P L D 1961 Supreme Court 468 (PLP)

Originally, section 2 of the Act was in the following terms:‑ "

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)." By the amending Act of 1951, this section was substituted by 'the following provisions:‑ "(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 wakf, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims." Section 3 of the Act which was left unamended in 1951, provides: "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 termina tion of the limited interest of the female and had been governed by the Muslim Personal‑Law (Shariat)." There is a proviso to this section which ensures 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 tier 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." Section 4 of the Act declares that "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 bean repealed." Section 5 farther makes it clear that save as expressly provided by the previsions of section 3, the Act would have no retrospec tive operation. Section 5 of the Punjab Laws Act of which a partial repeal was thus effected, reads thus: "(5) In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardian ship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, 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 of any other enactment altered or abolished, and has not been declared to be void by any competent authority; (b) the Muhammadan Law, in case 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 contention that any decree obtained in a suit by reversioners would not enure for the benefit of those who would take the property under Muslim Law on the death of the male holder of the party or that the Muslim Law heirs as such had no right to king such a suit, is amply met by the decision of this Court in Abdullah v, Bakhto Mai. It was pointed out in that case that 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 was further observed that if a suit by a reversioner, governed by the Punjab Custom or by Hindu Law to get rid of an alienation made by a limited owner is competent, which suit is founded on section 42, Specific Relief Act, and not on any law of procedure peculiar to Punjab Custom or Hindu Law, there is no reason why a similar remedy should not be available to persons who, on the death of a widow governed by custom, succeed under Muslim Law, by reason of section 3, West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), to the property held by her as a life‑estate. It was ruled that section 42 of the Specific Relief Act is as much applica ble after the coming into force of the 1948 Act as it was when the right to bring a suit for a declaration was governed by custom. The only difference brought about by the 1948 Act was that while the powers of a limited owner to alienate the property without legal necessity were still governed by custom, the rule governing succes sion 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: In an earlier decision of this Court in Shahzadan Bibi v. Amir Hussain Shah (P L D 1956 S C (Pate.) 227) and in Bakhto Mai's case a Full Bench decision of .the Lahore High Court, published as Muhammad Asghar Shah v. Muhammad Gulsher Khan and another (P L D 1949 Lah. 116), was also referred to with approval. In that case, it had been held that section 2 of the 1948 Act was not retrospective in effect and did not preclude the grant of a declaratory decree, under custom, at the instance of the reversioners who may eventually inherit under Muslim Law, for the protection of ancestral property in the hands of the holder, in suitable cases arising before the Act. No fresh argument has been addressed to us such as could persuade us to take a different view from that which was expressed in Bakhto Mai's case. and in the case of Muhammad Asghar Shah, with regard to the competency of eventual successors under Muslim Law to bring suits to contest alienations made by the holder of a customary estate, after the promulgation of the Act in 1948. The point has been raised that the case of a male proprietor holding under custom, stands on a different footing from that of a female holding, a limited estate. It is suggested that in the case of a ‑male; proprietor, his estate is that of full ownership, and his eventual successors (if any such exist) can control his alienations, provided they are related to the holder within five degrees in the male lire of, descent, as required by section 8 of the Punjab Limitation of Custom Act 1 of 1920. Any alienations made by a proprietor are not void but are merely voidable at their instance and would become indefeasible if no such reversioner survives the present holder. A female heir of such a holder would have no locus standi to bring such a suit as she was not descended from the common ancestor in the male line but could only claim inheritance from the last owner. Our attention was drawn in this connection to Milkha Singh v. Ram Kishen (A I 8 1934 Lah. 725) in which it was held that a daughter derives her right to succeed from her father and not from the common ancestor. Not being an agnate, she could not contest the