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Petitioner: LT.-COL. SAFDAR ALI MALIK AND Another VS Respondent: KHADIM HUSSAIN AND 6 Other
Court Name: Lahore High Court Judge(s): Maulvi Mushtaq Hussain Title: LT.-COL. SAFDAR ALI MALIK AND Another vs KHADIM HUSSAIN AND 6 Other Case No.: Second Appeal from Order No. 247 of 1963 Date of Judgment:1969-07-05 Reported As: PLD 1970 Lahore 629 Result: Appeal dismissed
JUDGMENT
JUDGMENT Khadim Hussain, respondent No. 1, and his minor brothers filed a civil suit on 24th March 1962, under the Customary Law in the civil Court at Sialkot for a declaration that the mortgage of the land in dispute by their father Muhammad Din, respondent No. 7, in favour of Lieutenant-Colonel Safdar A.I appellant by a registered deed, dated 30th May 1961, and the sale of the same land in favour of Muhammad Nawaz appellant by a registered deed of even date did not effect the reversionary rights of Khadim Hussain etc., as the transactions had taken place without consideration and legal necessity. Naturally, the claim was based on the ground that the property in dispute was ancestral qua them wherefore Muhammad Din, respondent No. 7, did not have an unrestricted power of alienation. 2. The present appellants contested the suit on both the grounds, mentioned above. The learned Civil Judge framed the following issues, and the case was fixed for evidence on 11 February 1963 (1) Whether the suit land is ancestral qua the plaintiffs and defendant No. 4? O. P. P. (2) Whether the alienations in dispute have been effected Sa, by defendant No. 4 for consideration and legal necessity and can the same be considered as an act of good management on the part of the alienor? O. P. D. (3) Relief. 3. On 30th January 1963 the present appellants moved the learned lower Court for the dismissal of the suit on the ground that with the promulgation of the West Pakistan Muslim Personal Law (Shariat) Application Act V of 1962 it was no longer maintainable. The following preliminary issue was framed with the consent of learned counsel for the parties:- Whether the present suit is not maintainable in view of the enforcement of Act V of 1962?th
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4. Mr. C. A. Rehman, Administrative Civil Judge First Class, Sialkot, came to the conclusion that such a suit was not maintainable in view of Act V of 1962 and, therefore, by his judgment dated 28th February 1963, dismissed the plaintiffs' suit but left the parties to bear their own costs. 5. Khadim Hussain etc. Filed Civil Appeal No. 111 of 1963 before the District Judge, Sialkot, who by his judgment dated 10th June 1963, disagreed with the view taken by the learned trial Court, set aside his finding regarding the main--tainability of the suit, accepted the appeal and setting aside the judgment and decree of the learned trial Court remanded the case for disposal in accordance with law under Order XLI, rule 23 of the Code of Civil Procedure. The parties were again left to bear their own costs. 6. Lieutenant---Colonel Safdar A.I Malik and Muhammad Nawaz have preferred this appeal against the judgment and decree of the learned District Judge, Sialkot, referred to above. 7. The only question for determination before me is the effect of Act V of 1962 on the maintainability of the suit. 8. Tracing the history of the applicability of Customary Law to the former Punjab Province Rattigan in his Digest of Customary Law in the Punjab (Thirteenth Edition) quotes a Despatch whereby the Board of Administration was constituted in the year 1849. It runs as follows:- "The Governor-General would wish to uphold native institutions and practices as far as they are consistent with the distribution of justice to all classes; but he is persuaded that, except in some of the wild trans-Indus or alpine country ofSindh Sagar Doab, there is no portion of the country which will not be benefited by the gradual introduction of the British system at the earliest possible period. ---------.With the knowledge now prevalent respecting village coparcenaries there is no apprehension that our officers will not exert themselves to maintain these important bodies in all their integrity . . . . . The popular institutions will be improved and consolidated by our measures, and the native system of accounts and reports may also be adhere to without any great and radical deviation, so that the only material alteration will consist in the introduction of Europeans as supervisors and executive officers." This, therefore, was the basis of the recognition of the importance of the custom and Customary Law in this part of the country just before India became officially a part of the Empire. 9. This was followed by the Principles of law by the Hon'ble Sir Richard Temple in 1854 and was latter on given the name: The Punjab Civil Code. Sections 5 and 7 of this Code run as follows "5. Whenever it may appear that the Hindu, Muhammadan or other law has been in any district superseded by local usage, and that both the parties would ordinarily be bound by custom rather than by law, the Court may ascertain the custom from competent and experienced persons, and decide according to it. Evidence regarding the existence and nature of the custom must be filed with the proceedings unless such custom be notorious, or has been armed in previous proceedings. 6. . . . . . . . . . . . . . . . . . . . . . . . 7. The laws and customs, as above described, should especially be observed in matters relating to inheritance, special property of females, marriage, divorce and adultery, adoption, wills, legacies, gifts and partition. On the other hand, there are many matters in which their observance should be avoided such as the prohibition of interest, civil disabilities on account of case, religion, sex, disease, and other disqualifications not allowed under British rule; rights connected with slavery, forfeiture of property by reason of conversion to a religion other than that in which the party may have been brought up; various periods of minority, absence of any law of limitation for suits, trial by ordeal, etc."
