MUHAMMAD SHARIF Versus KHUSHI MUHAMMAD

ORDER

1. JAVID IQBAL, J. --Leave to appeal is being sought against the judgment dated 12th November, 1979 of a learned Single Judge of the Lahore High Court, Lahore passed in R.S.A. No. 686 of 1965.

2. The facts are that one Ali Muhammad on 5th February 1943 made a gift of his land in favour of Khushi Muhammad respondent No. 1. The gift was given effect to in the Revenue record in March 1961. The petitioners' predecessor-in-interest who was a collateral of Ali Muhammad filed a suit for declaration to the effect that the said gift would be ineffective to his reversionary rights after the death of the said Ali Muhammad. Ali Muhammad died during the pendency of the suit. However vide judgment dated 1st June 1964 the Civil Judge Daska decreed the suit in favour of the petitioners. As a result Khushi Muhammad respondent No. 1 challenged the aforesaid judgment and decree in appeal and the District Judge Sialkot vide his judgment dated 5th May, 1965 relying upon the sialkot Gazetteer about custom and noting that an agriculturist there could gift away only 1/20th share of his entire property to a stranger, modified the decree to the extent that the gift would not be effective so far as 19/20th share of the entire property was concerned. The judgment and decree passed by the District Judge were challenged by Khushi Muhammad respondent No. 1 in RSA No. 686 of 1965 which was allowed and the suit of the petitioners was dismissed as barred by limitation.

3. We pointed out to the learned counsel for the petitioners that on account of the new law i.e Punjab Ordinance XIII of 1983 amending West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) as explained in PLD 1985 SC 407 (Abdul Ghafur and others v. Muhammad Shafi and others) was a hurdle in his way because under the changed law a person inheriting agricultural land under custom before 15th March, 1948 would be deemed to have inherited such land under Muslim (Shariat) Law and was therefore its full owner. As full owner the could make such a gift under Muslim Law which eliminates all forms of customary law. Thus even if suit had not been dismissed as barred by limitation the petitioner was not likely to succeed. Learned counsel conceded that the aforesaid law as explained in PLD 1985 SC 407 was indeed a hurdle in his way. In that view of the matter we do not find any substance in this petition which is accordingly dismissed.

4. M. I. /M-204/S Petition dismissed.