P L D 1985 Supreme Court 407 (PLP)

(b) The Punjab Custom (Power to Contest) Act, 1920 ; (c) The Muslim Personal Law Shariat) Application Act, 1937, in its application to West Pakistan ; (d) The North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935 ; (e) The Punjab Muslim Law (Shariat) Application Act, 1948 ; (f ) The Muslim Personal Law (Shariat) Application (Sind Amendment) Act, 1950 ; (g) The Bahawalpur State Shariat (Muslim Personal Law) Application Act, 1951 ; (h) The Khairpur State Muslim Female Inheritance (Removal of Customs) Act, 1952. (2) This Act shall not apply to cases where the death of the last full owner or the termination of the life estate or the death of the legatee in-enjoyment, as the case may be, has occurred before the commencement thereof, and all such cases shall be governed by the Acts repealed in subsection (1) according to territories in which they were operative." It would be appropriate to give the historical background which has} culminated in the said law. After the conquest of the Indian Subcontinent by the alien power various laws were enacted to govern separate' territories as and when the need arose. A detailed discussion on evolution of sub-continental jurisprudence would be found in Haji Nizam Khan v. Additional District Judge, Lyullpur and others (P L D 1976 Lab. 930). In that context it will be relevant for the present discussion only to mention three laws : (1) section 26 of Bombay Regulation IV of 1827 ; (2) section 5 of the Punjab Laws Act IV of 1872; and (3) section 27 of the N.-W. F. P. Laws and Justice Regulation VII of 1902. Similar provisions were made in these legislative measures on the subject-matter under discussion. The one requiring particular consideration and attention would be section 5 of the Punjab Laws Act, 1872, therefore, the same is reproduced below "

5. Decisions in certain cases to be according to native laws.-In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision shall be (a) any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority. (b) the Muhammadan Law, in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to." It is also necessary to notice here two more laws which have always been considered in the Punjab as complementary to section 5 of Act IV of 1872. They are : The Punjab Limitation (Custom) Act, I of 1920 and The Punjab Custom (Power to Contest) Act, II of 1920. It would be seen that notwithstanding the fact that Custom was to be the rule of decision in matters enumerated in the purview of the section by virtue of sub-clause (a) thereof, Muslim Law was to be applied as the governing rule under sub-clause (b) in cases where parties were Muslims, except in so far as such law had been altered or abolished by legislative enactment or stood modified by any such Custom. Case-law developed in the sub-continent on the lines that the normal law applicable to Muslims will be the Muslim Law but wherever Custom was alleged and proved to have modified the Muslim Law then that particular Customary law would be applicable. Attempts were made by the Muslims of India to remove the said rider regarding Custom in different phases. It is not necessary to notice all of them. It would suffice if mention is made of the North-West Frontier Province Muslim Personal Law (Shariat) Application Act (VI of 1935) and the Muslim Personal Law (Shariat) Application Act, XXXVI of 1937-a Central Statute. Section 2 of this latter Act reads as follows "Section

2. Application of Personal law to Muslims.-Notwithstanding any custom or usage to the contrary in all questions (save questions relating to agricultural land) regarding intestate succession,. special property of females, including personal property inherited or obtained -under contract or gift or any other provisions of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubarat, maintenance, dower, guardianship, gifts, trusts and trust properties, and Wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in case where the parties are Muslims shall be the Muslim Personal Law (Shariat)". It is necessary to note that the overriding control of "custom" or "usage to the contrary's on questions mentioned in the above provision including succession, was removed, except in so far as it related to agricultural land. Although other laws were later enacted including on marriage with a view to enforce Muslim Personal Law (though partially), yet it was not till Independence that the law of inheritance regarding agricultural land was changed. The first attempt was made in the Punjab with the enactment of the West Punjab Muslim Personal Law (Shariat) Application Act, IX of 1948. Parallel provisions were also made in the Colonization of Government Lands (Punjab) Act (No. V) of 1912 by Punjab Act III of 1951 and in The Tenancy Act (Punjab Act XVII) of 1887 by Punjab Act IV of 1951. Although in the Punjab a separate enactment was made which purported to be a Code by itself, in the form of Act IX of 1948, in Sind an amendment was made in section 2 of Act XXXVI of 1937 (reproduced above). By section 3 of the Muslim Personal Law (Shariat) Application (Sind Amendment) Act No. XXII of 1950, the phrases "save questions relating to agricultural land" and "charities and endowments" were omitted from the said section (2 of Act XXXVI of 1937). Relevant comment on the development of this branch of law in N.-W. F. P. has been made by this Court in the case of Muzaffar Khan v: Mst. Roshan Jan and others (P L D 1984 SC 394). (In addition to the afore-noted laws, in the field of Rehabilitation of Displaced Persons, necessary amendments on same lines have been made in the evacuee laws and schemes, one of them being Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act (No. XXV) of 1975. For Baluchistan the position can be discovered by making reference, amongst others, to the Baluchistan Civil Disputes (Shariat Application) Regulation, 1976 and the Rules made under para. 6 thereof. The Bahawalpur State Shariat (Muslim Personal Law) Application Act, 1951 and The Khairpur State Muslim Females Inheritance (Removal of Customs) Act, 1952 also are worth noticing. There might be other similar laws, but they all need not be noted here. After the foregoing broad outline, it is essential to revert to the post Partition development of this branch of law in the Punjab, from which Province these appeals have arisen. Punjab Act IX of 1948 as amended by Act XI of 1951 reads as follows "The West Punjab Muslim Personal Law (Shariat) Application Act (No. IX) of 1948 (As amended by Act XI of 1951) (15th March, 1948) An Act to provide for the application of the Muslim Personal Law (Shariat) to Muslims in West Punjab in certain respects, Preamble. Whereas it is expedient to make provision for the application in certain respect of the Muslim Personal Law (Shariat) to Muslims in West Punjab ; It is hereby enacted as follows Section

