2002 PLP 689 (CLC)

7. Choudhary Muhammad Yousaf, Advocate, learned counsel for the petitioner has assailed the findings of both the learned lower Courts on the ground that even if it is held that Fazal Hussain Shah who was a Muslim had died before the enforcement of Shariat Application Act, 1948, it would be ineffective upon the rights of the petitioner as with the incorporation of section 2‑A in the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) by means' of Ordinance XIII of 1983 a Muslim owner shall be governed by the Muslim Personal Law (Shariat) of Inheritance no matter when he died. It is also contended that for the purpose of inheritance under the Muslim Personal Law, it was immaterial whether the property was ancestral or self‑acquired of the deceased predecessor‑in‑interest. The findings of the learned lower Courts have also been criticized on the ground that any party pleading custom must not only plead such custom with specific detail, it should also prove by cogent evidence as to what that custom was. It has been further urged that Customary Law would apply only to ancestral property and not to property which has been self‑acquired by the deceased owner. It was finally contended that the finding upon the issue of limitation is erroneous as no such plea can be raised against a co‑sharer.

8. On the other hand, Noor Muhammad Niazi, Advocate appearing for respondents Nos.2‑A to 2‑D has strongly supported the concurrent findings arrived at by the learned lower Courts. In order to appreciate the contentions raised by the learned counsel for the petitioner, it would be appropriate to refer to section 5 of the Punjab Laws Act, 1872 which is reproduced as under:‑‑ "Decisions in certain cases to be according to native laws.‑‑‑ In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies; . gifts, partitions or arty 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 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 insofar 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."

9. The effect of section 5 was that notwithstanding that Muslim Law was to be applied as the governing rule under sub‑clause (b), this was subject to any modification made by any custom which was alleged and proved to have modified the Muslim Law. To do away with this overriding effect of custom over the Muslim Law, Muslim Personal Law (Shariat) Application Act (XXXVI of 1937) was promulgated. Section 2 of this Act reads as under: Section 2: "Application of Personal Law to Muslims.‑‑‑ 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 provisions of Personal Law, marriage, dissolution of marriage, including Talaq, Ila, Zihar, Lian, Khula and Mubarat, 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 case where the parties are Muslim shall be the Murlim Personal Law (Shariat)."

10. The effect of this provision was that custom "or usage" contrary to Muslim Law was done away with except insofar as it related to agricultural land. The next enactment in this regard was the Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), which was promulgated on 15‑3‑1948. This was amended by Act XI of 1951. Section 2 of Act (IX of 1948) is reproduced as under:‑‑ Section 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 Waqafs, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims.

11. The effect of promulgation of the aforementioned provision was to do away with overriding control of custom upon Muslim Law in respect of all matters enumerated in section 2 cited above.

12. Certain difficulties arose regarding the application of Muslim Shariat Law to the matters enumerated in Act (IX of 1948). Some such difficulties were pointed out by the apex Court in the case of Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407 wherein it was observed as under:‑‑ "Further, by virtue of the superior Courts declaration of .law when interpreting various provisions of that Act with reference to the retention of customary law as projected in the old legislations already noticed, it was ruled first by the Lahore High Court and then by this Court in several judgments dealing with various aspects of succession including widows limited estate, that a person who had inherited agricultural land prior to the enforcement of Act X of 1948, his or her power of alienation (treating the same as an incidence of Customary succession) will be controlled by the law of succession which applied to him or her then (prior to Act JX of 1948). In other words, if a person had, inherited agricultural land under Custom as an heir (in any form) to the last full owner then qua that heir the restrictions regarding alienation under custom would control his power of alienation notwithstanding the promulgation of the' Muslim Shariat Application Act (IX of 1948). An important condition, amongst others, which was consistently spelled out was that no alienation could take place without the consent of the concerned reversioners unless it was for consideration and legal necessity. Females/widows inheriting the estate in various forms were also dealt with, on somewhat similar lines."

13. In order to remove these difficulties the Punjab Muslim Personal Law (Shariat) Application (West Pakistan Act V of 1962) was promulgated. This was amended by the Punjab Ordinance No. XIII of 1983 by virtue of which section 2‑A was incorporated. Section 2‑A is as under:‑‑ "(2‑A) Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim‑‑ (a) he shall be deemed to have become upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat); (b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery of possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act; (c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith: Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decree."

14. The impact of section 2‑A mentioned above is manifested which may be recorded as under:‑‑ (i) Wherever a male heir had acquired by way of inheritance or otherwise any agricultural land from any Muslim before 15‑3‑1948, he shall be deemed to be an absolute owner irrespective of whether he died before or after the promulgation of Act IX of 1948. (ii) Retrospectivity of section 2‑A is inherent in its own provisions. This is so as this provision itself provides that if a male heir had acquired any agricultural land before the commencement of the Punjab Muslim Personal Law. (Shariat) Application Act, 1948, he shall be deemed to have become an absolute owner of such land as if such land had devolved on him under the Muslim Personal Law (Shariat). (iii) The term `acquisition' used has a wider connotation and amongst other modes of acquisition by the male heir includes acquisition by succession/inheritance.

15. In view of the above narration, the contentions raised by the learned counsel for the petitioner are found to have much force. It is admitted on the record that the dispute relates to the inheritance of Fazal Hussain Shah and predecessor‑in‑interest of the petitioner and contesting respondents. It is immaterial for the present controversy whether the property in dispute was acquired by Fazal Hussain Shah through inheritance or whether it was his self‑acquired property. It is also irrelevant if he died before or after the promulgation of Act IX of 1948. Within the meaning of section 2‑A Fazal Hussain Shah who had acquired the property in dispute before the commencement of Act IX of 1948 shall be deemed to be the absolute owner of such land as if such land has devolved on him under Muslim Personal Law (Shariat) and after his death all his Muslim Law heirs shall inherit in accordance with their legal shares.

16. In this view of the matter, the findings of both the learned lower Courts that as it was not proved that Fazal Hussain Shah died after the promulgation of Act IX of 1948 his female heirs like the petitioner would not inherit is riot in accordance with law. The second contention of the learned counsel for the petitioner that even if section 2‑A did not have this effect the principles of Muslim Personal Law cannot yield to the customary law as no custom overriding the Muslim Personal Law was either specifically pleaded or proved on the record is also correct. This however, shall be of an academic interest only as the implications of section 2‑A have already been discussed.

17. Finally‑as it is being held that the petitioner and other female heirs of Fazal Hussain Shah were entitled to their share of inheritance, the bar of limitation shall not apply against the petitioner.

18. For the afore‑stated reasons, this civil revision succeeds and the judgment and decree of the Appellate Court, dated 19‑5‑1993 and judgment and decree, dated 15‑12‑1987 of the trial Court are set aside with the result that the suit of the petitioner stands decreed as prayed. Parties to bear their own costs. Q.M.H./M.A.K./N‑147/L Revision allowed.