1990 PLP 1382 (SCMR)

SHAFIUR RAHMAN, 3.‑‑‑Leave to appeal was granted to examine whether the decision given by the Federal Shariat Court in Mst. Sunar Begum and 3 others v. Federal Government of Pakistan through Secretary, Ministry of Justice, Islamabad and another (P L D 1988 Federal Shariat Court 1.) had any bearing on the case in hand.

2. Sharif Khan, the last male owner died in 1938. On his death mutation was attested on 14‑5‑1938 whereunder half share was mutated in the name of issueless widow Mst. Noor Khanum, and the other half in favour of Karam Khan a son of Sharif Khan from another wife. Noor Khanum alienated her half share. The son of Karam Khan respondent No.l, instituted a suit challenging her right to do so. A number of issues were framed but the one seriously contested throughout was issue No.6, whether Mst. Noor Khanum was a maintenance holder or a limited owner. The trial Court held that she was only a maintenance holder and not a limited owner. The first appellate Court affirmed this finding. The High Court did not interfere with it in revision.

3. Maulvi Sirajul Haq, Advocate, the learned counsel for the appellant submitted that the Federal Shariat Court has held in the case of Mst. Sunar Begum that there is really no distinction between maintenance and life estate holder and both the categories have to be dealt with at par.

4. On an examination of the case on the basis of which leave to appeal was granted, we find that the learned counsel has a misconception about the actual finding recorded. The concluding portion of the judgment holds as hereunder.‑ "Be that as it may, the Ordinance of 1972 has removed all doubts in respect of right of a widow qua customary law, to the extent that such law is repugnant to the injunctions of Islam. Section 5 of the Act of 1962 provides that all properties kept by a deceased shall, on termination of life estate, devolve on the legal heirs of the deceased according to the Shariat. The term `life estate' used in the Act of 1962 and Ordinance of 1972 shall be deemed to apply to widows of both the categories, that is the one who held life estate and the other who is maintenance holder. A maintenance holder in fact holds some land in lieu of maintenance for life. Hence the laws of 1962 and 1972 did not save the custom which allowed only maintenance to a widow. To hold otherwise would amount to frustrate the very object of the above laws, which was to make provision for the application of Shariat to Muslims in the matter, inter alia, of succession. These laws cannot be deemed to have perpetuated a custom which was un‑Islamic. All such customs in relation to succession shall be deemed to have been abolished in view of the Act of 1962 and Ordinance of 1972."

5. In the case in hand we were not concerned with what happened in 1962 or afterwards but the crucial point to be determined was, in what capacity Mst. Noor Khanum obtained the property on the death of Sharif Khan in 1938. The concurrent finding of all the three Courts is that it was as a maintenance holder and not a limited owner. We find no fault in the finding so recorded. The judgment of the Federal Shariat Court also does not directly or indirectly affect the finding or the custom as then in existence. The question of inheritance when the interest of maintenance holder terminates has not been determined by the Federal Shariat Court nor is it in issue. 1t was the character of interest and her power of alienation in part or full which was in issue and that depended entirely on the nature of interest in the property.

6. We find no merit in this appeal and the same is dismissed with costs. H.B.T./U‑33/S???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.