1. Short title, extent and commencement.-(1) This Act may be called the West Punjab Muslim Personal Law (Shariat) Application Act, 1948. (2) It extends to the whole of West Punjab. (3) It shall come into force at once. Section

2. Notwithstanding any rule of 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 bastard), family relations, wills, legacies, gifts, religious usages or institutions including Waqfs, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims. Section

3. In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succession shall be deemed to open out 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 such person 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 bad been governed by the Muslim Personal Law (Shariat) ; Provided that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner, shall devolve on her if she loses her limited interest in the property on account of her marriage or re-marriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death. Section 3-A. Where a will made by a Muslim provides for more than one legatee succeeding to the testators' property one after the other, and the will has taken effect before the coming into force of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951, on the death of the legatee-in-enjoyment of the property at the time of the coming into force of that Act, the property shall devolve on such heirs and successors of the testator under the Shariat as would have inherited it had the testator died in testate and if any person who. would have so inherited the property or any share therein, had VAre been no will, has in the meantime died, his share in the testator's property shall devolve on such of that person's heirs and successors as may be in existence at the time of the death of the said legatee. Section

4. Repeal of section 5 of Punjab Laws Act for certain purposes.With effect from the date on which this Act comes into operation, (i. e. 15th March, 1948) so much of the provisions contained in section 5 of the Punjab Laws Act, 1872, as conflict with the present Act shall be deemed to have repealed. Section

5. Save as expressly provided by the provisions of section 3, this Act shall have no retrospective operation." It is important to notice that section 5 of Act IX of 1948 (as amended) provided that save as expressly provided by the provisions of section 3, that Act would have no retrospective operation. Further, by virtue of the superior Courts declaration of law when interpreting various provisions of that Act with reference to the retention of Customary law as projected in the old legislations already noticed, it was ruled first by the Lahore High Court and then by this Court in several judgments dealing with various aspects of succession including widows limited estate, that, a person who had inherited agricultural land prior to the enforcement of Act IX of 1948, his or her power of alienation (treating the same as an incidence of Customary succession) will be controlled by the law of succession which applied to him or her then (prior to Act IX of 1948). In other words, if a person had inherited agricultural land under Custom as an heir (in any form) to the last full owner, then qua that heir the restrictions regarding alienation under Custom would control his power of alienation notwithstanding the promulgation of the Muslim Shariat Application Act IX of 1948. An important condition, amongst others, which was consistently spelled out was that no alienation could take place without the consent of the concerned reversioners unless it was for consideration and legal necessity. Females/widows inheriting the estate in various forms were also dealt with, on somewhat similar lines. Some well-known Lahore cases have been noticed in Muhammad Ishaq v. Federation of Pakistan (11 and The Federation of Pakistan v. Muhammad Ishque (2). Some important cases of this Court dealing with similar and related aspects are Met. Shahzadan Bibi v. Amir Hussain Shai. P L D 1956 S C (Pak.) 227 ; Abdullah v. Mst. Bakhto Mai P L D 1956 S C (Pak) 321 ; Said v. Fazal Hussain P L D 1959 S C (Pak) 356 ; Khair Din v. Muhammad Hussain P L D 1961 S C 468 ; Syed Abdur Rashid v. Pakistan P L D 1962 S C 42 ; Mir Laik Ali v. Standard Vacuum Oil Company (Esso) P L D 1964 S C 220 ; Mst. Rehmat Bibi v. Ibrahim P L D 1966 S C 349 ; Ihsan Ilahi v. Hukam Jan P L D 1967 S C 200 ; Mst. Qaisar Khatoon v. Maulvi AGdul Khaliq P L D 1971 S C 334 ; Muhammad Yaquo v. Member, Board of Revenue P L D 1973 S C 304; vest. Khatun v. Malla 1974 S C M R 341 ; h mir Bakhsh v. Allah Yar P L D 1974 S C 124 ; Aslam v. Mst. Kamalzai P L D 1974 S C 207 ; Mst. Zarmina v. M. najawar 1975 S C M R 487 ; Muhammad Ismail v. Barkhurdur P L D 1977 S C 144 and. Zafarulluh v. Muhammad Siddiq P L D 1980 S C

