HAKIM ALI Versus BARKAT BIBI

SAAD SAOOD JAN, J. --This appeal by special leave arises in the following circumstances.

One Maula Bakhsh was owner of considerable property. He died in 1945 and was survived by three sons and two daughters. He was governed by the customary law. Consequently, his entire property was mutated in the names of his sons to the exclusion of his daughters, On 30-7-1957 one of the daughters, namely, Mst.Barkat Bibi who is respondent No.1 in this appeal, filed a suit claiming possession of 62 kanals and 15 marlas of land left by her father on the basis of a Will executed by him on 30-10-1940 in her favour. It may be mentioned that the property claimed in the suit was less than 1/20th part of the entire property left by him.

2. The suit was resisted by the sons of Maula Bakhsh and the parties went to trial on a number of issues. Ultimately, the controversy between the parties was narrowed down to the question whether under the Rawaj-e-Aam applicable to him Maula Bakhsh was competent to make a gift of any part of his property in favour of his daughter. The trial Court took the view that he was not competent to do so and dismissed the suit. On appeal, the learned District Judge held that under the custom there was no restraint on Maula Bakhsh from giving a small portion of his property to his daughter by way of gift; accordingly, he decreed the suit. In second appeal, the High Court re-examined the question and affirmed the finding, and consequently the decree, of the learned District Judge.

3. Leave to appeal was granted by this Court to consider the question whether the High Court and the District Judge had correctly interpreted the custom applicable to Maula Bakhsh

4. While this appeal was pending, the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 came into force. The Ordinance inserted a new section as Section 2-A in the West Pakistan Muslim Personal Law (Shariat) Act, 1962. It reads as follows: -

"2-A. Succession prior to Act IX of 1948.--Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom of 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) ..............................................................

(c) .......................................................

As its very language suggests, this section has retrospective effect. That being so, by operation of Clause (a) Maula Bakhsh has to be treated as one who at the time of his death was governed the Muslim Personal Law. Consequently, the validity of the Will now requires to be examined in the light of the Muslim Personal Law and not in accordance with the rule of Custom. Now, admittedly, under the Muslim Personal Law Mst.Barkat Bibi was one of his heirs. She could not take advantage of the Will without the consent of the other heirs. It was nobody's case before us that the other heirs of Maul Bakhsh had at any time consented to the Will in her favour. Consequently, the claim of Mst. Barkat Bibi to the land in dispute on the basis of the Will must be rejected.

5. But then this is not end of the matter. Even according to the learned counsel appearing for the appellants if Muslim Personal Law had been applied Mst.Barkat Bibi would have been entitled from the estate left by her father to more land than what was given to her in the Will. The parties have been engaged in litigation for more than 30 years now. It will not be appropriate to drive them to another round of litigation which may take as many more years to conclude. In the circumstances, we do not think that this is a fit case for us to interfere with the judgment and decree under appeal before us. This appeal is accordingly dismissed with costs.

S.Q./H-26/S Appeal dismissed.