P L D 1970 Lahore 629 (PLP)

By section 7 of the same Act, all other persons were debarred from filing such a suit.

14. The effect of this statute was to curtail the categories of persons previously entitled to file suits of the present kind to those mentioned in the Act and referred to above. As is clear from the Long Title, it is "an Act to restrict the power of descendants or collaterals to contest an alienation of immovable property or the appointment of an heir on the ground that such alienation or appointment is contrary to custom." It did not confer any new right whether substantive or merely procedural. It did not even create a new category of persons. It only placed restrictions. The right to file such a suit can, therefore, not be traced back to either of these two enactments. 15. 1937 saw the enactment of the Muslim Personal Law (Shariat) Application Act, No. XXVI, by the Central Government. It made Muslim Personal Law (Shariat) the rule of decision in all cases enumerated in section 2 where the parties were Muslims. Questions relating to agricultural land were, however, excluded from the operation of this Act. Section 2 may be reproduced 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, guardian ship, gifts, trusts and trust properties, and Wakfs (other than charities and charitable institutions and charitable and reli gious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." Customary Law pertaining to agricultural land did, therefore, not suffer on account of this enactment. Section 5 of the Punjab Laws Act, 1872 was repealed by this Act in so far as it is "inconsistent with the provisions of this Act". It, therefore, continued to survive where questions relating to agricultural land arose and custom continued to be the supervening rule.

16. Independence came in 1947 and the West Punjab Legislature passed the West Punjab Muslim Personal Law (Shariat) Application Act of 1948. Section 2 of this Act extended Muslim Personal Law (Shariat) even to questions pertaining to succession to agricultural land notwithstanding any custom or usage to the contrary. Section 5 of the Punjab Laws Act was repealed to the extent of repugnancy by this Act.

17. The effect of this enactment was considered by a Full Bench of the Lahore High Court in Muhammad Asghar Shah v. Muhammad Gulsher Khan and another (P L D 1949 Lah. 116). The question that fell for determination before the Full Bench was‑ "whether the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) renders the grant of a declaratory decree under custom infructuous." It was noted that the position of a male owner, who succeeds under the custom, is that he‑ "is a full owner with an interest transmissible to his heirs, lineal or collateral, as the case may be . . . . . His right to sue for possession in spite of the last owner's act of alienation, is derived from no individual, but from the customary rule which places a restriction upon the owner's powers of disposition of ancestral property, and renders him liable to be controlled in that respect by his collateral heirs." Their Lordships went on to observe‑ "The real object of a suit to contest an alienation is `to save the inheritance if action is taken on it at the proper time.' The transfer is not void ab initio: it is liable to be set aside at the instance of those who are descended from the common ancestor and have a chance to succeed . . . . . Another peculiarity about the declaratory decree is that the person holding the decree or the entire body of the reversioners then in existence, might never actually succeed when the time came. On the death of the alienor, when a right to possession accrues, none of the reversioners by whom or for whom the alienation was not set aside, might be alive. The possession might be claimed by the descendants of the original rever sioners and if there is no one in existence the matter ends and the alienee's possession shall not be disturbed . . . . . It might be added that the Act does not by one stroke of pen, convert owners of property with restricted powers of alienation into full and absolute owners whose powers of alienation were wholly unfettered. The Act nowhere says that all Muslim male owners had by virtue of the Act become absolute owners in the same sense as they would have been if Muhammadan Law had applied and they had succeeded in accordance with Muhammadan Law. The estate of a person who took it under customary law would continue to be subject to the limitations imposed by it till its devolution is made under the Act of 1948 i.e., after the 15th March 1948 . . . . . My answer to the question before the Full Bench is that the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) does not preclude the grant of declaratory decrees in suitable cases arising before the Act . . . . . Viewed thus, the suits for declaration cannot be held to have become infructuous and would still have a useful part to play although the advantage of such a declaration, if it is granted, would be only available to those who happened to be the heirs of the deceased according to Muslim Law. I am aware of the fact that this line of reasoning may also apply to suits which may be instituted after the passing of the Act (IX of 1948), but personally I cannot see how can one escape that conclusion although in the particular cases, which had been referred to the Full Bench, the suits had been instituted before the Act (IX of 1948) was passed and our reply must necessarily be confined to such suits, at least for the present."