76. As would appear from the precedent law certain difficulties arose regarding the application of the Muslim (Shariat) law to the matters enumerated in Act IX of 1948. Accordingly West Pakistan Act V of 1962 under the name and title of the Punjab/Sind/NWFP/Baluchistan Muslim Personal Law (Shariat) Application Act (West Pakistan Act V) of 1962 reproduced earlier, was promulgated on 31st December, 1962. It inter alia repealed and purported to re-enact laws relevant for application of Muslim Personal Law (Shariat). As would appear from the legislative history as also the discussion in some of the aforecited rulings by the superior Courts, this law had also not achieved all the purposes for which it was enacted. Accordingly another law namely the Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance (No. IX) of 1972 was promulgated on 12th of April, 1972. It reads as follows "

1. Short title, extent and commencement.-(1) This Ordinance may be called Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972. (2) It extends to the whole of the Punjab. (3) It shall come into force at once and shall be deemed to have taken effect from the 31st day of December, 1962.

2. Removal of doubts.-(1) Notwithstanding anything contained in the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (Shariat) (Amendment) Ordinance, 1963 (West Pakistan Ordinance XXXIX of 1963), the West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act, 1964 (West Pakistan Act XXVIII of 1964) or any other law or any decree, judgment or order of any Court or other authority or any proceeding before any Court or other authority the limited estates in respect of immovable property held by Muslim females under the Customary law shall be deemed to have been terminated with effect from 31st day of DeCember, 1962. (2) All decrees, judgments, or orders passed in any suit, appeal or other proceedings by any Court or other authority which are inconsistent with the provisions of subsection (1) shall be of no legal effect and such suits, appeals or other proceedings shall be decided afresh on the application made by a person affected by such decree, judgment or order." Before passing on to the next subject it might be of some use for completing the picture to mention that a special law of inheritance was also enacted qua grandchildren of Muslim grandparents whose parents had died during the lifetime of their grandparent, in section 4 of the Muslim Family Laws Ordinance (No. VIII) of 1961 a Central Statute. A challenge to this law as being against Quran and Sunnah, under Chapter 3-A of the Constitution failed on technical ground of jurisdiction, in the case of Federation of Pakistan v. Mst. Farishta (PLD1981SC120). The enforcement of Muslim Law of Inheritance in accordance with the dictates of the Constitution fell short of the intended purposes and the Customary Law continued to govern some of the questions relatable to succession and alienation by males as well as females. This situation prevailed till 1981 when the Federal Shariat Court ruled in the case of Muhammad ishaque that the Customary law and its related rules discussed above and referred to in that judgment in particular, were repugnant to the Holy Quran and Sunnah, and in exercise of the' power conferred by Article 203-D of the Constitution, the Customary Law which allowed challenge by collaterals to the alienation of property inherited under Custom by a full owner, was declared as ineffective. Necessary amendment in the Muslim Personal Law (Shariat) Application Act, 1962 was directed to be made by 30th of June, 1981. It was however clarified that this declaration would not affect any rule regarding the right of reversioners to challenge any alienation made by female holders of limited estates before the enforcement of the said Act of 1962 which put an end to all limited interests as the considerations regarding thereto were different. The Federation of Pakistan preferred an appeal from the judgment of the Federal Shariat Court before the Shariat Appellate Bench of this Court which was dismissed on 17th May, 1982. The decision is reported as The Federation of Pakistan v. Muhammad Ishque. The direction of the Federal Shariat Court for amendment of the relevant lave was upheld. However further time was allowed for making the amendments till 20th June, 1983. We have not been informed whether any amendment has been made in any other Province but a law has been enacted in pursuance of the said decisions of the Federal Shariat Court and the Supreme Court of Pakistan, in the Punjab. It is Muslim Personal Law (Shariat) Application Act (The Punjab Amendment Ordinance No. XIII) of 1983, which has already been reproduced. It has added section 2-A to the Act V of 1962. Before discussing the implications of the new Punjab law, it would be appropriate to mention that by item No. I 1 2nd Schedule of Federal Laws (Revision and Declaration) Ordinance (No. XXVII) of 1981 PLD 1982 Central Statutes 12, an amendment was made in section 5 of the, Punjab Laws Act IV of 1872 as follows "

