Updated: Friday April 11, 2014/AlJumaa
Jamada El Thaniah 11, 1435/Sukravara
Chaitra 21, 1936, at 06:47:15 AM
[1][1]The
Punjab/Sind/N.W.F.P./Baluchistan Muslim Personal Law (Shariat) Application Act,
1962
(V of 1962)
An Act to consolidate and amend the provisions
for the application of Muslim Personal Law (Shariat)
in the Province of Punjab/Sind/N.W.F.P./Baluchistan.
Preamble.
Whereas it is expedient to consolidate and amend the provisions for the
application of Muslim Personal Law (Shariat) in the Province of
Punjab/Sind/N.W.F.P./Baluchistan.
It is hereby enacted as follows:---
Preamble. Limited estate acquired by issueless widow under custom. Termination. Limited estates in respect of immovable property acquired by Muslim females under custom stood terminated with effect from 31.12.1962. Special tenancy of limited character in favour of widow. 1993 C L C 2058
Inheritance. Leave to appeal granted to examine whether-by virtue of Punjab Shariat Application Act (V of 1962) as amended by Ordinance (III of 1983) on death of predecessor-in-interest of the petitioner his estate would not be distributed in accordance with Muslim Law of Inheritance; and, what is the effect of respondent's adoption as a son by him in 1936; and further, as to what would be the effect of previous decree. 1989 SCMR 96
Legislative and historical background traced with reference to other relevant laws on the subject. P L D 1985 S.C. 407
Custom (Punjab)--Leave to appeal granted to consider questions (i) as to what was the effect of a matured adverse possession against a widow who under the custom, on the death of her husband, was entitled only to a life estate, but certain persons occupied that land adverse to her aforesaid life or limited estate; (ii) if by adverse possession the reversioner would acquire only that life interest /estate, which the widow had or could have had, then after the death of the widow or termination of all life estates under law, would West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. apply to the aforesaid adversely occupied estate; (iii) it was generally stated that a female limited owner does not represent the estate for the purpose of limitation, and that adverse possession against the female does not affect reversioners right to recover possession within 12 years of the death of the female under S.141, Limitation Act, 1908 as laid down in AIR 1929 PC 166, it needs examination as to what was the effect of the law on the point otherwise; and (iv) whether in the facts and circumstances of the case, was the possession of the defendants/ respondents really adverse as found by the High Court. 1988 S C M R 1696
The Transfer of Property Act, 1882 did not apply to Province of Punjab, the transfer or surrender of reversionary rights were valid under custom; (ii) that if the provisions of Act V of 1962 are read alongwith those of Act, 1948, the position that emerges was that a limited estate, held, by Muslim female under custom having been terminated, widow and two daughters of deceased owner became vested with the ownership of property according to the share under Shariat Law and therefore, the relinquishment of their interests in favour of the appellant was valid. 1987 S C M R 1029
1. Short title and extent.— (1) This Act may be called the West Pakistan Muslim Personal Law
(Shariat) Application Act, 1962.
(2) It extends to the whole of [2][2][
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 case where the parties are Muslims.
Limited estate under Colonization of Government Lands (
Limited estate under Colonization of Government Lands (
PLD
1983 SC 273 rel.
Interim
injunction, grant of. Vendor of the suit
land was widow of the deceased and being a limited owner in the estate
transferred the suit property in favour of the petitioners/plaintiffs. Both the
Courts below declined to grant interim injunction to the
petitioners/plaintiffs. Validity. Limited estate of the vendor stood
terminated on 31.12.1962 by virtue of West Pakistan Muslim Personal Law
(Shariat) Application Act, 1962. By operation of law, the vendor ceased to be a
limited owner as her estate stood terminated. Initial alienation made by the
vendor beyond her share in the estate of the deceased was void.
Respondents/defendants did not contest the prima facie claim of the
petitioners/plaintiffs to the extent of the vendor's share in the suit land.
Interim injunction was granted to the extent of the share of the vendor in the
estate, accordingly. 2000 Y L R 635
Entitlement to inherit estate of last male owner who died
issueless in 1918--Plaintiffs' predecessors-in-interest were alive at the time
of the death of deceased last male owner while rival claimants (petitioners)
predecessors-in-interest had died before the death of last male owner---All the
Courts below including the High Court had concurrently found that plaintiff's
predecessors-in-interest were not only reversioners of deceased (last male
owner) but the only collaterals in equal degree to last male owner and they
alone were alive at that time when he died---Remand of case by Appellate Court
was only to determine collaterals of last male owner---Trial Court in post
remand proceedings had found that predecessors-in-interest of plaintiffs were
alive at the death of last male owner while predecessors-in-interest of
petitioners were dead before his death---Finding of fact recorded by Trial
Court in post-remand proceedings was confirmed by Appellate Court as also by
High Court---Concurrent findings of Courts below in absence of any evidence to
the contrary, would not warrant interference in impugned judgment of High
Court---Leave to appeal was refused in circumstances. 1999SCMR78
1992 SCMR 1721 and 1996 SCMR 158 ref. (in C.P. No. 550-L
of 1997) (in C.P. No. 701-L of 1997). (in C.P. No. 701-L of 1997).
Maintainability of Suit:- Concurrent findings of Courts below. Plaintiffs resporutents were
deprived of their share in the property by applying customary law, in
derogation of the Muslim Personal Law. Plaintiffs/respondents filed suit for
declaration and the same was decreed by the Trial Court. Appeal filed by the
defendants/petitioners was dismissed by lower Appellate Court. Validity. Where
it was admitted in the written statement of the defendants/petitioners that the
property had devolved upon the plaintiffs/respondents under the customary law
as limited owners and after their marriages the same devolved upon the
defendants/petitioners such a stand which was inconsistent and contradictory to
the pleadings could not be taken by the defendants/petitioners. Concurrent
findings of both the Courts below did not suffer from any factual or legal
error or infirmity and as such there was no justification to interfere with
such findings. Revision was dismissed accordingly. 1999 Y L R 1257 PLD
1991 SC 71 ref.
Leave to appeal was granted to examine whether
respondents' predecessor-in-interest had been holding her property in India in
no other capacity except as limited owner and whether her heirs would get only
1/4th share of property allotted to her and whether remaining 3/4th share of
same would go to appellants who were legal heirs of brother of husband of such
alleged limited owner. 1996 S C M R 1393
Termination of limited estate held by widow of deceased land owner. Petitioners claiming
to be collaterals of deceased landowner claiming their share in property in
question. Pedigree-table on record did not show that petitioners were
collaterals of deceased land owner in third degree as claimed by them. High
Court did not interfere with concurrent findings of subordinate Courts on
alleged relationship of parties. Judgments in previous litigation between widow
of deceased landowner and father of petitioners did not show that petitioners
or their father was collateral of deceased land owner. Judgments in previous
litigation would not detract from concurrent findings of Courts below on the
question in controversy. Interference was thus, not warranted in the judgment
rendered by the High Court in circumstances. 1995 SCMR 341, P
L D 1991 S.C.1096.
Life estate of widow.
Widow was not entitled to alienate such property. On termination of limited
estate by West Pakistan Muslim Personal Law (Shariat). Application Act, 1962,
succession to property of last full owner opened and same was legally to be
divided among
High Court did not deal with those points which were left by
Trial Court to be dealt with by the High Court in appeal because in an earlier
revisional order it had already been held that those points might be dealt with
and decided by the Appellate Court. Leave to appeal was granted not only to examine
those points but also to examine whether, in the facts and circumstances of
case, deceased would be deemed to have freely executed those documents relied
upon from respondents' side and he was not under any coercion of general or
particular nature; which would also include examination of the condition in the
background of the case and the circumstances in which he was made to live
particularly at a meager "Guzara" of Rs. 80 could at all be treated
as free agent and could the documents concerned be treated as the result of his
own volition; whether alienation in question, was Tamleek/gift, a
relinquishment/surrender or any other form of transfer; in that context
judgment rendered by Supreme Court in Ghulam Ali's case (PLD 1990 SC 1) might
be attracted as also judgment in Abdul Ghafoor's case (PLD 1985 SC 407) might
also be attracted in order to examine; whether notwithstanding the then
prevailing customary law of inheritance, Punjab Muslim Personal Law (Shariat)
Act (Amendment) Ordinance, 1983, which had been held to be retrospective, the
property of the deceased could be dealt with and transferred only in accordance
with the Muslim Law of alienation. Question regarding gift in favour of
plaintiff's side by defendants (donors) of one house, would require further
examination with a view to see; whether there was acceptance thereafter. Amongst
others a major question would also be examined; whether on admitted facts with
regard to collection of rents by the owner for long time, alienation in
question, if it was a gift by him, was with the transfer of possession; if it
was not transferred despite being capable of being transferred what was the
effect on the present litigation. Many other similar questions would also
require examination. Leave to appeal was granted in circumstances. 1994 S C
M R 430 PLD 1990 SC 1 and PLD 1985 SC 407 rel.
Words "subject to the provisions of any enactment for
the time being in force" occurring in
S.2, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, were
declared to be repugnant to the injunctions of Islam by the Supreme Court in
cases reported as Federation of Pakistan v. Muhammad Ishaque and Another PLD
1983 SC 273 and Muzaffar Khan v. Mst. Roshan Jan and another PLD 1984 SC 394 .
Decision of Supreme Court having taken effect from 30.6.1983, words in S.2
viz., "subject to the provisions of any enactment for the time being in
force" ceased to have effect from that date and were no more part of S.2
of the Act V of 1962. P L D 1993 Lah. 549
PLD 1981 FSC 278; PLD 1983 SC 273 and PLD 1984 SC 394
rel.
Custody of minor children. Rule of decision in questions regarding guardianship and minority.
Effect of deletion of words "subject to the provisions of any enactment
for the time being in force" from S.2, West Pakistan Muslim Personal Law
(Shariat) Application Act, 1962, by the judgments of Supreme Court reported as
PLD 1983 SC 273 and PLD 1984 SC 394, is that in all questions enumerated in
that section, including questions regarding guardianship and minority, the rule
of decision now is the Islamic Law. Minority of a male or female under
Muhammadan Law would terminate when he or she had attained puberty. Puberty
among Hanafi or Shias is presumed on the completion of 15 years.
