1987 PLP 1262 (MLD)

This R.S.A. arises from the judgment/decree, dated the 31st of May, 1967, of the learned Additional District Judge, Sahiwal, whereby the appellant-plaintiff's first appeal was dismissed.

2. The land in question was gifted away by the father of the appellant in favour of the Shahi Mosque, Depalpur on 31-12-1965 by a mutation. The appellant challenged it asserting that the custom applicable to the donor did not permit such a power of alienation particularly when the land in dispute was ancestral qua him. The suit was resisted taking a plea that under section 7 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (Act V of 1962), powers to contest alienation under custom were taken away. The Courts below accepted this plea concurrently and as a result not only the suit was dismissed but also the appeal.

3. The position by now seems to have been drastically changed. Mr. Hassan Ahmad Kanwar, counsel for the respondents invoked section 2-A of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance XIII of 1983 to urge that the present appeal has abated. There can be no cavil with the proposition because the suit from which the present R.S.A. arises, is based upon custom. The very gravamen of challenging the gift was that the land being ancestral qua the appellant, could not have been alienated without legal necessity by the alienor and that the appellant as his son was entitled to ask for its reverter. Unluckily he could not get the decree securing such a reversionary right. The suit was dismissed and so was the first appeal, but the fact remains that the suit ran for that matter the present proceedings in the shape of the second appeal are undeniably upon custom. Clause (c) of section 2-A ibid provides that such a suit or proceedings shall forthwith abate. It is difficult to defend the point. The legislature in its wisdom has abolished such suits/proceedings by ordering their abatement. Even otherwise the donor Muhammad Siddiqui having inherited the property from his own father somewhere earlier than 1948, was to be assumed to have had inherited it under personal law and thereby become its full owner to make its alienation as he liked. Notionally he will be deemed to be free from all fetters in making alienations of the property as if it was his absolute ownership obtained under personal law, The appellant son would have no cause of grievance under personal law to challenge the alienation. For this reason too the present appeal which was continuation of the suit would abate.

4. Ch. Rehmat Ali, counsel for the appellant could not say anything except that custom continued to apply to the alienor and that he was still under the restrictions contemplated by custom applicable to him. The argument is out of step as the new Legislation seems to have caused total extinction of custom. Its survival or revival could not be construed by any interpretation. The provision of section 2-A ibid is quite pre-emptory and categorical. It makes ineffective not only the pending suits /proceedings but even the decrees obtained were rendered void. In a way, therefore, custom was made to die irretrievably so that it is .no more open to rely upon it in any form.

5. The objection raised on- behalf of the respondent prevails and the R.S.A. is dismissed as having abated. Parties are left to bear their own costs. S.Q./R.34/L Appeal dismissed.