P L D 1965 (W (PLP)

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)‑

West Pakistan Muslim Personal Law. (Shariat) Application (Amendment) Act (XXVIII of 1964)‑Acts riot retros pective. (b) Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), [as amended by Punjab Muslim Personal Law (Shariat) Application (Amendment) Act (XI of 1951)], S. 3‑A‑Section not happily worded‑Will‑More than one legatee succeeding one after the other‑First legatee dying after coming into force of Act XI of 1951‑Such legatee enjoying only usufruct of property willed‑Held: property vested in the second legatee, although usufruct was with first legatee‑Section 3‑A not applicable, property having vested in second legatee before coming into force of Act XI of 1951‑Second legatee entitled to have the property on death of first legatee. Held, that section 3‑A, West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) as added by Punjab Muslim Personal Law (Shariat) Application (Amendment) Act (XI of 1951) is not happily worded; it leads to anamolies and absurdi ties. Mst. Fazal Nur v. Mst. Karant Nur and 15 others P L D 1956 Lah. 774 ref. Where the first legatee was only entitled to a right of usufruct to be enjoyed by her during her lifetime, thereafter the property falling under her share was to go to the second legatees under the will which had come into force and had been acted upon immediately on the demise of the testator some 39 years ago and the first legatee died in 1956 after coming into force of Act XI of 1951: Held that property never remains without an owner and, therefore, it cannot be held that the property had not vested in the second legatees, although the usufruct was, with the first legatee for her lifetime. The result is that on the death of the first legatee the corpus of the property having already vested in the second legatees much before the enforcement of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act of 1951, the benefit of usufruct having ended in 1956, the Shariat Application Act (XI of 1951) did not affect the rights of the second legatees who became entitled in law to have the property mutated in their favour under the will. The provisions of section 3‑A cannot be pressed into service for the reason that it can only apply to cases where the corpus had not been willed away and did not stand vested in legatee prior to the enforcement of section 3‑A. This is a plaintiff s appeal which has out of these facts. Ali Muhammad the father of appellant No.1 and maternal grandfather of appellant No. 2, made will by means of a registered document (Exh. D. 1) on the 12th of September 1925 bequeathing one‑half of his land in favour of the appellants Mst. Alam Khatoon, daughter, and Muhammad Khan daughter's son, and the other half in favour of Mst. Bakhtan, his wife. The relevant portion of the will may be reproduced with advantage ‑‑ "Wasiyat karta hoon keh mauza Chorwala, Tehsil Mianwali, men meri jis cadar malkiyat arazi hai, woh mere marne kc bad Mst. Alam Khatun (dukhtaram) wa Muhammad Khan (Nawasa Am) mazkuran‑ba‑hissa barabar ki malkiyat kamil hogi our iske mutaaliq tin ko ikhtiar rehn‑o‑bae har cissam bamissal malkan kamil hasil honge, Baqi nisaf meri aurat Mst. Bakhtan jo mer wafat par bewah hogi ki malkiyat hogi laikan Mst. Bakhtan ko intiqal rehn‑o‑bae hasil na honge, balkeh woh nisaf arazi par siraf bataur guzara cabiz rahegi our keh Musammat Bakhtan ki wafat par us ke nam wali arazi ke malik bhi Musammat Alant Khatun wa Muhammad Khan ba‑hisaa barabar ho jawenge our keh phir mazkuran us arazi ke bhi malik kamil honge our wt 1co intiqal waghaira ke mukammal ikhtiar honge." It is an admitted fact that Ali Muhammad died not lung after the making of the will and a mutation was entered in favour of the legatees in terms of the said will. The exact date of demise of Ali Muhammad is not available on the record nor has the original mutation been placed on the file of this case. Mst. Bakhtan continued to enjoy one‑half of the property bequeathed to her till her death on the 15th of November 1956, whereupon mutation No. 2595 was sanctioned on the 13th of March 1957, under which one‑half of the property held by Mst. Bakhtan was mutated in favour of appellant No. 1 and the other half in the name of the defendant who is .a collateral of Ali Muhammad. An appeal by the appellants against the said mutation before the Collector also failed on the 21st of September 1957, whereafter the present suit was filed by them seeking a declaration to the effect that they are entitled to get the entire land left by Mst. Bakhtan on her death on the 15th of November 1956 in accordance with the will dated theI2th of September 1925 and‑that the defendant‑respondent has no right in respect of the same and that mutation No. 2595 dated the 13th of March 1957, and the appellate order dated the 21st of September 1957 are incorrect and not binding on them.