18. The Punjab Muslim Personal Law (Shariat) Application (Amendment) Act of 1‑951 did not alter the position except that it covered not only intestate succession but testate succession also.

19. Another Full Bench of the Lahore High Court considered the question‑ "Whether the declaratory decree validly obtained under custom should not be maintained in view of section 3 of the Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), as the reversioners shall have under the Personal Law no share in the property of the last male owner, on the termination of the limited interest of the female in possession." In Barkhurdar Shah and others v. Rob Nawaz Shah and others (P L D 1952 Lah. 555). It was ruled that the declaratory decrees before the Act of 1948 came into force are not affected by section 3 or any other section of that Act.

20. This brings us to the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) which is the bedrock of the defendants, prayer, that the suit be dismissed as incom petent. As the preamble of this Act shows, it has been enacted to consolidate and amend the provisions for the application of Muslim Personal Law (Shariat) in the Province of West Pakistan. Section 2 of this Act runs as follows:‑ "Notwithstanding any 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 Waqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims." Sections 3, 4 and 5, which deal with (1) termination of life estate under Customary Law, (2) further operation of certain wills on the death of the legatee‑in‑enjoyment, and (3) devolution of property on the termination of life estate and certain wills, alone have been given retrospective effect by virtue of section 6 of this very enactment.

21. The positive provisions of the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) do not, in any manner, add to the rights possessed by a person who has succeeded to ancestral property under the Customary Law. It does not detract from that position either. It may, however, be remembered that I am not concerned in this case with the rights of a female succeeding to a limited estate under the Customary Law. Since there was no addition to the right of the last full owner of such property, he continues to hold it subject to the conditions, restrictions and limitations under which he succeeded to that property under the Customary Law. One of such restrictions was that he shall not alienate it except for consider ation and legal necessity. This condition had been recognised as far back as 1854 by section 7 of the Punjab Civil Code. The reason which has already been explained above, is the need for retaining that property intact for the heirs under the Shariat.

22. Let us now see if the negative part of the Act, which repealed certain enactments, has any effect on the limitation etc. on the power to alienate. Section 7 of this Act contains a list of enactments which are repealed by it and they include (a) The Punjab Limitation (Custom) Act, 1920, (b) The Punjab Custom (Power to Contest) Act, 1920, (c) The Muslim Personal Law (Shariat) Application Act, 1937, in its application to West Pakistan, and (d) The Punjab Muslim Personal Law (Shariat) Application Act, 1948. Section 7 (2) makes it clear that‑ "this Act shall not apply to cases where the death of the last full owner or the termination of the life estate or the death of the legatee‑in‑enjoyment, as the case may be, has occurred before the commencement thereof, and all such cases shall be governed by the Acts repealed in subsection (1) according to territories in which they were operative." The date of commencement of this Act is the 31st of December 1962, when it was published in the Gazette of West Pakistan (Extraordinary). Had section 7 (2) been a valid piece of legislation the Act of 1962 would not be applicable to cases where the death of the last full owner took place before that date. Muhammad Din, the last full owner far from having died before the commencement of this Act was very much alive even on the date when the present second appeal was instituted. I would like to take note of the West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act (XXVIII of 1964). It is a short enactment consisting only of two sections, and the second section runs as follows:‑ "In section 7 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 subsection (2) shall be omitted." Section 7 (2) and the effect of this Amendment was con sidered by me in Sarwar Bibi v. Said Ahmad and others (1) in the following words:‑ "The Law of succession has ever since the enactment of the Muslim Personal Law (Shariat) Application Act, 1948, been (1) P L D 1969 Lah. 413 the rule of Shariat notwithstanding anything to the contrary contained in any usage or custom. No life estates could therefore be created under the Customary Law after the enactment of that Act. Existing life estates were, however, left untouched and in respect of them the only provision was applicable on their termination in due course according to Customary Law. When the Act of 1962 was enacted the position was that while no new life estates could come into being, the existing ones were to continue till terminated by the death or remarriage etc. of the holder. The raison d'etre of the Act of 1962 is to abolish such existing life estates altogether without waiting for their extinction in due course. If section 7 (2), which is a saving clause, is allowed to stand, section 3 becomes absolutely nugatory and the every purpose for which the statute was enacted would disappear. This, therefore, is a case where the saving clause by being repugnant to the purview knocks the very bottom out of the enactment. Following the principles laid down in Graies therefore it cannot but he held that section 7 (2) was from its very inception void on account of repugnancy." This subsection, therefore, never came into existence in the eye of law.

