P L D 1952 Lahore 555 (PLP)

MUHAMMAD SHARIF, J.‑This first appeal by the vendee against the judgment and decree of the learned Senior Sub- Judge, Jhang, dated 19th of June 1945, decreeing the suit for declaration by the reversioners, has arisen out of the usual declaratory suit under custom to challenge an alienation. The property in dispute belonged to one Murad Shah who died it 1916. On his death the estate was mutated in the name of the one widow and the young unmarried daughters of the other predeceased widow. In 1943, Mst. Saleh Bibi was in possession. On 2nd of August 1943, she sold 207 kanals, 13 marla; of laud for Rs. 4.000 in favour of defendants 2 to

5. The plaintiffs, who are the collaterals of Murad Shah in the fourth degree, instituted the suit on 9th of June 1944, for a declaration that the sale in question was without consideration and necessity and should not affect their reversionary rights. It was found by the trial Court that there was not necessity for the alienation, and the decree was granted, as already observed on 19th of June 1945. The first appeal was instituted in this Court on 26th June 1945. That Mst. Saleh Bibi succeeded to the life‑estate with all the limitations attaching to the estate of a female under cus tom, is beyond dispute. The finding as to necessity was also not seriously challenged. It was, however, vehemently conten ded that in the presence of the other relations who would succeed in accordance with the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), the plaintiffs reversioners would have no right left to the property. Under section 3 of the Act, on the termination of the limited interest of a Muslim female, succession shall be deemed to open out to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death, of any of such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat). 'The effect of this section would be that on the cessation of the limited interest of Mst. Saleh Bibi, the heirs of Murad Shah who would have succeeded him at the time of his death according to personal law shall have to be found out. It so happens that Murad Shah had left behind a widow, two daughters, a mother and a sister. The entire estate would be exhausted between them and there would thus be left nothing for the reversioners, who would succeed under Muslim Law as residuaries, to inherit. Under these circumstances it was argued that a dec laratory decree in favour of the plaintiffs reversioners would be of no use to them and the decree granted by the first Court should be cancelled. It is undisputed that the plaintiffs had a good cause of action at the time the alienation was made. Their right to maintain‑the suit must be decided with reference to the time the cause of action arose, that is, in 1943. It is also undisputed that the decree by the trial Court was perfectly in order. If the appeal had been decided before the Shariat Act IX of 1948 had come into operation, the decree of the first Court would have been confirmed. To what extent the coming into force of the Act IX of 1948 would affect the decree already granted, is one of the questions arising in the case. It might be pointed out that the Act IX of 1948 does not take away or destroy the right open to the next heir to challenge an alienation improperly made. The Act simply prescribes the rule of succession and does not concern itself with the law which should control the alienations of property. If the plaintiffs, in view of the Act IX of 1948, be held not to be entitled to a decree which would confer upon them no right to a part of the estate, the alienation shall stand and the valuable property which might have been available for distribution to the heirs of Murad Shah under the personal law, would be not so available. If any of the female heirs under the personal law, had brought a suit to challenge the alienation of Mst. Saleh Bibi, she would have at once been met with the plea that that suit could only be brought under custom, and under the custom she would be excluded by a near reversioner and on that ground alone her suit should be thrown out. The result would be a peculiar one. The only persons to gain would be the alienees who might have succeeded in overreaching a female or might have otherwise persuaded her to make a permanent alienation which would place the property beyond the reach of the family. This result was not and could not have been contemplated by Act IX of 1948. The real object of the Act was that the female heirs who have been allotted a definite share under the personal law, should no longer be deprived of their dues, and if the machinery for recovering the property for the family be taken to have been impaired or destroyed, there would be no property to which the female heirs, whose interest were said to be safeguarded by the Act, would be able to succeed. As the question involved is of considerable difficulty and of far‑reaching consequences, it sis desirable that the matter be decided by a Full Bench. We would accordingly refer the following question for decision :‑ Whether a declaratory decree validly obtained under cus tom, should not be maintained in view of section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act (IX of1948), as the reversioners shall have under the personal law no share in the property of the last male‑owner, on the termi nation of the limited interest of the female in possession? The record is submitted to the Hon'ble the Chief Justice for the constitution of the Full Bench. ORDER OF THE FULL BENCH MUHAMMAD MUNIR, C. J.