ZAHID And 6 Others vs MUHAMMAD AKRAM

1. Second appeal by the defendants arises out of a usual suit filed under custom for protection of reversionary interest in respect of sale of ancestral land by its owner.

2. The facts are few and the law is not complex. Zulfaqar owned 12 Kanals, 9 Marlas of land, in village Maman of Tehsil and District Jhang. He sold it to Murad Khan for a consideration of Rs.1,3W on 27- 12-1955. The sa?P was made by a registered deed. It was successfully pre-empted by Muhammad who obtained a decree for it on 8-5-1957. In execution of pre-emption decree, possession of the land was delivered to the decree-holder.

3. On 3-10-1966, Muhammad Akram son of the vendor brought a suit for possession of the land sold to Murad Khan. It was stated that the land in dispute was ancestral qua him and his father had sold it without any consideration and legal-necessity for it. He accused his father of loose morals and said that he lived a luxurious life and squandered the ancestral land. Initially, Murad Khan and successor-heirs of Muhammad were defendants in the suit. Murad also died find his heirs were substituted for him on record. Defendants resisted the suit. On 25-9-1968, the trial Court dismissed the suit, in view of its findings on issues Nos.6 and 7. They related to consideration and legal necessity for the sale and the factum of successors of the pre-emptor being the bona fide purchasers for value. In appeal filed by the plaintiff, decision of the trial Court was reversed by learned Additional District Judge, who found the consideration and legal necessity established to the extent of Rs.800 and, consequently, gave decree for possession of the land conditional on the deposit of the above amount by 15th February, 1970. In case, the amount was not deposited by the due date, the suit was ordered to stand dismissed with costs. Appellate judgment is dated 15-12- 1969. Thereupon, a second appeal was filed in this Court by successors of Murad Khan and Muhammad. It was admitted to hearing on 8-9-1970. Some of the appellants were reported dead.

4. Their dates of death were not available on record. It was not known, whether they died prior to enforcement of Law Reforms Ordinance, 1972, or after it. Malik Allah Yar Khan, Advocate, represented appellant No.6 . only. Respondent was represented at the hearing by Malik Talib Hussain Awan Advocate.

5. Learned counsel have been heard Upon insertion of section 2-A in Act V of 1962 by Punjab Ordinance XIII of 1983, whole scenario was altered and controversy in second appeal much narrowed down. In terms of aforesaid section 2-A, the alienor shall be deemed to be an absolute owner of the land as if it had fallen to him, under the Muslim Personal Law (Shariat). With the above transformation, inhibitions attaching to the alienation of the land under Custom evaporated altogether. Islamic Law knew of no restriction on inter--vivos transfer of the property by its owner, The decree passed by the appellate Court was rendered void, inexecutable, and, of no legal effect to the extent it was contrary to Muslim Personal Law (Shariat) Act and the suit shall be deemed to have abated forthwith. It was common ground that the dispute in second appeal was not a transaction past and closed and possession of the land-in-dispute still lay with the successors of pre-emptor decree-holder. Upon this view of the matter, second appeal deserved to be allowed.

6. Therefore, I would accept the appeal; set aside the impugned judgment and decree of the appellate Court and declare the suit giving rise to the second appeal to have abated forthwith. As the wit abated by force of Statute, there shall be no order as to costs in this Court.

7. Records be returned.