ISMAIL and anothers vs GHULAM QADIR and others

1. ' MUHAMMAD AFZAL ZULLAH, CJ.--This appeal through leave of the Court in a case which essentially is one of inheritance, is directed against the judgment, dated 17-12-1975 of the Lahore High Court; whereby the appellants/defendants' Regular Second Appeal was dismissed. In order to {{TABLE }} Gohar Boora Jawaya Dauloo 1 Hayat Muhammad I I Ilam Din Ismail ;defendant (defendant No, 2) No, 1)

2. Fateh Muhammad Karam Elahi (issueless)

3. Nawahi Dad Mst. Hussainan widow Allah Bakhsh Rasul Bux i I I I I I Muhammal Alam Nazir Hussain Lal Din Ghulam Haider Allah Dad Ghulam plaintiff plaintiff plaintiff plaintiff plaintiff Qadir No, 6 No, 5 No, 4 No, 3 No, 2 plaintiff No, 1 {{TABLE }} ' Nawahi Dad son of Dauloo, it is stated, died issueless much before partition. Mst. Hussainan his widow became limited owner of the property left by Nawahi Dad. She made disputed gift in favour of the appellants/defendants who are sons of Boora paternal cousin of Nawahi Dad. The plaintiffs/respondents who are the sons of another paternal cousin of Nawahi Dad filed suit seeking their share as reversionaries of Nawahi Dad. Their suit was dismissed but they succeeded in obtaining 3/5th share of the property in appeal. The appellants' second appeal having been dismissed they were granted leave to appeal to examine the following points:--

(i) Whether it was Muslim Personal Law or Customary Law that governed the matter, in the facts and circumstances of the case;

(ii) Whether the suit of plaintiff-respondents was within time, and

(iii) Whether the circumstance that Jawaya was adopted by Jumma affected the situation in any way?

4. ' Learned counsel for the appellants has raised two points. One, that the parties were governed by Custom and as Jawaya the grand-father of the respondent/plaintiffs was adopted as son by his uncle Jumma and he obtained property in the inheritance of Jumma therefore he would not be entitled to seek any share from the property of Nawahi Dad. That being so his grand-sons; namely, the plaintiffs in this case would also suffer dis-inheritance from Nawahi Dad.

5. ' The learned Judge in the High Court noticed and repelled this argument with the reason that it is not the inheritance of Zulfa, the father of Jawaya, which could have been affected in case of application of the Customary law. Instead it was the inheritance of Nawahi Dad an uncle of the respondents/plaintiffs.

6. ' Be that as it may, the position now is different. As a result of the declaration by the Shariat Appellate Bench of this Court in connection with the repugnancy of the Customary Laws to Islamic injunctions, West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983 was promulgated. The amended law was interpreted in Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407 as having strong retrospective effect. Section 2-A of the said Ordinance 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 or 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 df such land, as if such land had devolved on him under the Muslim Personal Law (Shariat);

(b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act;

(c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith; ' Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees".

7. As is clear from the purview of the above reproduced provision, Nawahi Dad shall be deemed to have become absolute owner of the land which he inherited from his father Dauloo as if the said land had devolved on him under the Muslim Personal Law (Shariat). Accordingly his widow Mst.

8. Husainan being only a limited owner could not have alienated by way of gift the property beyond her share under the Islamic Law of inheritance as a widow. Out of excess area gifted by her the plaintiffs/respondents being the heirs of Nawahi Dad under Muslim Law as residuaries have rightly been given their due share. That being so this appeal merits to be dismissed on this ground.

9. ' Learned counsel for the appellants, however, also reiterated the point of limitation. In view of the above stated changed position, vis-a-vis, the promulgation of Muslim Law of inheritance, Mst.

10. Hussainan shall be deemed to have held the property as custodian and co-sharer on behalf of all the other heirs who were entitled under the Muslim Law to inherit the property of Nawahi Dad at the time of his death. As held in the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, the property devolved instantaneously on the heirs and thus the suit of the respondents as held in the said judgment would have to be treated as within limitation. This is an additional ground for overruling the objection regarding limitation though the learned Judge in the High Court gave different valid reasons for coming to the conclusion that the suit in this case was not time- barred.

11. ' In the light of what has been stated above there is no force in this appeal. The same is accordingly dismissed. There shall be no order as to costs.