P L D 1969 Lahore 412 (PLP)

4. Defendant No. 1 then mortgaged a part of the property with defendant No. 9 which was again set aside by a decree of the Civil Court at the instance of the plaintiff.

5. Defendant No. 1 then mortgaged a part of the property with possession with Nabi Bakhsh who is represented by defendants Nos. 10 to 16, Sardar defendant No. 2, Faujdar who is represented by defendants Nos. 3 to 6, Muhammad Din who is represented by defendants Nos. 17 to 18, and Noora defendant No.

19. A decree for the avoidance of this transaction contingent upon the death of defendant No. 1 was obtained from the civil Court so that the mortgage became ineffective qua the reversionary rights of the plaintiff.

6. The plaintiff submitted that the life Estate inherited by defendant No. 1 having been terminated by the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (section 3) the lady was entitled only to a 1/4th share out of the estate of her husband as an issueless widow under the Shariat. It was claimed that the plaintiff was entitled to the remaining 3/4th as collateral of the deceased.

7. This suit was instituted on the 2nd of February 1963.

8. Mst. Sarwar Bibi defendant No. 1 contested the suit on a large number of grounds including the non‑applicability of Act VI of 1962, as section 7(2) excluded its application to cases in which the last full owner had died before the enforcement of this Act. A preliminary issue was consequently framed by the learned ‑Civil Judge in the following words :‑ Whether the West Pakistan Muslim Personal Law (Shariat) application Act of 1962 applies to the facts alleged in the plaint? If so what is its effect? O. P.

9. By his judgment dated 7‑3‑1964 the Senior Civil Judge, 4Gujranwala, found the issue against the plaintiff and dismissed the suit.

10. The appeal filed against it was accepted by the District Judge, Gujranwala, by his judgment dated the 11th January 1965, and the case was remanded to the Senior Civil Judge for being proceeded with in accordance with law. Hence this appeal.

11. The questions that fall for determination in this appeal ‑are whether or not the West Pakistan Muslim Personal Law ((Shariat) Application Act of 1962 extinguished the life estate of Mst. Sarwar Bibi, and if so was the position changed by the enactment of West Pakistan Muslim Personal Law (Shariat) (Amendment) Ordinance XXXIX, 1963 and the West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act XXVIII, 1964.

12. Section 3 of the Act of 1962 in its unamended form runs as follows :‑ "The limited estates in respect of immovable property held by a Muslim Female under the Customary Law are hereby terminated." Assuming that no section existed in the Act giving section 3 retrospective effect, the words used in this section are such that life estates existing on the date of the promulgation of this Act would stand terminated. Section 6, however, made this intention of the Legislature doubly clear by providing that :- "Saves as expressly provided by the provisions of sections 3, 4 and 5 this Act shall have no retrospective operation." Section 3, therefore, related to all limited estates in respect of immovable property held by Muslim females under the Customary Law irrespective of the time when they came into existence. The only condition was that on the date of the promulgation of the law such a Limited estate in respect of immovable property must be held by a Muslim female under the Customary Law. The date on which the last male owner died was not in point.

13. Section 7(2) provides that :‑ "this act was not applied to cases where the death of the last full owner or the termination of the life estate or the death of the legatee in enjoyment as the case may be has occurred before the commencement thereof, and all such cases shall be governed by the Acts repealed in subsection (1) according to territories in which they were operative." This subsection is partly repugnant to the provisions of sections 3 and 6, referred to above, because although, as already seen the time of death of .the last‑full owner Wks of no consequence under sections 3 and 6, section 7 (2) made it the determining factor, subsection (2) appears in a "saving" section.

14. Dealing with Saving Clauses" Craies states at page 203 of the Fifth Edition of his treatise on Statute Law:‑ "But it has been usually laid down that this rule only, holds good with regard to a proviso if repugnant, and that if the repugnant clause is in the form of k Saving Clause, then this rule holds good no longer, for it is said that a Saving Clause which is repugnant to the purview of the Act is to be rejected and treated as void." During the course of the discussion on the following page, the position of law as it exists at the present day has been summed up as follows. :‑ "The true principle undoubtedly is that the sound 'interpre tation and meaning of the statute 4n a view of the enacting clause, saving clause, and proviso, taken and construed together, are to prevail. If the principal object of the Act can be accomplished and stand under the restriction of the saving clause or proviso, the same is not to be held void for repugnancy."

