2007 SCMR 387 (PLP)

CH. IJAZ AHMED, J.

The appellants/petitioners had filed C.P. No.212 of 2001 seeking leave to appeal against the judgment of the Lahore High Court, Multan Bench, dated 16-11-2000 passed in R.S.A. No.170 of 1982 wherein the learned High Court had refused to set aside the concurrent finding of the. Courts below. Leave was granted by this Court on 6-3-2002 to consider only the following question: "Learned counsel for the petitioner submitted that Mst. Raeeso was issueless widow, therefore, she had inherited 1/4th share as such under the Mohammedan Law was owner of the land to the extent of said share, therefore, the sale made by her about the entire land was valid to the extent of her own 1/4th share whereas none of the Courts have attended to this aspect of the case and declared the sale made by her as a whole void and ineffective against the rights of reversionaries/respondents/ plaintiffs. This argument has considerable force, therefore, leave is granted to consider this limited question only."

2. The brief facts out of which the present appeal arises are that respondents/plaintiffs filed suit for possession on 19-3-1975 regarding 62 Kanals, 19 Marlas of land in question against the appellants on the basis of their ownership in the Court of Civil Judge at Kabirwala against the appellants and Mst. Daiso. The contents of plaint reveal that land in question was owned by Mst. Daiso as a limited owner who was wife of Sheikh Muhammad alias Shafi Muhammad a son of deceased Din Muhammad. Sheikh Muhammad died during the life time of Din Muhammad. Sheikh Muhammad and Mst. Daiso had no issue. The property in question was originally owned by Din Muhammad deceased. After his death it was inherited to his sons. Mst: Daiso was given share in the mutation being a widow of Sheikh Muhammad pre-deceased son of Din Muhammad. Aforesaid mutation of inheritance was sanctioned 7/8 years before the partition of the Sub-continent. The said mutation of inheritance of Din Muhammad deceased was sanctioned as stated above. After the partition of the Sub-continent the suit-land was allotted and confirmed in the name of Mst. Daiso against her verified claim in lieu of the land which had been mutated in her favour as widow of his pre-deceased son on the death of Din Muhammad. Mst. Daiso then sold the said property through Mutation No.94, dated 26-8-1963 in favour of present appellants who are her nephew for consideration of Rs.60,

000. The respondent claimed the ownership of the property in question being heirs of deceased Din Muhammad on the ground that after the promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 limited ownership under the custom held by Mst. Daiso came to an end, therefore the respondents/plaintiffs were entitled to the possession of the land being heirs of deceased Din Muhammad. Appellants filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed 12 issues. The learned trial Court decreed the suit of the respondent/ plaintiff vide judgment and decree, dated 29-3-1979. Appellants being aggrieved filed appeal in the Court of Additional District Judge, Multan who dismissed the same vide judgment and decree, dated 12-12-1982. Appellant being aggrieved filed R.S.A. No.170 of 1988 in the Lahore High Court which was also dismissed vide impugned judgment dated 16-11-2000. Appellants thereafter tiled petition before this Court in which leave was granted as mentioned above. It is pertinent to mention here that respondents had filed a suit for possession against the appellants and Mst. Daiso as evident from title of the plaint. Appellants along with their aunt Mst. Daiso had filed first appeal in the Court of Additional District Judge as evident from title of the appeal. Regular Second Appeal was filed only by the appellants in the Lahore High Court, Multan Bench as evident from the memorandum of parties' name without including Mst. Daiso as appellant or as respondent.

3. The learned counsel for the appellants submits that Mst. Daiso was limited owner: She was entitled to the share in the property in question as a widow, of the pre-deceased son of' the original owner late Din Muhammad. The sale to the extent of her share was valid. This fact was not considered by the Courts below in its true perspective and in fact all the Courts below had decided the case without adverting to the provisions of Punjab Muslim Personal Law (Shariat) Application Act (V of 1962) read with section 2-A as added by the Muslim Personal Law (Shariat) Application Punjab Amendment Ordinance (XIII of 1983). He further urges that all the Courts below had decided the case in violation of the dictum laid down by this Court in the following judgments:- (i) Muhammad Ishaque's case PLD 1983 SC 273 and (ii) Abdul Ghafoor's case PLD 1985 SC 407.

4. The learned counsel for the respondent has supported the impugned judgment and further submits that Mst. Daiso was admittedly a widow of pre-deceased son namely Sheikh Muhammad, therefore, she had obtained the share under the customary law. After the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1962, she could not inherit any property of her father-in-law in view of provisions of sections 3, 4, 5 of aforesaid Ordinance as the property had automatically distributed to the L.Rs. of last full owner on the ground that her share must devolve in accordance with the Shariat on such persons as would have succeeded him if he had died immediately after termination of the life estate or the death of the said legatee. He relied upon Mst. Bano's case PLD 1965 SC 33.

5. Learned counsel for the appellants in rebuttal submits that Mst. Daiso was entitled to inherit the share from the property of her father-in-law in view of section 4 of Muslim Family Laws Ordinance, 1961.