11. The Punjab Laws Act, IV of 1872.-1. In section 5, (i) in clause (a), for the words "Any custom" the words and comma "Where the parties are not Muslims, airy custom" shall be substituted ; and (ii) in clause (b), the words and commas "the Muhammadan law, in cases where the parties are Muslims, and" shall be omitted." By virtue of section 3 of this Ordinance, the repeal by this Ordinance shall not affect the previous operation of any law so repealed. All the learned counsel while interpreting the latest Punjab law of 1983 have tried to point out certain omissions, technical or otherwise, shortcomings and/or so-called defects in this law. Be that as it may, it'. has undoubtedly achieved the major object contained in the directions of the Federal Shariat Court and the Supreme Court in the aforecited two judgments. It is highly important to note that in the opening clause of the newly-added section 2-A (to Ac( V of 1962) it has been made absolutely clear that notwithstanding anything to the contrary contained in section 2 of 1962 Act "or any other law for the time being in force"; and further, notwithstanding "any custom or usage or decree, judgment or order of any Court", the governing law shall be Muslim Personal Law (Shariat) ; if, any male "heir" had "acquired" any agricultural land under custom before the application of Act IX of 1948 on 15th March, 1948; provided the person from when the said heir had acquired the land, was a Muslim. In order to make it more clear it has been provided that the said heir shall be deemed to have become, upon the said acquisition"an absolute owner of such land, as if such land had devolved on hi under the Muslim Personal Law (Shariat)". Section 2-A has several implications. It would, amongst others, also lead to the following results in so far as these four cases are concerned: (a) Wherever a male heir had acquired by way of inheritance (if there is other acquisition also it is not relevant here) agricultural land from any Muslim before 15th of March 1948 he shall be deemed to be an absolute owner having the power of alienation as enjoyed under the Muslim Law. (b) The power of alienation, even if it takes place before 15th March, 1948, shall not be controlled by any rule of customary law because the deeming provision makes it clear that the male heir had become upon such acquisition' (prior to 15th March, 1948) an `absolute owner of such land'. (c) The foregoing two conclusions and consequences flowing from section 2-A shall not be controlled by what is contained in any law for the time being in force. This is without any exception. Thus section 5 of the Punjab Laws Act IV of 1872 and the Punjab Limitation Customs Act (No. 1) of 1920 and the Punjab Customs (Power to Contest) Act (No. 11) of 1920 or any other law mentioned in section 7 of 1962 Act as also similar other laws, even to the extent they were previously held by the superior Courts to be applicable, would not effect the operation of the law enacted and declared in section 2-A. (d) The phrase in section 2 of the 1962 Act; `subject to provisions of any enactment for the time being in force' and similar other expression in section 7 (2) thereof has lost its purpose and efficacy in these cases though the proviso to section 3 will not suffer simila erosion in so far as it gives effect to the judgment of the Federal Shariat Court and the Supreme Court regarding the limited estate which were earlier held by females. The same result has been provided in the opening part of section 2-A. That is, notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force or any custom or usage or decree or judgment or order of any Court, the said law shall have operation. (e) Therefore, this new law has a far-reaching effect. Subject to the provision contained in its sub-clauses (b) and (c) it nullifies all orders, judgments and decrees as also neutralizes custom and usage and further to the extent any law is in conflict with the new law, it overrides the same. In this context, therefore, all rules of custom and all previous laws to the extent they remained alive notwithstanding earlier partial or ineffective repeal and despite the previous decisions of Courts would, by virtue of this new law and to the extent it makes a new provision to the contrary, would lose effect. (f ) The questions of retrospectivity in ordinary technical sense is not relevant as this provision itself relates to a period prior to 15-3-1948 and is being enacted nearly half a century later. Such an operation of this provision would come only in a seeming conflict with section 6 of the 1962 Act but there can be no hurdle in reading section 6 in its own context and not affecting the retrospectivity inherent in section 2-A. When both are put in juxtaposition to each other the following two important re-arranged positions of section 2-A would emerge (1) If `a male heir had before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948 . acquired any agricultural land under Custom from the person who at 1 time of such acquisition was a Muslim' (2) he `shall be deemed to have become an absolute owner,- as if such land had devolved on him under the Muslim Personal Law (Shariat)'. (g) Thus, it will neutralize the effect of section 6 on 2-A. Not only this, sub-clause (b) of section 2-A also makes it more clearly retrospective because it not only affects pending suits but also proceedings which have culminated into final decrees. They, if contrary to the purview of the main substantive provision in section 2-A or in any way coming in conflict with any of the provisions of the Muslim Personal Law (Shariat) Act, 1962 as amended, would now become inexecutable and of no legal effect under sub-clause (b). (h) Same is the effect of sub-clause (c) which provides that all suit or other proceedings including the execution proceedings seeking possession of land under such decrees shall abate forthwith. (i) Notwithstanding the foregoing reading of section 2-A visualisin it in substance as having application prior even to 15th March, 1948 as well and in this sense being retrospective, the proviso to subclause (c) tnereof clearly excludes its operation in so far as the past and closed transactions are codcerned. They, as explained therein would include only those cases where possession of the land has also already been delivered under such decree as is referred to in sub-clauses (b) and (c). To this limited extent, therefore, the inherent retrospectivity of section 2-A has been controlled by the proviso to clause (c). ( j ) In the light of the above analysis the provision being of a special character would require interpretation in peculiar context thereof. Therefore, it would not be 'necessary to examine the further con tention advanced at the bar that declaratory legislation, a section 2-A prima facie appears to be, is ordinarily retrospectivethough the examination would lead to the same result. For the same reason the following cases and other authorities dealing with differ ent facts of retrospectivity cited at the bar need not be commented upon in the present discussion Mst. Fazal Begum v. Hakim Ali A I R 1941 Lah. 22 ; Nuruddin Akhan v. Kuti Baru Bibi P L D 1952 Dacca 2 - 2 ; Tofazzal Hussain v. The Province of East Pakistan P L D 1961 Dacca 389 ; Messrs Dreamland Cinerna, Multan v. Commissioner of Income-Tax Lahore P L D 1977 Lah. 292 ; Wali Muhammad v. Additional Deputy Commissioner P L D 1973 Notes (Lah.) 83 ; Abul Kalam v. Bashir Ahmad Rana 1984 C L C (Kar.) 2997 ; Province of East Pakistan v. Muhammad Mehdi Ali Khan P L D 1959 S C 387 ; Province of East Pakistan v. Muhammad Hussain Mia P L D 1965 S C 1 ; Sayeedur Rahman v. Chief Election Commissioner. Dacca P L D 1965 S C 157 ; Begum B. H. Syed v. Afzal Jahan Begum P L D 1970 S C 29 ; Rafiuddin v. Chief Settlement and Reha!411tation Commissioner P L D 1971 S C 252 ; Commissioner of Sales Tax v. Kruddsons Ltd. P L D 1974 S C 180 ; and Federation of Pakist~v. Muhammad Siddig 1980 S C M R

