PLD 1956 Federal Court 137 (PLP)

Muhammad Munir, C,J.

the facts leading to this appeal are these:- The land in dispute was owned by one Allah Jowaya whose only issue is a daughter Sardar Bibi. On 6th February 1928, Allah Jowaya by a written will bequeathed his entire land to his daughter and on 9th April 1934, out of the land willed, he made a gift of two squares to her. On this Sardar Khan and Rahmat Khan brought a suit praying for a declaration that their rights as reversioners of Allah Jowaya shall not be affected by the gift. The suit failed on the ground that the earlier bequests in favour of Mst. Sardar Bibi not having been questioned within the time limited by law, a had become had become final and the granting of a declaration in respect of the gift had become infructuous. Strengthened by this decision, Allah Jowaya lifted the rest of his land to Mst. Sardar Bibi on 16th February 1945, with the implied consent of Sardar Khan and Rahmat Khan. Mst: Sardar Bibi having gifted the entire property to her sons Khurshid and Bashir Ullah on 13th November 1945, the plaintiffs, including Sardar Khan and Rahmat Khan, who arc fourth‑decree collaterals of Allah Jowaya instituted the suit out of which this appeal has arisen. The suit was for a decla ration that the gift of 16th February 1945, by Allah Jowaya in favor of her daughter and the subsequent gift by the daughter in favour of her own sons shall not affect the rever sionary rights of the plaintiffs under custom. The defendants to the suit were Allah Jowaya, Mst. Sardar Bibi and her two donee sons, Khurshid and Bashir Ullah. They defended both the gifts and went to trial on certain issues including the issue on the plea raised by them that the gifts in question were valid under a special custom. The other important issue in the case was whether the property was ancestral, and on this the learned Judge found that the plaintiffs had succeeded in proving that the property was ancestral. No special custom in favour of the gifts having been proved the suit was decreed. The defendants appealed to the High Court where the learned Judges who heard the appeal upheld the finding that the property was ancestral. They further found that the will which had been declared to have become final in the earlier suit must be deemed to have been revoked by the subsequent gift by the testator, and that, in any case, as held by the trial Court the finality of the will had been affected by a subsequent change in the law, namely, by section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act, IX of 1948, which had provided that all questions regarding succession had thereafter to be determined, where the parties were Muslims, by the Muslim Personal Law. In the appeal before us which is by Mst. Sardar Bibi alone the first contention raised by the learned counsel for the appellant is that the finding that the property is ancestral is not correct. But on this part 6f the case the finding of the trial Court and that of the Court of appeal is concurrent and based on the usual kind of circumstantial evidence that is produced in such cases, and nothing that has been urged by counsel has affected our opinion regarding its correctness. If, therefore, this finding is allowed to stand, as it must be, the gift by Allah Jowaya in favour of his daughter and the subsequent gift by her to her own so As must be held to be invalid, there being practically no proof of the alleged special custom that in the tribe to which the parties belong a male proprietor can alienate ancestral land by gift or that to respect of such land the daughter is as against collaterals of the fourth degree a preferential heir. the only question left for decision, therefore, is whether the finding in the earlier suit that the will by Allah Jowaya not having been questioned within time had become final has the effect of validating the subsequent gift of the bequeathed land by the testator. The learned Judges of the High Court have taken the view that since a will can be revoked by the testator at any time before his death, the subsequent gift of the willed property by the testator amounted to a revocation of the will. The correct ness of this proposition has not been disputed before us. Learned counsel for the appellant, however, has attempted to argue that now that Allah Jowaya is dead the validity of the gift will have to be determined by Muslim Law by reason of the provisions of the West Punjab Muslim Personal Law (Shariat) Application Act and the subsequent Amending Act, (XI of 1951). We must confess we have not been able to follow this argument but the contention seems to be that since, as held by the High Court, the validity of a bequest has to be deter mined according to Muslim Law on the date of death of the testator, the validity of the gift also should be determined in that manner and on that date. The High Court had arrived at the aforesaid conclusion by holding that the word "succession" in section 2 of the Act of 1948 included testate succession. We feel that having recorded the obvious and incontrovertible finding that the will had been revoked by the gift, the learned Judges should not have gone into the intricate question whether the word "succession" in section 2 of the Act of 1948 included testate succession. The true 'issue on this part of the case, if it had to be determined, was not whether the word "succession" in ordinary parlance or its technical sense includes testate succession, by itself a question to which more than one answer is possible, but whether the legislature in omitting from section 2 the word "wills" which occurred in the repealed legislation, namely, section 5 of the Punjab Laws Act, intended to make earlier testamentary dispositions judge able on the testator's death by the Muslim Personal Law. The question was one of great difficulty and depended for its decision not only on the .history of the legislation but also on several other provisions which are still on the statute book. If the High Court is right in the view it has taken, the provisions relating to wills in the Punjab Limitation (Custom) Act (I of 1920), and the Punjab Custom (Power to Contest) Act (II of 1920), stand abrogated, the maintainability of reversioner's suits for declarations to set aside alienations becomes doubtful and section 3 (A) of the Act of 1951 itself which assumes the validity of certain wills made under custom before that Act came, into force becomes meaningless. It is therefore clearly open to question whether any such revolutionary result was intended by the legislature. But, as we have said, the question did not arise in this case and since we did not hear full arguments on it we do not decide it. Whatever the position regarding wills may be, we unhesitatingly repel the contention that after the passing of the Act of 1948 the validity of gifts has to be decided with reference to Muslim law and not under custom. And we do so on the general principle that, in the absence B 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 finding of the High Court that the will was revoked by the testator being right, it concludes the appeal, because in view of the subsequent gift the will the finality of which had been declared in the earlier suit cannot be set up to support the gift. The property being ancestral and no custom per mitting the alienation of such property or allowing the succes sion of daughters in preference to fourth‑degree collaterals having been proved, the gift by Allah Jowaya was invalid and no gift could be made by the donee on the basis of a gift in her favour which itself was invalid. We therefore, dismiss the appeal with costs. A.H Appeal dismissed.