aliena tions of her father from whom she derived her title. A declaratory decree obtained by the collaterals of her father to the effect that the alienation of the land shall not affect their reversionary rights, does not enure for her benefit, she being not one‑of the reversioner s on whose behalf a representative declaratory suit is deemed to be instituted. In that particular case, however, it was added that even if she could bring such a suit, she would be out of time on the facts of that case. In Rehman v. Suraj Mal (A I R 4945 Lah. 76), similarly, it was laid down that the whole object of section 8 of the Punjab Limitation of Custom Act (I of 1920) is to give the benefit of a declaratory decree to those descendants of the common ancestor who would eventually inherit his estate when succession opens out. The section, it was observed, excludes those who under custom have no such power to contest alienations, e. g., female heirs, the reason being that though they had a right to inherit they had no right to impeach alienations of a male proprietor. Again, in Tara Singh v. Suraj Kaur, (A I R 1940 Lah. 416) the restrictions imposed on the powers of alienation of a widow succeeding under custom were declared to be inseparable from her estate and the mere fact that no agnatic relation, or some cognate of the husband was alive, could not enlarge her powers of alienation and make her an absolute owner. Bakhto Mai's case, therefore, was sought to be distinguished from the present one which relates to an alienation by a male proprietor holding under custom. But there seems to be no good reason why the principle of that case should not be held to be equally efficacious to protect the interests of eventual Muslim Law heirs, vis a vis the present holder of the property under custom, so long as the latter remains subject to the restric tive incidents of the law under which he took the property, during 'a period when custom is being gradually 'replaced by Muslim Law. The rulings cited pertain to a time when custom had unmixed sway and are not quite apt in the context of the present situation. The majority view in the Full Bench case in Bashir Ahmad v. Muhammad, was that even in the case of a male proprietor succeed ing under custom, it is incorrect to credit him with full ownership rights as his powers of alienation are controlable by his rever sioners. To that extent his rights of ownership are detracted from and as he had succeeded to the property under the system of law which imposed those restrictions, he continued to be bound by them in the absence of any express or implied amendment of that law by the Legislature. Neither the 1948 Act, nor the 1951 amendment of it, was held to contain any words which could expressly or by necessary intendment, be construed to remove all fetters on the powers of alienation of such a proprietor: Kaikaus, J., however, thought that, in the first place, the 1948 Act had destroyed the very foundation for a reversionary suit to contest alienations by a person holding under custom, except in the case of a limited owner like a female whose case was dealt with specifically under section 3 of the Act and secondly that it would be wrong to describe a male proprietor under custom as not a full owner. The learned Judge thought that the power of disposition was not a part of ownership rights but merely an incident of ownership and that restrictions or such a power could not, therefore, make him in any sense a limited owner." He also evidently assumed that the 1948 Act, and, in any case, the 1951 amendment, had successfully done away with all restrictions on the powers of‑ alienation of such a proprietor and turned his estate into that of a Muslim Law heir. He dissented from the Full Bench decision in Asghar Shah v. Muhammad Gulsher Khan. In the present case, we are dealing with a father, who had sought to divide the ancestral property in his hands unequally among his sons by the device of a gift to one son inter vivos, so that the property divisible amongst them on his death, would be reduced to that extent. The general presumption is against such a power in the father vide Rattigan's Digest of Customary Law, page 698 (13th Edition). There is ample authority for the pro position that the initial presumption is against unrestricted powers of alienation in respect of ancestral property even by a male holder. This proposition was laid down as long ago as 1895. by the Punjab Chief Court, in a Full Bench decision Ramji Lal v. Tej Ram (73 P R 1895). Some observations in Gujar v. Sham Das (107 P R 1887), are identical in tenor. Even though the right to 'assert this power of control may be vested in collaterals within a certain degree of relationship under custom, it does not mean that the holder of the property for the time being, is unrestricted owner of the property. The power of disposition is one of the elements in the concept of ownership, as has been pointed out by Plowden, J., in Gujar v. Sham Das and by Clark, C. J., of the Punjab Chief Court in Sadhu Singh v. The Secretary, of State for India (18 P R 1908). The majority