1990 PLP 1503 (MLD)

(6) Whether Mst. Fateh was the only heir under the Customary Law? (7) Whether Bakhtawar belonged to the Shia Sect? (8) Relief.

5. The learned Additional Civil Judge, Bhakkar vide judgment and decree dated 2‑1‑1973 dismissed the suit. He came to the conclusion that Bakhtawar died somewhere in 1951, therefore, the parties were governed by the provisions of Muslim Personal Law; that Mst. Ghulam Fatima was the real daughter of Bakhtawar so mutations of inheritance in favour of Mst. Ghulam Fatima and the plaintiffs were correctly attested.

6. On appeal the learned Additional District Judge affirmed the decision of the first Court. It will be worth to observe that the appellant assailed only the finding of the original Court on issue No. 3 before the first appellate Court. On this issue the finding of the learned trial Court was affirmed. The appellants Lakhu and others the legal heirs of Allah Ditta have challenged the legality of decisions of two Courts below on issue No. 3.

7. Learned counsel for the appellants submitted that the finding of two Courts below on this issue was legally incorrect and unsustainable on the ground that mutation of inheritance dated 23‑1‑1952 embodied therein an entry by Patwari dated 22‑12‑1945 which indicated that the report of the death of Bakhtawar was made on 22‑12‑1945; that the Revenue Officer postponed the attestation of mutation on account of absence of pedigree‑table and ordered that the necessary pedigree‑table be brought on record; that the mutation was finally attested on 23‑1‑1952. It was contended that these entries indicated beyond an inch of doubt that Bakhtawar died before 1945 and the finding of both the Courts below have been recorded by overlooking these entries which were not in dispute. According to him this circumstance was sufficient to vitiate the concurrent finding of both the Courts below.

8. It was next contended that if the Court came to the conclusion that Bakhtawar died in 1945 then the parties in this case were Jutt and belonged to an agricultural tribe and so were governed by custom that agnate excluded the real daughter. Reliance was placed on the entry in the Manual of Customary Law relating to Mianwali District reproduced in Rattigan Law of Custom.

9. Learned counsel for respondents .on the other hand supported the impugned decision. A preliminary objection was taken that the concurrent finding of the two Courts below that Bakhtawar died in 1951 was a pure question of fact and could not be examined in regular second appeal under section 100 of the Code of Civil Procedure.

10. It was next urged that both the Courts below have come to the conclusion after consideration of oral as well as documentary evidence that the entries incorporated in mutation Exh. P‑3 were not correct and credible. Even otherwise it was suggested that neither the custom was alleged in the plaint nor any evidence was furnished with respect to the existence of custom in Mianwali District by both the sides. In absence of any evidence and allegation in plaint the entries of Manual of Customary Law were of little help.

11. I have heard the learned counsel for the parties and perused the record minutely with the able assistance of both the learned counsel.

12. There is no dispute that Mst. Ghulam Fatima the predecessor‑in‑interest of defendants was the real daughter of Bakhtawar. The contention calling for examination is whether the concurrent finding of both the Courts below is vitiated on account of overlooking the entry recorded by the Patwari in mutation of inheritance Exh. P‑

3. I am afraid, I do not subscribe to the above-noted contention. On record there are two certified copies of mutation No. 1512 i.e. Exh. P‑3 and Exh. D‑

3. In both the documents there is an entry by the Patwari dated 22‑12‑1945 which indicates that information has been given through an application that Bakhtawar had died. The Girdawar has appended his signatures on 26‑12‑1951 and the mutation was attested on 23‑1‑1952.

13. It is to be noticed that the entries contained in mutations are not per se admissible. They have to be proved like any other document in consonance with the provisions of section 67 of the Evidence Act (1 of 1872)/Article 78 of the Qanun‑e‑Shahadat Order (X of 1984). Neither the Patwari was produced to prove the entry recorded by him nor any evidence was led to prove this entry through relevant witnesses. The entry of this mutation clearly shows that the Girdawar signed it on 26‑12‑1951 and the Revenue Officer attested it on 23‑1‑1952 in accordance with the Muslim Personal Law, therefore, there is no reason to differ with the concurrent conclusion of both the Courts below that Bakhtawar died after 1948 and was so governed by the provisions of the Muslim Personal Law in respect of devolution. I, therefore, repell the contention of the appellant.

14. The case can be looked from another angle i.e. that even if it is presumed that Bakhtawar died in 1945 even then the succession had to be determined in accordance with the provisions of the Muslim Personal Law and not by custom. This proposition came into consideration in Abdul Ghafoor and others v. Muhammad Shari and others P L D 1985 SC

407. The Supreme Court examined the effect of section 2‑A of the Punjab Ordinance (XIII of 1983).

15. While interpreting the clause 2‑A of the Punjab Ordinance (XIII of 1983), the Supreme Court propounded the following rules:‑‑ (a) "Where-ever 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. II) 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 affect 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 similar erosion in so far as it gives effect to the judgment of the Federal Shariat Court and the Supreme Court regarding the limited estates 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 question 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 the 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 enexecutables and of no legal effect under sub‑clause (b). (h) Same is the effect of sub‑clause (c) which provides that all suits 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 visualising it in substance as having application prior even to 15th March, 1948 as well and in this sense being retrospective, the proviso to sub‑clause (c) thereof clearly excludes its operation in so far as the past and closed transactions are concerned. 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 Las 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 contention advanced at the bar that declaratory legislation, as section 2‑A prima facie appears to be, is ordinarily retrospective‑‑though the examination would lead to the same result:'

16. The ratio in Abdul Ghafoor's case was examined by the Supreme Court in Muhammad Akram and 26 others v. Noor Ahmad and others 1989 SCMR

755. In this case dealing with the will made by Nabi Bakhsh the last right‑holder who died in 1947, it was held that succession to the estate of Nabi Bakhsh shall be determined according to the provisions of the Muslim Personal Law on account of retrospective operation of section 2‑A of Ordinance (XIII of 1983). The net conclusion is that Bakhtawar even if it is presumed died in 1945 the landed property left by him shall have to be distributed according to the provisions of the Muslim Personal Law as enunciated by the Supreme Court. On this account the contentions of the appellants are held to be without any force.

17. There is yet another aspect of the case which merits examination. Neither the plaintiff alleged in plaint‑the custom that the agnates excluded the collaterals nor led any evidence to establish the custom. Neither of the parties as a matter of fact led any evidence nor raised this question before the first appellate Court. Therefore, in second appeal a new point involving mixed question of law and facts meriting inquiry cannot be raised.

18. Even otherwise the rule before enforcement of Muslim Personal Law (Shariat) Application Act, 1937 and 1948 has been that the parties were to be governed by the rules of their personal law unless and until it was established that the rules of personal law were abridged, controlled or changed by any custom flowing from agricultural usages. No presumption existed in favour of existence of custom. This rule was laid down in Vaishanoo Ditti v. Rameshri 1928 10 Lah.

86. In absence of any evidence the Revenue Officer was completely justified to follow the rules of Muslim Personal Law. 19. 1n the light of foregoing reasons, I have no difficulty in reaching the conclusion that this second appeal is totally without merit and is accordingly dismissed. The appellants shall bear the costs throughout. M.B.A./L‑88/L Appeal dismissed.