1991 PLP 1155 (CLC)

Dispute involved in this regular second appeal relates to certain land left by one Budha. Bhalu and others filed a suit claiming whole of the said land as legal heirs of Budha under Muslim Law. The suit was resisted by the defendants, namely, Akbar Ali and others. Their plea was that the land in question originally belonged to one Ranizan. According to them, Ramzan made a gift of the said land in favour of one Dadu who happened to be his (Ramzan's) Khanadamad, being husband of Mst. Sarfraz Begum, a daughter of Ramzan. It was further submitted by the defendants that on the death of Dadu, the property devolved upon his son, Mualu and when Mualu died the property came into the hands of Budha referred to above. The suit was contested by defendants Nos.5 to 10 only. It was maintained by them that in view of the manner in which the property came into the hands of Budha, on his death it would revert back to Ramzan and then it would be shared by the legal heirs of Ramzan. The defendants claimed to be the legal heirs of Ramzan's brother, Noor Ahmad. Their plea did not find favour with the trial Court with the result that the suit was decreed. An appeal was preferred against the judgment and decree of the learned trial Court but in vain. Hence this second appeal.

2. By now some of the parties to the suit have died and their legal representatives have been brought on the record.

3. It was contended by learned counsel for respondents Nos.3,4,5, and 18, who contested this second appeal that with the coming into force of West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983, the contention of the appellants, which was based on custom, could not be entertained and as such no legitimate exception could be taken to the judgments and decrees passed by the learned lower Courts. On the other hand, it was urged by learned counsel for the appellants that despite the promulgation of the said Ordinance, the appellants' plea could be considered for the purpose of deciding the matter in dispute.

4. Provisions of section 2‑A of the Muslim Personal Law (Shariat) Act, 1962 which have been inserted by section 2 of the said Ordinance, override every law, custom or usage contrary to the provisions embodied in section 2‑A. According to clause (a) of section 2‑A, Budha was a male heir who had acquired the disputed land, under custom, from his father. Al the time of the acquisition to Budha, Mualu was a Muslim and as such Budha would be treated as an absolute owner of the said land notwithstanding the custom whereunder Dadu allegedly got the land from Ramzan as a Khanadamad. The land left by Budha would, therefore, be inherited by his heirs under the Muslim Law. it was not disputed by learned counsel for the appellants that, under Muslim law, the plaintiffs were the only legal heirs of Budha. The two Courts below were, therefore, justified in passing judgments and decrees in their favour.

5. In view of what has gone above, there is no force in this appeal. It is, accordingly, dismissed with no order as to costs. H.B.T./A‑1254/L Appeal dismissed.