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Petitioner: ABDUL GHAFOOR AND OTHERS VS Respondent: MUHAMMAD SHAFI AND OTHERS
Court Name: Supreme Court of Pakistan Judge(s): Mian Burhanuddin Khan, Muhammad Afzal Zullah, Aslam Riaz Hussain Title: ABDUL GHAFOOR AND OTHERS vs MUHAMMAD SHAFI AND OTHERS Case No.:Civil Appeals Nos. 144 and 159 of 1972 and 48 and 95 of 1973 Civil Appeal
JUDGMENT
Reported As: PLD 1985 Supreme Court 407 Result: Order accordingly Judgment JUDGMENT ' MUHAMMAD AFZAL ZULLAH, J.-These four appeals arise out of cases of inheritance in the Province of the Punjab. They involve similar questions of law. They are, therefore, being disposed of together. ' The facts and circumstances relevant at this stage in each case are as follows : C. A. No, 144 of 1972, hereinafter referred to ac Appeal No, I : ' In 1958 the appellant side sought by a suit, a declaration to the effect that the suit property was 'ancestral' and under the customary law, its sale by defendant No, 1 on 3-2-1958 to defendants Nos. 2 to 5, not having satisfied the conditions of alienation under the said law, would not affect the right of the reversionary heirs, after the death of the said defendant No, 1. He in reply, pleaded that the alienation was due to an act of good management as permitted by the customary law and that in any case he being full owner, was competent to dispose of his property in any manner he liked- support was sought from the provisions of the Muslim Personal Law (Shariat Application) Act, 1948, hereinafter referred to as Act IX of 1948. ' A Division Bench of the Lahore High Court held that the suit land was ancestral qua the concerned parties and that they followed customary law of succession, according to which such land was inalienable except for consideration and legal necessity; which stood established in this case as it was on account of good management. The defendants' plea regarding the effect of the Act IX of 1948 on succession from a person who had inherited prior to its promulgation under the customary law from a person who was governed by that law was repelled with reference to the decision of this Court in Abdullah and others v. Mst. Bakhto Mai and another (1), It was held therein that : "The
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difference brought by the Act of 1948 is that while the powers of a limited owner to alienate the property without legal necessity are still governed by custom, the rule governing succession to the property, on the termination of a limited estate, has ceased to be a rule of custom and by statute has been replaced by the rule that the Muslim Personal Law shall govern the succession." ' The plaintiffs' right to contest the alienation was also affirmed as it stood established by law including the Punjab Laws Act of 1872. Accordingly while deciding the legal questions in favour of the plaintiffs, their suit was dismissed on findings of fact regarding legal necessity in favour of the defendants. Leave to appeal was granted in this case to examine only the contention that the High Court could not set aside a finding of fact in second A appeal under section 100, C. P. C. C. A. No, 159 of 1972, hereinafter referred to as Appeal No, 2: ' Musa Kban predecessor-in-interest of the respondents instituted a declaratory suit in 1954/56 seeking 4/144 share in the suit property on the ground that he was the collateral of Taj Muhammad the last male holder thereof who died in 1920 and also because Mat. Phapho Bibi the deceased widow of f Taj Muhammad was his sister. He also challenged the gift made by the widow on 23-6- 1953 in favour of her two daughters from Taj Muhammad namely Mst. Zenab and Mst. Shakran Bibi regarding of the land left by Taj Muhammad (the other half had been gifted away in 1941 to their two other daughters-Mst. Bakhat Sawi and Mst. Basran). She died within few days after making the gift. His plea that she was a limited owner under custom when Act IX of 1948 was promulgated but by virtue thereof (as ameded by Act XI of 1951) she was entitled to inherit only 1/8 share out of her late husband's estate, therefore, She could not gift more than the said 1/8 share, was accepted and his suit was decreed. The following contention was noted for grant of leave to appeal sought by the daughters (donees) : "that the West Pakistan Muslim Personal Law (Shariat) Application Act, 1948, as amended in 1951, applies to the case, and therefore, the widow on the death of her husband succeeded to 1/8th share of the property and this share she could dispose of by gift. The learned Single Judge it has been submitted, therefore, erred in holding that since the widow had inherited only a limited interest on the death of her husband, she could only transfer a limited interest by the gift in question. ' With reference to Rabia v. Akbar PLD 1962 Lah. 837 it has also been contended that it is the self- acquired property of Taj Muhammad Khan deceased and as such according to the Customary law applicable to the parties the daughters succeeded in preference to the collaterals of the deceased and, therefore, the gift in question must he regarded as an acceleration of the succession. In the case (1) PLD 1956 SC 321 under report it was held that the power to make a gift of the property which was conferred on the holder of the property under the Customary law had not been abrogated by reason of the passing of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, just as the Nwe r to make a gift has not been conferred on a person who came into possession of the property under a system of Customary law which did not give the holder the right of ownership in the property." C. A. No, 48 of 1973, hereinafter referred to as Appeal No, 3: The following pedigree table will illustrate the facts. {{TABLE}} Mir Dad Wife I Wife . e- I I Mst. Hayat Bibi Mst. Fazal Bibi I I I I I --- -----1 --, I I I Mst. Begum Bibi Mst. Mehtab Bibi Din Muhammad Hakim I (Defendant 1) I Jalal ..., -__. -, I I I Fateh Muhammad Mst. Sardar Bibi Sardar Muhammad I (Defendant 3) (Defendant 2) 1
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111011111 (Appellant side) Sabbir Hussain Yaqub alias Arshad (Plaintiff - 2) (Plaintiff - 1) (Respondent side) {{TABLE}} ' On the death of Mir Dad, one-half of his land was straightaway inherited by his two sons from Mst. Fazal Bibi. The remaining half was mutated in the name of his other wife Mst. Hayat Bibi. On Hayat Bibi's death which took place after the coming into force of the Act IX of 1948 this half was mutated in favour of the appellants, her progeny from the wedlock with Mir Dad, in May 1957. In March, 1958 a suit was instituted by great grandsons of Hakim (a son of Mst. Fazal Bibi the first mentioned wife of Mir Dad) claiming that the original mutation of one-half of Mir Dad's land (which shall be described as the suit-land) was sanctioned in the name of Mst. Hayat Bibi only as by way of maintenance and on her death (which according to them took place in 1945) the mutation, instead of being effected in favour of the respondents-plaintiffs as the rightful heirs of Mir Dad under custom, was sanctioned to the appellants on account of the collusion with the revenue staff. It was also claimed that the said property was ancestral qua the parties and that according to custom the respondents were better entitled to inherit the same. The learned trial Judge decreed the suit on the finding that the suit-property was ancestral; that the parties were governed by custom ; that Mst. Hayat Bibi got the land in lieu of maintenance under custom ; and further, that on her death the land should have reverted to Mir Dad's sons as his heirs and that being so the plaintiffs/respondents side had preferential title as against the appellants. In appeal however the District Court reversed almost all these findings. Mst. Hayat Bibi was held to be a limited owner under custom ; that she died after the coming into force of the Act IX of 1948 and, that the succession would; under the said law, be deemed to have opened out on the termination of the said limited interest of Mst. Hayat Bibi. And that being so her heirs i. e., the appellant side would accordingly inherit that part of Mir Dad's property also which would have been inherited by Mst. Hayat Bibi as if she originally inherited under Muslim Law. ' On second appeal a learned Single Judge of the High Court allowed the appeal and restored the findings of the trial Court to the effect that Mst. Hayat Bibi was only a maintenance holder and that hers was not a life estate. Consequently on her death the property reverted to the descendants of her stepsons namely the plaintiffs/respondents. Leave to appeal was granted in the above circumstances to examine : whether according to the custom prevailing in the parties' family Mst. Hayat Bibi did not succeed to life estate ; whether the respondents/ plaintiffs were able to discharge the onus regarding their assertion that she was only a maintenance holder; and lastly whether the High Court having accepted the correctness of compilation of Sialkot District" and the correctness of the case Jaswant Singh v. Khushal Singh (1) which supported the appellants' contention regarding the parties custom, should have ignored the same simply because there was some technical omission in the written statement. C. A. No, 95 of 1973, hereinafter referred to as Appeal No, 4 : ' In 1951, Hussain Bakhsh the owner who had inherited property under custom and was thus governed by customary law of succession, sold 105 Kanals 12 Marlas land out of 446 Kanals owned by him to Javed Mahmood Akram appellant for Rs, 80,000. Nazir Ahmad his son who at the time of the said sale was only 9 years old on 8-10-1960 brought a suit for declaration to the effect that the land in dispute was ancestral and had been sold without any consideration and legal necessity and thus could not have effected his reversionary right, after the death of Hussain Bakhsh. It is necessary to mention here that the sale-deed, amongst others, was attested by Mehtab another son of the vendor. Appellant contested the suit. It was held by the trial Court that the land no doubt
