordships have drawn a clear distinction between her own. interest in the property and the whole interest in it and their Lordships have said that so far as her own interest is concerned, she is entitled to sell or mortgage it, but so far as the whole interest is , concerned, she can only sell or mortgage for necessity. The same proposition is stated at page 169 of Mulla's Hindu Law, 1946, Edition, where it is said: " She can sell her life interest in the property or mortgage it or make a gift of it to anyone she likes." The position of a widow under the customary law was thus described by Chatterji, J., in Sher Muhammad and others v. Phula and others (9 P R 1899) at page 51 " There are strong analogies between the estate of a widow under Customary Law and her estate under Hindu Law. Under both laws she holds for life for the purpose of maintenance with certain powers of disposition necessarily incident to her position. She is, at least in Customary Law, in no sense a co‑sharer, and on her death the succession is not to her but to her husband. In fact her estate is one inter‑posed for a limited purpose between that of her, husband and the next heir." This passage was quoted with approval in the Full Bench case Ali Muhammad v. Mst. Mughlani and others (A I R 1946 Lah. 180). The words "powers of disposition necessarily incident to her position" describe correctly the nature of .her power of alienation. In Jowahir v. Mst. Chandi (90 P R 1892), Plowden, J., observed: " A man without sons is as much a proprietor as a man with sons. A widow as such is not a proprietor. She has a life interest with a power under certain circumstances of disposition . . . . . . . . The whole interest " in the 'land' is in the father or the sonless proprietor thus distinguishing him from the widow." Their Lordships of the Supreme Court too have pointed out in Shahzadan Bibi v. Amir Hasan that "there is between the estate of a male and a female with a life tenure a funda mental distinction. It may here be asked: how is it that the widow can sometimes transfer full ownership if her own interest is not full? The answer is that the law may authorise a person, who does not possess the whole interest, to transfer the whole interest. Law even authorise persons to transfer property who have no interest at all. For example executors, guardians and agents can transfer property even though they have no interest in it. There is a distinction between, a case, where a person transfers an interest that he possesses and a case where he transfers that he does not possess but has a power to transfer. The case of a widow when she transfers full ownership is a case where a person transfers partly on account of' interest and partly on account of power: It is only in this way that her power of transfer can be explained, and in fact from the observations made by their Lordships of the Privy Council, which I have quote above, it should be quite clear that she transfers more that leer interest when she alienates for necessity and so far a as her own interest is concerned, she is entitled to transfer it without restriction. It may further be asked: why is it that we speak of restriction ion the power of alienation? I say, strictly speaking it is not a restriction which should mean a curtailment of ordinary power of an owner to give away that which he has. Restriction, in this connection means either an inability to transfer the whole as the whole is blot possessed or a limitation of the power which the widow hack been granted to alienate even the whole estate. That power had been limited by the existence of necessity. It is not a 'restriction on transferring that which you have not a 'defect, in the second ingredient which means' an inability to, transfer the first ingredient. That there did exist a defect in bier interest, the first ingredient cannot be doubted. She had only a right of limited duration ending with her own life or her remarriage. As there was a defect in her 'right' or 'interest', the first ingredient, it will outlive the law which created it. In the foregoing discussion I had first shown without any analysis of ownership that a restriction on a power of aliena tion lasts only as long as the law which imposed it exists. I then assumed the correctness of Austin's definition and, analysing ownership on that basis, showed that while a defect in the first ingredient of ownership outlives the law which created it, the second does not. I proceed now to give my own views on the content of ownership. I am of the opinion that:‑-- " (1) A power to transfer is not a part but an incident of ownership. (2) The use of the word " ownership. " in a sense necessarily including a power to transfer is not correct and leads to confusion." I will amplify what I have stated. If we refer to any commentary on the law of property we will find it stated that a power of alienation is an incident of ownership. When I pointed out at the hearing that a power of transfer was an incident and not a part of ownership, somebody said it was a distinction without a difference. Let me state that when we say one thing is an incident of another, then (if we are using the word incident in its proper sense) we necessarily mean that it is not part of that other. I reproduce below the meaning of this word as given in Iyer's Law Lexicon:‑- "Incident.‑--That which follows the principal thing, 'Incident' is a thing necessarily depending upon, appertain ing to, or following another that; is more worthy or principal. Thus timber trees are incident to the freehold, and, so is a right of way. 'A thing Appertaining to or following another as a more worthy or principal. (Co. Litt. 15 lb.) Thus, a Court baron is incident to a man or, rent to a revision, and distress to rent. Burrill's Law Dictionary' defines `incident' as belonging appertaining to following; depending upon another thing as more worthy . . . . . 