view in the case of Bashir Ahmad v. Muhammad is based on these authorities, which clearly lay down that the description of a male proprietor under custom as a "full owner" is merely a relative term, used to distinguish his position from that of a limited female owner who suffers from greater disabilities in comparison. It is interest ing to note that a similar view has prevailed with the Punjab High Court (India) in Nathu v. Ralla (A I R 1951 Pb. 445). In the Punjab Chief Court cases noticed above, the learned Judges accepted Austin's definition of ownership as "a right over a determi late thing, indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration." Kaikaus, J., to the Full Bench case cited above, devoted a considerable portion of his judgment to an analysis and criticism of this dictum but it seems to have the support of other well known text book writers. Sir Fedrick Pollock in his First Book of Jurisprudence (929 Edition 179) says that "ownership may be described as the entirety of the powers of use and disposal allowed by law." In the 1957 Edition of Salmond on Jurisprudence p. 303 the learned author expresses himself as follows : ‑ "The ownership of land for instance involves a right that others shall not trespass on the land or commit nuisances in respect of it, a privilege to go upon it oneself, to dig for minerals and to build on it, a power to alienate it and so on." In the Text Book of Jurisprudence by Paton (1951 Ed.) I find the following at p. 420 :‑ "The full rights of an owner are:- (a) the power of enjoyment (e.g., the determination of the use to which the res is to be put, the power to deal wit produce as he pleases, the power to destroy) ; (b) possession which includes the right to exclude others ; (c) power to alienate inter vivos or to charge as security ; (d) power to leave the res by will." Roscoe Pound in Vol. V, Part VIII, of his Jurisprudence (1959 Ed.) has given an almost similar analysis of the attributes of ownership, at p. 1.28 of his monumental work. These extracts are sufficiently explanatory of the notion of ownership in respect of corporeal property such as is involved in the present case and the refinements introduced into this concept, in the context or incorporeal rights or legal and equitable or beneficial estates, do not concern us. The dictum of the majority in the Full Bench case, therefore, rests on precedent and is further in consonance with the opinion of eminent Jurists. It involves no novel proposition to which excep tion may be legitimately taken and amply serves to bring out the real nature of a customary estate in the hands of a male proprietor. The main insistence of the learned counsel for the appellants is on the agnatic theory of custom propounded in certain judicial precedents. After the change in the law of succession effected by the 1948 Act, it is maintained that those who would succeed as Muslim Law heirs would not be able to invoke this theory to their aid, as they would derive their title from the last holder directly and therefore their anticipatory suit to protect their supposed rights would fail. The right to control alienations by the holder for the time being, was said to be only an aspect of the customary rule of succession. How far this theory is really a part of the custom which governs agricultural tribes of the Punjab is oxen to some doubt. As was pointed out by Sir Shadi Lal, C. J., of the Lahore High Court in Gurbhaj v. Lachhman (A I R 1925 Lah. 341), the observa tions of Plowden, J. in Gujar v. Sham Das, bearing on the existence of "some sort of residuary interest in all the descendants of the first owner or body of owners, however, remote or contingent may be the probability of some among such descendants ever having the enjoyment of the property", were "mere deductions from the agnatic theory which was invoked in order to explain certain features of the customary law and which was subsequently utilised for the purpose of formulating other rules which were hardly warranted by the practice and usage of the people upon whom those rules were imposed. It appears that the only issue before the Court was whether in a case, where the power of a sonless sat proprietor to alienate ancestral land without necessity is in dispute, it is the duty of the alienee to prove a custom, authorising a transfer of the ancestral land in favour of a stranger; and an issue of this character should be determined upon precedents and other evidence adduced by the parties and not upon theoretical generalisa tions." The agnatic theory was thus not based on an empirical inquiry into custom, but owed its formulation to judicial generali sation. As such it would seem debatable how far it can be pressed into aid of an argument which appears to concern itself more with the supposed loss of capacity of the reversioner than with the nature of the rights possessed by the male proprietor holding under custom. Custom merely imposed a disability in respect of alienations of ancestral property on a male proprietor and the question of some sort of interest in the property inhering to reversioners