MUZAFFAR KHAN vs Mst. ROSHAN JAN AND OTHERS

1. ' NASIM HASAN SHAH, J.-One Muhammad Aslam Khan son of Ahmad Khan made a gift of the land in dispute by a deed of gift on 12-8-1966 in favour of his sisters Mst. Roshan Jan and Mst. Nabi Begum (defendants Nos, 1 and 2). The deed of gift was also subsequently got registered on 2-8-1967.

2. ' On 15-4-1972, Muzaffar Khan, uncle of Muhammad Aslam Khan, brought a declaratory suit challenging the above gift by seeking a declaration that the gift was void, Illegal and did not affect the legal rights of the presumptive heirs including the plaintiff (Muzaffar Khan) and his brother Atai Khan and an injunction was sought against defendants Nos, 1 and 2 1. e. The sisters of Muhammad Aslam Khan from interfering with the disputed property on the basis of the aforesaid gift deed. The suit was based, inter alio, on the ground that, under the custom, Muhammad Aslam, Khan could not alienate the property by way of his gift to his sisters.

3. ' The suit of Muzaffar Khan was decreed by the Civil judge, Abbottabad, on 27-11-1975. However, on the appeal preferred against the said judgment and decree, the said judgment and decree was set aside by the District Judge and the appeal allowed vide his judgment, dated 23-2-1977. It was held that Muzaffar Khan had no locus standi to challenge the gift deed as he had failed to establish that he was a presumptive heir or that the property was ancestral. The appellant, thereupon filed a civil revision in the Peshawar High Court, Peshawar, to assail the appellate judgment.

4. ' In a very detailed and elaborate judgment, a learned Judge of the Peshawar High Court found no merit in the revision. He held that as Muhammad Aslam Khan inherited the property from Ali Mardan in 1923 to the exclusion of the other Muslim Law heirs he had acquired full ownership rights on account of their failure to challenge the inheritance within time and that their claim was not hit by limitation. In this connection, it was observed that since the property belonged to Ali Mardan, who died somewhere in 1923, a pit even though brought by any Muslim Law heir would not be within limitation as Muhammad Aslam Khan, after inheriting the property, had acquired full ownership rights therein, to the exclusion of other Muslim Law heirs. Furthermore, that the plaintiff had no locus standi in the matter. He was not a Muslim Law heir of Ali Mardan. The learned Judge explained that Muhammad Aslam Khan was not the exclusive heir, inasmuch as Muhammad Yaqoob Khan and his sister were also entitled to inheritance under the Muslim law, nevertheless even if his sisters had now brought the suit against htm, the same would be barred by time, since if they agitated their claim after 12 years of the death of Ali Mardan, they could not succeed because.

5. In that case Muhammad Aslam Khan shall be deemed to have acquired full title by prescription. It was further observed that the gift made by Muhammad Adam Khan in favour of his sisters was in a way in recognition of their right of inheritance and could be accepted as valid on that ground as well. It was, therefore, concluded that the plaintiff, as, such, did not have any cause of action in law, so far as the possession of the property was concerned. It was also observed that since Muzaffar Khan was still alive the suit for declaration of his title was also not competent because, under the Muslim Law, a remote heir cannot claim title in anticipation of succession to the property as a Muslim Law heir. The revision petition was, accordingly, dismissed.

6. ' Muzaffar Khan filed a petition for special leave to appeal in this Court contending that, as the property was inherited before the promulgation of Shariat \co, the earliest in time being the N.-W.

7. F. P. Muslim Personal. Law (Shariat) Application Act of 1935, which came into force on 6th December, 1935, he only enjoyed a limited interest therein being childless, according to the Customary Law of Hazara District. In this connection, he relied upon Mst. Khatun v. Malta , wherein it was held, while discussing sections Nos, 2 and 3 of the Punjab Muslim Law (Shariat) Application Act, 1951, that succession of an estate inherited under agricultural custom was to be resolved by customary rules and that the Shariat Acts neither enhanced nor diminished powers of alienation.

8. Of holder under custom. In that case, the land was inherited by a person from his father before coming into force of the Punjab Shariat Act of 1948 and it was held that the said person took the property as ancestral property under custom and as such continued to be governed by agricultural custom during his lifetime and that the powers of alienation of such a person were governed by custom and not by the Shariat Acts.

9. ' The rule laid down in this ruling was sought to be applied on the ground that Muhammad Aslam Khan had inherited the property from Ali Mardan in 1923 before coming into force of N.W. F. P.

10. Muslim Personal Law tShariat Application) Act of 1935. Reliance was also placed on the provisions of section 2 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 on the ground that as N -W. F. P. Muslim Personal Law (Shariat) Application Act, 1935 was, inter alia repealed by the ;962 Act, the ruling given by this Court, while interpreting the provisions of the said Act, in the case of Mst. Khatun v. Malta would now govern the situation. Leave was granted to consider these submissions.

11. ' We have heard Mr. M. Kowkab Iqbal, Advocate-on-Recerd who appeared on behalf of the appellant and Mr. Bast Ahmad Ansari, counsel for the respondents, in reply.