'A thing may be necessarily, or in-separately incident to another, or usually so.' Webster defines it thus; 'Something necessarily appertaining to or depending on another which is termed the principal'." Similar meaning of 'incident' are given in other dictionaries. I will not repeat them. One thing may be an inseparable incident of another, yet it will not for that reason become part of that other. Funda mental rights are an incident of citizenship but no part of it. Absence of contractual power is an incident of minority but no part of it. Whether one thing is an incident of another depends on the law of the land. If the law envisages a thing apart from its incident and then says to that thing the incident shall attach, then the incident is no part of that thing. If, on the other hand, the law said that without that which is described as incident the thing did not properly exist, than the so‑called incident would be a part of the thing. If our law envisages ownership without the power of transfer and then says a power of transfer shall exist in case of ownership the power of transfer shall be an incident of ownership. I will presently refer to our law for this purpose. I will first quote commentators on the law of property. Dart, in his well‑known work Vendors and Purchasers, says (p. 21 of eighth' Edition): " A right of alienation is generally incidental to and inseparable from the beneficial ownership of property". In Gour's Law of Transfer (paras 60 and 377) it is stated: " In the history of property the right of alienation has always been regarded its most vital incident " and "power of alienation is a legal incident of the estate". Mulls, in his Transfer of Property Act while dealing with section 10 of: the Act, says: " The principle underlying the section is that right of transfer is incidental to and inseparable from the beneficial ownership of property". In Rao's Law of Property similarly it is stated: " A right of alienation is an incident of ownership." Blackstone, while dealing with the power of alienation (Commentaries, Vol. II, p. 244), says: And herein we must consider rather the incapacity of parties, for all persons in possession are prima facie capable of both conveying and purchasing unless the law has laid them under any particular disabilities". The meaning of this quotation is that what you have, you are entitled to transfer in the absence of a law to the contrary. I have said that whether one thing is an incident of another depends on the law of the country and that if our law envisages ownership apart from the power of transfer and then says the power of transfer shall attach to the ownership the power of transfer shall be an incident or ownership. I will consider in this connection the provisions of the Transfer of Property Act, but before I do so, let me state that "property" and 'ownership are juristically inter changeable terms. Austin regards them as synonymous. Here is an extract from him (p. 371 of Jurisprudence): "Ownership or Property (equivalent to Dominion, in its strict or proper signification) is a term of such complex and various meaning that. I must defer the full and accurate explanation of it to a future opportunity. But in order to the illustration of the distinction which I am endeavour ing to exemplify and explain. Ownership or: Property may be described accurately enough, in the following manner; 'the right to use or deal with some given subject, in a manner, or to an extent, which, though it is not unlimited, is indefinite'." And Salmond says (p. 425): "Corporeal property is the right of ownership in material things and incorporeal property is any other proprietary right in rem." In the Transfer of Property Act, "ownership" and "property" are used interchangeably. In section 54 sale is described as a transfer of 'ownership' but further in the same section what is sold is referred to as 'property'. In section 118 similarly an exchange is described as transfer of 'ownership' but further in the same section the' thing exchanged is referred to as 'property'. In section 118 the thing gifted is referred to as 'property' although it cannot be said in this section the reference is to something different from that which is sold. Now, let us look at section 6 of the Act. It says all property with some exceptions can transferred. This means in the first place that property is something that exists apart from the power to transfer it. In fact when we simply speak of transfer of property that by itself implies that property is something separate from and independent of transfer. If the word "property" included the power of transfer, section 6 would be meaningless. If property included the power of transfer there would be no meaning in saying that some kind of property can be transferred while others cannot be. Section 6 proves at the same time that the power of transfer is an ordinary incident of property. If a person has property, then, by the law, except in cases mentioned as exceptions, he can transfer. The power to transfer goes with the right which is to be transferred. Coming to section 10 of the Act we find that an absolute restraint upon alienation is void. The section recognises that the power to transfer is an ordinary incident of property and prohibit an absolute restraint upon it. Sections 54 and 108 speak of transfer of ownership. They cannot obviously be referring to 'ownership' as something which included the power of transfer. They are referring only to that which is transferred. When a person transfers ownership, he transfers to another not the power of alienation