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10. As time progressed, Regulations, Acts and Orders were promulgated. On the 1st of June 1872, The Punjab Laws Act (IV of 1872) was enacted. The preamble of this Act runs as follows:- "Whereas certain Rules, Laws and Regulations, made heretofore for the Punjab, acquired the force of law under the provisions of section 25 of the Indian Councils Act, 1861; and whereas it is expedient to declare which of the said Rules, Laws and Regulations shall henceforth be in force in the Punjab, and to amend, consolidate or repeal others of the said Rules, Orders and Regulations; it is hereby enacted as follows." Section 5 of this Act runs as follows:- "In questions regarding succession, special property of females, betrothal and marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partition, 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 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 m cases where the parties are Mohammedans, 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." Custom, thus, was retained as the rule of decision in all matters, referred to above. In fact, this was a substantial reproduction of the corresponding part of section 3 of the Punjab Laws Bill, 1871. 11. That Ancestral Immovable Property is ordinarily inalienable . . . . Except for necessity, is accepted, as the rule of custom. The right of a reversioner to challenge a sale, which would not be covered by the permission contained in the Customary Law, therefore, flowed directly from the restriction on the right of an owner of ancestral immovable property under the Customary Law to alienate the same. The Act of 1872 simply recognised this right. 12. Section 15 of the Code of Civil Procedure, 1859, provided that- "no suit shall be opened to object on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for civil Courts to make binding declarations of right without granting consequential relief." This Code was repealed by the Civil Procedure Code, 1877. The latter omitted any mention of such a relief, the reason being that section 42 of the Specific Relief Act, which was enacted in the same year, provided for it. This section 42 continues to be in force even today and its illustrations (d) and (e) run as follows:- "(d) A alienates to B property in which A has merely a life interest. The alienation is invalid as against C, Who is entitled as reversioner. The Court may in suit by C against A and B declare that C is so entitled. (e) The widow of a sonless Hindu alienates part of the property of which she is in possession as such. The person presumptively entitled to possess the property if he survive her may, in a suit against the alienee, obtain a declaration that the alienation was made without legal necessity and was therefore void beyond the widow's lifetime." Aggrieved reversioners irrespective of the degree in which they were related to delinquent alienors thus continued to get relief at the hands of civil Courts in the form of declarations regarding the effect of alienations made contrary to the dictates of Customary Law till the year 1920. 13. In 1920, the Legislature enacted The Punjab Limitation (Custom) Act (I of 1920), and The Punjab Custom (Power to Contest) Act (II of 1920). By the first of these, a period of limitation was prescribed, inter alia, for suits for a declaration that an alienation of ancestral immovable property
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was not binding on the plaintiff after the death of the alienor. By the second Act, the right to file a suit of the kind mentioned above was restricted to persons- "descended in male lineal descent from the great great grandfather of the person making the alienation of appoint--ment." By section 7 of the same Act, all other persons were debarred from filing such a suit. 14. The effect of this statute was to curtail the categories of persons previously entitled to file suits of the present kind to those mentioned in the Act and referred to above. As is clear from the Long Title, it is "an Act to restrict the power of descendants or collaterals to contest an alienation of immovable property or the appointment of an heir on the ground that such alienation or appointment is contrary to custom." It did not confer any new right whether substantive or merely procedural. It did not even create a new category of persons. It only placed restrictions. The right to file such a suit can, therefore, not be traced back to either of these two enactments. 15. 1937 saw the enactment of the Muslim Personal Law (Shariat) Application Act, No. XXVI, by the Central Government. It made Muslim Personal Law (Shariat) the rule of decision in all cases enumerated in section 2 where the parties were Muslims. Questions relating to agricultural land were, however, excluded from the operation of this Act. Section 2 may be reproduced as under:- "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 provision of Personal Law, marriage, dissolution of marriage, including `talaq, ila, zihar, lian, khula` and `mubaraat', maintenance, dower, guardian--ship, gifts, trusts and trust properties, and Wakfs (other than charities and charitable institutions and charitable and reli--gious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." Customary Law pertaining to agricultural land did, therefore, not suffer on account of this enactment. Section 5 of the Punjab Laws Act, 1872 was repealed by this Act in so far as it is "inconsistent with the provisions of this Act". It, therefore, continued