443. Craies on Statutes Law, 7th Edn., Chapter 15 ; Crawford's Statutory Construction (1940), p. 107 and Maxwell on The Interpretation of Statutes, 12 Edn., p. 224-225. Before proceeding further it needs to be clarified and emphasised that the question whether a "transaction" (distinguished from "a case"), as used in the proviso to clause (c), is past and closed will depend upon the circumstances of each case; though with one certainty in all cases name that "possession of such land has already been delivered under such decree". (k) Although it can be generally safely assumed that the purview o section 2-A together with its sub-clause (a) provides substantive law and sub-clauses (b)) and (c) together with the proviso to sub-clause (c) provided its procedural content, no hard and fast water-tight rule can be laid down in this behalf because there are elements of either type in the two sets of provisions contained in section 2-A. (l) It needs to be clarified here that the word `acquisition' which ha been used twice vis-a-vis "a male heir" in the purview and subclause (a) of section 2-A, in so far as the present cases are concerned, would apply to the acquisition through succession, but, whether this word is intended to be applied to other acquisitions by a male `heir' from a Muslim predecessor, not being relevant in the present four cases, might be examined as and when proper occasion arises. (m) No hard and fast rule would apply to question of abatement visualised in clause (c). As to whether an appeal, being generally treated as continuation of the suit proceedings, it would abate in cases of alienations, will depend upon the facts of each case. Each case would have to be looked at under the light of the purview of sub-clause (a) of section 2-A read with sub-clauses (b) and (c) of section 2-A. For example, although an appeal filed by an alienee might prima facie relate to the question of alienation generally covered by clauses (a) and (b) but he having obtained the right in the property from an `absolute owner' as declared by this law, would in proper cases, be able to assert his right in appeal on the basis of the purview of section 2-A and thus contrary to abatement and notwithstanding what is contained in clause (b), he might be entitled to pursue and obtain a decree in appeal. But ordinarily the appeals filed by those who had failed to obtain decree for cancellation or setting aside of alienation, depending upon the circumstances of each case, will abate. (n) In yet another eventuality neither of the two foregoing postulation might be strictly relevant. It can be illustrated by visualising decree, setting aside an alienation covered by sub-clause (b) of section 2-A, having already been passed and the same being under challenge in appeal. If the appellate Court had not issued any order staying the execution and accordingly it was executed during the pendency of appeal and the possession also delivered ; but notwithstanding the execution the pendency of appeal will keep the dispute alive and it (execution) will remain subject to the result in appeal, a further appeal or revision, if competent. The execution of the decree per se notwithstanding the provision contained in clause (c) might not cause the abatement of the appeal. In such a case the execution of decree( and )delivery of possession would be subject to and controlled by the provisions of the C. P. C. relating to the restitution on acceptance of appeal. (o) It is correct that the newly-enacted section 2-A does not make any specific and direct provision about a female heir acquiring and holding land as absolute owner, limited owner or maintenance holder but for the time being in so far as these present cases as concerned, even if they are treated as illustrative of various this disputes, which would come up for resolution, this omission does not present any difficulty nor it appears to be intended so as to exclude this branch of the litigation from the purview of the existing Act (V) of 1962 read with the newly-added provision to it, namely section 2-A. When the Act is read as a whole as amended by the Ordinance of 1983, section 2-A would give extended meaning to the provisions contained in sections 3, 4 and 5 of the Act of 1962. Section 3 provides that the limited estates held by Muslim female under customary law stood terminated but this termination shall no affect the estates which were kept alive and governed by the law repealed under section 7 notwithstanding the said repeal. Section 5 again inter alia deals specifically with the females whose estate were terminated under section