of the property brat the property. The power of alienation the vendee gets from the law of the land. Even if in the sale deed the vendor were to say: " I transfer all the right, title and interest I have, but not the power of transfer", the vendee will still have the power of transfer. Ownership in the Austinian sense as including power of transfer is never transferred. It is only the right that is transferred. Accord ing to the definition by Austin himself it is the right that is transferred by its owner, the right which is the first ingredient in my analysis of his ownership. I have explained already that the second ingredient is a power to transfer the first ingredient, not the whole content of ownership. It should be clear that the Transfer of Property Act regards property or ownership as existing apart from a power of transfer and it attaches the power of transfer to it as an incident. As our law makes the power of transfer an incident, it will not be correct for us to refer to it as a part of property or ownership. A good deal of confusion has been created in connec tion with the content of ownership by writers on juris prudence, who, while they speak of an owner as one who can transfer, also go on using the term ownership and property in a sense referring only to the right without the power of transfer, and Austin is no exception to this. I have reproduced his definition (P. 835) according to which the owner has the power to transfer 'the right' (of property). Yet at p. 370 (this too I have already reproduced) he makes " property " and " ownership " synonymous. Now it is quite obvious that in his definition when he speaks of the owner transferring the 'right' he refers by the right only to the right of property without the power of transfer. Right of property in his definition does not include the power of transfer. It refers only that which is being transferred. Yet he makes the right of property equivalent to ownership which includes the power of transfer. Then, Austin as well as other writers go on speaking of ownership or property as a right, a proprietary right and a right in rem, which 'right' in this sense cannot include a power of alienation which is not a right at all (in its strict and ordinary sense and in the sense in which the word is used in "proprietary rights" and "rights in rem"). " Right" and "power" are in jurisprudence distinct concepts. Although in a wide sense "right" can also include a "power", it is not at all difficult to show that writers on jurisprudence are referring to rights stricto sensu when they refer to ownership. Austin in fact uses the word right only in its strict sense where it has duty as a co‑relative. Right stricto sensu is an interest which the law protects by im posing a duty with respect to it on another person. (Salmond p. 237) Power, on the other hand, is an authority con ferred on a person to affect legal relations. Examples of powers are the powers of a guardian, an executor, an attorney, the power to make a will, the power to appoint a guardian etc. The effect of the exercise of power is a change in legal relations. An important distinction between rights and powers is that for powers there is no corresponding duty. Salmond thus states this distinction (p. 241):‑ " They (powers) resemble liberties, and differ from rights stricto sensu, inasmuch as they have no duties corres ponding to them. My power to make a will corresponds to no duty in any one else. A mortgagee's power of sale is not the correlative of any duty imposed upon the mortgagor; though it is otherwise with his right to receive payment of the mortgage debt ". In the beginning of this paragraph the right (in wider sense) of alienation is mentioned as an example of a power. Austin has expressly stated at a number of places in his treatise (I mention only pp. 33, 283 and 394), that "every right corresponds to a duty". When he refers to a right. therefore, he cannot be including in it a power. Another reason why the power of transfer cannot be included in property or ownership is that this is a proprietary right which has, a reference to the use, control or enjoyment of a material object. Power of transfer does not, as I explained when I analysed ownership, refer to such use. It should be clear that a power of alienation cannot be a part of ownership which is but a right. The writers, On jurisprudence will, therefore, not be consistent if we regard them as saying that power of transfer is a part of ownership. They would be consistent only if we interpret them as saying that the power to transfer is an incident of property. There is one thing I want to clarify here. I have no objection to the use of the phrase " absolute owner " to signify an owner who has at the same time full power of alienation of his right. It is even a convenient phrase. But I agree to this use only if we are able at the same time to keep in mind that this "absoluteness " is no part of ownership and just describes an incident of it and that ownership does exist in full even without it. I may point out that the power of transfer when it resides in a person who is not the owner of the interest that he transfers, for instance the power of a guardian or an attorney, is never regarded as property. There is no particular reason why it should be so regarded when it vests in the owner of the interest that is transferred. It appears to me that the reason why a power of alienation is regarded by some as an ingredient of owner ship is that they consider the owner a person who has all powers of use, enjoyment or control of a material object and they think that to give away a material object to another is a part of the right of possession or control. They do not seem to realise that physical