P (PLP)

(3) In case of a negative‑ finding on issue No. 1, could the suit be still maintainable and why ? (4) To what relief is the plaintiff entitled ? Pir Shah Sawar died during the pendency of the suit on 3rd May 1945. An application for bringing his legal representatives on the record was made, and it was stated in that application that his two widows Mst. Shama and Mst. Qamro and three daughters Mst. Aziza, Mst. Taban and Mst. Shahzadgai where his only heirs, who should be substituted for him as plaintiff' in the case. On 4th September, 1945, Pir Zewar Shah and Nasar Shah put in an application that they should also be impleaded as the legal repre sentatives of Pir Shah Sawar, because they were too entitled to a share in his property. On 21st November a 1945, a third applica tion by Sher Shah and Pir Chand Shah that they were the heirs of Pir Shah Sawar, and should, therefore, be brought on the record as his legal representatives, was made. They denied the claim of Pir Zewar Shah and Nasar Shah 'as being the heirs under Muham madan Law of Pir Shah Sawar. On 15th October 1947, some sort of compromise had been arrived at between Zewar Shah and Nasar Shah on one side, and Pir Chand Shah, Pir Sher Shah, Faqir Muhammad and Lt. K. B. Taj Muhammad Khan on the other, in which both these parties said that they had 5/24 and 6/24 shares in Pir Shah Sawar's property, and, therefore, all of them were to be brought on the record as Pir Shah Sawar's legal representative. Consequently the Court brought them all on .the record along with the three daughters and two widows of Pir Shah Sawar, as his legal representatives. The learned trial Court after recording the evidence came to the conclusion that as Fazal Shah died when the rule of decision in questions regarding succession was custom, therefore, the two ladies, viz, Mst. Motai and lost. Mustafa Jan came into the pos session of the property as limited owners, on whose death or marriage Pir Shah Sawar the only reversioner of Fazal Shah would automatically succeed. He, was, therefore, found to be entitled to a declaration that the sale in question would not affect his right to the property in suit, and to that extent the sale would be void. The learned trial judge refused to grant him the second prayer of injunction, because he found that the plaintiff was neither in possession of the suit property nor he asked for it, and this relief legally could not consequently be granted to him. Gul Muhammad and Mst. Motai went up on appeal against this order, and the learned Senior Sub‑Judge Mardan, dismissed it on 15th June 1949, concurring in all the findings of the learned trial Court. Aggrieved by this order 141st. Motai and Gul Muhammad have come up on revision to this Court. ' It originally came up before a single judge of this Court for hearing, and it was argued on behalf of the petitioners that irres pective of the fact as to when Fazal Shah died, the case bad to be decided according to Muhammadan Law as laid down in the `North‑West Frontier Province Personal Law (Shariat) Application (Amendment) Act of 1950. The judge, considering that an important question of law ‑was involved in the case, referred it to the Bench. The position is that originally under section 27 of the North. West Frontier Province Law and Justice Regulation 7 of 1901, in questions regarding succession the rule of decision imperatively was Muhammadan Law in cases where the parties were Muham madan except in so far, as such law had been modified by any custom applicable to the parties concerned. It is not denied that so far as the family, in question is concerned Muhammadan Law had been modified by Custom, which was that the females of the family remained in possession of the property until their marriage or death. They never were the full owners of the property in the sense that they could alienate it at their sweet‑will, or that after their death it could be inherited by their heirs in preference to the heirs of the last male owner, from whom they got the property. In fact the custom mentioned above governed most of the families in the North‑west Frontier Province, and it was on account of this fact that the presumption, that in matters of inheritance custom was the primary rule of decision in this province, got an all round Judicial recognition In 1935, the Provincial Legislature passed an Act, known as the North‑West Frontier Province Muslim Personal Law (Shariat) Application Act VI of 1935. According to this Act in question regarding succession etc. etc., the rule of decision was to be the Muslim Personal Law (Shariat" in cases where the parties were Muslims except in so far as such law had been altered or abolished by legislative enactments or was opposed to the provisions of the North‑West Frontier Pro vince Law and Justice Regulation 1901. Section 27 of the North- West Frontier Province Law and Justice Regulation VII of 1901, was, so far as the Muslims were concerned, repealed by this Act. The question arose whether the Muslim Personal Law was to be the rule of decision only in those cases in which the estate opened after the passing of this Act, or it applies also to those cases where the estate had opened before it. This question was considered in a case Fazal Hiq Dilzada and another v. Dawar Shah reported as 1940 Pesh. L. J. p.