6. We have considered the submissions of learned counsel for the parties and have perused the record. It is an admitted fact that this Court had rejected all the claims and pleas raised by the appellant's counsel at the time of granting leave to the appellants vide order, dated 6-3-2002. As mentioned above leave was granted only qua limited questions which had already been reproduced hereinabove. To resolve the controversy in question, it is better and appropriate to reproduce pedigree table and relevant provisions of law:- ﺪﻴﻦﻤﺤﻤﺪ | | ____________________________________|______________________________ | | | | | | | | | | | | ﺤﺴﻨﻮ ﻏﻼﻢﻔﺎﻂﻤﻪ ﺸﻴﺮﻤﺤﻤﺪ ﻔﻴﺾﻤﺤﻤﺪ ﻏﻼﻢﻤﺤﻤﺪﻋﺮﻑﻏﻼﻢﺤﻴﺪﺮ ﺸﻴﺦﻤﺤﻤﺪﻋﺮﻑﺸﻔﻴﻊﻤﺤﻤﺪ (Resp.2) 3 1 | | | | | | ﻤﺤﻤﺪﺍﻘﺑﺎﻞ ﻏﻼﻢﺮﺳﻮﻞ ____________|______ Resp.5 4 | | | | ﻨﺬﻴﺮﺍﺤﻤﺪ ﺴﻴﻒﺍﻟﺮﺤﻤﻦ App. 1 & 2 (Nephew, sons of her brother) Punjab Muslim Personal Law (Shariat) Application Act, (V of 1962 "Application of the Muslim Personal law.

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 Waqf, 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." "2-A Succession prior to Act (IX of 1948.

Notwithstanding anything to the contrary contained in section 2 of any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat). Application Act, 1948, a male heir had acquired any agricultural land custom from the person who at the time of such acquisition was a Muslim: (a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat); (b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act; (c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith: Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees." "

3. Termination of Limited estates under Customary law.

The limited estates in respect of immovable property held by Muslim females under the Customary Law are hereby terminated: Provided that nothing herein contained shall apply to any such estate saved by any enactment repealed by this Act and the estates so excepted shall, continue to be governed by that enactment notwithstanding its repeal by this Act." "

4. Further operation of certain wills shall cease on the death of legatee-in-enjoyment.

Where a will providing for more than one legatee succeeding to the testator's property one after the other is operative at the commencement of this Act, its further operation shall cease upon the death of the legatee-in- enjoyment. " "

5. Devolution of property on the termination of' life estate and certain wills.

The life estate terminated under section 3 of the property in respect of which the further operation of will has ceased under section 4 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner or the testator as though he had died intestate; and if any such heir has died in the meantime, his share shall devolve in accordance with Shariat on such persons as would have succeeded him if he had died immediately after termination of the life estate or the death of the said legatee: Provided that the share to which a Muslim female holding limited estate tinder customary law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her." Muslim Family Laws Ordinance, 1961. "

4. Succession.

In the event of death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be would have received, if alive."

7. In case the aforesaid provisions of law and pedigree table be put in a juxtaposition, then it is crystal clear that Mst. Daiso was not entitled to any share from the property in question left by last male owner late Din Muhammad her father-in-law as her husband admittedly died before the death of his (husband's) father. The judgments relied upon by the learned counsel for the appellants did not support the case of the appellants and in fact support the contentions of learned counsel for the respondent. The relevant observation from the case of Abdul Ghafoor (supra) PLD 1985 SC 407 is as follows:-- "the appellant side is the vendee from Hussain Bakhsh who had inherited the land in dispute before 15-3-1948 under Custom but now he shall be treated as: absolute owner and deemed to have inherited under Muslim (Shariat) Law, by virtue of newly-added section 2-A to Act V of 1962. The decree in favour of the respondent side whereby the alienation by Hussain Bakhsh was set aside (conditionally) is, in the light of the foregoing discussion

(by operation of statutory bar) not now executable; as the sale could not at all be set aside. Otherwise too, that decree is subject to the result of this appeal. It is accordingly so declared. The appeal is thus, allowed. The decree is set aside. The suit shall stand dismissed."

8. The judgment of the learned High Court is in accordance with the law laid down by this Court in Ghulam Jannat's case 2003 SCMR

362. The relevant observation is as follows:-- "The findings of the learned Judge of the High Court that section 2-A ibid was retrospective in its operation based on the principle laid down in the cast of Abdul Ghafoor v. Muhammad Sharif PLD 1985 SC 407 by this Court do not suffer from any legal infirmity and are just and proper and the other findings that the intention of section 2-A and its effect was that the inheritance shall be deemed to have devolved on the date of death of last male owner on all the heirs of the last male owner under the Mohammadan Law who shall be deemed to have become the joint owner, therefore, the impugned judgment of the High Court, in our view, also does not suffer from any legal infirmity."

9. The aforesaid proposition of law is also supported by the following judgments:-- (i) Mst. Zeenat Begum's case PLD 1991 SC 427; (2) Walayat's case 2000 Pak. SC Cases 589; (iii) Muhammad Shaft's case PLD 1955 FC 102; (iv) Rehmat Bibi's case 1966 SC 349; (v) Haider Shah's case 1996 SCMR 901 and (vi) Mst. Kafeela Akhtar Begum's case KLR 2000 Revenue Cases 90 .

10. In view of what has been discussed above, we do not find any infirmity or illegality in the impugned judgment of the High Court and contentions raised by the learned counsel for the appellants have no force in view of the aforesaid discussions and the law laid down by this Court. The appeal has no merit and the same is dismissed. S.A.K./S-72/SC Appeal dismissed.