giving away is one thing and a power of alienation another. Alienation is not simple physical handing over. It involves the creation of right. The vendor creates new rights against the whole world in his vendee. This act bears resemblance to a legislative function and is not merely a part of the right of possession or control of a material object. A good deal of confusion is introduced in our discussion by adoption of Austin's definition of ownership, for there is, in our vocabulary, no other appropriate word for denot ing only the right apart from the power of transfer and like writers on jurisprudence we continue using the word ownership in the sense of the right alone. We talk of transfer of ownership" without realising that we are not using it as inclusive of the power of transfer. I explained when I was discussing the use of "ownership" in section 54 of the Transfer of Property Act that when we speak of transfer of ownership or property, we cannot be referring to these words as including the power of transfer. An example of the confusion created by Austin's definition is the proposition put forward by learned counsel for plaintiffs that "power to transfer ownership is part of Ownership". It is not realised that this is a contradiction in terms. That which is transferred must be already existing when the power of transfer is applied to it. If you are asked to define what is ownership and you say it consists of A B, and the power to transfer ownership, the obvious objection' is that you are defining a word by the word itself. Perhaps by reference to a particular right it may be made clear that what is transferred is not the whole con text of Austin's ownership. A is the owner of a tenancy right so that he has the right and has also the power to transfer it. He transfers the right to B. Does he transfer the ownership of the right or the right itself? He transfers only the right. The power he has is for transferring the right. The only condition of his being an owner of the right is that he should have full power to transfer the right. It is not, according to Austin's definition, essential that he should have power to transfer the whole content of owner ship. He will be an owner of the right if he can transfer the right even though he cannot transfer its ownership. The confusion created by Austin's definition will further become apparent when we consider what are called res trictions on the power of transfer. It is said that there was a restriction on the power of transfer of an owner of an agricultural land, but when we put the question "restriction on transferring what ", the answer is " restriction on trans ferring 'ownership' ". But this very phrase implies that that person has ownership. If he has not got it, there is no question of any restriction on his power of transferring it. So unconsciously all the time we go on using the word " ownership " as referring only to the right which a person has apart from the power of transfer. We are forced to do it because we do need a word which refers only to the right and this is the only word which we know and which is commonly used for that purpose. Another difficulty that arises is that there are many rights which are not transferable. A person has a right of reputation, a right to carry on business, a right of personal liberty, a right to a pension and so on. All these rights are non‑transferable. Should we say then that we are not owners of these rights? If we say we are not owners what other phraseology should be employed? Apart from the fact that Austin's definition, (if we interpret him as saying that power to transfer is a part and not an incident of ownership) in view of the provisions of the Transfer of Property Act, does not fit in with our terminology, we should, for the purpose of clarity of thought, refer by ownership only to the rights in the material object, i.e., to the interest in property and not to the power of transferring that interest. Otherwise there being no other word relating to a right alone, we will be using the word ownership as referring sometimes to the right without the power and sometimes to the right as well as the power. If we use the word ownership only in the sense which I indicate, i.e., as referring to the "right" alone, the whole argument which is being put forward in the present case as to defect in the estate would fall. There will be no defect in ownership at all. At the most what could be said was that giving away of ownership was at one time prohibited and now restrictions on giving it away have been abolished. The result would be simple that now owner ship could be given away and there would be little room for further argument. It may be urged on the other side that there cannot be on principle any objection to the employment of a particular definition. However an argument which relates to substantive rights would be really a poor argument if it can be supported only if a particular definition is employed. I have so far considered the powers of alienation of a male‑holder of ancestral land on the basis of statute, elementary principles and logical reasoning. I will next consider whether even on a study of authorities the con clusion as to the restrictions on the estate of a male‑holder is the same. What was the estate of a male‑holder of ancestral land and what were the restrictions on his power of alienation considered in view of decided cases? Was there any restriction except the right of succession of the reversioner? The nature of the estate of such an owner is thus described in the Full Bench case itself:‑ " He, in the words of Rivaz, J. in 18 P. R. 1895, at page 77, is a full owner with an interest transmissible to his heirs, lineal or collateral, but that his power of alienation is limited and liable to be controlled by the heirs, lineal or collateral, as the case may be . . " A very instructive description of such an owner is given by Plowden, J. in the referring order of the same case which has been quoted in the judgment, i.e., Roda, Hira and others v. Harnam and others (18 P R 1895) at p.