15. The. Law of succession‑ has ever since the enactment of the Muslim Personal Law (Shariat) Application Act, 1948, been the rule of Shariat not withstanding anything to the contrary contained in any usage or custom. No life estates could therefore be created under the Customary Law after the enactment of that Act. Existing life estates were, however, left untouched and in respect of them the only provision was applicable on. their termination in due course according to Customary Law. When the Act of 1962 was enacted the position was that while no new life estates could come into being, the existing ones were to continue till terminated by the death or remarriage etc. of the holder. The raison d'etre of the Act of 1962 is to abolish such existing life estates altogether without waiting for their extinction in due course. If section 7 (2), which is a saving clause, is allowed to stand, section 3 becomes absolutely nugatory and the very purpose for which the statute was enacted would disappear; This, therefore, is a case where the saving clause by being repugnant to the purview knocks the very bottom out of the) enactment. Following the principles laid down in Graies therefore it cannot but he held that section 7 (2)` was from its very inception void on account of repugnancy.

16. Ordinance XXXIX of 1963 substituted the following in place of section 3 of the original Act and further provided that it shall be deemed always to have been so substituted :‑ "The limited estates in respect op immovable property held by Muslim females under the Customary Law are hereby terminated: Provided that nothing herein contained shall apply to any such estate saved by any enactment, repealed by this Act, and the estates so excepted shall continue to be governed by that enactment, notwithstanding its repeal by this Act." Section 7(2) was omitted by this amending Ordinance.

17. As a result of this enactment the main part of section 3 has become subject to the proviso and section 7(2) has been omitted because it became or was in any case redundant.

18. Let us now see what are the estates governed by the relevant Acts repealed by the Act of 1962. The Punjab Customary (Power to Contest) Act II of 1920 was promulgated to enact certain restrictions on the power of descendants or collaterals to contest an alienation of immovable property or the appointment of an heir oil the ground that such alienation or appointment is contrary to custom. This Act does not save any life estate and deals only with placing restrictions upon the right to challenge an alienation.

19. The Punjab Limitation Custom Act II of 1920 provides the period of Limitation in certain cases but does not save any estate as such.

20. Out of the other enactments repealed by the Act of 1962 the only law which tends to save such an estate is Punjab Muslim Personal Law (Shariat)‑Application Act, 1948. This Act made the Muslim Personal Law (Shariat) Act the rule of decision in cases regarding succession where the parties are Muslims and it was to operate notwithstanding any custom or usage to the contrary. By section 3 immovable property held by a Muslim female as a limited owner under the Customary Law was saved during her lifetime and succession in respect of it was to open up on the termination of a limited interest in accordance with Muslim Personal Law. The present property was therefore governed by this Act.

21. As a result of the amendment made by Ordinance XXXIX of 1963 the effect of section 3 upon this estate was saved by the proviso. The amending Ordinance, as we have already seen, is retrospective in operation and therefore while determining the rights of persons qua limited estate of a female the proviso shall be construed as having been a part of section 3 even on the date when the law was initially passed. The enactment of the proviso, therefore, had the result of saving the limited estate of Mst. Sarwar Bibi from termination.

22. This Ordinance was not approved by Legislature as provided by Article 79 of the Constitution. It shall, therefore] be deemed to have been repealed as postulated by Article 79 (4). Il That being so, Article 250 (b) and (c) shall be attracted and anvil rights saved or created by the proviso shall not be lost simply, because of its repeal.

23. The Act of 1964 repealed section 7(2) of the Ordinance but its repeal shall not have any effect on this estate since the rights of the limited owner were in tact even when section 7 (2) had been omitted by the previous law.

24. In view of this conclusion I need not go into the argument of learned counsel for the appellant that Act of 1964 was a still born law as it offended against Fundamental Rights Nos. 14 and 15 because, to my mind, its enactment had no repercussions on the rights of the appellant.

25. The appeal is, therefore, accepted and the order of the learned District Judge is set aside. The suit is dismissed with costs throughout. Appeal accepted.