3. It provides that the estate concerned `shall devolve on such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner and if any such heir has died in tote mean. while his share shall devolve in accordance with Shariat on such persons as would succeed him if he had died immediately after the termination of the life estate .. .:. provided that the share to which a Muslim female holding limited estate under customary law woul have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner, shall devolve on her'. Head in this context, sections 3 and 5 would now be a supplement to the newly-added section 2-A and be treated as its various extensions. (h) Thus, read two seeming conflicts/omissions would be removed (i) the omission about the female heir would become understandable, because to an extent it already stood supplied by sections 3 and 5 and the remaining gap would be filled by taking into account all the heirs, male or female, of the `male heir', specified in section 2-A ; and, (ii) Section 6 would now operate in one way, as an interpretation clause for sections 3, 4 and 5 as well as for 2-A when all read together. And accordingly they shall have retrospective effect. (q) It is well-known that the provisions regarding females were interpreted by the superior Courts as implying that notwithstanding the termination of the limited interest in 1962 the previous holding of the estate and interest was subject to the restrictions imposed by the customary law if the origin of the estate or interest was in the customary law. Accordingly the alienations made by them whether in possession of the land as a limited estate or in lieu of maintenance were subject to the challenge by the reversioners of the last full owner. The 1962 Act when terminating the limited interest did not make any major change in this behalf. Not only this the judgments rendered by the two superior Courts (Federal Shariat Court and the Supreme Court in its Shariat Appellate Bench also kept alive the law relating to the challenge to the alienations mad by the females holding limited interest; so as to keep in tact an preserve the estate for the benefit of the Muslim (Shariat) Law heirs of the last full owner. Section 2-A has to be interpreted in the foregoing entire context and has to be read and re-conciled with sections 3 and 5 in so far as the females are concerned; as also, the pre-existing section 2 in so far as the general change in the law was concerned. (r) The position that develops thus is that a `male heir' who acquired agricultural land under custom from a Muslim prior to 15th March, 1948, is held to have inherited under the Muslim (Shariat) Law. His heirs, after his death meanwhile, would be discovered in accordance with the Muslim Law. They could be male and female heirs. But if a female deriving the limited interest from any such `male heir' (now under section 2-A, deemed to be an `absolute owner under Muslim law' since the time of his acquisition) would not be able to keep any land in excess of her share as an heir under the Muslim law. She will act as a conduit so as to pass the remaining land to the other heirs of such a `male heirs' and so on how low-so-ever, under the Muslim (Shariat) Law of Inheritance. This by and large is what has been provided in and emerges out of the combined reading of sections 3, 4 and 5 now read with section 2-A. Thus. read in this context, the omission in section 2-A of a female holding an interest in land, is of not much significance. (s) Out of the other two aspects of the new legislation commented upon at the bar as involving serious defects/omissions, in addition to the one relating to females, which has just been dealt with, one relates to the scope of the word `acquisition' used twice in the purview of section 2-A and in sub-clans: (a) thereof. For the present no more comment is necessary in these cases except that if this word would have been defined, it would have been much better. Be that as it may, whatever the scope of this word in section 2-A, it definitely includes acquisition by succession/ inheritance. (t) The next omission undoubtedly is so obvious that it cannot be lost sight of even on the assumption that in these cases this omission would not present any serious difficulty. First part of sub-clause (b) of section 2-A reads as follows : `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 of possession of agricultural land on such basis shall be void . " Neither the purview of section 2-A nor any of its clauses including clause (b) provides any qualification for the words "such an alienation" nor for the words "such basis" as used in above-quoted part of clause (b). The word "such" used here shows that an intervening linking phrase, expression or sentence making the sub-clause consistent inter se has inadvertently been omitted: presumably by way of an innocent drafting or printing mistake. It can be safely assumed that the missing phrase could on the one hand qualify "such an alienation" and on the other, it would define "such basis'". Read in the context of the two judgments of the Federal Shariat Court and the Shariat Appellate Bench of this Court the connotation of `such an alienation' could include the alienation made by any "male heir" as is referred to in the purview of section 2-A ; and "such basis" could refer to the restrictions on account of which "such an alienation" would be void, if, the, succession was under Custom and the same had opened prior to 15-3-1948 (as was usually the case under the present law). This could be the only underlying purpose. To an extent it can be achieved in these cases by treating the word `such' when used for the first time in clause (b), as redundant. Therefore, till the law is amended the Court can act accordingly. (u) The foregoing interpretation of section 2-A as also the other provisions of Act V of 1962 when read together, takes into account the object of the Legislation in _ so far as it has been enacted in pursuance of the judgments of the- Federal Shariat Court and the Shariat Appellate Bench of Supreme Court. In case of doubt, difficulty, redundancy or omission, the same have been removed by following the well- established rule laid down by this Court in the case of Muhammad Bashir v. The State P L D 1982 S C 139 ; namely, that in such like situations only that course would be adopted which advances Muslim law and the principles of a Muslim jurisprudence. Coming now to the controversy involved in each one of these cases, the four appeals are decided, in the light of the foregoing discussion, as follows Appeal No.