76. The learned Judge says:‑ " The peculiar position of landholders in the Punjab who are full owners as to interest but have a limited power of alienation was not within the cognizance of the Legislature . . . ". The fullness of his interest is not denied. The only defect in the estate of such an owner is that there is a limitation on his powers of alienation. If this restriction on the powers of alienation should disappear there shall not remain anything to derogate from the absoluteness of his ownership. In the argument before us it was stressed, in opposition what had been accepted by the Full Bench in Muhammad Asghar Shah v. Gulsher Khan, that the male‑holder had only a limited interest and that the reversioner had an interest in praesenti in the property. I have already quoted from the Full Bench where it says that he is a full owner. Later in this judgment I have quoted from the Full Bench where it says he has no interest in praesenti but only a spes successionis. I will also be quoting their Lordships of the Privy Council where they say that even in the case of widow the reversioner has, in her presence, not even a contingent right. The plaintiff's counsel persists, however, in saying that the male‑holder is not a full owner and the reversioner has a right in praesenti. He relies, in the first place, on the following observation of Plowden J. in Guar v. Sham Das and another (107 P R 1887, (F B)). " The question which lies at the root of cases of the kind now before us is one of principle. Ownership, has been described by Austin as a right over a determinate thing, indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration'. The component right of ownership have been classified under the three heads of possession, enjoyment and disposition. Ownership as above described is certainly known to custom, as in respect of movable property, and in most cases of self‑acquired immovable property. But custom does not universally recognize it in respect of ancestral immovable property. In the case of a sonless owner of ancestral immovable property, is it to be presumed that his ownership involves an unrestricted power of disposition, or that he has a limited power of disposition? And if so, what are the limits? The prevailing sentiment in this Province among agri culturists ascertained by the experience of the Courts and of Settlement Officers, and in compendious records of custom, is that in respect of ancestral immovable property in the hands of any individual, there exists some sort of residuary interest in all the descendants of the first owner or body of owners, however remote and contingent may be the probability of some among such descendants ever having the enjoyment of the property. The owner in possession is not regarded as having the whole and sole interest in the property, and power to dispose of it, so as to defeat the expectations of those who are deemed to have a resi duary interest, and who would take the property if the owner died without disposing of it ". Reliance is placed on the statement that the male‑holder has not all the components of ownership. It is also placed on the reference to "some sort of interest" in the reversioner. So far as the component parts of ownership are concerned, the only defect which can be pointed out is in his power of disposal. It cannot be contended that with respect to what I have stated to be the first ingredient there is any defect in his ownership. The right of the male‑holder of ancestral land is "indefinite in point of user and unlimited in point of duration" though it may not be unrestricted in point of disposition. From the fact that the learned judge has used the words "some sort of interest" he should not be understood as saying that as regards the first two components of ownership possession and enjoyment, (they together constitute the first ingredient in my own analysis of ownership and I will continue to refer to them as the first ingredient) there is any defect. Full powers of possession and user vest in the male‑holder of ancestral land and his right is not one of limited duration. If however the word "interest" as used in this quotation (some sort of interest) did include the first ingredient, then, with all respect the statement would not be correct. As pointed out by Johnstone, J., in Sadhu Singh v. Secretary of State for India and others (18PR1908(FB)), this phrase is "inaccurate and misleading." Plowden, J. would be contradicting himself if he intended to say that some "interest", in its proper sense, vested in the reversioner. I have already quoted Plowden, J. in the later Full Bench case Roda, Hira and others v. Harnam and others (18PR1895(FB)) where the learned judge says "the interest of the male‑holder is full but his power of alienation is limited". The same learned Judge had said in Jowahir and 5 others v. Mst. Chandi and 5 others (90 P R 1892):‑ "It has been repeatedly pointed out that a childless pro prietor and a widow are not on the same footing. A man without sons is as much a proprietor as a man with sons. A widow, as such, is not a proprietor. She has a life‑interest with a power, under certain circumstances, of disposition. The whole interest in the land is in the father or childless proprietor, thus distinguishing them from the widow." Even with respect to the reversioner who is to succeed on the death of a widow, it has been held by their Lordships of