was a mere deduction from the agnatic theory. But even if the agnatic principle be regarded as a judicially recognised rule, the main question that falls for determination in the present case is whether by necessary intendment, the 1948 Act or its amendment in 1951, converted a male proprietor's estate held under custom, into a full Muslim Law estate or not. Prima facie it seems to us that unless the conclusion follows inevitably from the language of the new enactment, there would be no reason why a person who inherited certain property under one system of law should not remain bound by the rules of that Law. The Act of 1948 as amended in 1951 does not effect a cataclysmic change in the law. Clearly an interregnum is envisaged by the Act during which, those who succeeded to property under custom, would be allowed to continue their old jural relations with that property which would devolve according to Muslim Law, only on the death of the present male holder or on the termination of the limited estate of a female, as the case may be. It seems consistent with the principles of justice, equity and good conscience that in this transitional period, a person who came into possession by depriving other Muslim Law heirs of the penultimate male pro prietor, should continue to be subject to restrictions imposed by custom, unless the new law, either by express words or by necessary implication, changes the situation. No express words to that effect are to be found in the 1948 Act as amended in 1951. Has the new law, then by necessary implication clothed the male holder under custom with all the powers of a Muslim Law owner and removed the disabilities that were incidental to the law which was the source of his rights? We are unable to agree that this is so. Such a result if intended, could have been more easily achieved by a simple declaration to that effect. But that simple expedient has obviously not been adopted. Section 5 of the Act expressly declares that the provisions of the Act are not to be given retrospec tive effect, except to the extent indicated in section 3 thereof. This should incline us to uphold the status qua ante in respect of the property in the hands of a customary holder. The nature of that estate should not be held to have changed merely because henceforth matters like succession, gifts, etc., are to be governed by Muslim Law. The difficulty envisaged, in view of the fact that by the amendment of 1951, gifts by Muslims would also be regulated by Muslim Law, can be met in the interim period by the consideration that the possessor of the property for the time being can gift no more than what he owns. If his own rights of property are limited in the sense the they are subject to certain restrictions, his alienee should not be in a better position. He could only retain the property during the lifetime of the donor. Section 3 of the Act no doubt specifically mentions the case of a limited female owner under custom. Her case required to be specifically dealt with in order to avoid disputes as to who should inherit ender Muslim Law after her limited interest ceases by death or otherwise. No such necessity was probably felt in the case of a male proprietor under custom, who had to be succeeded by his own Muslim Law heirs upon his death. If in the sense, indicated above, the male proprietor was also a limited owner, the mere fact that no specific mention of the limited character of his holding was made in the Act, does not lead to the inference that he was to be treated in any different manner. The argument can be advanced that if by virtue of the new section 2 inserted in the Act in 1951, gifts by Muslims had to be regulated by Islamic Law then even gifts by a limited female owner should fall to be decided by that Law henceforth. It is not, however, contended that this section has made a female owner a full owner under the Muslim Law. By parity of reason ing, the same result should follow in the case of a male proprietor holding under custom, seeing that his rights in the property are also restricted. It may be added that unless suits of the character we are dealing with here, are allowed to be brought within the prescribed period of limitation in the lifetime of the alienor, the alienation in question may become indefeasible by efflux of time and the property may be lost to the eventual Muslim Law heirs. Such a result should be avoided, unless the language of the new enactment proves intractable. The does not appear to be the case. In the instant case, it is clear that the plaintiffs‑respondents were the customary reversioners and would also be among the Muslim Law heirs of Khair Din along with their fourth brother. In the circumstances, therefore, the fact that they would be entitled to succeed, both under custom and Islamic Law, should lend additional strength to their position. The decision of the High Court appears to call for no inter ference by this Court and we, therefore, dismiss the appeal. In view of the circumstances of this case, however, we leave the parties to bear their own costs. K. B. A. Appeal dismissed.