Petitioner having attained age of 16.1/2 years was
neither a ward nor a minor within meaning of S.25, Guardians and Wards Act, 1890,
therefore, Guardian Judge had no jurisdiction under that section to cause the
arrest of petitioner for being delivered into the custody of her father against
her wish . Order of
Arrest .of petitioner for being delivered to the custody
of her father was thus, without lawful authority and of no legal effect. P L
D 1993 Lah. 549
Relevant provisions of Act V of 1962 and Ordinance VIII of
1961 have to be read together and rule of
interpretation for harmonizing statutory provision is to be applied. Last male
owner dying in 1947. Life estate of widow of deceased terminating in 1962.
Persons entitled to inherit on termination of life estate of widow by operation
of law vide S.3, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.
On death of last male owner his sister and widow were alive; while his brother
and his daughter had predeceased him. Claimants for inheritance were appellant
i.e. son of predeceased brother and children of predeceased daughter. While
enforcing S.5, West Pakistan Muslim Personal Law (Shariat) Application Act,
1962, for the purpose of devolution of estate of last full owner Muslim Family
Laws Ordinance 1961, had to be applied. Section 4, Muslim Family Laws Ordinance
1961, allows inheritance to children of predeceased son or daughter to the
extent that the son or daughter would have got. On termination of life estate,
children of predeceased daughter of last full owner, would inherit the share
which their mother would have got as if she were alive at the time of opening
of succession i.e. on the demise of last full owner. Last full owner would
thus, be succeeded by his heirs, the widow, sister and predeceased daughter's
children. Appellant, the predeceased brother's son would not inherit. Distribution
of shares amongst heirs, assigned by High Court having not been assailed in
appeal, no interference therein was called for. 1992 S C M R 82
P L D 1980 Pesh. 47; P L D 1981 SC 120; P L D 1968 Kar.
480; 1980 C L C 1006; P L D 1969 BJ 5; P L D 1985 SC 407; 1990 S C M R 1667; P
L D 1991 SC 582; P L D 1989 Journal 49 and P L D 1990 SC 1051 ref. P L D 1981
SC 120 rel.
Principle of "per stripes" in S. 4---Connotation---Section 4, Muslim Family Laws Ordinance has been enacted
to cater the needs of grandchildren and to remove their sufferings but it
cannot be interpreted so as to decrease the shares of the other
descendants---Section 4 of the Muslim Family Laws Ordinance, 1961 in spite of
non obstinate clause, has to be interpreted in the light of S. 2, Muslim
Personal Law (Shariat) Application Act, 1962 and both the statutes can stand
together.
The phrase "per stripes" means: By roots or
stocks; by representation. This term, derived from the civil law, is much used
in the law of descents and distribution, and denotes that method of dividing an
intestate estate where a class or group of distributes take the share which
their deceased ancestor would have been entitled to, taking thus by their right
of representing such ancestor, and not as too many individuals. It is the anti-thesis
of per capita.
It
means that the distribution has to be made to a group of share-holders taking
the share of their ascendants.
Per stripes referred to in section 4 is the anti-thesis
of per capita. This means a share according to the stock or the root or the
family as against per capita which means share per head. This assumes greater
importance only where the propositus leaves behind a number of grandchildren
whose parents died during the lifetime of the propositus. The principle of
succession in such cases will not be inheritance per capita but per stripes
i.e. in accordance with the root or stock to which the grandchild belongs and
will only get the share to which the grand-child is entitled through his
parent. In the event of there being a single surviving grandchild the principle
of per stripes is pushed to the background but cannot be employed to support a
principle which militates against the Islamic Law of inheritance.
On the opening of succession each group of children of
the deceased sons/daughters would inherit the share of their father/mother and
each individual would not get the share in his/her individual capacity. Section
4 has been added to cater the needs of grandchildren and to remove their
sufferings but it cannot be interpreted so as to decrease the share of the
other descendants. According to section 4, share from the deceased
grandfather's property has been bestowed upon the children of his predeceased
son but this does not mean that the other heirs of the deceased would be excluded
from their share of inheritance. Under section 2 of the Muslim Personal Law
(Shariat) Application Act, 1962, the rule of decision shall be the Muslim
Personal Law (Shariat) in cases where parties are Muslim. In spite of the
non-obstinate clause section 4 is to be interpreted in the light of section 2
of the Act, 1962. Both thus can stand together. P L D 1990 S.C.1051
Suits for the annulment of alienations based on customary
law, at whatever stage, stood abated on the enforcement of Ordinance XIII of 1983,
if certain conditions were fulfilled---Where suit was remanded to Trial Court,
and remand order, as a result of dismissal of appellant's second appeal by High
Court, held field, appeal before Supreme Court would not be competent per force
the amending Ordinance XIII of 1983. 1990 S C M R 1256
P L
D 1965 SC 651 ref. P L D 1983 S C 273 and P L D 1985 S C 407 rel.
Promise of marriage (Mangni) which is quite different from actual marriage, has no
legal effect under Muslim Law. To arrange a `Mangni' before entering into
marriage is not a legal requirement. 1990 M L D 792
Presumption
Every Muslim is presumed to be governed by rule of
Shariat law unless it was proved that he was governed by custom. Nothing on
record showed that predecessor-in-interest of parties was governed by custom.
Courts below rightly concluded that parties were governed by Shariat law. 1989
M L D 4999
Sale of agricultural land-Subsequently minor sons of vendor instituting suit through their
mother seeking declaration that sale after the demise of vendor would not
affect their reversionary rights as it was illegal and of no effect-Suit
dismissed as incompetent because no declaratory relief could be had in custom
in view of Act (V of 1962) and because plaintiffs respondents had no locus standi to file the suit--High
Court, on appeal, remanded case for deciding suit on merits--Order impugned-Suit
being incompetent under S.2-A of Ordinance (XIII of 1983), order of High Court
allowing appeal and remanding case for trial on merits, held, was against the
provisions of law and was thus set aside. 1988 S C M R 1320
P L D 1984 S C 394 and P L D 1985 S C 407 rel.
Custom (
Declaratory decree under Custom. Effect of, after amendment of Act V of 1962.
Declaratory decree under Custom, could not, by its terms even purport to create
title in any one in the alienated land. Such decree merely saved rights of
inheritance from effect of alienation when it opened out. Person obtaining such
decree, held, could not claim any right on basis of that decree which had been
declared void and of no effect by provisions of Ordinance X111 of 1983. Such
person could have a conceivable right thereafter upon such decree. 1988 C L
C 18
Execution of pre-emption decree .Decree under Custom set up in defence. Objection petition
rejected by Trial Court. Appellate Court dismissing appeal on procedural
misconception. Competency of revision against dismissal of such appeal. Where
petitioner did not have even a semblance of right of any' kind involved in
pre-emption decree sued out by respondent, he would have held, no right to
approach High Court for exercise of revisional jurisdiction. Revisional
jurisdiction could not be exercised either on a matter of mere course or upon
discovery of any error or illegality and not even where such an error or
illegality be referable to exercise of jurisdiction by lower Court. 1988 C L
C 18
P L D 1954 Lah.
575 rel.
Competency of witness charged of criminal offence. Mere pendency of criminal case against marginal witness of document embodying will in dispute, held, was not a cogent reason for rejecting testimony of such witness particularly when such witness admittedly was later on acquitted in said case. Evidence of marginal witness of document of will in dispute could not be discarded simply because such witness was closely related to maker of will. 1987 C L C 745
[3][3][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 Punajb 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) 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.]
Legal Amendments
1. S.2A Inst by West Pakistan
Muslim personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983).
Section 2.A [as amended for
1991 SCMR 515; 1983 SCMR 80; 1988 SCMR 293; 1992 SCMR 82
and PLD 1987 Lah. 654 ref.
Plaintiffs being daughters were excluded from the mutation
of inheritance in the property left by deceased father of the parties. Both the
Courts below, concurrently decreed the suit in favour of the plaintiffs.
Contention of the defendant was that the provisions of S.2.A of the West
Pakistan Muslim Personal Law (Shariat) Application Act, 1962, were not
applicable retrospectively.Validity.Where the predecessor.in.interest of the
parties was Muslim, upon his death, he was governed by Muslim Rule of
Succession, notwithstanding that it occurred before 15.3.1948.Defendants even
failed to prove the existence of any custom whereby the female heirs
(plaintiffs) had been excluded from inheritance. Estate of the
predecessor-in-interest of the parties devolved upon all his legal heirs
including the plaintiffs. Concurrent findings of both the Courts on facts as
well as on law did not suffer from any infirmity. Revision was dismissed in
circumstances.
2002 C L C 733
PLD 1975 SC 325; AIR 1939 Lah. 53; PLD. 1995 SC 686; AIR 1939 Lah. 105; and
1993 CLC 625 ref.
Competency
of customary land-holder to make gift—Court below holding concurrently that
gift made by customary land-holder to appellant was under undue influence and
its possession which was an essential ingredient of a valid gift was not
delivered to donee and that donor being last male holder of property could not
at all make any gift because he was governed by custom. Appellant unable to
make out a case to come to a finding different from one arrived by Courts
below. Gift was declared invalid and of no legal effect and suit property
ordered to devolve upon heirs of donor under Muhammadan Law. 1988 S C M R
1238
Points noted for consideration in orders granting leave to appeal-Notwithstanding points noted for consideration in orders granting leave to appeal in each case, Supreme Court, in the interest of justice decided that such points shall have to be decided on due consideration of general impact and effect in each case of a recent legislation of great public importance-Leave granting orders were, therefore, ordered to have been modified and scope enlarged accordingly.
P L D 1985 S.C. 407
Legislative and historical background traced with reference to other relevant laws on the subject. P L D 1985 S. C.407 P L D 1976 Lah. 930 and P L D 1984 S C 394 ref.