the Privy Council that the reversioner has not even a contin gent interest in the property. In fact it was conceded by Abdur Rahman, A. C. J., in Muhammad Asghar Shah v. Gulsher Khan that the reversioner has no interest in praesenti. Next are relied upon certain observations of Sir William Clark, Chief Judge, in Sadhu Singh v. Secretary of State for India and others. The learned judge said:‑- "The owner in possession is undoubtedly often described a 'full owner,' but such descriptions must be taken with reference to the facts of the case in which his title is discussed. To account for his power to alienate his land for necessity, without consulting his reversioners, it was necessary to hold him a full owner from that point of view. In my opinion we must consider his ownership from an independent point of view with reference to the facts of the case before us, it does not follow that because he was held to be a 'full owner' to explain certain of his powers, he must therefore be held to be a full owner for all purposes. It is established that the owner in possession can only alienate ancestral land for necessity, and other alienations of his are not binding on his heirs. This implies to my mind some interest in the estate on the part of the reversioners, whether it be called residuary' or 'inchoate' or 'vested' or 'contingent' it is some definite interest." These observations are opposed to what was said by Johnstone, J in that very case; they are opposed to authority and with all respect to the learned judge they do not correctly represent the right of a male‑holder of ancestral property, unless by the word 'interest' he meant only the chance to succeed by agnate succession in which case the observations will not help the plaintiffs. It is wrong to say that during the lifetime of a male‑holder any person has a present interest in the property. The whole interest vests in the male‑holder. We will not feel the slightest difficulty in deciding this question if, instead of looking to judgments which may not be very careful in the choice of words, we ask ourselves "By what law was his interest reduced? Was then in existence a law which said "His interest shall not be full." If there was no law which expressly said so, was there one which necessarily implied this. As I have already stated the law which existed was only a rule of succession that the heir shall succeed in spite of certain alienations. Title passed to the alienee even in cases where the alienation was not for necessity, the title being full though defeasible if a particular contingency occurred. This had to be accepted because, if at the time of the alienation, the person qua whom property was ancestral existed, but he either did not exist or there was preferential female heir in existence when the alienor died, full title would remain with the alienee. I have already dealt with this matter when I found that defect in the male‑holder's ownership was only in the second ingredient. Strangely enough learned counsel for the plaintiffs forgets the whole of his argument and takes up an inconsistent posi tion when I confront him with the situation that will arise if the male‑holder does not possess the whole interest in the land. It is obvious that if the male‑holder of ancestral land has not the whole interest in the land then when he dies after the passing of the Shariat Act his heir too will not get the whole of that interest. The inheritance henceforth will be under Muslim Law. An heir under Muslim Law does not get any more than what the person whom he succeeds had. Con fronted with this, plaintiff's counsel says: "the only defect in his ownership is that there is a personal restriction on his power of alienation and that will not pass to his heirs." Learned counsel realises that a mere absence of power to transfer does not at all constitute a defect of interest and that if the interest be not full that is a defect in the right itself and no more interest can pass to the heir than belonged to the deceased. Counsel for the plaintiffs takes another volte face when asked as to whether, if gifts are, after the amending Act of 1951, to be governed by custom, the male‑holder will not be entitled to transfer the land. He says "What can he transfer? He can only transfer that which he possesses and he does not possess the whole." Let me state the position clearly with respect to this limited ownership. As I have repeated more than once the true position is that out of the two ingredients of ownership (accepting Austin's definition) that is, the right or interest, and the power to transfer such, right or interest, the male holder of ancestral property had the whole of the first. He had this without any defect. In the second ingredient there was a defect. The description given of the male holder by Plowden, J. in Roda, Hira and others v. Harnam and others that he is a full owner as to interest but that his K power of alienation is restricted (an indirect and contingent restriction though) is his proper description. Such a person, who has the whole of the first ingredient, with a defect in the second, you may call a limited or you may call a full owner. You may refer to him by any words you please, but you can not thereby change the nature of his right or the legal incidents thereof. If there be in any judgment any words which imply that his interest was not full, that there was a defect in the first ingredient these words are, with all respect to the learned Judge who wrote then, incorrect. Not only are they incorrect on authority they are (and this is what really matters) incorrect logically. The common ancestor admittedly had the whole of the interest and his heir would get what he had unless some law said something