P L D 1956 Supreme Court (Pak (PLP)

The property in suit is 362 kanals of land situate in Mauza Godola Nashib in Tehsil Bhakkar which, together with some other land, was owned by Haider who died some time before the commencement on 15th March 1948, of the Punjab Muslim Personal Law (Shariat) Application Act, IX of 1948. On Haider's death, the land was mutated in the name of his widow, Mst. Allah Wasai, who succeeded to it on the usual tenure of a widow under the Customary Law of the Punjab. Mst. Allah Wasai alienated the property in suit by making a gift of it to her own daughter, Mst. Bakhto Mai, on 25th December 1949. The appellants who are collaterals of Haider in the 5th degree brought a suit for declaration that on the termination of Mst. Allah Wasai's interest the gift would not in any way affect their right to succeed to the land as heirs of Haider under the Muslim Law. The suit was decreed by the Subordinate Judge, but on appeal the High Court took a different view and held that the appellants had no locus standi to call the alienation in question, and the sole point involved in this appeal is whether the High Court was right in the view it took. It was alleged in the plant that the appellants were the collaterals of Haider, that the land was ancestral, that Mst. Allah Wasai having succeeded to the property of her husband as a widow had only a limited interest in it and was not entitled to alienate the land except for valid necessity, that on the death of the donor succession to the land would be governed by the Shariat Act of 1948 according to which Hander's property would be divisible between the appellants and the donee and that they were under the law entitled to question an invalid alienation by the widow. The allegation that the property was ancestral was not specifically denied in the written statement filed by Mst. Allah Wasai and Mst. Bakhto Mai, and it has been found both by the Subordinate Judge and the High Court that the appellants are the collaterals of Haider in the 5th degree. The parties are Sandrana Jats of village Godola is Tehsil Bhakkar of the Mianwali District, and according to the custom applicable to them a daughter succeeds to the property of her father in preference to collaterals of the 5th degree. The ground given by the High Court for dismissing the suit is that since the daughter was a preferential heir under the Customary Law the appellants had no locus stand to question the gift in her favour. So far as the appellants' right to succeed on the termination of Mst. Allah Wasai's interest is concerned, it is conceded by Mr. Chiragh‑ud‑bin, learned counsel for the respondents, that it will be governed by the Muslim Personal Law and that the appellants and the donee will both be heirs of Haider. It is further‑ admitted by the learned counsel 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 to which she had succeeded as a widow. The dispute between the parties, therefore, resolves itself to the simple issue whether an alienation by a widow which is invalid under the Customary Law can be questioned by a person or persons who on the termination of her interest will succeed to the property under the Muslim Personal Law by reason of section 3 of Act IX of 1948 which provides "In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succes sion shall be deemed to open cut 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 saccessors 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)". It is admitted that on the termination of Mst. Allah Wasai's life interest, whether such termination be the result of surrender, death remarriage, succession to the property held by her as the widow of Haider will be governed by Muslim Law according to which the appellants and the respondent daughter and in certain contingencies Mst. Allah Wasai herself will succeed to the property according to shares fixed by Muslim Law. If the effect of the judgment of the High Court be that the gift made by Mst. Allah Wasai to Mst. Bakhto Mai is valid, it is obvious that the property covered by the gift will not be available for distribution among the heirs of Haider on the termination of Mst. Allah Wasai's interest. The result, therefore, will be that whereas Mst. Allah Wasai, under the law which was applicable to her at the time of the alienation, could not make a gift of the property to her daughter, such gift will by the dismissal of the suit acquire validity and the gifted property will have to be excluded from the property of Haider when succession opens to his estate. It was not the respondents' case in the pleadings that Mst. Allah Wasai could not make a gift to her daughter, that no question of the invalidity of any alienation arose, that the entire property held by Mst. Allah Waaai including the gifted property will, on the termination of her interest, be liable to distribution among the heirs of Haider and that the dispute between the parties being who will succeed to Haider's property on a future date, no declaration should be granted in the case. On the contrary, the position taken. by the respondents in the written statement was that Mst. Allah Wasai was the only legal heir of Haider and that she was fully competent to gift the property to her daughter. If the exclusive title of the widow and her power freely to alienate the property had not been set up, it might perhaps have been a question whether the dispute between the parties being restricted to the question who will succeed to the property of Haider a declaration should or should not be granted, but in view of the position taken up by the widow and the daughter in which full title to the property and full power to alienate it are claimed it has to be considered whether a declaration is legally admissible and necessary or expedient. The main point urged by Mr. Chiragh‑ud‑Din is that until the death of the person to whom a Muslim heir succeeds, the later's right is not a vested right but mere sees successianis 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 may be readily admitted, but it does not follow from that that such heir cannot sue for a declaration that. an alienation made by a widow is not valid. 