23. As already mentioned above, the Punjab Limitation (Custom) Act of 1920 only limited the period within which a reversioner could challenge the alienation. The Punjab Custom (Power to Contest) Act of 1920 divested certain types of reversioners of their right to challenge such an alienation. It was restricted only to a class named in it. It should, however, be not lost sight of that this Act did not create a new class of reversioners who previously had no power to challenge an alienation. It only restricted the already existing class of such persons to a named category. It can, therefore, not be justifiably said i hat the power to challenge an alienation was conferred by any of these two enactments. Since the power was enjoyed independently of these Acts the mere fact that it was limited by these two Acts would not result in the extinction of this power due to the repeal of these two enactments because it was not conferred by any one of them.

24. It is not for me to go into the reasons why the Legislature repealed Acts I and II of 1920. All that I had to see in the present case was whether the repeal of these two enactments hid affected the right of a reversioner to challenge an unlawful alienation made by a full owner under the Customary Law.

25. The suit out of which the present appeal arises was insti tuted on the 24th of March 1962. The Act V of 1962 came into force on the 31st of December 1962. Even if it were accepted for the sake of argument that this Act abolished the right to challenge an alienation, it would not be applicable to the proceedings before me. As far back as the year 1952, a Full Bench of this Court held in Barkhurdar Shah and others v. Rab Nawaz Shah v. and others (P L D 1952 Lah. 555)‑ "The sole point we are required to determine is whether the Act of 1948 on which reliance is placed has the effect of annulling or vacating decrees which had been passed before the Act came into force declaring that under custom certain alienations were invalid and not binding on the reversioners. It is conceded by the learned counsel for the appellants that if on the date the Act came into force no appeal from the decree had been pending, the decree would not have been affected by the legislation in question. What is argued, however, is that an appeal is a continuation of the suit, that the suit must be deemed to have been pending when the Act of 1948 came into force and that since, if the suit had been pending, no decree declaring the sale to be invalid at the instance of the respondents could have been passed, the right order to make in the appeal is to reverse the decree and dismiss the suit. There are two replies to this argument. In the first place, the mere fact that an appeal was pending when the Act was passed is no reason for vacating the decree. It was so held by the Full Bench in Muhammad Asghar Shah v. Muhammad Gulsher Khan P L R 1948 Lah. 241=P L D 1949 Lah. 116 a fully reasoned decision with which we respect fully agree. In the next place, there is a mistaken assumption in the argument of the learned counsel for the appellants, namely, that if on the date the Act of 1948 came into force a suit by a reversioner challenging an alienation bad been pending, the Court was bound to dismiss the suit. The Punjab Muslim Personal Law (Shariat) Application Act is a piece of substantive law, and in the case of such Act the rule is fundamental that they are not to be given retrospective effect so as to impair existing rights or obligations, unless that effect cannot be avoided without doing violence to the language of the Act. The Act in question is subject to this presumption, and there is nothing in it to show that it was intended to affect existing rights of action. In fact, the Act expressly says in section 5 that its provisions are not to be given retrospective effect except to the extent indicated in section