Implications
of S. 2-A exhaustively stated In P L D 1985 S.C.407
P L D 1956 S C (Pak) 227; P L D 1956 S C (Pak) 321 ; P L D 1959 S C (Pak.) 356
; P L D 1961 S C 468 ; P L D 1962 S C 42 ; P L D 1964 S C 220 ; P L D 1966 S C
349 ; P L D 1967 S C 200 ; P L D 1971 S C 334 ; P L D 1973 S C 304 ; 1974 S C M
R 341 ; P L D 1974 S C 124 ;; P L D 1974 S C 207 ; 1975 S C M R 487; P L D 1977
S C 144 ; P L D 1980 S C 76 ; P L D 1581 S C 120 ; P L D 1981 F S C 2 7 8; P L
D 1983 S C 273 ; A I R 1941 Lah. 22; P L D 1952
Succession-Owner
who as a “male heir” had inherited agricultural land before 15-3-1948 under
custom shall be deemed to have inherited such land under Muslim Shariat Law and
was thus absolute owner enjoying full power over it-No restriction as
visualised by custom would annul alienation of such property by such person-All
suits and “other proceedings” of the nature visualised in S. 2-A (b) shall
abate forthwith-Expression “other proceedings” would also include appeals,
wherever pending-Mere fact that appeal by virtue of jurisdiction conferred by
Constitution was pending in Supreme Court, would not make any
difference-Supreme Court in exercise of appellate jurisdiction conferred by
Constitution decides case in accordance with relevant substantive laws provided
such .laws were valid laws-Appeal dismissed on merits and as also having
abated. P L D 1985 S. C.407
Person having
inherited agricultural land under custom before 15-3-1948 to be deemed to have
inherited such land under Muslim (Shariat) Law and was, therefore, its full
owner-Widow of such male owner gifted half portion of said land to her two out
of four daughters in 1953 and died soon after making said gift-Transaction was
past and closed only when possession of land was already .delivered under
decree-Remaining land, if not distributed-under any decree for purpose of
determination of due shares, could be treated as available in its entirety for
distribution of total share of other two daughters of widow in entire land
Remaining land, therefore, would be available to satisfy claim of other two
daughters as Shariat Law heirs of father as also of their mother’s share under
Muslim Shariat Law for father’s property Daughters who had already obtained
half of land, would not again obtain their share from land in dispute in
circumstances. P L D 1985 S.C.407
Last full male
owner who had inherited property under custom before 15-3-1948 died before that
date--Such male owner to be deemed to have inherited property under Muslim
Shariat Law-Half of his land which was mutated initially in favour of his widow
on her death (after 15-3-1948) came to daughters of widow while other half was
given to his son from another predeceased wife-Widow holding customary life
estate, or her death, succession qua that land should have opened in accordance
with Act TX of 1948 and also be governed by S. 2-A of Act, 1962-Daughters,
therefore, would inherit property left by their father in accordance with
Muslim Shariat Law and same would apply to share of their mother (as her being
a Muslim Law heir of her husband)-Sons (of male owner) having already been
given 1/2 of entire land left by father, remaining ½ being with daughters would
be utilized for distribution of their shares in entire land as Muslim heirs. P
L D 1985 S. C. 407
Appellant a vendee from a person who had inherited land in dispute before 15-3-1948 under custom-Vendor in view of S. 2-A of Act 1962 to be treated as absolute owner and deemed to have inherited under Muslim Shariat Law-Decree in favour of respondent whereby alienation by vendor was set aside (conditionally) was, by operation of statutory bar, not executable as said sale could not be set aside.
P L D 1985 S.C.407
Sale of
agricultural land-- Declaratory suit--Competency of--Sale of agricultural
land-*Subsequently minor sons of vendor instituting suit through their mother
seeking declaration that sale after the demise of vendor would not affect their
reversionary rights as it was illegal and of no effect-*Suit dismissed as
incompetent because no declaratory relief could be had in custom in view of Act
(V of 1962) and because plaintiffs *respondents had no locus standi to file the
suit--High Court, on appeal, remanded case for deciding suit on merits--Order
impugned-*Suit being incompetent under S.2-A of Ordinance (XIII of 1983), order
of High Court allowing appeal and remanding case for trial on merits, held, was
against the provisions of law and was thus set aside. 1988 S C M R 1320
P L D 1984 S C 394 and P L D 1985 S C 407 rel.
‘M’ dying prior to 1948, his widow, daughter and sister inheriting property
left by deceased Collaterals challenged distribution of inheritance by filing a
suit which was decreed in their favour--In appeal it was held, that in view of
custom of parties, daughter was better entitled to -inherit--In second appeal,
High Court taking view that ‘M’ having died prior to enforcement of Act (IX of
1948) when still custom was applicable, he shall be deemed to have had acquired
land from his own father under Muslim Personal Law (Shariat) Application Act
and, therefore, his inheritance would be governed by same law--Decision
impugned--View that Act had retrospective effect being not open to
interference, judgment thus was unexceptionable-Petition for leave to appeal
dismissed.
1986 S C M R
1539(2)
P L D 1985 S C 407 ref.
Last male owner would be deemed to be governed by Muslim
Shariat Law and upon his death, his property would devolve upon his legal
heirs. 2001 Y L R 2174
1988 SCMR 293; PLD 1985 SC 407 1990 SCMR 1667 and 1992 SCMR
1773 ref.
Object behind addition and effect of S.2.A. Clear object behind this enactment by the Punjab
legislature was merely to give effect to the decision of Shariat Appellate
Bench Supreme Court of Pakistan, in case of the Federation of Pakistan through
Secretary, Law & Parliamentary Affairs, Islamabad v. Muhammad Ishaque and
another P L D 1983 S C 273 which had held that restrictions upon powers of
alienation of an owner of land under customary law were contrary to Islamic
injunctions and were unenforceable. To achieve this purpose, the legislature
resorted to creating a legal fiction of law. That it could do so was
unquestionable. A fiction, they say, is a favorite device of the legislature to
achieve the object of statute. Even though, one thing is not the same thing as
another, the legislature for effectuating its will and purpose might create a
fiction that the former shall be deemed to be the latter. In such a case, it
shall not be open to the Court to contradict the fiction, for to do so would be
to defeat the purpose for which the legal fiction was created. Therefore,
though upon inheritance, a male heir had acquired agricultural land under
custom with its concomitant restrictive powers of disposition, yet he
"shall be deemed" to have become its "absolute owner" and
this he was made by relating his acquisition to have taken place under Islamic
Law (Shariat) which, on its part, did not place any fetters on powers of
alienation. By insertion of section 2.A, in Act V of 1962, acquisition by a
male heir having taken place under custom which then governed the succession
was by a deeming provision of law shown to have devolved under Islamic law and
the inheritor made its absolute owner. This result was achieved by a fiction of
law.
The succession to such an "absolute owner" on his
death shall not be instantaneously governed by Islamic law of inheritance.
Holding otherwise would be fraught with manifold complications likely to
unsettle vested rights in the property. For example, as in a case, upon death
of who died without a male issue, his daughter succeeded his land under custom
as preferred heir to the exclusion of his collaterals. Upon this eventuality,
she was clothed with absolute ownership rights in the land not liable to
forfeiture upon her marriage. Since she did not take the land as limited estate
holder, neither provisions in West Punjab Muslim Personal Law (Shariat)
Application Act IX of 1948 nor Act V of 1962 were attracted to her estate.
Therefore, mutation of inheritance dated 13.2.1928 sanctioned in her favour
could 'not be undone to denude her of full ownership rights in the land for
reducing her entitlement to a moiety only. It was a past and closed
transaction, so far as her succession to her father's land was concerned.
1990 M L D 1598
P L D 1983 S C 273; P Ii.D 1985 S C 407; 1988 S C M R 293
and 1989 S C M R 755 ref.
Inheritance. Original
owner of suit land having died, son of deceased showing himself to be the sole
heir of deceased, got inheritance mutation sanctioned in his name in respect of
entire land of deceased, depriving his sister, who was also entitled to one.
third share of land of deceased being his daughter. Plaintiff in her suit had
claimed that she being daughter of deceased was entitled to one. third share
and defendant being son of deceased was entitled to 2/3rd share of land of
deceased and that mutation where-under entire land of deceased was given to
defendant showing him to be sole heir of deceased, was illegal, void and
ineffective as plaintiff was entitled to 1 /3rd share of land. Suit was
dismissed by Trial Court, but in appeal findings of Trial Court were reversed
and suit of plaintiff was' decreed. Defendant challenging order in revision had
claimed that under (a) of S.2.A, West Pakistan Muslim Personal Law (Shariat) Application
Act, 1962, he being male had acquired entire land of deceased under custom as
absolute owner and such right was not available to a female and that plaintiff
who was female could not claim any share from land of . Deceased. Validity. No
difference existed between male and female as far as inheritance of a Muslim
deceased prior to 15.3.1948 was concerned in view of legal position that last
full owner having acquired agricultural land under custom from a Muslim prior
to 15.3.1948, would be deemed to have inherited under Muslim Personal Law and
his heirs after his death would inherit in accordance with Muslim Law whether
they s were male or female heirs. Plaintiff being daughter of deceased, was
entitled to 1/3rd share of deceased. Appellate Court below in circumstances,
had rightly decreed suit of plaintiff. Findings of Appellate Court based on
fact and law not suffering from any legal infirmity, would not call for
interference. 2000 C L C 1943
Inheritance. Depriving
one of legal heirs from the estate of their deceased predecessor. Widow of the
deceased acting as a limited owner in the estate alienated the same to one
daughter and the other daughter vii the plaintiff was excluded. Mutation of
gift in favour of one daughter was assailed in civil suit. Trial Court
dismissed the suit whereas appeal filed by the plaintiff was allowed by the
Lower Appellate Court and the suit was decreed. Validity. Rule of limited owner
came to an end with the enforcement of West Pakistan Muslim Personal Law
(Shariat) Application Act, 1962, and thus, disposition of the suit land by the
widow to the deprivation of successors of other daughters of the deceased could
not be made. Mutation of gift to the extent of share of the plaintiff was
illegal and inoperative qua her rights in the property. Where the approach of
the Lower Appellate Court in the matter was consistent with the factual and
legal position, High Court refused to interfere with the same. 2000 Y L R
1971
Gift in favour of females. Limited estate acquired under
custom. Inheritance of such property. Extent and validity. Widows or the limited owners were considered to be the
full owners upon the termination of such limited estate; last male holder was
considered to be complete owner and the gift made by such owner even under
custom would be deemed to be perfectly valid under West Pakistan Muslim
Personal Law (Shariat) Application Act, 1962 as the same would be applicable by
virtue of the amending Ordinance of 1983. Gift in favour of females holding
limited estate were, to be valid which would consequently vest them with
absolute ownership and the heirs of such females would be entitled to inherit
such property after their death. 1999 Y L R 27 1986 M LD 1031 rel.
Concurrent findings of two Courts below. Question of applicability of Shariat according to
provisions of S.2A of West Pakistan Muslim Personal Laws (Shariat) Application
Act, 1962 [as amended] had been decided twice by the Trial Court and was
maintained by
PLD 1981 FSC 278 PLD 1983 SC 273 and PLD 1991 SC 71 ref.