56. It was held by their Lordships that section 27 of the Law and Justice Regulation as substituted by Act VI of 1935, made Muhammadan Law the rule of decision for every question which arose before the Courts after the Act came into force. According to them the Legislature did not intend to make a distinction between cases in which as estate had opened before the enactment of Act VI of 1935, or after it. In their view the new Act laid down a rule of procedure and it became operative from the date on which that rule was ordered to come into force. Subsequently the same question although in a different form came up for decision before another Bench of this Court, consisting of Sir James Almond J. C. and Muhammad Ibrahim, J. This case is reported in 1946 Pesh. L. J. p. ' (Abdul Jabbar v. lost. Nizam Nishan and others). The facts of the case that the property belonged to one Fazal, who had died before 1904, leaving behind a widow and two daughters. The property was mutated in favour of the widow under custom, who remained in possession of it till 1933, and on her death it was mutated in favour of the nephews of Fazal, who under the Customary Law were his reversioners. The two daughters of Fazal instituted a suit for the possessions of their Muhammadan Law 2/3rd share in the property of their father Fazal, and it was held by their Lordships that the daugh ters bad no cause of action to bring such suit, because they did not have any cause of action when Fazal died, nor could they have any cause of action by the death of their mother. The passing of the Shariat Act also did not confer any fresh cause of action on them. Their suit consequently was dismissed on the ground that they had no cause of action to bring it. In this case 1940 Pesh. L. J. p. 56, was not specifically overruled‑ but it had certainly had that effect, and since then the law of the country was that Shariat Act applied only to those cases, in which the estate opened after the passing of the Shariat Act. In 1950, the Provincial Legislature passed yet another Act, which is known as the North‑West Frontier Province Muslim Personal Law (Shariat) Application (Amendment) XI Act of 1950. It received the assent of the Governor‑General on the 7th of February 1950. It came into force at once and extended to the whole of the North‑West Frontier Province. It added a subsection to the already existing section 3 of the Principal Act. This subsection is to the following effect :‑

"(2) Whenever d question relating to the succession upon the death of a Muslin, arises in any Court, the rule of decision shall, whether such death has taken dace before or commencement of this Act, be the Muslim Personal Law (Shariat)." , This amendment prima facie brought the law of the country in line with the view expressed by their Lordships in 1940 Pesh. L. J. p.

56. The petitioners claim that under this law irrespective of the fact as to when Fazal Shah died, Mst. Motai and lost. Mustafa Jan would be entitled in any case to 23rd share of the property in suit, and to that extent their sale would be perfectly valid. There would have been a considerable force in the defendant petitioners' above contention if the Legislature had stopped at framing subsection (2) of the existing section 3 of the North West Frontier Province Muslim Personal Law.(Shariat) Act VI of 1935. It, however, went further and added section 4 to the existing law. This is to the following effect :‑ "4 (1) in respect of immovable property held by a Muslim female as a limited owner under the Customary Law, the persons entitled to succeed to such property upon the termi nation of the limited interest of the female shall be those persons who would have been entitled to succeed at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been the rule of decision governing the succession upon such death. (2) if any person entitled to succeed under subsection (1) dies before the termination of the said limited interest the share which would have taken had he succeeded and the heirs entitled to succeed to that share shall be ascertained as follows, that is to say he shall be deemed to have died immediately after the termination of the said limited interest and the rule of decision governing the succession upon his death shall be deemed to have been the Muslim Personal Law (Shariat), provided that the share which the female limited owner would have taken had the Muslim Personal Law (Shariat) been the rule .of decision governing the succession upon the death of the last full owner shall devolve on her if her limited interest in the property terminates by reason of her marriage or remarriage, and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates by reason of her death." This section in our view has kept the life‑estate of those females alive who are already in possession of the property as such, and the devolution of the property according to Muhammadan Law his been postponed until the life‑estate ends This is the plain meaning of section 4 quoted above. Mst. Motai consequently cannot claim that she is entitled to any specific share in the property under the Muslim Personal Law, because that law does not come into play until Mst. Motai and Mst. Mustafa Jan either marry or die. For the same reason the question whether Pir Shah Sawar or his legal heirs, whoever they may be, are entitled to any share in the property under Custom or Muslim Personal Law, and if so to what share, is completely premature, because this point would be decided only when the life‑estate of the daughters comes to an end. It is, however, admitted that Pir Shah Sawar would be definitely entitled to either the whole property if the case had to be decided according to Custom and to some share at any rate in it if it were to be decided according to the Muslim Personal Law, and to the extent of his interest in the property Mst. Motai was not entitled to alienate it. Pir Shah Sawar and after his death his legal representatives consequently could maintain a suit for a declaration that the alienation to the extent of Pir Shah Sawar's interest in the property should be declared as ineffective and null and void. This is the declaration which the plaintiff have been granted, and we do not see how can it adversely affect the right of the petitioners which they might have in the property when the estate opens. We, therefore, maintain the concurrent finding of the two Courts below, though on different grounds, and dismiss the revision petition with costs. Pleader's fee Rs.

20. Orders announced. K. M. A. Petition dismissed.