P L D 1990 Peshawar 36 (PLP)

(6) Whether the suit is within time? (7) Whether the plaintiff is estopped to bring the present suit by her prolonged reticence? (8) Whether the defendant has matured his title to the suit land through adverse possession? (9) Whether the defendant is entitled to compensatory costs? (10) Whether the boundaries of the suit property arc vague and incorrect? (11) Whether the suit is res judicata? (12) Whether the plaintiff is the owner of 1/4th share of the suit property and the defendant has no right in it? (13) Whether the plaintiff is entitled to the decree for declaration and decree for possession through partition of the suit property? (14) Whether the plaintiff is also entitled to the decree for permanent injunction as prayed for against the defendant? (15) Relief. After recording evidence as produced by the parties the learned Senior Civil Judge dismissed the suit of Mst. Gul Pari by judgment dated 14‑10‑1984. The plaintiff filed an appeal. The learned District Judge Malakand framed the following four additional issues and by accepting the appeal remanded the case back to the Senior Civil Judge by judgment dated 9‑4‑1985 for giving findings on the issues framed by him:‑‑ . (1) Whether plaintiff Mst. Gul Pari and Saidul Arifeen are sister and brother inter se? (2) Whether property in dispute was the ownership of Umar Gul? (3) Whether property in dispute is a self‑acquired property of the defendant/respondent, if so, its effect? (4) Whether the defendant had executed receipt dated 1‑7‑1965 in favour of plaintiff Mst. Gul Pari, if so, its effect. After recording fresh evidence as produced by the parties the learned Senior Civil Judge decided the additional issues in favour of the plaintiff by judgment dated 9‑5‑1985. After the receipt of the judgment of the learned Senior Civil Judge on the additional issues, the learned District Judge by judgment dated 14‑1‑1987 dismissed the appeal of Mst. Gul Pari. The appellant, still feeling aggrieved, came up to this Court with the revision petition in hand.

2. I have heard learned counsel for the parties at length who also led me through the record of the case.

3. The facts which were either admitted by the parties or which came to light after recording fresh evidence are that Mst. Gul Pari deceased and the respondent were sister and brother inter se and their father was Umar Gul, that the suit property belonged to their father Umar Gul and it was not the self acquired property of the respondent, that their father died somewhere in the year 1956, that the suit property was under the management and control of the respondent, that he used to pay Rs. 5,000 to his sister every year in the month of February from the income of the suit property, that although he had earlier denied but subsequently admitted the execution of agreement dated 1‑7‑1965, EX.PW.1/1, whereby he had admitted that his father used to pay Mst. Gul Pari 1/4th share out of the produce of the suit property during his lifetime and had at the time of his death made a will that the same share be paid to her by him (the respondent) after his death and that if he failed to pay the said amount his sister would be entitled to get 1/4th share partitioned from the suit property, that the said document was sent to the Handwriting Expert as the respondent had questioned its execution and the report of the expert discloses that it had been executed by him.

4. It shall thus be seen that although custom was the personal law of the parties in Malakand Agency before the year 1976 when the Act was made applicable to that area, yet Mst. Gul Pari was being given by her father a sh'xre from the income of the suit property according to law of Shariat and the same share was also being paid to her by the respondent after the death of their father. The respondent also admitted by the document executed by him on 1‑7‑1965 that this share was being paid to her according to Shari Law and he also undertook that if he refused to pay her that share of the income from the suit property, she could get her share partitioned from the suit property.

5. The learned counsel for the petitioner contended that although customs was the personal law of the parties in Malakand Agency in the year 1956 when their father died leaving behind the suit property, yet the respondent had agreed that in the matter of succession they were being governed by the .Shari Law and he also used to pay share of the income of the suit property to his sister Mst. Gul Pari according to Shari law, as such the parties were being governed by the Islamic Law of Inheritance and the plaintiff was entitled to get her Shari share partitioned because the respondent herein had refused to pay her share of the income therefrom. On the contrary the learned counsel for the respondent contended that custom was the personal law of the parties at the relevant time according to which females could not inherit immovable property and as such the plaintiff was not entitled to claim any share from the suit property.

6. I have very anxiously considered the aforesaid contentions of both the learned counsel for the parties. There is no denying the fact that the general law of inheritance prevalent in Malakand Agency at the time of death of father of the parties was custom according to which the females could not inherit any immovable property. However, I have not come across any example or any case or any precedent according to which any Muslim resident of Malakand Agency could be debarred from being governed by the Islamic Law of Inheritance in preference to the customary law. Even during the prevalence of the customary law the parties could by mutual consent elect to be governed by the Islamic Law of Inheritance and in that case the customary law had to yield to the provisions of the Islamic Law of Inheritance and there could be no legal bar to this course of action. In support of the above contention draw benefit from the case of Klhudadad v. Mst. Resham Jan P L D 1968 Peshawar 172 and Mst. Qaisar Kbatoon v. Abdul Khaliq P L D 1971 Supreme Court

334. In both the aforesaid judgments it has been held that normally the personal law of the parties should C govern the matters of devolution to and inheritance of immovable property and when any party claims that they are governed by customary law of inheritance then it is upon him to prove the said assertion whereas in the case in hand it shall be seen that by executing the document dated 1‑7‑1965 the respondent had himself admitted that the parties were being governed by the Islamic Law of Inheritance at the time of death of their father. I will, therefore, hold that the law of inheritance applicable to the parties at the time of the death of their father was Shari Law and not the Customary Law.

7. The learned lower Courts were labouring under a misconception and miscomprehension of the applicability of the Act to Malakand Agency in the year 1976. No doubt the application of the Act to that area in the year 1976 had no retrospective effect but the important point to be taken into consideration in the case in hand is that the parties were already being governed by the Islamic Law of d Inheritance and there was no question of the applicability of the act to them. The facts brought on record have proved that the parties were already being governed by the Islamic Law of Inheritance when the act was made applicable to Malakand Agency. The learned counsel for the respondent has brought to my notice the case of Mst. Farida v. Rehmatullah P L D 1984 Peshawar 117 wherein it was held that the Act had no retrospective effect in its application to the Provincially Administered Tribal Areas in the year 1976. This Act was applied to Malakand Agency through the Provincially Administered Tribal Areas (Application of Laws) Regulation I of 1976. However, I will respectfully submit that neither the aforesaid Regulation nor the Act were attracted to the facts and circumstances of the case in hand because the parties in this litigation had already chosen to be I governed by the Shari Law of Inheritance.

8. For the aforesaid reasons I will hold that deceased Mst. Gul Pari wasI entitled to claim a share from the suit property on the basis of Islamic Law of Inheritance. The question which now falls for determination is what would be her share in the suit property. According to Islamic Law of Inheritance she should have got 1/3rd share and she has claimed the same share in her suit but according to agreement executed by the respondent in her favour on 1‑7‑1965 she agreed to receive income of 1/4th share from the suit property. As such I will hold that she was entitled to claim 1/4th share in the suit property.

9. The net result of the above discussion is that I will accept this revision petition, set aside the impugned judgments of the learned Senior Civil Judge and the learned District Judge and grant a decree in favour of the petitioner for a declaration that she was entitled to 1/4th share in the suit property. I will also grant a preliminary decree for possession by partition of 1/4th share from the residential property in dispute in her favour and against the respondent. There shall, however, be no order as to costs. M.B.A./950/P Revision petition accepted.