Muhammadan law:--
Custom (
PLD 1995 Lah. 98; PLD 1987 Lah. 615; PLD 1988 Lah. 625;
1994 CLC 1683; AIR 1925 Lah. 231; AIR 1939 Lah. 93; PLD 1975 SC 325; 1969 SCMR
607; PLD 1971 SC 334; PLD 1990 SC 1 1986 MLD 764; 1985 SCMR 416; 1985 SCMR
1218; PLD 1990 Lah. 193 and 1906 PR 390 ref.
Rectification of Revenue Record. Limitation. Terminus a quo. Starting point. Computation. Deceased was
governed in matters of inheritance by Shariat Law. Mutations of his inheritance
on basis of Custom were sanctioned in 1939 while suit for declaration was filed
by daughters of deceased in 1985, when payment of produce was stopped to them
by defendants. That being first attack on their rights plaintiff's suit while
counting time from that date was well within time.
Person who as "male heir" had inherited
agricultural land before 15.3.1948 under custom would be deemed to have
inherited such land under Shariat law. If such male person had inherited the
agricultural land before 15.3.1948, his mother and two sisters would inherit
1/6th and 2/3rd shares respectively and the residue 1/6th share would go to the
person who was his paternal uncle. 1995 S C M R 868
PLD 1985 SC 407 and PLD 1964 Lah. 334 ref.
Oral gift of land in 1959. Donor had inherited suit land under custom, before 15th March, 1948. Plaintiffs
suit against such alienation was decreed on the ground that parties were
governed by custom, and land in question being ancestral in nature, donor was
not competent to gift it away to donees. Such decree was affirmed in appeal but
was set aside in second appeal by the High Court .Validity. Donor having
inherited land in question, under custom before 15th March, 1948 he by
application of cl. (a) of S. 2.A, West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962, would be deemed to have become absolute owner of such
land, as if same had devolved on him under Muslim Personal Law, with the result
that he was not subject to any limitation/restriction in the matter of
disposition of land in question. Section 2.A(b), West Pakistan Muslim Personal
Law (Shariat) Application .Act, 1962, further provides that any decree,
judgment or order of any Court affirming the right of any reversioner under
custom or usage to call in question alienation of land whether inherited or
acquired would be void, in executable and of no legal effect to the extent it
was contrary to West Pakistan Muslim Personal Law (Shariat) Application Act.
Provision of S. 2.A(b) of the Act declared any judgment or decree obtained by reversioners
as void and of no legal effect. Where possession of such land had been
delivered to plaintiffs (reversioners) in execution of Trial Court's decree but
such decree was not final being under appeal, dispute remained alive
throughout. Delivery of possession in execution of Trial Court's decree was
subject to the result of appeal and High Court in second appeal having set
aside decrees of Courts below mere delivery of possession to plaintiff would
not make it a case of past and closed transaction. High Court having rightly
set aside decrees of Courts below, leave to appeal was refused in
circumstances. 1995 S C M R 1830
PLD 1984 Lah. 456; 1986 CLC 1415 and 1988 SCMR 8 rel.
Lady heirs of a Muslim owner cannot be deprived of their
inheritance by adopting tactics on basis whereof, ex parte decree could be obtained against them. Ex-parte decree having been obtained
against defendants ladies by means of illegal substituted service culminating
into decree in question, was set aside in circumstances. 1993 C L C 1187
PLD 1985 SC 407 rel.
Provision of S.2.A, West Pakistan Muslim Personal Law
(Shariat) Application Act, 1962 [as added by Punjab Muslim Personal Law
(Shariat) Application Act (Amendment) Ordinance 1983], did not apply to
non-Muslims. Persons claiming to be Non-Muslim (Ahmadis) had got decree under
custom, whereby sale made by their father was deemed not to affect their
reversionary rights after the demise of their father. Such decree-holders
whether affected by S.2.A, West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962. Case was remanded to First Appellate Court for
determining the true faith of plaintiff and his father who had sold land in
question; whether they professed Ahmadi faith and if found to fall within that
fold, next question arising for decision would be the law governing their
rights in the suit. Assumption for application of newly added S.2.A to West
Pakistan Muslim Personal Law (Shariat) Application ,Act, 1962 by Ordinance XIII
of 1983 to parties without proper inquiry into the faith of plaintiff and his
father, necessitated sending back the case to Appellate Court for fresh
decision on merits in accordance with law. Sufficient material being not
available on record for decision about faith of the plaintiff and his father,
case was remanded for determining true faith of the plaintiff and his father
and the effect on the case of S.2.A, West Pakistan Muslim Personal Law
(Shariat) Application Act, 1962. P L D 1994 Lah. 259
1992 MLD 1147 ref.
Inheritance of widow under Custom in presence of two sons. Widow’s inheritance whether to be regarded as a limited
owner or maintenance holder. Apart from question of widow's inheritance and
other questions raised in petition for leave to appeal, it would also need
examination: whether present petitioners (daughters) would not at all inherit
property in dispute being originally left by deceased, in accordance with their
shares as daughters, notwithstanding the question, whether widow of deceased
inherited as limited owner or obtained the suit land in lieu of maintenance.
Development of law of inheritance since 1945 would have to be taken into
consideration, widow having died in 1968. Even if death of deceased in 1933,
was treated as starting point, subsequent legal changes and developments
particularly Ordinance XIII of 1983, would be examined in that context as well.
Leave to appeal was granted. 1991 S C M R 758
P L D 1963 SC 543 and 1986 S C M R 1483 ref.
Second appeal .
Concurrent judgment and decree passed by Courts below that after promulgation
of Ordinance which over every law, Customs or usages, property left by deceased
Muslim, would devolve on his legal heirs under Muslim Law, could not be
interfered with by High Court in exercise of Appellate jurisdiction. 1991 C
L C 1155
Allotment of land obtained by allottee in lieu of ancestral
land held by him in
Sale of agricultural land---Decree under custom was obtained by sons of alienor to the effect
that such sale would not affect their reversionary rights after death of
alienor---Plaintiffs after death of alienor seeking possession through
execution of decree---Validity---Without a suit having been filed for
possession on the strength of decree obtained under custom, which was
compromised in appeal, adjudging the sale invalid qua the reversionary rights
of plaintiffs in suit, execution could not take place and possession
obtained---Decree under custom passed on compromise of parties was not a decree
for possession capable of execution straightaway upon death of
alienor.---[Custom (Punjab)]. 1991 M L D 1987
PLD 1950 Lah. 75; PLD 1954 Lah. 671; PLD 1963 SC 663; PLD
1965 SC 690 and PLD 1966 SC 612 ref.
Restrictions and restraints on power of alienation imposed by custom were completely done away with---Any
decree, judgment or order of any Court affirming right of any reversioner under
custom or usage to call in question such alienation or directing delivery of
possession of agricultural land on such basis, was declared void, inexecutable
and of no legal effect to the extent same was contrary to Muslim Personal Laws
(Shariat) Application Act, 1962, except for transactions past and closed, where
possession of land had already been delivered upon such decree--Case was not a
case of transaction past and closed, for plaintiff, upon death of alienor had
applied to Court for execution of decree for obtaining possession of land upon
payment of charge money imposed as a condition precedent--Amendment introduced
by Ordinance (XIII of 1983), had sounded a death knell to excitability of
decree which had been obtained under custom and silenced the same for ever and
plaintiff's decree which he had obtained when custom was the rule of law, was
rendered wholly void and ineffective in altered state of law.
Section 2-A of West Pakistan Muslim Personal Laws (Shariat)
Application Act (Amendment) Ordinance, 1983 (Ordinance XIII of 1983) sounded a
death knell to further excitability of decree obtained under custom and silenced
it completely for ever. Section 2-A of West Pakistan Muslim Personal Laws
(Shariat) Application Act, 1962 by a fiction of law provided that a male heir,
who had acquired any agricultural land under custom from the person, who, at
the time of relevant acquisition, was a Muslim shall be deemed to have become
its absolute owner as if such land had devolved upon him under Muslim Personal
Laws (Shariat) Application Act, 1962. Restrictions imposed by custom on the
power of alienation of a male owner are foreign to Islamic Law. Under that
system of law, a person, who was absolute owner of his property, and excepting
a certain mode of transfer and extent of transferable property in specified
cases and circumstances, there were no restrictions on his power of dealing
with his own property. By new legislation in Ordinance XIII of 1983,
restrictions and restraints on power of alienation imposed by customary law
were completely done away with and 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 of possession of agricultural
land on such basis, was declared void, inexecutable and of no legal effect to
the extent it was contrary to Muslim Personal Laws (Shariat) Application Act.
All suits or other proceedings of such a nature pending in any Court and all
execution proceedings seeking possession of the land under such decree were
directed to abate forthwith except for the transactions past and closed, where
possession of the land had already been delivered under such decree. Obviously,
present was not a case of transactions past and closed. Upon death of alienor
plaintiff had applied to the Court to execute the compromise decree for
obtaining possession of the land upon payment of the charge money imposed upon
it. Section 2-A of the afore-noticed law not only struck down the decree of the
Court as of no legal effect being contrary to Muslim Personal Law, but also
gave instantaneous burial to the execution proceedings seeking possession of
the land under such a decree. There was no doubt that the Legislature was
competent to nullify the Court-decrees. The contention that the possession had
been taken by the petitioner under some unknown arrangement, was not borne out
from the record. Contents of the execution petition and the prayer made in it
clearly negated the truth of that contention. Possession under the decree was
not transferred, when Ordinance XIII of 1983 came in force. Therefore, be it a
declaratory decree under custom required to be followed by a suit to recover
possession under-that system of law or a possessory decree capable of execution
forthwith upon the death of alienor, in either case, it was rendered wholly
void and ineffective in the altered state of law. 1991 M L D 1987
Reversionary rights.
High Court found that in view of the enforcement of Muslim Personal Law Shariat
(Application) Act (Amendment) Ordinance, 1983 petitioners could not succeed.
View taken by High Court was supported by case reported as Abdul Ghafoor and
others v. Muhammad Shari and others P L D 1985 S C 4t)7. Petition for leave to
appeal refused. 1990 S C M R 338
P L D
1985 S C 407 ref.
Succession to the estate of a male. owner who died in 1945 leaving behind his only daughter
and a real brother has to be determined according to provisions of Muslim
Personal Law on account of retrospective operation of S. 2.A of West Pakistan
Muslim Personal Law (Shariat) Application Act, 1962 (as amended).
