1989 PLP 991 (MLD)

‑‑‑S.2‑A [as added by West Pakistan Muslim Personal Law (Sharial) Act (Amendment) Ordinance (XIII of 1983)]‑‑Abolition of custom‑‑Effect‑‑Custom having sweepingly been abolished by enforcement of Shariat Application Act, succession to hers of deceased Muslim would be regulated according to Muslim Personal Law‑‑Deceased father of respondents/plaintiffs being last male holder of disputed land and its absolute full owner, his heirs would be entitled to inherit his property according to Shariat‑‑Plaintiff as daughter of deceased would be entitled to 2/3 share of his property‑‑Deceased was survived by widow, she would get her prescribed share and being dead, her share would also go to plaintiffs, thus entitling them to 2/3 + 1/8 = 19/24 share‑‑The residue 5/24 share would go to defendants‑‑Appeal in so far as based upon custom, abated and decree obtained under custom modified accordingly. Syed Munir Hussain Shah for Appellants. Sh. Ghias Muhammad assisted by Rao Munawar Khan for Respon'd:nts. 2. 1t will be appreciated that both the parties relied upon Custom and in that context, it was to be further determined whether the property was the last male owner's ancestral or non‑ancestral. This position gains support from para 6 of the order of the Supreme Court, which is reproduced as under:‑ "We find that the question whether the property was ancestral or non ancestral was fundamental to the dispute between the parties. For, if the land was held to be ancestral the general custom governing it was different than if the land were held to be non‑ancestral. A decision of this question would have also determined as to who was required to prove the special custom in derogation of the general custom relatable to the nature of lh).; properly in dispute. This matter could not be left undecided. The answers to questions 43 and 67 as reproduced in the judgment of the High Court required examination and scrutiny in the light of the instances noted in the schedule and the reservation made in the preface with regard to their effectiveness and applicability. Before permitting the defendants‑collaterals to raise the question of the finality of the review mutation it should have been noted that this was not the issue on which arguments were addressed before the District Judge nor had the District Judge an opportunity to record a finding on it. We consider that these fundamental questions required decision, and we cannot decide them without having before us the considered views of the High Court. We, therefore, accept the appeal, set aside the judgment and decree of the High Court. The result is that the second appeal before‑the High Court will require decision afresh. No order as to costs."

3. In the context of custom, law has undergone a drastic change. Section 2 A of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983, sweepingly abolished Custom to the extent that all decrees etc. based upon it were declared to be null and void, while suits or proceedings also based thereupon were to abate forthwith. A deeming clause was applied as if the last male holder of the land had obtained it under Personal Law and was, therefore, its absolute owner for purposes of disposal or further succession to his I heirs. This makes the father of the respondents‑plaintiffs to have been a full I owner so that on his demise, they would be entitled to inherit him under Personal I Law to the extent of 2/3rds. Since admittedly he was survived by widow, Mst. Muradan as well, her 1/8th shall also go to the daughters and their share would come to 2/3 + 1/8 = 19/24. The residue, namely, 5/24 will pass on to the appellants/defendants, who arc undeniably residuaries of the deceased being his collaterals from a higher ancestor. The respondent‑daughters had in their suit claimed 19/24 share in the alternative according to the Personal Law. It is not possible to deny it to them.

4. As a result, the appeal in so far as it is based upon custom, abates, while the impugned decree obtained by the respondents/plaintiffs under custom is modified to the extent that they shall gel only 19/24 as explained above. The remaining 5/24 is being given to the appellants‑defendants. Parties to bear their own costs. H.B.T.//J‑43/L Order accordingly.