different. No law said the whole interest would not devolve. The law only said the interest when transferred will still be inherited by the heir. In fact when you speak of restriction on alienation of the whole interest, you accept that he had the whole interest, for other wise a restriction on power of alienation is without any meaning. And here I pause to put another question. What about the man who had been born in 1870 and had inherited ancestral property before section 5 of the Punjab Laws Act was enacted? Suppose he is alive in 1949 and alienates ancestral land, will his power of alienation be restricted? Here is one who inherited property when there was no law restricting aliena tion. When he alienated property in 1949 there was no law restricting alienation. Yet because during his life at one time had been applied a law of succession, the occasion for applica tion of which never arose, his power of alienation has become restricted. By application of what law? By what rule of interpretation? Perhaps you will say to such a person the restrictions do not apply. But then do you not see that his heir at least takes his right. If he himself could have made a valid alienation, why can his heir, who succeeds to him not do so? If such a person had died in the meantime instead of living till 15th March 1948, why can't his heir alienate the land? To appreciate the correct position of a male‑holder as accepted in decided cases, it should be remembered that the alienations themselves are never regarded invalid. But the heir under custom has a peculiar right, the right to succeed to the alienated property in spite of the alienation. It is not because of the invalidity of the alienation that he does so, but because of his own right to succeed which right enables him to take as an heir even property which the last male owner transferred. If, at the death of the alienor of ancestral immov able property there is no person qua whom the property is ancestral, the danger to the alienee is finished. If, on the other hand, there is a reversioner alive qua whom the property is ancestral, his right of succession will act on the alienated property too and he will succeed to that property. But he does so not because the alienation was in itself invalid but because it was subject to a right of succession which may or may not have arisen. That the proposition I put forward is correct is supported by the judgment of Abdur Rahman, A.C.J. himself in this very Full Bench. The learned judge regarded succession as divided into two parts, the first part decided the question as to on what property succession was to act and the other as to who were the heirs. According to the learned Judge, the first part was to be governed by custom even after the new Act came into force and the second part was to be governed by Muslim Law. I will deal with the question as to whether custom relating to succession is still applicable later. What is important for my present purpose is that the learned Judge accepted that it was by the customary law of succession that the heir became entitled to alienated property. I have to stress this aspect of the matter because the ambiguity of the legal conceptions involved may lead to much confusion. An alienation may be otherwise valid and may only be liable to be defeated in a certain event or on account of a right yet not existing but which may accrue at some future time. If the alienation were by itself invalid, it would be invalid from the start. Custom has only said "The heir shall succeed though the land be alienated". It could go no further and say. "Ancestral land shall not be alienated". Even the decree which is granted to a reversioner does not declare the aliena tion to be invalid and there is abundant authority for the proposition that even after a decree the alienation itself remains unaffected. This proposition is in fact conceded in the Full Bench case itself. I have already pointed out that the custom could not create a rule forbidding alienation even if it made an effort to do so. But custom has made no such attempt. All that it has done is to create a peculiar rule of succession by which the reversioner is entitled to property even though alienated. Whatever the theory by which this right be supported, it is the right of succession, vesting in him and not the invalidity of the alienation that enables him to get at the property. His right to succeed to this property is generally explained by saying that when a reversioner inherits alienated property, he does so because he in fact succeeds not to the last male owner but to the common ancestor who once had the property. Here is a passage from Plowden, J.'s referring order in Roda, Hira and others v. Harnam and others (which referring order was adopted by the Full Bench):‑- "But we must hold, in accordance with a view of custo mary law which is now too well‑established to be shaken that the collateral kinsmen take as heirs of the last holder of ancestral land, and that their title to possession of ancestral land held by him in his lifetime is derived through him from the common ancestor." In Narain Singh and others v. Malik Ahmad Yar Khan (A I R 1936 Lah. 21) a Division Bench of this Court said: "A reversioner derives his right to succeed to ancestral property from the common ancestor." The same proposition is put in a somewhat differ ent form by Rivaz, J., in the following passage, which is quoted and relied upon in Asghar Ali Shah v. Gulsher Khan:‑ "His rights to sue for possession in spite of the last owner's act of alienation is derived from no individual but from the customary rule which places a restriction upon the owner's powers of disposition of ancestral property, and renders him liable to be controlled in