1990 M L D 1503 PLD
1985 SC 407 and 1989 SCMR 755 fol.
Custom (
Succession--Will--Last male owner who had inherited
property under custom, before enforcement of Punjab Muslim Personal Law
(Shariat) Application Act, 1948, died before that date viz. 15-3-1948—Will made
by such deceased in favour of plaintiff, his nephew, would be deemed to be one
under Muslim Law and that being so, would operate accordingly-
Deceased/testator having died in 1947, when plaintiff/legatee's father was
alive, such legatee not being heir of testator would get one-third under the
Will- Remaining two-third of testator's property would have to be distributed
amongst his heirs according to Shariah shares. 1989SCMR755
PLD 1985 SC 407 rel.
Contention that High Court was not justified in declaring
that the decree by First Appellate Court had become void on account of addition
of S.2.A in the Act, 1962 and such question should have been left for the
executing Court to decide. Held, High Court was perfectly justified in
recording the effect of a law, which was enacted during the pendency of appeal
before it. Leave to appeal against order of the High Court was refused. 1989
S C M R 1129
Deceased died before promulgation of Shariat Application
Law of 1948 leaving a son and daughter. Property was mutated under custom in
the name of son of the deceased exclusively who made a will of 1/3rd in favour
of grandsons of one of his sisters. On death of deceased's son in 1982 property
was devolved on his heirs on the assumption that he alone was the successor to
the property of his deceased father to the exclusion of his sister. Contention
that his sister should also be treated as having inherited the property as
Muslim heir to her father under S.2.A. Leave to appeal was granted to
re-examine the entire question of devolution of the property of deceased father
after his death. 1989 S C M R 1182
P L D 1985 S C 407 and 1986 SCMR1539(2)rel.
Decree under Custom, against sale on ground of lack of
consideration/legal necessity. Petitioner's contention that with the
promulgation of Ordinance XIII of 1983, the law had changed and all decrees
based on Custom stood annulled; that exception regarding past and closed
transactions, and/or possession having been transferred as a result of such
decree, was not applicable to the present case; that vendors not having died,
decree had not yet come into operation. Contentions raised on petitioner's
behalf required examination. Leave was granted. 1989 S C M R 1236
P L D 1985 S C 407 rel.
Impugned judgment of the High Court was rendered after
coming into force of the Ordinance of 1983. Leave to appeal was granted to
examine inter alia question relating
to interpretation of S.2.A of the Ordinance of 1983 and its implication
vis-à-vis questions involved in the case. 1989 S C M R 1263
PLD 1985 SC 407 ref.
Leave to appeal was granted for the reason that Ordinance
X111 of 1983 had been promulgated on 1-8-1983 and it contained S.2-A having a
direct bearing on the decrees of the nature possessed by respondents. 1989 S
C M R 1632
Custom (
1989 S C M R 1754
Last Muslim male owner having died issueless, his property
was devolved upon his widow in 1939. Such widow after having paid Government
dues in respect of said land acquired proprietary rights and thereafter sold it
to defendants. Plaintiffs' suit on basis of being heirs of last male owner
claiming 3/4 share of his property was dismissed by Trial Court but was decreed
on appeal by First Appellate Court which was upheld by the High Court in
revision. Defendants' contentions that their case was governed by S.30.A and
not by S.19.A of Act V of 1912 and that vendor widow being full owner of
disputed land was entitled to alienate it and that by provisions of S.2.A of
the amended Act V of 1962, plaintiffs' suit stood abated, had also been raised
before High Court and had been attended to. No interference, held, was called
for by Supreme Court in the light of principle laid down by Supreme Court in
Mst. Began v. Mst. Bai reported as 1983 S C M R 80. 1989 SCMR 1958
1983 S C M R 80 rel.
Decree in suit filed under
custom. Validity. Provision of
S.2.A as added by Ordinance 1983, envisages that decree/consent decree passed
in suit filed under custom, even if taken to have been validly made, would be
rendered void, inexecutable and of no legal effect. Consent decree passed in
suit tiled under custom could not be deemed to be transfer of land in
recognition of superior right of preemption. 1989 C L C 1727
Succession--Will--Suit by respondent, daughter of last male-holder, for
possession of land equal to less than 1/20th part of entire property left by
her father on the basis of a Will executed on 30-10-1940 in her favour,
dismissed by Trial Court holding that her father was not competent to make a
gift of any part of his property in her favour-District Judge on appeal
decreeing suit holding that under the Custom there was no restraint on the last
male-holder in giving a small portion of his property to his daughter by way of
gift and High Court in second appeal affirming the finding of District
Judge--West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance,
1983 coming into force during pendency of appeal by which S.2-A was inserted in
Ordinance of 1962--Provision of S.2-A being retrospective in effect, last
male-holder had to be treated as one who at time of his death was governed by
Muslim Personal Law-Respondent, under Muslim Personal Law, being one of the
heirs, could not take advantage of the Will without the consent of other
heirs--Claim of respondent to the land in dispute on basis of Will, in absence
of consent of other heirs, must be rejected--Applying Muslim Personal Law,
respondent would have been entitled from estate of her father to more land than
what was given to her in the Will--Parties having been engaged in litigation
for more than 30 years, it would not be appropriate to drive them to another
round of litigation--Case, in circumstances, held, was not a fit one for
Supreme Court to interfere with judgment and decree under appeal. 1988 S C M
R 293
Inheritance through custom Alienation of inherited land. Legality of alienation of land made by person who had
inherited such land under custom before 15th March, 1948, held, could not be
disputed for land so inherited would be deemed as having been inherited under
Muslim Shariat Law. Such person would be absolute owner enjoining full power
over it. 1987 C L C 584
P L D 1985 S C 407 ref.
Succession. Custom (
[4][4][3. Termination of limited estate under
Customary Law.— The limited
estates in respect of immovable property held by Muslim females under the
Customary Law are hereby terminated:
Provided
that nothing herein contained shall apply to any such estate saved by any
enactment, repealed by this Act, and the estates so excepted shall continue to
be governed by that enactment, notwithstanding its repeal by this Act.]
Alienation of suit land by limited owner--Raising of new plea before Supreme Court at appeal stage--Suit land was initially owned by predecessor-in-interest of parties and after his death, his widow became limited owner of same--Widow gifted suit land in favour of defendants--Defendants for first time before Supreme Court disputed ownership rights of predecessor-in-interest of parties qua land—Validity--Such plea of defendants appeared to be an afterthought and had been raised merely for sake of creating complication otherwise same had been accepted by defendants since 1917--Supreme Court at appellate stage declined to allow defendants to alter their stand and raise dispute about ownership rights of predecessor-in-interest qua entire land which was subject-matter of suit by making miscellaneous application for considering documents which were not relevant for purpose of decision of appeal--Where land owned by predecessor-in-interest of parties was not specifically and expressly denied, no dispute or confusion could be raised in that respect--Judgment of High Court was not interfered with by Supreme Court in circumstances.
PLJ 2002 SC 410
Limited interest of widow—Land
allotted to widow in lieu of land left by her deceased husband in India was
sold by her to defendants on 26-8-1963 through mutation—Plaintiffs filed suit
for recovery of possession on the ground that widow holding the estate as
limited owner could not alienate the land under Custom of Zimindara by which
she was governed—Trial Court decreed the suit, which decree was upheld by both
the Appellate Courts—Validity—Widow sold the property on 26-8-1963, thus, the
same was the date when title or right of the plaintiffs would be deemed to have
been denied giving rise to a cause of action to file the suit—Before such date
on termination of limited interest in the estate by virtue of the provisions of
West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the parties
had become joint owners of the land by way of inheritance—Widow after
termination of her limited interest was entitled only to a share in land
allocated to her under Islamic Law and was entitled to sell her own share only
and not beyond that—Limitation started from the date when alienation was made
as such suit had rightly been filed within 12 years therefrom—Findings of
Courts below that widow was not fall owner as such could not transfer the land
by way of sale did not suffer from any illegality. Ahmad Din v. Muhammad Shafi
PLD 1971 SC 762; Mst. Zeenat Begum v. Mst. Iqbal PLD 1991 SC 427 and Federation
of Pakistan v. Muhammad Ishaque PLD 1983 SC 273 ref. 2002 SCMR 1000
Courts below declared the entire sale made by widow in
favour of defendants as void and ineffective against the rights of
reversionaries/plaintiff as she being limited owner could not alienate the land
allotted to her in lieu of the land left by her deceased husband in
-->Agreement to sell executed by limited owner---Validity---Where the limited ownership was terminated by virtue of
S.3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962,
limited owner could not execute agreement to sell in year 1969, qua the entire
property. P L D 2002 Lah. 88
Raising of new plea before Supreme Court at appeal stage. Effect. Suit land was initially owned by the predecessor-in-interest of the parties and after his death, his widow became the limited owner of the same. Widow gifted the suit land in favour of the defendants. Suit was filed wherein the plaintiffs claimed their share in the suit land. Trial Court dismissed .the suit and the appeal before Lower Appellate Court was also dismissed. High Court in exercise of revisional jurisdiction set aside both the judgments and decreed the suit. Defendants for the first time before Supreme Court disputed the ownership rights of the predecessor-in-interest of the parties qua the land. Validity. Such plea of the defendants appeared to be an afterthought and had been raised merely for the sake of creating complication otherwise the same had been accepted by the defendants since 1917. Supreme Court at the appellate stage declined to allow the defendants to alter their stand and raise dispute about the ownership rights of the predecessor-in-interest qua the entire land which was subject matter of the suit by making miscellaneous application for considering documents which were not relevant for the purpose of decision of the appeal. Where the land owned by the predecessor-in-interest of the parties was not specifically and expressly denied, no dispute or confusion could be raised in that respect. Judgment of High Court was not interfered with by Supreme Court in circumstances.
P L D 2001 S. C. 526
Rehabilitation Settlement Scheme, Part I, Chap. II, para.7. Limited estate. Right of widow over income out of such estate. Property purchased out of such income, whether exclusive ownership of widow. Disputed property was purchased by the widow out of income received from limited estate. Such payment was made under the provisions of Rehabilitation Settlement Scheme. Plea was that as the property was purchased from income of limited estate, the widow was not the exclusive owner of the same. Validity. Where the land in question was allotted/purchased by the widow against mortgagee rights of her deceased husband and the amount for such allotment/purchase was made out of income received from the limited estate, widow would not become trustee for the reversioners and she would acquire the land as her own exclusive property r, r not forming part of the estate. 2001 C L C 272
AIR 1938 Lah. 554 fol. PLD 1973 SC 304 distinguished.