12. ' The High Court, in its judgment in regard to the rule laid down in Mst. Kly,tun v. Malta by this Court and some earlier decisions of the Punjab High Court, was of the view that these decisions were based on the' interpretation of the Punjab Muslim Personal Law (Shariat) Application Act, 1951. In the last-mentioned Act, section 5 specifically provided that except in so far as provided in section 3 thereof, the Act shall have no retrospective effect. The said Act applied to those cases where the death of the last male owner took place after the paining of the 1948 Act and .Unlike the 1935 N -W.

13. F. P. Act it did not extend to the cases where the death of the last full male owner had 'taken place prior to the passing of the said Act. In this comrection, reference was made to a Division Bench1 judgment of the Peshawar Bench of the West Pakistan High. Court viz. Sahib Jan v. Wall Dad , wherein their Lordships had traced the history of the application of Shariat Acts in the N.-W. F. P.

14. And had held, that the provisions of the 1935 Act were retrospective. We may here usefully reproduce the following passage from the said judgment :- "31. The Muslim Personal Law (Shariat) Application Act of 1935 came into force on the 6th of December, 1935. The trend of the early decisions was that the Act was retrospective in effect because it was a piece of adjective law. It said that whenever a question arises before a Court, with respect to succession to the estate of a deceased person, whether the death had taken place before or after the enactment of the Act, the rule of decision would be Muslim Personal .Law of the deceased. In early decisions this Act was admitted to be retrospective in effect.

32. Decisions containing a contrary view were also given by this court and the Act in some later decisions was.Held to be prospective in force and not retrospective in effect. As this created conflict of decisions on the retrospectivity of the Muslim Personal Law (Shariat) Application Act, 1935, an amendment was inserted in. Section 3 in 1950 by adding subsection (2) to it, and by this amendment retrospectivity was conferred upon the Act in clear language. It ran as follows :-

(2) Whenever a question relating to the succession upon the death of a Muslim arises in any Court, the rule of decision shall, whether such death has taken place before or after the commencement of this Act, be the Muslim Personal Law (Shariat).

15. That was interpreted to mean that whenever a question relating to succession to the estate of a deceased Muslim arose in a case, the deceased would be deemed to have died under the domain of Muhammadan Law, even if the death had taken place before the enforcement of the Act.

33. This retrospectivity was repeated by another amendment of 1953, for which there was perhaps no need, and which ran as follows (2) Whenever a question relating to the succession upon the death of a Muslim arises in any Court, the rule of decision shall be the Muslim Personal Law (Shariat) Act and where such death has taken place before the 6th December, 1935, the rule of decision shall be according to the Muslim Personal Law (Shariat) Act as if that Law had been applicable at. The time of such death.

34. The correct reading of the law now undoubtedly is that the Muslim Personal Law (Shariat)

16. Application Act of 1935 is retrospective in effect Whenever a dispute comes before a Court of Law with respect to succession to the estate of a deceased Muslim the deceased will be' deemed to have died under the domain of Muhammadan Law, even if the death had taken place at any time before the 6th of December, 1935. This view has support from PLD 1956 Pesh.

17. 115."

18. ' So far as 'the contention that by the enactment of the West Pakistan (Shariat) Application Act, 1962, the position had changed and that since the decision in the case of Mst. Khatun v. Malla referred to above, was given after the passing of the 1962 Act, that would hold the field and the interpretation of section 5 of the 1935 Act of N.-W. F. P. Shall have to be made in - accordance with the law laid down in that case, the learned Judge observed that, no doubt, the 1935 Act was repealed by the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. However, the rights which had accrued under the 1935 Act did not stand extinguished thereby. It was further observed that while the Puniab Muslim Personal Law (Shariat) Application Act, 1948, like the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, was not retrospective in effect, as far as section 2 of the said Act is concerned ; the situation in the N.-W. F. P. Was slightly different.

19. Muhammad Aslam Khan having acquired the property by inheritance under custom prior to the passing of 1935 Act was subject to the provisions of the 1935 Act of N.-W. F. P. When the same was passed. He remained so uptil the passing of the West Pakistan Muslim Personal Law (Shariat)

20. Application Act, 1962 and by that time his title to the disputed property had full matured. This Act not being retrospective in effect, as far as section 2 was concerned, did not give any fresh cause of2 action to any prospective heir of Ali Mardan from whom Muhammad Aslanl Khan inherited the property. Muhammad Aslam Khan, by the efflux of limitation became full owner of the property without any restriction, which the custom might have imposed and the law of limitation was now a complete bar for basing a claim even by the Muslim Law heirs of Ali Mardan, from Muhammad Aslam Khan had acquired the property under custom. The learned Judge again emphasised that even though Muhammad Aslam Khan had inherited the property under custom, he had become full owner of the property and if any Muslim Law heir of Ali Mardan wanted to claim the property he could do so only within 12 years from the date when Muhammad Aslam Khan entered into possession of the property. That not having been done by. Any of his Muslim Law heirs, the question relating to inheritance of the property held by Muhammad Aslam Khan, after the passing of the 1935 N.-W. F. P. Act, had to be determined in accordance with the Muslim Personal Law notwithstanding the passing of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. So far as the plaintiff was concerned he not being a Muslim Law heir of Ali Mardan had no cause of action to sue and even if he was an heir of All Mardan he could not do so as the claim was barred by time.