that respect by his collateral heir." Whatever the method by which the rule is explained, it is clear that it is the right which the reversioner has to succeed "in spite of the last owner's act of alienation" and not the invalidity of the alienation that is the reason of his acquiring the pro perty. The words "restriction on powers of alienation" in the above extract are to be understood only with reference to the words "liable to be controlled by his collateral heir." It is the "heir" the person entitled to succeed by reason of peculiar rule that is said to "control" the alienation. Control only means that his right to inherit could not be defeated by any aliena tion. The alienation as such could not be subject to custom at all. All expressions used in judgments or commentaries with respect to the alienation being invalid should be under stood as meaning an alienation which is subject to the possible right of a reversioner to succeed. That the above is the true legal significance of the relevant facts will also appear from other judgments of well‑established authority. In Dheru and others v. Sindhu and others (93 P L R 1903 (F B)), Chatterji, J., dealing with the power of the holder of ancestral property, said: "It is true that there is this restriction on his power of alienation in the interest of his male descendants or agnates who have a residuary interest in property derived, from a common ancestor, that he cannot dispose of his land so as to defeat their right of succession." Important words these, for if this be the only restriction, he can always alienate if right of succession is not defeated and if the right of succession under custom vanishes the restriction vanishes. The word 'interest' is, not used in this passage in its ordinary legal sense. In Jowala v. Hira Singh and others (117 P L R 1903 (F B)), the right of an after born son to challenge an alienation effected before his birth was in dispute. A question arose whether Hindu Law could be invoked if there was a gap in Customary Law. The right to impeach the alienation was thus described by Clark, C. J. "There is q1 a peculiar customary law applicable to the parties as regards succession." In the whole of that judgment, which apparently deals with the right to impeach the alienation, the question is regarded only as one of succession and the right to, impeach is regarded as a right to succeed to property. Chatterji. J., says at page 505:‑- "It has been held in numerous decisions that he is a full owner (see, for example, No. 65 P R 1900) not a limited owner like the Hindu widow, but that his power of alienation is controlled by the rights of his lineal descendants or agnates to succeed to his land after his death, which cannot be defeated except in case of necessity, and then only to the extent such necessity is established. In this respect, his position presents considerable resemblance to that of the Hindu widow. But it has been held that principles regulat ing necessity in his case are different to those applicable to that of the widow. This, however, is not matter germane to the present discussion. What is important to bear in mind is that the limitation on his power of alienation is dependent on the right of his male descendants, or in their absence of his agnates. The limitation of the widow's power is inherent in her tenure of her husband's estate." The words used are "power of alienation is controlled by the right of his lineal descendants or agnates to succeed to his land after his death." The only control on the alienation is of the right to succeed. The words "What is important to bear in mind is that the limitation of his, power of alienation is dependent on the right of his male descendants, of in their absence of his agnates" too are important. What is this right the existence of which constitutes a limitation of the owner's power to alienate? It is the right of succession to which the learned judge has already referred a few lines before. The whole of the judgment in the above‑quoted case is important, for it dealt with the nature of the limitation on an owner's power to alienate and the nature of his estate. What I have stated above should be sufficient to establish that even in the light of authority there never was any direct restriction on the power of alienation of a holder of ancestral land and that his position is correctly described by stating that "the power of alienation of ancestral property is subject to the possible right of succession of the reversioner." If the above statement be correct, all that is to be deter mined is whether this right of succession which constitutes the sole restriction on the power of alienation still exists. The right of succession is not a vested right. We speak of it as a right but all that we mean is the possibility of a right arising, for it is well‑established that the reversioner has only a spes successionis and not a right either vested or contingent, Rattigan (1938 Edition), pages 392 and 393, and Sant Singh v. Gulab Singh (I L R 10 Lah. 16). There are a number of Privy Council judgments dealing with the reversioner under Hindu Law where it has been laid down that he has no right in praesenti but only a sees suecessionis, Janki Ammal v. Narayanasami Aiyer (I L R 39 Mad. 634), Amrit Narayan Singh v. Gaya Singh (I L R 45 Cal. 590), Venkata narayana Pillai v. Sukhammal (I L R 38 Mad. 406), Thakurani Hernath Kaur v. Thakur Indar Bahadur Singh (A I R 1922 P C 403) and Amada Mohan Roy v. Gour Mohan Mullick and others (AIR 1923 P C 189). In Mayait and others v. Official Assignee (AIR 1930 PC 17) their Lordships pointed out that a chance of succession was not even a contingent interest. The same proposition is stated in Halsbury, Volume 27, at page