1. The appeal in this case is by the plaintiffs (reversioner side) who tailed, as the impugned judgment shows, to obtain the annulment of the alienation made by the full owner on the ground that the alienation, when tested under restrictions of customary law, was not on account of good management This appeal must fail on two grounds; One, the purview of newly-added section 2-A in the 1962 Act read with its clause (a) provides that any owner who as a "male heir" had inherited agricultural land before 15-3-1948 under custom shall, by virtue of the new statuwry command, be deemed to have inherited it under the Muslim (Shariat) Law and was thus absolute owner enjoying full power over it under the said law. And that being so, no restriction as visualised by custom would annul the alienation. Therefore, the appeal merits to be dismissed on that ground alone. Not only this, sub-clause (c) of section 2-A provides that, all suits and "other proceedings" of the nature visualised in the clause (b) as interpreted and discussed above, shall abate forthwith. Other.proceedings would also include appeals, wherever pending. This appeal, therefore, shall also be hit by clause (c) and is accordingly declared as having abated. The mere fact that it is by virtue of jurisdiction conferred by the Constitution that this appeal is pending in this Court, will not make any difference ; because in exercise of this jurisdiction a case is decided in accordance with the relevant substantive laws, provided they are valid laws. It is not the case of any of the parties that section 2-A suffers from any Constitutional defect as to its validity. This appeal accordingly fails, and is declared as abated. Appeal No