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 spes 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 competent the person 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 life time, I do not see why such remedy should not be available to persons who on the death of a widow governed by custom will succeed under their Personal Law to the property held by her as though it belonged to her husband who was governed by the Muslim Personal Law. Before the passing of Act IX of 1948, both questions, namely, the power of a limited owner to alienate the property and the right to sue for a declaration were determined by custom, the determining consideration, so far as the locus stand! 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 stands 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 applic able to such a situation as it was when the right to bring L a suit for a declaration was governed by custom. There is also a further consideration. Under the Punjab Limitation (Custom) Act, I of 1920, a suit for a declaration that an alienation of ancestral immovable property will not, according to custom, be binding on the plaintiff after the death of the alienor or (if the alienor is a female) after her death or forfeiture of her interest in the property must be brought within six years of the alienation, and if it is not so brought, a subsequent suit for possession becomes Incompetent. The Act is obviously applicable to alienations by widows provided the property is ancestral, and an omission to bring such a suit where a widow alienates property which is ancestral of the plaintiff may make the alienation indefeasible and not liable to be questioned when the estate falls into possession. It is quite clear to me that no such result was intended by or follows from the Punjab Muslim Personal Law Application Act. Even before the passing of Act I of 1920 a period of limitation was prescribed by Article 125 of the Limitation Act for a suit during the life of a Muhammadan female by a Muhammadan who, if the female died at the date of instituting the suit, would be entitled to the possession of land, to have an alienation of such land made by the female declared to be void except for her life or until her remarriage. There is also a provision in that Act, namely, Article 141, governing a suit for posses sion by a Muhammadan entitled to the possession of immovable property on the death of Muhammadan female. It may be that the mere omission to bring a suit under Article 125 did not necessarily bar a subsequent suit under Article 141, but the important point to remember is that suits like the one with which we are concerned in the present case were competent even before the matter was regulated by the Punjab (Custom) Limitation Act of 1920. We are not called upon to determine in this case the question whether after the passing of Act I ‑of 1920 a suit to set aside an alienation by a Muhammadan female can still be brought under Article

125. What mean to say is that suits by Muhammadans, who would be entitled to the possession of land on the death of a Muhammadan female, to have an alienation of land made by that female declared to be void, F were and continue to remain a well‑recognised feature of our legal system and the only ground for the competency of such suits is section 42 of the Specific Relief Act. I do not, therefore, see why the mere fact that on the death of a Muhammadan female the succession to the land will now be governed by Muslim Law should make any difference where .the estate held by a widow is limited and the rule that makes that estate limited is custom which still governs her powers of alienation. We expressed a similar opinion a few days ago in Mst. Shahzadan Bibi and others v. Amir Hussain Shah (P L D 1956 S C (Pak.) 227) and that is also the view taken by a Full Bench of the Lahore High Court in Muhammad Asghar Shah v. Muhammad Gulsher Khan and another (P L K 1944 Lah. 241 (F B)=P L D 1949 Lah. 116 (F B)). For these reasons, I would set aside the judgment and decree of the High Court and restore that of the Subordinate Judge. The respondents will pay, the appellants' costs here and in the Courts below. CORNELIUS, J.--‑ I agree. AMIRUDDIN AHMAD, J.‑-- I agree. MUHAMMAD SHARIF, J.‑-- I agree and would like to add a little. The High Court held the suit for a declaration incompetent on the grounds : (1) According to custom among the tribes of the parties, the collaterals of the fifth degree as the plaintiffs were could not exclude a daughter to whom a gift was made; and (2) If the Shariat Act of 1948 had not been passed, the plaintiffs had no right to bring the suit and no such right could be inferred from the fact that at a subsequent stage the plaintiffs will get some share under the Shariat Act. It appears that there is much misapprehension about the purpose and scope of the Sbariat Act, 1948. The West Punjab Muslim Personal Law (Shariat) Application Act, 1948, came into force on 16th of March 1948. Prior to this, a very large majority of the Muslims residing in the old Province of the Punjab were in matters of succession governed by customary rules under which the females were usually excluded from a share in the inheritance. In other words, In cases where a female was given a definite share by the Islamic Law, she was, under the stress of the prevailing custom, deprived of it. Under the old dispensation the "agnatic theory" held the field and the persons descended from the common ancestor in the male line were held entitled to get the land in preference to the female relations of the last male owner. The Act of 1948 has changed all this and from 16th of March 1948 onwards, the estate of a Muslim shall be divided among the heirs in accordance with the rules of the Muhammadan Law and the "agnatic theory" of custom would no longer apply and would be a thing of the past. This is the one important effect of the Act of 1948 and is described in section 2 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.)"