FEDERATION OF PAKISTAN Versus MUHAMMAD ISHAQUE

1. NASIM HASAN SHAH, J.-This is an appeal against the judgment of the Federal Shariat Court, Islamabad, dated 19-5-1981 in Shariat Petition No. 13-R of 1980.

2. The question. before the Federal Shariat Court was whether the restrictions on the power of alienation of persons, who had inherited agricultural land under Customary Law, as prevailing in the Punjab before 16-3-1948, namely, the date on which the West Punjab Muslim Law (Shariat) Application Act (IX of 1948) came into force, was opposed to the injunctions of Islam.

3. In the Province of the Punjab of undivided India in questions- regarding succession etc. the rule of decision was as enacted by section 5 of the Punjab Laws Act of 1872 to be any custom applicable to the parties, which had not been altered or abolished by the said enactment or declared to be void by any competent authority. Under clause (b) of the said section, although Muslim Law, in cases where the parties are Muslims, was to be the rule of decision but this was subject to the condition that the said law had not been modified by any custom. According to the general custom of the Punjab ancestral immovable property held by male owners, who were governed by custom, was ordinarily inalienable except for legal necessity or with the consent of the male descendants or in the absence of descendants with the consent of male collaterais of the alienor i.e. persons descended from a common ancestor of the alienor, who originally held that land. An alienation effected in violation of these principles was liable to be successfully challenged in a Court of law at the instance of any reversionary heir and any decree passed in favour of the plaintiff was to entire to the common benefit of the entire reversionary heirs to claim possession of the property so alienated. The aforesaid Customary Law in the Punjab, which restricted the right of succession and the power of alienation had its origin in the Roman System of agnatic kinship and the Hindu Law (See Customary Law in the Punjab by Om Parkash-First Edition-1939, Chapter 1, pages 15-18 and Chapter VII, page 251).

4. In the instant case, the respondent, Muhammad Ishaque, challenged the aforesaid Customary Law, which was kept in force under section 5 of the Punjab Laws Act and has been held to be still in force despite the promulgation of the successive Shariat Acts in the country. The first important enactment on this subject, namely, the Muslim Personal Law (Shariat) Application Act, 1937-central enactment-made Muslim Law applicable, where the parties were Muslims but it .excepted Muslim Law in questions relating to succession to agricultural land.

5. The next relevant enactment was the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, which was enforced with effect from 16-3-1948. According to this enactment Muslim Law became applicable to all matters including succession to agricultural land. However, in a series of decisions by the superior Courts it was held that this enactment was not retrospective inasmuch as the agricultural land inherited before 16-3-1948 was found to carry limitation of Customary Law as to alienations (see Muhammad Asghar Shah v. Muhammad Gulsher Khan () P L D 1949 Lah. 116), Gul Zarin Khan and others v. Amir Ahmad etc. (P L D 1952 Lab. 1), Bashir Ahmad and others v. Muhammad and others (P L D 1956 Lah. 934), Khair Din and others v. Muhammad Hussain and others (P L D 1961 S C 468) and Khatun v. Afalla etc. (1974 S C M R 341). The effect of the provisions of this Act in the relevant regard was explained in Muhammad Asghar's Case at page 128 in these words :-

6. "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 .. "

7. Another important enactment promulgated in this connection is the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, which came into force on 31-12-1962, although the provisions of this enactment greatly extended the scope of the application of Shariat Laws in the Punjab but under section 2 successions opening before 16-3-1948 still continued to carry the limitations of the Customary Law with respect to alienations. Section 2 of the Act 1962 stated :

8. "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 of 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". (underlining' is ours):"

9. The words underlined above were interpreted to mean that the estates inherited before 16-3-1948, to which the rules of Customary Law continued to apply by virtue of the provisions of section 5 of the Punjab Laws Act, would not be governed by Muslim Law notwithstanding the promulgation of the Act of 1962.

10. The case of Muhammad Ishaque, respondent, before the Federal Shariat Court was that the Customary Law in the Punjab, according to which the system of agnatic succession was followed, was the rule of law followed amongst the Hindus, while. Islam negatived the agnatic theory of succession, because the estate of a deceased person under Muslim Law devolved on agnates and cognates including widow and distant kindered. Consequently, it was contended that section 5 of the Punjab Laws Act, 1872, which continued the restraints of the Customary Law in questions of the alienations of the land inherited before 16-3-1948, was against the injunctions of the Holy Qur'an and Sunnah and, therefore, was liable to be declared as void.

11. The Federal Shariat Court in its judgment dated 19-5-1981 upheld this contention observing that a Customary estate differs from an estate under Islam, in so far as the absolute property is conferred under Islam to the heirs, both male and female and, consequently, Islam does not recognise the difference between ancestral or non-ancestral property or between male and female heirs. Each heir gets the portion of the inheritance fixed by Shariat and gets an absolute right to it including the right to dispose it off according to his free will. Reliance was placed for this view on the following passage from Muslim Law by Syed Amir Ali Volume II, page 20 :

12. "There is no distinction between the ancestral and self-acquired property. The owner for the time being has absolute dominion over all property in his possession whether he has acquired it himself, or whether it has devolved upon him by inheritance. He can - sell or dispose of it in any way he likes, provided operation is given to it during his lifetime. It is only with regard to dispositions intended to take effect after the donor's death or made in extremis that his power of disposition is limited by the right of his heirs. He cannot by a testamentary disposition reduce or enlarge the shares of those, who by law are entitled to inherit."

13. The principle, above-enunciated, was recognised by the Privy Council in Ranee Kajoor Unnissa v. Mst. Roshan Jehan (1876)LR3FA291.