21. ' This somewhat lengthy recital of the background of the case reveals that the appellant is now relying mainly on the 1962 Act in support of his contention that the. Land in dispute having been inherited by Muhammad Aslam Khan under the Customary Law in 1923, the successive Shariat Acts passed since-then neither enhanced nor diminished powers of alienation of the holder of a property under custom who took the property as ancestral property under' custom and that, as such, he in matters of alienation, was continued to be governed by agricultural custom, during his lifetime. In other words, his powers of alienation were governed by custom and not by the Shariat Act.

22. ' This argument may have required further consideration and, in fact, leave to appeal was granted to consider this question but, in the meantime, ' the Act of 1962 has itself undergone an important change which has made this exercise unnecessary.

23. ' It will be recalled that the West Pakistan Muslith Personal Law (Shariat) Application Act, 1962, came into force on 31-12-1962. Although the provisions of this enactment greatly extended the scope of the application of Shariat Laws but it was held in successive cases arising from the Province of the Punjab that in all .Cases of succession, opening before 16-3-1948 the limitation of the Customary Law with respect to the alienation continued to operate. This interpretation was based on account of the language of section 2 of the 1962 Act, wherein it was provided :- "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". (Underlining is ours)".

24. ' 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, would not be governed by Muslim Law, notwithstanding the ,promulgation of the Act of 1962.

25. ' The case of Mst. Khatun v. Malla is representative of this point of view. However, with the introduction of the process of Islamisation of laws in the country, the validity 'of the custom allowing challenge by collaterals to alienation of property inherited under costom by a full owner was challenged by a Shariat Petition and this question came up for consideration before the Federal Shariat Court in Muhammad Ishaq v. Federation of Pakistan ( ) and the Federal Shariat Court held that the said custom was repugnant to the injunctions of Islam. Accordingly, it issued a direction to the effect that the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, should be amended accordingly. Briefly speaking the amendment, which was required, was that the words in section 2, underlined above, namely, the words to the effect that "subject to the provisions of any enactment for the time being in force", needed to be deleted.

26. ' The above decision of the Federal Shariat Court was challenged by the' Federation of Pakistan before this Court, but the said appeal too was dismissed by this Court in Federation of. Pakistan v.

27. Muhammad Ishaq and another and the direction of the Federal Shariat Court for making the above amendment in the law, was upheld. It was noted that the Federal Shariat Court had ordered this to be done by the 30th June, 1981, but since this direction was stayed by this Court pending the disposal of the appeal, it was accordingly ordered, after the dismissal of the appeal by this Court, that the necessary amendment should be carried out by the 30th June, 1983. The necessary amendment has, indeed, been carried out in the Punjab by promulgating the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983. But somehow, the N.-W.. F. P.

28. Government, in the belief that this was not necessary in their Province, presumably in view of the law laid down in Sahib Jan v. Wali Dad, has not carried it out. Anyhow, this does not affect the situation.

29. [Hire in italics] Under sub-clause (b) of sub-Article (3) of Article 203-D of the Constitui tion, it is provided as follows :- "203-D.-. .

(3) If any law or provision of law is held by the Court to be repugnant to the injunctions of Islam,- (a)

(b) such law or provisions shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect."

30. Thus, as soon as the decision of this Court took effect i. e. As from 30-6-1983, the words underlined in section 2 of the Act of 1962, namely, "subject to the provisions of any enactment from the time being in force" ceased to have 'effect. Consequently, even if it was found that after the promulgation of the West Pakistan Muslim Personal Law (Soariat) Application Act, 1962 and the repeal of the N.-W. F. P. Muslim Personal Law (Shariat Application, 1935, the present case fell to be decided on the basis of the interpretation placed on the provisions of section 2 of the aforesaid Act of 1902 by this Court in the case of Mst. Khatun v. Mulla, namely, that the Shariat Acts neither enhanced nor diminished the powers of alienation of a holder under custom and a. Person taking property as anestral property under custom continued to be governed by agricultural custom and his powers of alienation were limited, the position of Muhammad Asiam Khan would not now be affected even though he had succeeded to the property before the promulgation of the 1935 Act, when the customary law was in force because, after the above-mentioned change in the law, the appellant would not have any right to challenge the alienation made by Muhammad Astern Khan in favour of his sisters, as there is now no doubt left that the N.-W. F. P. Act of 1935 is to be given retrospective effect and that whenever a dispute comes before a Court of law with respect to 'succession to the estate of a deceased Muslim the deceased will be deemed to have died under the domain of Muslim Law, even if the death' bad taken place before the coming into force of the N.-W. F. P. Muslim Personal Law (Shariat) Application Act of 1935.

31. ' In the result, this appeal must fail. It is, accordingly, 'dismissed hereby, leaving the parties to bear their own costs.

32. [Were in italics] 1974 SCMR 341 PLD 1961 Pesh. 9 PLD 1981 F SC 2783 4 1 2 3