‑ This is simple enough and the Muslim owner dying on or after the 16th of March 1948 shall have his estate distributed among his own heirs under his personal law. But the other aspect of its retrospective effect dealt with in section 3 of the Act is not so simple and has on occasions caused some confusion and misunderstanding in its application. Section 3 reads "In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succes sion 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 bad the Muslim Personal Law (Shariat) been applicable at the time of th1e 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 re‑marriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death." This section was enacted to meet cases where the last full owner had died before the Act of 1948 came into force and was succeeded by a "female with a life estate", for exam ple, a sonless widow. The " life estate " under custom is usually in lieu of maintenance and endures till her marriage or remarriage or death, and on the termination of the "life estate" the heirs of the last full owner have to be found out. Till this happens, by a legal fiction, created by the Shariat Act of 1948, the last full owner is considered to hold the estate and is deemed to die simultaneously with the termination of the "life estate". The property is then distributed accord ing to Islamic shares between the various heirs of the last full owner and the female who has enjoyed out the "life estate" also gets the share allowed to her by the Shariat, and if she has died, it shall descend to her own heirs. It is at this stage that Muhammadan Law comes to be applied with full force and with the necessary consequences. The shares received by the heirs become their own exclusive property, with no right of remainder or reversion in any other person. What is the position of the female during the period the "life interest" subsists? Evidently she is not the full owner she had succeeded under custom for a limited period and with no right to alienate the property except for a neces sity recognised by custom. The Shariat Act of 1948 has no made a "limited owner" a full owner, nor has it removed at F all the limitations necessarily attaching to a "female with all life estate". The estate from its inception is a limited one ; under custom it was limited for the benefit of the reversioners ; after the Act of 1948 it is limited for the benefit of the heirs of the last full owner. Whosoever may be the persons entitled to succeed, the female in question has not shed her disqualifications and it is none of her concern that instead of one, another body of persons has been introduced by the Shariat Act. If this were not so, a, female with a life estate may play havoc with the property in her posses sion for the time being and may not leave anything for those whom the Shariat Act is intended to benefit. Her powers of alienation are to be sought far from the Riwaj‑i‑am of the tribe she belongs to. The Act of 1948 nowhere says and would have defeated its own object if it were considered to have ever laid down that a "female with a life estate" has suddenly become free from all the restraints imposed by the conditions of her succession and while still a limited owner to have overnight become a full owner with no one to challenge her acts. In the present case, the last male owner was Haider, a Jat, resident of Mianwali District. On his death before the Act of 1948, his widow Mst. Allah Wasai succeeded to the usual widow's estate under custom. According to Answer to Question I1 of the Riwaj‑l‑am of the Mianwall District compiled in 1908 by Pt. Hari Kishen Kaul: "If the estate devolves upon the widow she is sole owner of it for the time being, but she holds it only for life or till remarriage. She can alienate by mortgage or sale any movable or immovable property (1) for the payment of Government revenue or fine, (2) for discharging her husband's debt or debts contracted by herself in good faith for necessity, (3) for expenses on the marriage of an unmarried daughter, and (4) for agricultural improvements, etc." subject to notice to the agnates. It will be clear from the above that under custom, according to which Mst. Allah Wasai had succeeded to the entire estate of her husband, she could alienate only for any one of the purposes stated above. Beyond that she could not go and a gift on her part was wholly out of consideration. In the case of an alienation by a female, a suit to challenge it should he determined with the reference to her powers of aliena tion under custom. The position of the alienee is really a matter of secondary importance. If the alienation could not have been made, or where a female has exceeded her powers, a decree for a declaration shall be granted, so that the property is not lost to the family it might be mentioned here that an alienation by a widow is not void but is only voidable and if it is not questioned within the prescribed period of limitation, the alienation would acquire validity. The mere fact that a widow has alienated the property in favour of the next heir of her husband would not enlarge her powers of alienation, but the Court would refuse to grant a decree the effect of which might be no more than to confirm the possession and the title of the alienee himself. This seems to have clouded the real issue in the case. Under customary law as daughter, Mst. Bakhto Mai was entitled to exclude the collateral of the fifth degree like the plaintiffs and it would have been futile to grant a decree for a declaration to the plaintiff that on the death of Mst. Allah Wasai his rights of reversion shall not in any way be affected, while as a matter of fact in the presence of the daughter, he could not have a right to succeed. Where this is not the case and the alienee is not the sole heir of the estate of the last full owner, a decree for a declaration must be given. By virtue of the Act of 1948, the heirs of the last full owner are no longer to be determined according to the old customary rules, but in accordance with the Shariat Act and the plaintiff is one of the heirs and unless he were granted a decree, he might never be in a position to get the share which the new Act has given to him. In short, the Shariat Act of 1948 does not increase the powers of the "female with a life estate". All that it does is that on the termination of her interest it defines the persons who are to succeed and, consequently, any one of such persons may move to protect the estate in the hands of the female for the time being. On these considerations, the view taken by the High Court was not correct. A.H. Appeal accepted.