1998 PLP 707 (SCMR)

AJMAL MIAN, J.

This is a petition for leave to appeal against the judgment dated 15-1'-1995 passed by a learned Single Judge of the Lahore High Court in' R.S.A. No.675 of 1975, filed by the respondent against the judgment/decree dated 1-7-1975 of the learned District Judge, Jhelum, in Civil Appeal No.78 of 1974 filed by the petitioner, party allowing the same by decreeing part of the suit property, disposing of the same as under:-- "

5. During the pendency of this R.S.A., Customary Law has been repealed and made ineffective in pursuance of the enforcement of West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983. Section 2-A of this Act envisages that all the judgments and decrees passed under Customary Law have become redundant and cannot be executed. As such, this R.S.A. stands fructified and by operation of law, the judgment of the lower Appellate Court became redundant and cannot be enforced. The R.S.A. is disposed of accordingly."

2. The brief facts are that one Ghulam Hussain son of Said Ahmad, hereinafter referred to as the deceased, was issueless. During his lifetime before his death, he executed and got registered a gift deed on 16-8-1968 gifting his entire estate to his wife, Mst. Mussahib Bano (respondent). Muzaffar (since deceased) and Mst. Bhag Bhari (who is also since deceased), who were brother and sister respectively of the deceased, filed a suit on 21-3-1969 in the Court of Civil Judge, Chakwal, on two grounds, namely: (i) That the gift was invalid as it was made by the deceased during "Marzul Maot"; and (ii) that since the subject-matter of the gift was ancestral land, the same could not have been gifted.

3. The above suit was resisted by the respondent i.e. the widow of the deceased. The learned trial Court, after framing issues, recording evidence and hearing the parties, dismissed the suit on 9-5-1974. Against the above judgment/decree, the aforesaid brother and sister filed the aforementioned appeal, which was allowed to the extent of ancestral land and the suit was decreed in respect of the above ancestral land to the extent of 3/4th to the brother and sister, and 1/4th to the widow. Against the above judgment/decree, the respondent filed abovenoted R.S.A. Above brother and sister (now represented by the present petitioners) did not file any R.S.A. or cross objections against the finding as to the legality of the gift and, hence, the finding on the question of legality of the gift acquired finality. It seems that, while the above R.S.A. was pending, Ordinance No.VIII of 1983 was promulgated, Section 2-A of which, which was incorporated by Ordinance No.XIII of 1983 on 1-8-1983, provided as follows:-- "2-A. Succession prior to Act IX of 1948.--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 or 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 decrees." The petitioners have, therefore, filed the present petition for leave to appeal.

4. Mr. Abdul Shakoor Paracha, learned ASC for the petitioners, has not been able to point out that the above-quoted conclusion arrived at by the learned Judge in Chambers is, in any way, violative of the aforesaid provision of the Ordinance. However, he wanted to raise the question of legality of the above gift-deed. We have already observed hereinabove that the finding recorded by the Trial Court on the question of validity of the gift in favour of the respondent had acquired finality for want of any challenge by the deceased's brother and sister.

5. We may further observe that the office had raised an objection as to the limitation by pointing out that the petition is barred by time by three days. The learned counsel for the petitioners was unaware of the above objection. We have examined the case on merits.

6. The above petition has no merits. Leave is refused. A.A./M-103/S Leave refused