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was ancestral; that the vendor had only limited right of alienation and the sale was for consideration but legal necessity was established only to the extent of Rs, 12,500' Accordingly the declaration sought for was granted with the condition that if and when succession shall open on the death of the vendor the plaintiff shall obtain possession of the land only on the payment of the amount for which no legal necessity was established. The suit was dismissed regarding one Kanal of land which in the meanwhile was exchanged by the appellant with Ramzan, Ghulam Muhammad etc. Who were not impleaded as defendants in the suit. Both the parties filed appeals. The appellant seeking dismissal of the suit asserting valid necessity for the full amount and the respondent/plaintiff for the avoidance of the sale in its entirety. The District Court however dismissed both the appeals. The High Court also dismissed appellant's second appeal. ' Leave to appeal was granted to consider whether in the circumstances of the case the Courts below were right to set aside the sale although (1) 1916 I C 893 legal necessity was proved to the extent of Rs, 12,500. It may be mentioned here that the vendor having since died (the leave granting stage (July 1973), the respondents had already filed another suit for obtaining possession on the basis of the decree impugned in this appeal. Notwithstanding the points noted for consideration in the orders granting leave to appeal in all these cases, they in the interest of justice shall have to be decided on due consideration of the general impact and effect in each case of a recent legislation of great public importance namely Muslim Personal Law (Shariat) Application Act-The Punjab (Amendment) Ordinance, 1983. All the leave granting orders would be deemed to have been modified and their scope enlarged accordingly. This law has, by way of amendment in The Punjab/Sind-N.-W. F. P./Baluchistan Muslim Personal Law (Shariat) Application (West Pakistan Act V of 1962), added section 2-A thereto. It was enforced on 1st August, 1983. Act V of 1962 as amended by Punjab Ordinance No, XIII of 1983 reads as follows : "Preamble.-An Act to consolidate and amend the provisions for the application of Muslim Personal Law (Shariat) in the Province of Punjab/Sind/N.-W. F. P./Baluchistan. ' Whereas it is expedient to consolidate and amend the provisions - for the application of Muslim Personal Law (Shariat) in the Province of Punjab/Sind/N.-W. F. P./Baluchistan ; ' It is hereby enacted as follows :- ' Section 1. Short title and extent.- (1) This Act may be called the Punjab/Sind/N.-W. F. P./Baluchistan Muslim Personal Law (Shariat) Application Act, 1962. (2) It extends to whole of the Province of Punjab/Sind/N.-W. F. P. And Baluchistan. ' Section 2. 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 Waqfs, 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. 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, 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 under 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 of possession of agricultural
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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 decree. 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 estate so excepted shall continue to be governed by that enactment, notwithstanding its repeal by this Act. ' Section 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 commencement of this Act, its further operation shall cease upon the death of legatee-in-enjoyment. ' Section 5. Devolutian of property on the termination of life estate and certain wills.-The life estate terminated under section 3 or the property in respect of which the further operation of a 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 the termination of the life estate or the death of the said legatee : ' Provided that the share to which a Muslim female holding limited estate under Customary Law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her. ' Section 6. Sections 3, 4 and 5 only to be retrospective.-Save as expressly provided by the provisions of sections 3, 4 and 5, this Act shall have no retrospective operation. ' Section 7. Repeal and savings.-(1) The following enactments are hereby repealed :- a. The Punjab Limitation (Custom) Act, 1920 ; 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 E 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 (1). 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
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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 (1) PLD 1976 Lab. 930 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 tal_.q, ila, zihar, Tian, 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" 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
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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 (1). (In addition to the afore-noted laws, in the field of Rehabilitation of Diplaced 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, (1) PLD 1984 SC 394 ' 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.-(l) This Act may be called the West Punjab Muslim Personal Law (Shariat) Application Act, 1948. 1. It extends to the whole of West Punjab. 2. 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. '…
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