PLD 1968 Lah. 329; PLD 1971 SC 791; 19 IC 138; PLD 1969 SC 338 and PLD 1971
Lah. 567 ref.
Inheritance. Last male
holder of suit land died in 1922 and as his family was governed by custom, his
land was mutated in the name of his widow and also widow of his son in equal
shares as limited owners. Widow of the last male holder of suit land having
died, her share was also allocated to the widow of son of last male holder of
suit land in 1932. Limited estate held by the widows under the custom was
terminated on promulgation of West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962. Widow of son of last male holder of suit land sold land
in 1968 and plaintiffs who claimed their shares in land being the collaterals
of the deceased last male holder of suit land, who had never previously
challenged sale of land by the widow, filed suit after lapse of twenty years
from said sale which was dismissed concurrently by Courts below being barred by
time. Plaintiff failed to satisfy the Court that the suit was within limitation
or that both Courts below had committed any illegality in non-suiting them on
the ground of limitation. Concurrent findings of Courts below could not be
interfered with by the High Court in exercise of its revisional jurisdiction. 2001
Y L R 2615
Transfer of entire estate by limited owner. Last full owner of the suit property died issueless and whole of his property devolved upon his sister as limited owner who transferred the same in favour of the defendants vide registered gift deed. By application of S.3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the plaintiffs claimed to be the co-owners in the estate. Trial Court dismissed the suit but decreed by the Appellate Court. Validity. Donor was limited owner under "custom" and on termination of limited estate held by her under customary law, with the application of West Pakistan Muslin: Personal Law (Shariat) Application Act, 1962, the estate of the original owners would be considered as the estate of deceased last full owner and would open for inheritance. Donor, being sister of the deceased last full owner, was entitled under Islamic Law to inherit 1 /4th share in the property left by the deceased last full owner and the plaintiffs being reversionaries would be entitled to inherit 3/4th share. Gift deed executed by the limited owner was valid only to the extent of 1 /4th share left by the deceased last full owner. High Court declined to interfere with the judgment and decree passed by the Appellate Court. 2001 Y L R 2521
Alienation of property by limited owner beyond. her legal share. Widow of the deceased was a limited owner in the estate and she sold the whole estate to the respondents. Petitioners were also legal heirs of the deceased and had assailed such transactions on the ground that the widow could not alienate the suit property beyond her legal share. Trial Court decreed the suit whereas the Appellate Court reversed the findings of the Trial Court and dismissed the suit. Validity. Widow was entitled to inherit the property only to the 'extent of her share under the provision of S.3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and the remaining was to devolve on the other legal heirs of the deceased. Widow, thus, .was not entitled to dispose of the property by way' of sale beyond her legal share in the estate of the deceased. Judgment and decree of the Appellate Court was set aside and that of the Trial Court restored by High Court. -->2000 C L C 1863
PLD 1955 FC 102 PLD 1966 SC 349 and 1996 SCMR 901 ref.
Alienation of land by female having limited interest in the property under custom. Alienation by such limited interest. holder to the extent of her share after termination of limited estate. Validity. Limited interest of female interest-holder terminated under S. 3, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and in terms of S. 5 of the Act property was to devolve on such persons who would have been entitled to succeed under Muslim Personal Law upon the death of last full owner and as regards females holding limited estate under customary law, provision was specifically made in proviso to section 5 of the Act stating that the share to which female. Holder of limited estate would have been entitled under Personal Law upon the death of last full owner, would devolve upon her. Female holding limited interest in land in question was thus, entitled (on termination of limited estate) to her Personal Lain, share in the estate of her deceased husband .Vendees from such limited owner could, therefore, retain land in question, to the extent that it fell within the share of that limited owner. Plaintiffs being reversioners, their right under custom to challenge alienation made by a limited owner was hit by S. 2.A, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 whereby decrees of Court based on customary right of reversioners stood nullified. Judgment and decree of High Court was set aside and vendees (appellants) were held entitled to retain land in question, to the extent of vendor's share, in the estate of her deceased husband, the last male owner.
1996 S C M R 901 PLD 1959 SC (Pak.) 356 ref.
Female allottee of evacuee property. Entitlement to inheritance claimed by reversioners of
such allotter’s husband (appellants). Reversioners did not make out case that
female allottee was holding limited estate in
Custom. Death of limited owner. Mode of devolution of property. Leave to appeal was granted to consider whether on opening of inheritance of last male owner on the death of limited owner, property in question, was to revert back to last male owner and devolve on the heirs then alive at the time of death of last male owner in accordance with West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 which entitled plaintiffs to inherit share of predeceased son of last hale owner. 1996 S C M R 1535
Limited interest of widows stood terminated on enforcement of Act, 1962.
1993 M L D 692
PLD 1969 Lah. 412; PLD 1985 SC 407 and PLD 1991 SC 582 ref.
Termination of limited interest of female. Devolution of
property. Property, on termination of
limited interest of female, was to be considered as ownership of last full
owner and same would devolve upon his Shari heirs alive at the time of his,
death and if any one of such heirs had died prior to termination of limited
estate, his heirs would also get that share to which their predecessor would
have been entitled if alive. Limited owners were also entitled to their
Gift by limited owner. Validity. Estoppel, plea of. Where transferor by his declaration,
act or omission had caused another person to believe a thing to be true and to
act upon such belief, neither he nor his representative would be allowed, in
any suit or proceeding between himself and such person or his representative,
to deny truth of that thing. Where donee had knowledge that donor was limited
owner and could not transfer ownership rights which donor herself did riot
possess at time of gift, , transferee (donee) would not be entitled to retain
property on principle of feeding the estoppel against Shari heirs of donor.
Transfer by limited owner at best, could only be deemed to be to the extent of
limited interest viz. enjoyment of property till termination of limited estate
and no more. 1992 S C M R 1721
Words "in the event of" in S. 4 of Ordinance. Meaning.
The words 'in the event of occurring in section 4, Muslim Family Laws Ordinance, 1961 refer only to the death of the son or daughter of the propositus occurring before the succession opens. These words would bring within their compass the sons and daughters dying before as well as after the Ordinance came into force. The only condition is that the death should occur before the succession has opened and if the succession opens after the promulgation of the Ordinance, section 4 would apply with full force and the children of the predeceased son or daughter of the propositus would be entitled to be included in the succession to the estate of the propositus. One consideration, which has to be borne in mind in construing section 4 of the Ordinance is the purpose for which this law was passed. The Ordinance aims at alleviating the sufferings of the children whose unfortunate lot it is to lose their father or mother during the lifetime of their grandfather or grandmother as the case may be. The construction of such statutes should be just, sensible and liberal so as to give effect to the purpose for which they are passed. It is not the requirement of section 4 of the Muslim Family Laws Ordinance, 1961 that the occurrence of the death of the son or daughter of the propositus as well as the opening of succession should both take place subsequent to the promulgation of the Ordinance. The only requirement of the section is that succession should open after the Ordinance is brought into effect even though in some cases a part of the requisites for its operation such as the death of the plaintiff's mother is drawn from a time antecedent to the promulgation of the Ordinance.
Combined reading of sections 2, 3 and 5 of Act V of 1962 and section 4 of the Muslim Family Laws Ordinance, 1961 would plainly show that sons of a female propositus who had predeceased her mother were entitled to receive the same share, which their mother, if alive, had taken on the death of her father. Section 4 of the Family Laws Ordinance clearly recognizes their right of succession.
PLD 1968 Kar. 480 and 1980 C L C 1006 ref.P L D 1983 Lah. 546 distinguished.
Life estates, existence of. Proof. No law being in existence to debar Muslim widows from acquiring properties in their own names from their own resources or otherwise. Mere fact that female allottee of disputed land in lieu of land abandoned by her in India was described as widow in records received from India, held, would be too slender a basis to assume existence in her of a mere life estates.
Matter of allotment finally determined by competent
authorities. Jurisdiction of civil Court. No restriction of limited estates
having been added to entitlement of allottee female of disputed land allotted
to her in lieu of land abandoned by her in India either at time of verification
of her claim or at time of making grant of disputed land in her favour by
Settlement Authorities by means of allotment. Addition to or curtailment of
rights given to her over property in dispute by competent authorities, held,
was not within jurisdiction of civil Courts to make. 1987 C L C 1048
Statutory point of limitation. Termination of limited estates under custom. Limitation
for succession when opens. Limitation for opening of succession, held, was to
be ascertained as to when last full owner died and who were his
Termination . of limited estate. Limited estates, held, were terminated by Act V of 1962.
P L D 1987 Pes.121 P L D 1966 (W.P.) Pesh. 1 ref.
Sections 4 and 5 of Act, held, had retrospective effect insofar as that affected wills which were made prior to coming into force of Shariat Act, 1962. Section 4, referred to a Will which was in operation at commencement of Act, read with Ss. 3 and 5 of Act, it implied that wills which were made prior to 31-12-1962 and which created limited life estate stood affected to extent provided in Ss. 3, 4 s 5 of said Act.
1986 C L C 1165
Estate held by Muslim female under provisions of
Colonization of Government Lands (
1985 C L C 1466
1969 S C M R 181; 1970 S C M R 246 and P L D 1973 S C 304 ref.1983 S C M R 80
rel.
Estate held by females under S. 30-A(l)-Really a limited estate held under custom-Provisions of S. 3 of Act V of 1962 attracted to case-Limited estate having been terminated by Act V of 1962, widow entitled to hold only her share as determined under Muhammadan Law.- 1983 S C M R 80
P L D
1974 S C 210; P L D 1932 S C 1; P L D 1962 B J 52; P L D 1964 S C 842; P L D
1969 S C 338; 1969 S C M R 181; 1970 S C M R 246; P L D1971 S C 580; 1971 S C M
R 514; N L R 1982 Revenue S C 110 P L D 1968 (Rev.) 18 and P L D 1977 Rev.
54 ref.
Limited estate-Devolution-Land, held, in Pakistan by a female in lieu of limited estate abandoned in India having been declared by Supreme Court to devolve on termination of limited estate on persons having a right to succeed to last full owner under Muslim law and such legal position being not disputed and none having appeared from respondent's side to oppose appeal being accepted on consideration of such legal question, appeal allowed. 1982 S C M R 22
P L D 1968 Lah. 234; P L D 1971 S C 791 and P L D 1973 S C
340 ref.
Statutory point of limitation. Termination of limited estates under custom. Limitation
for succession when opens. Limitation for opening of succession, held, was to
be ascertained as to when last full owner died and who were his
Termination of limited estate. Limited estates, held, were
terminated by Act V of 1962.