2. The basis of claim of the appellants is that Mst. Bakhtan had been given one‑half share of the land only by way of mainte nance for her lifetime and as the parties and Ali Muhammad deceased were governed in all matters of succession and inheri tance by custom prior to the enforcement of the West Punjab Muslim Personal Law (Shariat) Application Act IX of 1948, the property in possession of Mst. Bakhtan should have been mutated in favour of the appellants on her demise in terms of the will and the Shariat Act had no application to the facts of this case. The defendant‑respondent controverted the claim of the appellants, but it was, however, admitted that Mst. Bakhtan had been given the land in question only by way of maintenance. The following issues, which fully reflect the pleadings of the parties, were framed by the trial Court :‑ (1) Was Mst. Bakhtan limited owner in respect of the land left by Ali Muhammad ? (2) Did Mst. Bakhtan hold the land left by Ali Muhammad by way of usufruct? (3) Should the will made by Ali Muhammad take effect ? If so, in what manner and with what effect ? O. P. P. (4) Should the will be ignored at the time of inheritance to the estate left by Ali Muhammad on the death of Mst. Bakhtan ? (5) What is the effect of Act No. XI of 1951 on the will? (6) Relief.

4. Feeling aggrieved by the appellate order, the plaintiffs have come up in second appeal to this Court. The learned counsel for the appellants has traced the history of legislation of the application of Shariat Law to Muslims, starting with the Muslim Personal Law (Shariat) Application Act, 1937, section 2 of which Act is as under:

‑ "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 provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charit able institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." He has also placed before me the provisions of the West Punjab Muslim Personal Law (Shariat) Application Act IX of 1948, and the amending Act XI of 1951, whereby section 3‑A was added to the said Act of 194h. The subsequent legislation. namely, the West Pakistan Muslim Personal Law (Shariat) Application Act V of 1962 and the West Pakistan Muslim Personal Law (Shariat) Application'(Amendment) Act XXVIII of 1964, have also been referred to. 1t may, however, be noted that the present case is to be governed by the provisions of Act IX of 1948, a amended by Act XI of 1951, for the reason that the subsequent Acts, namely, Act V of 1962 and the amending Act XXVII of 1964, being not retrospective, are not in point.

5. For a proper appreciation of the legal point involved in the case, the provisions of sections 3 and 3‑A of Act IX of 1948, as amended, are reproduced below.:‑ "

3. 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 lat 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 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 her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death." "3‑A. Where a will made by a Muslim provides for more than one legatee succeeding to the testator's property, one after the other, and the will has taken effect before the coming into force of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951, on the death of the legatee in enjoyment of the property at the time of the coming into force of that Act, the property shall devolve on such heirs and successors of the testator under the Shariat as would have inherited it had the testator died intestate, and if any person who would have so inherited the property or any share therein, had there been no will, has in the meantime died, his share in the testator's property shall devolve on such of that person's heirs and successors as may be in existence at the time of the death of the said legatee." It will be noticed that section 3. deals with succession of property held by a Muslim female limited owner, whereas devolution of property disposed by will of a Muslim is the subject‑matter of section 3‑A, but the crux of the problem is how far section 3‑A is applicable to a will providing for more than one legatee succeed ing to the testator's 1 property, one after the other, which will had taken effect before the coming into force of the amending Act XI of 1951, in the case of death of the legatee in enjoyment of the property at the time of the coming into force of that Act, It will be seen that the section is not happily worded and as has bee rightly pointed out in Mst. Fazal Nur v. Mst. Karalit Nur an 15 others (P L D 1956 Lah. 774) it leads to anamolies and absurdities. In the present case there is no denying the fact that Mst. Bakhtan was only entitled to a right of usufruct to be enjoyed by her during her lifetime; thereafter the property falling under her share was to go to the appellants under the will which had come into force and had been acted upon immediately on the demise of the testato some 39 years ago. In whom did the corpus of the property in the hands of Mst. Bakhtan vest during the time she enjoyed usufruct of that property? It is an established proposition of law that property never remains without an owner and, therefore, I cannot but be held that the property had not vested in the second legatees, namely, the appellants, although the usufruct was wit Mst. Bakhtan for her lifetime. The result is that on the death o Mst. Bakhtan the corpus of the property having already vested in the second legatees much before the enforcement of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act of 1951 the benefit of usufruct having ended in 1956, the Shariat Application Act XI of 1951 did not affect the rights of the appel lants who became entitled in law to have the property mutated i their favour under the will. The provisions of section 3‑A cannot be pressed into service for the reason that it can only apply to cases where the corpus had not been willed away and did not stand vested in legatee prior to the enforcement of section 3‑A. It may be further added that section 3 of the Act has been conceded by the respondent's counsel to be not applicable to the facts of the case and, therefore, no question of the interest of a limited owner under section 3 requires consideration. The application of both these sections having been ruled out, I hold that the learned lower appellate Court has not decided the case correctly in applying section 3‑A. In result the appeal succeeds and the same is allowed. The judgment and decree of the learned lower appellate Court is reversed and that of the trial Court restored, Since the legal questions involved were tough, the parties are left to bear their own costs. A. H. Appeal allowed.