14. Reliance was also placed by the Federal Shariat Court on Chapter 4, Verses 11, 12 and 176 of the Holy Qur'an to show that there is absolute vesting in the ownership with right to spend it in any manner one likes, like a heir and such ownership is not used in a restrictive sense. In the result, it was held by the Federal Shariat Court that the custom impugned in the petition and continued in force by section 5 of the Punjab Laws Act in the Punjab, was included in the definition of law, given in Article 203-B of the Constitution and that it was repugnant to the Holy Qur'an and Sunnah. A declaration was, therefore, given that the custom allowing challenge by collaterals to the alienation of the property inherited under Custom by a full owner is repugnant to the injunctions of Islam and a direction was issued that the necessary amendment in the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, be made by the 30th of June, 1981. Hence this appeal.

15. The main submission of Syed Riazul Hassan Gilani, learned counsel for the appellant, Federation of Pakistan, is that it is permissible in Islam to place restrictions on absolute ownership over property because under the injunctions of Islam imposition of limitations and restrictions on the unfettered rights of ownership is not forbidden. According to him, the question in essence in this case is whether in an Islamic Polity any property, which has been inherited before enforcement of Shariat at a point of time when Customary Law was still the governing rule in matters of its alienation, can continua to be the subject to the same restrictions and limitations, or must ipso facto yield to the Islamic conception of the absolute ownership of property even without any nullification of these restrictions by express legislation?

16. In this connection he has referred to a Hadith allegedly narrated by Hazrat Abbas which is to the following effect :

17. The Urdu translation furnished by him is to the following effect :

18. In English the Hadith referred to may be translated thus :

19. "Hazrat Abbas (Allah be pleased with him) reported Allah's Apostle (may peace be upon him) saying that property devolved before the advent of Islam will remain the same but after the advent of Islam, it will devole according to Islamic Law."

20. This is the only Hadith quoted by Mr. Syed Riazul Hassan Gilani in support of his submission. On the other hand our attention has been drawn to the following verses of the Holy Quran :-

21. `Sura AI-Nisa, Chapter IV, verses 7, 8, 11, 12 and 177."

22. We have gone through these verses of the Holy Quran. WE, however, find that verses 7, 11, 12 and 176 (and not 177) are really in point. These verses alongwith their translation by Allama Yusuf Ali is as follows;

23. VERSE (7)

24. "From what is left by parents And those nearest related There is a share for men And a share for women, Whether the property be small Or large, a determinate share."

25. "Allah (thus) directs you

26. As regards your children's

27. (Inheritance): to the male,

28. A portion equal to that

29. Of two females : if only

30. VERSE (I1)

31. Daughters, two or more, Their share is two-thirds Of the inheritance ; If only one, her share Is a half For parents, a sixth share Of the inheritance to each, If the deceased left children ; 1f no children, and the parents Are the (only) heirs, the mother Has a third ; if the deceased Left brothers (or sisters) The mother has a sixth. The distribution in all cases Is) after the payment Of legacies and debts, Ye know not whether Your parents or your children Are nearest to you In benefit. These are Settled portions ordained By Allah and Allah is All-knowing, All-Wise."

32. VERSE (12)

33. "In what your wives leave,

34. Your share is a half,

35. If they leave no child;

36. But if they leave a child,

37. Ye get a fourth; after payment

38. Of legacies and debts,

39. In what ye leave,

40. Their share is a fourth.

41. If ye leave no child ;

42. But if ye leave a child,

43. They get an eighth; after payment

44. Of legacies and debts, If the man or woman Whose inheritance is in question Has left neither ascendants nor descendants, But has left a brother Or sister, each one of the two Gets a sixth ; but if more Than two they share in a third ; After payment of legacies And debts ; so that no loss Is caused (to anyone). Thus is it ordained by Allah, And Allah is all-knowing, Most Forbearing."

45. VERSE (176)

46. "They ask thee For a legal decision.

47. . Say: Allah directs (thus)

48. About those who leave

49. No descendants or ascendants

50. As heirs. If it is a man

51. That dies, leaving a sister

52. But no child, she shall

53. Have half the inheritance

54. If (such a deceased was)

55. A woman, who left no child,

56. Her brother takes her inheritance

57. If there are two sisters,

58. They shall have two-thirds

59. Of the inheritance ""

60. (Between them) : if there are

61. Brothers and sisters, (they share),

62. The male having twice

63. The share of the female.

64. Thus doth Allah make clear _

65. To you (His law), lest

66. Ye err. And Allah

67. Hath knowledge of all things."

68. As rightly pointed out by Aftab Hussain, J. (now Chief Justice), who. delivered the judgment of the Federal Shariat Court that all these words have lob (waris) as their root which connotes according to Majjam-iAlfas-i-Qurani-Hakeem, Vol. 2, p. 838, 840 absolute, vesting in the ownership with right to spend it in any manner one likes, like a heir. Such ownership is not used in a restrictive sense".

69. Thus, we cannot accept the contention of the learned counsel of the appellant, Syed Riaz-ul-Hassan Gilani, that restrictions on the right of alienation imposed by Custom of persons inheriting agricultural land before i6-3-1948 can be imposed in Islam because the Hadith cited by him is in a different context and is not attracted here; and that for this reason it is not necessary to go into the other question of its authenticity or conflict with the Holy Qur'an in this case.

70. The result is that there is no force in this appeal which fails and is dismissed hereby.

71. We would, accordingly, uphold the direction of- he Federal Shariat Court that the necessary amendment should be carried out in the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. This was ordered to be done by the ?0th of June, 1981. However, this direction was stayed by this Court pending the disposal of the appeal. Since the appeal has been dismissed the necessary amendment should now be carried out by the 30th of June, 1983.

72. S. Q. Appeal dismissed.