P L D 1987 Pes. 121 P L D 1966 (W.P.) Pesh. 1 ref.
Succession-Impart of promulgation of Act-Widow Life estate held by Muslim female under customary law devolved upon persons entitled to succeed under Act-Share from estate to which such widow would have been entitled under Muslim Personal Law (Shariat), upon death of last full owner, would devolve on her.
P L D 1980 Lah. 672
P L D 1974 S C 124 and P L D 1975 Lah. 83 ref.
Displaced Persons (Land Settlement) Act (XLVII of
1958), Ss. IS & 16 read with Punjab Refugees (Registration of Land
Claims) Act (V of 1949), S. 4 and Rehabilitation Settlement Scheme, Part I,
para. 46.A. Custom (Punjab) .Widow's estate .Property allotted in
P L D 1963 Lah. 234 held overruled] PL D 1968 Lah. 234 held overruled. P L D 1971 S C 791; P L D 1969 Lah. 412 and Civil Appeal No. 100 of 1971 ref.
Rights created by proviso (as introduced by Ordinance XXXIX of 1963) to S. 3, lost on expiry of the temporary Ordinance XXXIX of 1963 and S. 3 as originally enacted in Act V of 1962 re-emerged. [Sarwar Bibi v. Said Ahmad and others P L D 1969 Lah. 412 dissented from]. P L D 1975 Pes. 22
PLD 1973 SC304 rel. P L D 1969 Lah. 412 dissented from.
The Law of succession has ever since the enactment of the Muslim Personal Law (Shariat) Application Act, 1948, been the rule of Shariat notwithstanding my thing to the contrary contained in any usage or custom. No life estates could there fore be created under the Customary Law after the enactment of that Act. Existing life estates were, however, left untouched and in respect of them the only provision was applicable on their termination in due course according to Customary Law. When the Act of 1962 was enacted the position was that while no new life estates could come into being, the existing ones were to continue till terminated by the death or remarriage etc. o the holder. The raison d’etre of the West Pakistan Muslim Personal Law (Shariat) Application Act of 1962 is to abolish such existing life estates altogether without waiting for their extinction in due course. Section 3 of the Act of 1962 related to all limited estates in respect of immovable property held by Muslim females under the Customary Law irrespective of the time when they came into existence. The only condition was that on the date of the promulgation of the law such a limited estate in respect of immovable property must be held by a Muslim female under the Customary Law. The date on which the last male owner died was not in point. Subsection (2) of section 7 of this Act, therefore, is partly repugnant to the provisions of sections 3 and 6, because although, the time of death of the last full owner was of no consequence under sections 3 and 6, section 7 (2) made it the determining factor, subsection (2) appears in a "saving" section. If section 7 (2); which is a saving clause, is allowed to stand, section 3 becomes absolutely nugatory and the very purpose for which the statute was enacted would disappear. This, therefore, is a case where the saving clause by being repugnant to the purview knocks the very bottom out of the enactment and, therefore, it cannot but be held that section 7 (2) was from its very inception void on account of repugnancy. P L D 1969 Lah. 412
As a result of enactment of the West Pakistan Muslim Personal Law (Shariat) (Amendment) Ordinance, 1963 the ' main part of section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 had become subject to a proviso and section 7(2) of the Act, omitted. The effect of the substitution of section 3 by the amending ordinance, 1963 had been that the limited estate held by Muslim females, under customary law and saved by any enactment repealed by Act V of 1962, was saved by the proviso to the newly substituted section 3. The amending Ordinance XXXIX of 1963 was retrospective in operation and therefore while determining the rights of persons qua limited estate of a female, the proviso should be construed as having been a part of section 3 even on the date when the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was passed.
P L D 1969 Lah. 412
A widow succeeded in 1946, to her husband's tenancy rights
in land granted to him for livestock breeding under the Colonization of
Government Lands (
Held: There seems to be a consensus of opinion that before restrictions on alienations were placed by section 30.A, a widow on acquisition of proprietary rights in the tenancy became an absolute owner. With the acquisition of proprietary rights, sections 20 and 21, which governed succession to tenants, were no longer applicable and the tenancy ceased to exist as such:
Since on the acquisition of proprietary rights by female tenants the land had become their self-acquired property of which they had complete powers of disposal, alienations by them were to the detriment of the reversioners of the previous male tenants. It was to safeguard the interest of the reversionary that restrictions were imposed on the female’s rights of alienation by adding section 30.A. The precise question to be determined, however, is as to where these restrictions completely bring them at par with widows or other life estate holders under custom or this would be merely one of the points of similarity, which would not per se be good enough to bring them within the purview of section 3 of Act V of 1962. The answer to the proposition is quite clear. With the acquisition of proprietary rights sections 20 and 21 of the Act remain no longer applicable and as such the question of loss of their rights in the event of remarriage of a widow or marriage of a daughter, which is one of the essential characteristics of a limited estate under custom would no longer be relevant. This is one of the important distinctions between the two categories. The next point of distinction, which is equally important is that on acquisition of proprietary rights under section 30, unlike a limited estate holder under custom, a widow becomes an owner in her own rights subject of course to the restrictions on her rights of alienation as envisaged by section 30.A. It would be pertinent to observe that the relevant restrictive provision contained in section 30. A(a) is couched merely in an analogical and parallelistic form significantly avoiding any reference to the Customary Law which cannot be imported into it. It is a well settled rule of interpretation that a provision, which is restrictive in nature,, has to be strictly construed. Last but not the least is the unequivocal phraseology employed by section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, which has specifically confined the termination of life estates to those held under Customary Law. Notwithstanding the analogy between a life estate holder under custom and a female governed by sections 30 and 30.A of the Act on the point of restrictions on alienations by no means can the scope of the relevant provisions of Act V of 1962, be enlarged so as to analogically cover what is not specifically mentioned therein.
P L D 1 1964 S C 842 distinguished. P L D 1961 B J 52; P L
D 1954 Lah. 254 and P R 1915 ref.
Does not apply to case of widow getting property as allottee and full owner under Rehabilitation Laws.
4. Further operation of certain wills
shall cease on the death of legatee-in-enjoyment.— Where a will providing for more than one
legatee succeeding to the testator’s property one after the other is operative
at the commencement of this Act, its further operation shall cease upon the
death of the legatee-in-enjoyment.
Will of ancestor providing for more than one legatees succeeding to ancestor's properties one after other and Will was in operation at time of commencement of Shariat Act, 1962 when only one legatee was alive. Contention, that as only one legatee was alive at time of commencement of Act, 1962, said Act did not affect provisions of will, not accepted. Held, words "one after the other" employed in S. 4 of 1962 Act refer to provisions in a Will about one legatee succeeding to testator's property one after other. Use of words "one after the other" in S. 4 did not imply that there should be more than one life estate remaining at time of commencement of Act.
Held, had retrospective effect insofar as that affected
wills which were made prior to coming into force of Shariat Act, 1962. Section
4, referred to a Will which was in operation at commencement of Act, read with
Ss. 3 and 5 of Act, it implied that wills which were made prior to 31.12.1962
and which created limited life estate stood affected to extent provided in Ss.
3, 4 s 5 of said Act. 1986 C L C 1165
Life estate, termination of- Legislature did not intend to
reopen inheritance even in cases of heirs taking absolute vested estate under
custom-Limited estates taken under custom (such as were to terminate on death
or marriage of female heir) alone intended to be distributed according to
Shariat. Person having already succeeded to more than his share in his
father's estate not disentitled to further share in estate of his mother held
as limited owner. 1975 S C M R 487
5. Devolution of property on the
termination of life estate and certain wills.— The life estate terminated under section 3
or the property in respect of which the further operation of a will has ceased
under section 4 shall devolve upon such persons as would have been entitled to
succeed under the Muslim Personal Law (Shariat) upon the death of the last full
owner or the testator as though he had died intestate; and if any such heir has
died in the meantime, his share shall devolve in accordance with Shariat on
such persons as would have succeeded him, if he had died immediately after the
termination of the life estate or the death of the said legatee:---
Provided
that the share to which a Muslim female holding limited estate under Customary
Law would have been entitled under the Muslim Personal Law (Shariat) upon the
death of the last full owner shall devolve on her.
Applicability---By operation of law, widow of Muslim deceased could succeed to only her Islamic share in the estate of the deceased.
Widow was a limited owner of the estate but she alienated the whole estate to her daughter vide a gift-deed--Validity ---All the heirs were entitled to inherit the property at the time of termination of life estate---Gift of the entire estate of her husband, after the enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act; 1962 was void ab initio and was not binding on the reversionaries who were entitled to inherit after such termination of life estate---No ground to differ with the judgment of High Court having been found, leave to appeal was refused. 2000 S C M R 1845
1970 SCMR 499; PLD 1970 Pesh. 150; 1994 SCMR 1140; 1996 SCMR 901
Concurrent findings of two Courts below reversed by High Court. Justifiability. Gift of land to wife by last male owner. Plaintiffs claiming inheritance on the ground that such female being limited owner, her limited estate stood terminated on promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. Defendants contested suit on the plea that such female having acquired land through gift was full owner and not limited owner. Trial Court as also First Appellate Court decreed plaintiff's suit. High Court set aside concurrent findings of two Courts below and dismissed suit by taking view that the female was not limited owner but full owner. Validity. Petitioners claimed that contents of gift deed demonstrated that female had not acquired ownership under gift deed but had limited estate for life. Respondents had contended that under Punjab Limitation Custom Act, 1920, S.20, gift deed in question, should have been challenged within period of six years and not after expiry of 25 years. Leave to appeal was granted to consider whether High Court was justified in reversing concurrent judgments/decrees on basis of material on record and the law applicable.
1997 S C M R 879
Alienation of land by female having limited interest in the property under custom. Alienation by such limited interest. holder to the extent of her share after termination of limited estate. Validity. Limited interest of female interest-holder terminated under S. 3, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and in terms of S. 5 of the Act property was to devolve on such persons who would have been entitled to succeed under Muslim Personal Law upon the death of last full owner and as regards females holding limited estate under customary law, provision was specifically made in proviso to section 5 of the Act stating that the share to which female. holder of limited estate would have been entitled under Personal Law upon the death of last full owner, would devolve upon her. Female holding limited interest in land in question was thus, entitled (on termination of limited estate) to her Personal Lain, share in the estate of her deceased husband .Vendees from such limited owner could, therefore, retain land in question, to the extent that it fell within the share of that limited owner. Plaintiffs being reversioners, their right under custom to challenge alienation made by a limited owner was hit by S. 2.A, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 whereby decrees of Court based on customary right of reversioners stood nullified. Judgment and decree of High Court was set aside and vendees (appellants) were held entitled to retain land in question, to the extent of vendor's share, in the estate of her deceased husband, the last male owner.