‑The question referred to the Full Bench, namely:‑ "Whether a declaratory decree validly obtained under cus tom 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"? has arisen in the following circumstances. The last male‑holder of the land in dispute was Murad Shah who died in 1916 leaving behind a widow, two daughters from a predeceased widow, a mother and a sister. His land was mutated half in the name of the widow and half in the name of the two daughters. One of the daughters Mst. Saleh Bibi sold the land in dispute to the appellants in August 1943. The res pondents, who are fourth degree collaterals of Murad Shah, brought a suit for a declaration that on the termination of Mst. Saleh Bibi's interest in the land, the sale will not affect their reversionary rights because the sale had‑been effected without legal necessity. The learned Subordinate Judge. Who heard the suit decreed it, finding that the sale was without necessity and, therefore, invalid under custom. On 26th June 1945 the appellants appealed to this Court from the decree of the Subordinate Judge While the appeal was pending the Punjab Muslim Personal Law (Shariat) Application Act, IX of 1948, came into force on 15th March 1948. When the appeal came up for hearing the decree was not contested on the merits, but it was contended that by the enactment of Act IX of 1948 the basis of suits for declaration under the Cus tomary Law had disappeared and that the decree appealed from must be deemed to have been vacated. As the question raised appeared to be of considerable difficulty and for reaching consequences, the Division Bench hearing the appeal referred it to a Full Bench. The formal question set out above assumes that the decree was validly obtained and that the respondents under the personal law will have no share in the land, when succession opens on the termination of Mst. Saleh Bibi's estate and it is on these two assumptions that the question is being answered. By section 2 of the Act of 1948 in all questions regarding succession the rule of decision where the parties are Muslims, as in this case, shall be the Muslim Personal Law despite any custom or usage to the contrary. Section 3 of that Act, which governs succession where at the time the Act came into force property was being held by a Muslim female as a limited owner under the Customary Law provides that: "In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succes sion shall be deemed to open on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of. any of such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termi nation of the limited interest of the female as if the aforesaid such person had died at the 'termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat)". Another section of the Act which requires special notice is section 5 which says‑ "Save as expressly provided by the provisions of section 3 this Act shall have no retrospective operation". It is clear from section 2 that after the Act came into force custom ceased to be the rule of decision in cases of succession to the property of Muslims and that all questions relating to succession to such property have thereafter to be determined by the Muslim Personal Law. The present case, however, involves no immediate dispute relating to succession. The appeal does not raise the question who will be entitled, on the termination of the interest of Mst. Saleh Bibi, to succeed to the property of Murad Shah which is now being held by her. Nor need we discuss or determine the general question whether since the passing of the Act of 1948 suits for declaration of the invalidity of alienation have ceased to be competent at the instance of the reversioners who have no chance of succeeding under personal law to the property alienated. The issue whether a decree obtained by reversioners that an alienation will not affect their rights on the termination of the alienor's interest in the pro perty cannot enure for the benefit of the heirs who succeed to the alienor's property under the personal law, is also not before us. 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 Pak. L R (1948) Lah. 241=P L D 1949 Lah. 116 (F: B.) a fully reasoned decision with which we respectfully 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 had 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 s6bject 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, whe ther 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 the cause of action that had accrued before the Act of 1948 came into force, is not affected by that Act. Not only the general principle is in support of this conclusion but in the case of an alienation by a sonless male proprietor it has been expressly so ruled in Muhammad Asgher Shah v. Muhammad Gulsher Khan Pak. L R (1948) Lah. 241 the ratio decidendi of which is equally applicable to the present case. The answer to the question referred, therefore, is that declaratory decrees made before the Act of 1948 came into force are not affected by section 3 or any other section of that Act. A. H. Reference answered.