to survive where questions relating to agricultural land arose and custom continued to be the supervening rule. 16. Independence came in 1947 and the West Punjab Legislature passed the West Punjab Muslim Personal Law (Shariat) Application Act of 1948. Section 2 of this Act extended Muslim Personal Law (Shariat) even to questions pertaining to succession to agricultural land notwithstanding any custom or usage to the contrary. Section 5 of the Punjab Laws Act was repealed to the extent of repugnancy by this Act. 17. The effect of this enactment was considered by a Full Bench of the Lahore High Court in Muhammad Asghar Shah v. Muhammad Gulsher Khan and another (PLD 1949 Lah. 116). The question that fell for determination before the Full Bench was- "whether the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) renders the grant of a declaratory decree under custom infructuous." It was noted that the position of a male owner, who succeeds under the custom, is that he- "is a full owner with an interest transmissible to his heirs, lineal or collateral, as the case may be . . . . . His right to sue for possession in spite of the last owner's act of alienation, is derived from no individual, but from the customary rule which places a restriction upon the owner's powers of disposition of ancestral property, and renders him liable to be controlled in that respect by his collateral heirs." Their Lordships went on to observe- "The real object of a suit to contest an alienation is `to save the inheritance if action is taken on it at the proper time.' The transfer is not void ab initio: it is liable to be set aside at the instance of those who are descended from the common ancestor and have a chance to succeed . . . . .
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Another peculiarity about the declaratory decree is that the person holding the decree or the entire body of the reversioners then in existence, might never actually succeed when the time came. On the death of the alienor, when a right to possession accrues, none of the reversioners by whom or for whom the alienation was not set aside, might be alive. The possession might be claimed by the descendants of the original rever--sioners and if there is no one in existence the matter ends and the alienee's possession shall not be disturbed . . . . . It might be added that the Act does not by one stroke of pen, convert owners of property with restricted powers of alienation into full and absolute owners whose powers of alienation were wholly unfettered. The Act nowhere says that all Muslim male owners had by virtue of the Act become absolute owners in the same sense as they would have been if Muhammadan Law had applied and they had succeeded in accordance with Muhammadan Law. The estate of a person who took it under customary law would continue to be subject to the limitations imposed by it till its devolution is made under the Act of 1948 i.e., after the 15th March 1948 . . . . . My answer to the question before the Full Bench is that the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) does not preclude the grant of declaratory decrees in suitable cases arising before the Act . . . . . Viewed thus, the suits for declaration cannot be held to have become infructuous and would still have a useful part to play although the advantage of such a declaration, if it is granted, would be only available to those who happened to be the heirs of the deceased according to Muslim Law. I am aware of the fact that this line of reasoning may also apply to suits which may be instituted after the passing of the Act (IX of 1948), but personally I cannot see how can one escape that conclusion although in the particular cases, which had been referred to the Full Bench, the suits had been instituted before the Act (IX of 1948) was passed and our reply must necessarily be confined to such suits, at least for the present." 18. The Punjab Muslim Personal Law (Shariat) Application (Amendment) Act of 1-951 did not alter the position except that it covered not only intestate succession but testate succession also. 19. Another Full Bench of the Lahore High Court considered the question- "Whether the declaratory decree validly obtained under custom should not be maintained in view of section 3 of the Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), as the reversioners shall have under the Personal Law no share in the property of the last male owner, on the termination of the limited interest of the female in possession." In Barkhurdar Shah and others v. Rob Nawaz Shah and others (PLD 1952 Lah. 555). It was ruled that the declaratory decrees before the Act of 1948 came into force are not affected by section 3 or any other section of that Act. 20. This brings us to the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) which is the bedrock of the defendants, prayer, that the suit be dismissed as incom--petent. As the preamble of this Act shows, it has been enacted to consolidate and amend the provisions for the application of Muslim Personal Law (Shariat) in the Province of West Pakistan. Section 2 of this Act runs as follows:- "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." Sections 3, 4 and 5, which deal with (1) termination of life estate under Customary Law, (2) further operation of certain wills on the death of the legatee-in-enjoyment, and (3) devolution of property on the termination of life estate and certain wills, alone have been given retrospective effect by virtue of section 6 of this very enactment.