2. This appeal is by two daughters of the last male owne in the case-Taj Muhammad. A gift of agricultural land was made in their favour by their mother, a widow of Tai Muhammad, in 1953. Tai Muhammad had acquired the land under Custom before 15th March, 1948. His widow the doner in this case died soon after the said gift in' 1953. Musa the predecessor-in-interest of the respondents a reversioner of Taj Muhammad challenged this alienation (made by way of gift by the widow in favour of the daughters). He succeeded in obtaining the decree for annulment of the alienation on the usual ground of restrictions on alienation s by female limited holder. The two points noted in the leave granting order are of not much relevance now on account of the change in law as discussed earlier. By virtue of section 2‑A as interpreted above, Taj Muhammad would be deemed to have inherited the land under Musli (Shartat) Law and would be deemed to be its full owner. On widow' death in 1953, the estate would have (and did) devolved, straight away on Muslim heirs of Taj Muhammad under the then existing law namely, Ac IX of 1948. The two appellants would have, together with their other sisters, inherited two‑third as heirs of their father Taj Muhammad because there was no male issue. They together with their other sisters would also have inherited their share which on widow's death would devolve on them as her heirs out of her Muslim Law share as widow. It is true that only J share of the estate left by Taj Muhammad was brought under present litigation by Musa respondent/plaintiff and the remaining half is not the subject‑matter of this suit. But it cannot be said that the said half appertains to what is now "past and closed transaction" because proviso to sub‑clause (c) of section 2‑A makes transaction past and closed only if the possession of such land has already been delivered under such decree. The other half which was not the subject‑matter of this litigation was not distributed under any decree therefore for the purpose of the determination of due shares in this appeal, one‑half of Taj Muhammad's land, which only was the subject‑matter of the suit in the present proceedings, can be treated as available in its entirety for distribution of total share of the present tw appellants in the entire land. It is true that they have two other sisters ; but the one half of the entire land has already gone to the said two othe sisters. Therefore, the land in dispute (or the other half of the entir land) would be available to satisfy the claim of the appellants as the Shariat Law heirs of Taj Muhammad as also of their mother's share unde the Muslim (Shariat) Law, from Taj Muhammad's property. The appeal is allowed in these terms. The actual distribution in accordance with this decision shall be made by the Revenue Authorities through a proper mutation. The two other sisters of the appellants who have already obtained half of the land would not again obtain their share from the land in dis pute in this appeal. Appeal No.

3. The appellants side represents the daughters of the last full owner Mir Dad who having inherited property under custom before 15‑3‑1948, also died before that date. Half of his land which was mutated initially in favour of Mst. Hayat Bibi his widow, on her death (after 15‑3‑ 948) came to appellants. The other half was given to his sons from another predeceased wife ‑ the respondent side. The latter challenged successfully the mutation sanctioned in appellants' favour on the plea that the land left With Mst. Hayat Bibi was in lieu of maintenance and that it should revert to them on her death. It is, however, clear from evidence, notwithstanding some technical omissions in appellants' pleadings that Mst. Hayat Bibi was holding customary life estate. Therefore, on he death the succession qua that land should have opened in accordance with Act IX of 1948 in accordance with. the well‑settled law, on interpretation of section 3 thereof; and it shall also be governed by the foregoing newly added section 2‑A of Act V of 1962 as interpreted above vis‑a‑vis the females. By virtue of this new law, Mir Dad shall be deemed to be an absolute owner; because of its deeming provision, under which he shall have to be held as having inherited the land under Muslim (Shariat) Law. Thus, under Act I'X oaf 1948 as also under section 2‑A of Act V of 1962, the appellants shall inherit the property left by their father in accordance with the Muslim (Shariat) Law. The same would apply to the share of their mother (as her being a Muslim Law heir of her husband). Mir Pad's sons had already been given J of the entire land left by him. The remain ing J being with the appellants side will be utilised for the distribution of their share in the entire land as Muslim heirs. Accordingly necessary new adjustments by way of mutations will now be made by the Revenue Authorities. The appeal is thus allowed in the foregoing terms; but there shall be no order as to costs. Appeal No.

4. In Appeal No. 4, 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 Bakhsb 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. Other. wise too, that decree is subject to the result of this appeal. It is accor dingly so declared. The appeal is thus allowed. The decree is set aside. The suit shall stand dismissed. There shall be no order as to costs. It needs to be observed that in view of the peculiar situation on account of the change in law and its retrospective operation, instead of remanding these old cases we have decided the same on application of section 2‑A read with other relevant provisions of law. The remand would have entailed further expense and difficulties for the parties. In the light of the foregoing discussion these appeals are decided as follows Appeal No. 1 is dismissed on merits and also as having abated. There shall be no order as to costs. ‑ Appeal No. 2 is allowed in the terms stated above under the relevant heading i. e. "Appeal No. 2" (at pages 35/36). The actual distri bution in accordance with the said decision shall now be made through proper mutation by the Revenue Authorities. There shall be no order as to costs. Appeal No. 3 is allowed in terms stated above under the relevant heading i. e. "Appeal No. 3" (at pages 36/37). There shall be no order as to .costs. ‑ Appeal No. 4 is allowed. The impugned decree is set aside. The suit out of which the decree arose shall stand dismissed. There shall be no order as to costs. M. B. A. Order accordingly.