3. Section 3, however, is in point only where the question is who will succeed to the property of the last male‑holder which at the time of the coming into force of the Act was being held by a female as a limited owner. On that point the section contains two distinct rules, but neither of them can be invoked at the present stage because the dispute as to succession has not actually arisen, the limited owner being still alive. And if section 3 is not applicable, the Act must be held expressly to provide that existing causes of action, whether they had or had not been brought before Courts when the Act was passed, are not affected by the Act, because a cause of action, once it has accrued, is not touched by subsequent legislation, unless that legislation expressly or by necessary implication says so. It would, therefore, mean that the decree in the Present case, which had been made on the basil of a cause of action that had accrued before the Act of 1948 came into force, is not affected by that Act." It is axiomatic and it was so held in Mst. Sardar Bibi v. Abdul Latif and others (P L D 1956 F C 137) that‑ .. in the absence of any indication to the contrary in the relevant statute, the legality or validity of a transaction has to be determined according to the law in force at the time of the transaction." Any change in the law, therefore, which has been made after the transaction took place, would not affect the right to challenge that transaction unless that law specifically so provides. There is nothing in the Act of 1962 which could lead one to the conclusion that so far as the right of a reversioner to challenge an alienation made by an owner under customary law is concerned any change was sought to be brought about. It was held in Mst. Alam Khatun and another v. Ghulam Muhammad (P L D 1965 Lah. 73) that Act V of 1962 and the amending Act XXVIII of 1964 are not retrospective.

26. The answer to the contention that the right in question is only a procedural right and the Act of 1962 should therefore be held to be retrospective in operation is contained in a Full Bench judgment of the Punjab Chief Court in Gujar v. Sham Das and another (107 P R 1887) wherein it was observed at page 247‑ "The prevailing sentiment in this province among agricul turists ascertained by the experience of the Courts and of Settlement Officers, and in compendious records of custom, is that in respect of ancestral immovable property in the hands of any individual, there exists some sort of residuary interest in all the descendants of the first owner or body of owners, however remote and contingent may be the probability of some among such descendants ever having the enjoyment of the property. The owner in possession is not regarded as having the whole and sole interest in the property, and power to dispose of it, so as to defeat the expectations of those who are deemed to have a residuary interest, and who would take the property if the owner died without disposing of it." Similarly in Sadhu Singh v. Secretary of State for India and others (18 P R 1908) at page 118 it was observed‑ "In Sweet's Law Dictionary under the head 'Reversionary Interest' it is stated `Any right in property, the enjoyment of which is deferred, is a reversionary right in the wide sense of the term." The right of the reversioner under Customary Law seems to me to amount to a right in property, the enjoyment of which is deferred. It is vested in interest according to the meaning of the term under the heading `estate' in that Dictionary." It is, therefore, not just a right to sue which is affected.

27. My conclusions, therefore, are that‑ (i) the right of a reversioner to challenge alienation of property made by a person who succeeded to it under the Customary Law is not merely a right to sue or a procedural right but a substantive right in property ; (ii) The right of such a reversioner is to be exercised with a view to saving the inheritance even if the advantage so gained be available only to those who happen to be the heirs of the deceased according to Muslim Law and not the Customary Law; (iii) This right is available to such reversioner not only on the basis of Acts I and If of 1920 but on the basis of Customary Law as recognised by sections 5 and 7 of the Punjab Civil Code of 1854 and section 5 of Punjab Laws Act of 1872; (iv) The repeal of Acts I and II of 1920 by the Act of 1962 does therefore not affect this right in any way whatsoever; (v) There is nothing in Act V of 1962 and Act XXVIII of 1964 which affects this right; (vi) Section 7 (2) of the Act of 1962 was from its very inception void on account of its repugnance to the purview; and (vii) the remedy is available under section 42 of the Specific Relief Act and continues to be available.

28. The appeal is, therefore, dismissed with costs. The suit is held to be maintainable; the judgment and decree of the learned lower appellate Court is affirmed and the case shall now go to the trial Court for disposal in accordance with law. S. Q. Appeal dismissed.