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21. The positive provisions of the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) do not, in any manner, add to the rights possessed by a person who has succeeded to ancestral property under the Customary Law. It does not detract from that position either. It may, however, be remembered that I am not concerned in this case with the rights of a female succeeding to a limited estate under the Customary Law. Since there was no addition to the right of the last full owner of such property, he continues to hold it subject to the conditions, restrictions and limitations under which he succeeded to that property under the Customary Law. One of such restrictions was that he shall not alienate it except for consider--ation and legal necessity. This condition had been recognised as far back as 1854 by section 7 of the Punjab Civil Code. The reason which has already been explained above, is the need for retaining that property intact for the heirs under the Shariat. 22. Let us now see if the negative part of the Act, which repealed certain enactments, has any effect on the limitation etc. On the power to alienate. Section 7 of this Act contains a list of enactments which are repealed by it and they include (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, and (d) The Punjab Muslim Personal Law (Shariat) Application Act, 1948. Section 7 (2) makes it clear that- "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." The date of commencement of this Act is the 31st of December 1962, when it was published in the Gazette of West Pakistan (Extraordinary). Had section 7 (2) been a valid piece of legislation the Act of 1962 would not be applicable to cases where the death of the last full owner took place before that date. Muhammad Din, the last full owner far from having died before the commencement of this Act was very much alive even on the date when the present second appeal was instituted. I would like to take note of the West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act (XXVIII of 1964). It is a short enactment consisting only of two sections, and the second section runs as follows:- "In section 7 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 subsection (2) shall be omitted." Section 7 (2) and the effect of this Amendment was con--sidered by me in Sarwar Bibi v. Said Ahmad and others (1) in the following words:- "The Law of succession has ever since the enactment of the Muslim Personal Law (Shariat) Application Act, 1948, been (1) PLD 1969 Lah. 413 the rule of Shariat notwithstanding anything to the contrary contained in any usage or custom. No life estates could therefore be created under the Customary Law after the enactment of that Act. Existing life estates were, however, left untouched and in respect of them the only provision was applicable on their termination in due course according to Customary Law. When the Act of 1962 was enacted the position was that while no new life estates could come into being, the existing ones were to continue till terminated by the death or remarriage etc. Of the holder. The raison detre of the Act of 1962 is to abolish such existing life estates altogether without waiting for their extinction in due course. If section 7 (2), which is a saving clause, is allowed to stand, section 3 becomes absolutely nugatory and the every purpose for which the statute was enacted would disappear. This, therefore, is a case where the saving clause by being repugnant to the purview knocks the very bottom out of the enactment. Following the principles laid down in Graies therefore it cannot but he held that section 7 (2) was from its very inception void on account of repugnancy." This subsection, therefore, never came into existence in the eye of law.
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23. As already mentioned above, the Punjab Limitation (Custom) Act of 1920 only limited the period within which a reversioner could challenge the alienation. The Punjab Custom (Power to Contest) Act of 1920 divested certain types of reversioners of their right to challenge such an alienation. It was restricted only to a class named in it. It should, however, be not lost sight of that this Act did not create a new class of reversioners who previously had no power to challenge an alienation. It only restricted the already existing class of such persons to a named category. It can, therefore, not be justifiably said I hat the power to challenge an alienation was conferred by any of these two enactments. Since the power was enjoyed independently of these Acts the mere fact that it was limited by these two Acts would not result in the extinction of this power due to the repeal of these two enactments because it was not conferred by any one of them. 24. It is not for me to go into the reasons why the Legislature repealed Acts I and II of 1920. All that I had to see in the present case was whether the repeal of these two enactments hid affected the right of a reversioner to challenge an unlawful alienation made by a full owner under the Customary Law. 25. The suit out of which the present appeal arises was insti--tuted on the 24th of March 1962. The Act V of 1962 came into force on the 31st of December 1962. Even if it were accepted for the sake of argument that this Act abolished the right to challenge an alienation, it would not be applicable to the proceedings before me. As far back as the year 1952, a Full Bench of this Court held in Barkhurdar Shah and others v. Rab Nawaz Shah v. And others (PLD 1952 Lah. 555)- "The sole point we are required to determine is whether the Act of 1948 on which reliance is placed has the effect of annulling or vacating decrees which had been passed before the Act came into force declaring that under custom certain alienations were invalid and not binding on the reversioners. It is conceded by the learned counsel for the appellants that if on the date the Act came into force no appeal from the decree had been pending, the decree would not have been affected by the legislation in question. What is argued, however, is that an appeal is a continuation of the suit,…
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