1996 S C M R 901 PLD 1959 SC (Pak.) 356 ref.
Widow was limited owner of estate on behalf of her deceased
husband, having inherited it under custom--Widow's limited estate was
terminated and succession to it opened on enforcement of West Pakistan Muslim
Personal Law (Shariat) Application Act, 1962 on 31-12-1962 for distribution in
terms of S.5 of the Act---Daughter of the last male owner being the only issue,
upon opening of succession, would get her-half share in the estate---Widow
would get 1/8th share while remainder would go to other heirs of last male
owner---Daughter would get one-half of her share upon widow's death thus,
entitling her to 9/16th share out of estate left by her father, the last male
owner. 1994 M L D 822
Daughter having filed suit for joint possession such suit was contested by other heirs of deceased owner on grounds of adverse possession and limitation---Daughter's status as a co-sharer in the joint Khata did not undergo a change---Evidence on record showed that daughter had been receiving her share of the produce---No firm evidence of daughter's complete ouster from joint Khata or denial of her title to it to her knowledge was available---Possession of a co-sharer on a piece of joint land was on behalf of all co-sharers---No material was placed on record for inapplicability of said rule governing relationship of co-sharers---No evidence was available on record to the effect that other co-sharers were holding land in question, adversely to the knowledge of daughter---Mere non-participation in the management of joint land or non-sharing of usufruct from it did not constitute holding of land in adverse possession---Daughter would be deemed to be in constructive possession of her share of land in question---In absence of complete ouster and denial of title, suit could not be deemed to be barred by limitation or right in land extinguished by adverse possession. 1994 M L D 822
PLD 1990 SC 1 1991 SCMR 515; 1991 SCMR 829; 1991 SCMR 1369
ref.
Muslim male owner having died issueless, and without having
a wife, in 1924 his property was mutated in his mother's name under custom. On
promulgation of Act V of 1962, mother's life estate was terminated and two
claimants claimed inheritance. Material question for consideration before
Courts was whether deceased Muslim had a sister and whether that sister had
survived him. Trial Court as well as First Appellate Court found that sister
had died after her brother's death. High Court declined to interfere with
concurrent findings of fact by Courts below. Concurrent findings of Courts
below on question of fact did not justify interference by Supreme Court. Leave
refused. 1989 S C M R 2004
Devolution[5]
of property of last male. holder dying in 1907, on promulgation of Act V of 1962. Property left by last
male. holder, held, would devolve upon legal heir of such last male. holder on
the assumption that Muslim Law was applicable when last male. holder died.
Property left by last male. holder who died in 1907 would be inherited by his
heirs according to Muslim Law of Inheritance after promulgation of Act V of
1962. Plea that property of last male. holder would devolve upon his heirs on
the assumption that he died in 1962 on termination of limited estate of his
wife was repelled being in derogation of provisions of S.5 of Act V of 1962. 1987
C L C 1201
Res judicata. Decision on a point which was not necessary for giving relief to plaintiff, held, could not operate as res judicata. 1986 C L C 1165
P L D 1981 F S C 278; P L D 1983 S C 273; P L D 1984 S C
394; P L D 1978 Kar. 82; P L D 1974 S C 180; PLD 1966 S C 559; P L D 1981
S C 591; 1983 C L C 1585 1977 S C M R 12; 1980 S C M R 596; P L D 1984 Lah. 59;
P L D 1967
Will of ancestor providing for more than one legatees succeeding to ancestor's properties one after other and Will was in operation at time of commencement of Shariat Act, 1962 when only one legatee was alive. Contention, that as only one legatee was alive at time of commencement of Act, 1962, said Act did not affect provisions of will, not accepted. Held, words "one after the other" employed in S. 4 of 1962 Act refer.W.to provisions in a Will about one legatee succeeding to testator's property one after other. Use of words "one after the other" in S. 4 did not imply that there should. be more than one life estate remaining at time of commencement of Act. held had retrospective effect insofar as that affected wills which were made prior to coming into force of Shariat Act, 1962. Section 4, referred to a Will which was in operation at commencement of Act, read with Ss. 3 and 5 of Act, it implied that wills which were made prior to 31.12.1962 and which created limited life estate stood affected to extent provided in Ss. 3, 4 s 5 of said Act.
Limited estate-Devolution-Land, held, in Pakistan by a female in lieu of limited estate abandoned in India having been declared by Supreme Court to devolve on termination of limited estate on persons having a right to succeed to last full owner under Muslim law and such legal position being not disputed and none having appeared from respondent's side to oppose appeal being accepted on consideration of such legal question, appeal allowed. 1982 S C M R 22
P L D 1968 Lah. 234; P L D 1971 S C 791 and P L D 1973 S C
340 ref.
Life estate-Succession-Section 3 allowed inheritance to take place on termination of limited interest as it would have taken place if Muslim Law were applicable when propositus died-Last male-holder’s pre-deceased’s son’s widow succeeds to last male-holder’s interest on fiction of law created by principle of representation as applied in Sialkot District-Such widow being not entitled to succession, if last male-holder were governed by Shariat, due to predeceased son being excluded by surviving sons, nor such succession being permitted under Family Laws Ordinance (VIII of 1961), widow of predeceased son being not allowed to inherit even under such law, widow of predeceased son having succeeded only under custom, held, left no share in property after termination of her limited interest-Limited interest of widow even if not terminated sons of surviving sons of last male-holder, held further, entitled to inherit entire property on death of such widow thus leaving plaintiff without any right of pre-emption.
P L D 1978 Lah. 1318 P L D 1974 S C 124 and P L D 1975 Lah. 83 ref.
6. Sections 3, 4 and 5 only to be
retrospective.— Save as
expressly provided by the provisions of sections 3,4 and 5, this Act shall have
no retrospective operation.
Tribal areas Muslim Personal Laws extended to tribal areas
by Regulation No. I of 1976 with effect from 1: 1. 1976. Section 2 of Muslim
Personal Laws Shariat Application Act, 1962 not retrospective in operation.
Death of owner taking place before enforcement of Act and succession in area
governed by custom. Question of application of Shariat Act, in a suit brought
in 1978, held, would not arise. P L D 1984 Pesh. 117
7. Repeal and savings.— (1) The following enactments are hereby
repealed,---
(a) The
(b) The
(c) The Muslim Personal Law (Shariat) Application
Act, 1937[8][7], in its application to
(d) The
(e) The
(f) The Muslim Personal Law (Shariat) Application
(
(g) The
(h) The
(2) [14][13][* * * * *
* * * * * * *]
Legal Amendments
1.
Sub-Section 2 of S.7 omitted by W.P. Muslim personal Law (Shariat) Application
(Amendment) Act, 1964.
Void Provision:-- Provision of subsection (2) of S. 7 repugnant to S. 3 and therefore void. P L D 1973 Pes. 177 P L D 1969 Lah. 412 ref.
Custom (
The Law of succession has ever since the enactment of the Muslim Personal Law (Shariat) Application Act, 1948, been the rule of Shariat notwithstanding my thing to the contrary contained in any usage or custom. No life estates could there fore be created under the Customary Law after the enactment of that Act. Existing life estates were, however, left untouched and in respect of them the only provision was applicable on their termination in due course according to Customary Law. When the Act of 1962 was enacted the position was that while no new life estates could come into being, the existing ones were to continue till terminated by the death or remarriage etc. o the holder. The raison d’etre of the West Pakistan Muslim Personal Law (Shariat) Application Act of 1962 is to abolish such existing life estates altogether without waiting for their extinction in due course. Section 3 of the Act of 1962 related to all limited estates in respect of immovable property held by Muslim females under the Customary Law irrespective of the time when they came into existence. The only condition was that on the date of the promulgation of the law such a limited estate in respect of immovable property must be held by a Muslim female under the Customary Law. The date on which the last male owner died was not in point. Subsection (2) of section 7 of this Act, therefore, is partly repugnant to the provisions of sections 3 and 6, because although, the time of death of the last full owner was of no consequence under sections 3 and 6, section 7 (2) made it the determining factor, subsection (2) appears in a "saving" section. If section 7 (2); which is a saving clause, is allowed to stand, section 3 becomes absolutely nugatory and the very purpose for which the statute was enacted would disappear. This, therefore, is a case where the saving clause by being repugnant to the purview knocks the very bottom out of the enactment and, therefore, it cannot but be held that section 7 (2) was from its very inception void on account of repugnancy. PLD 1969 Lah. 412
As a result of enactment of the West Pakistan Muslim Personal Law (Shariat) (Amendment) Ordinance, 1963 the ' main part of section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 had become subject to a proviso and section 7(2) of the Act, omitted. The effect of the substitution of section 3 by the amending ordinance, 1963 had been that the limited estate held by Muslim females, under customary law and saved by any enactment repealed by Act V of 1962, was saved by the proviso to the newly substituted section 3. The amending Ordinance XXXIX of 1963 was retrospective in operation and therefore while determining the rights of persons qua limited estate of a female, the proviso should be construed as having been a part of section 3 even on the date when the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was passed. P L D 1969 Lah. 412
[1][1]For statement of objects and
reasons, see Gazette of
This Act was passed by the West Pakistan Assembly on 14th Dec., 1962, and on its having been assented to by the Governor of West Pakistan, it was published in the West Pakistan Gazette (Extraordinary), dated 31st Dec., 1962, pages 4683-85.
It has been adopted by the Federation, see the Federal Adaptation of Laws Order, 1975 (P.O. 4 of 1975).
[2][2]Substituted by the Federal
Adaptation of Laws Order, 1975 (P.O. 4 of 1975), for “the
[3][3]Added by the
[4][4]Substituted by the West
Pakistan Muslim Personal Law (Shariat) (Amendment) ordinance, 1963 (XXXIX of
1963), and shall be deemed always to have been so substituted.
[5] Delegation, transfer.
[6][5]Pb. I of 1920.
[7][6]Pb. II of 1920.
[8][7]Act XXVI of 1937.
[9][8]N.W.F.P. VI of 1935.
[10][9]Pb. IX of 1948.
[11][10]
[12][11]Bwp. I of 1950.
[13][12]Khairpur I of 1950.
[14][13]Deleted by the
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