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---S. 2-A [as amended by West Pakistan Muslim Personal Law (Shariat Act (Amendment) Ordinance (XIII of 1983)]--Civil Procedure Code (V of 1906), S. 100--Custom (Punjab)--Alienation of land--Where before commencement of Punjab Muslim Personal Law (Shariat) Application Act, 1948 land was devolved upon a Muslim male heir under Custom, such person by virtue of S.2-A of Act V of 1962 as amended, held, would be deemed to have become upon such acquisition, absolute owner of such land--Any decree or judgment of any Court affirming right of reversioners under Custom to call in question alienation by such person would be void and of no legal effect--Any suit or other proceedings pending in any Court would be considered to have abated forthwith- Transfer of alienor in favour of alienee would be valid transaction by operation of law.--[Custom (punjab)].

Muhammad Aqil Mirza for Appellants. Raja Afrasiab Khan for Respondents. Date of hearing: 23rd April, 1984.

This R.S. A. is directed against the judgment and decree, dates 4-4-1979 of Additional District Judge, Gujrat who accepted the appeal of the respondents and reversing the judgment and decree, dated 27-3-1978 of the Civil Judge, Mandi Bahauddin decreed the suit of the respondents-reversioners Muhammad Khan and Saleh, declaring that the transfer of the suit land by appellant No.1 Ghulam Muhammad in favour of appellant No. 2 Mst. Bhagey through decree of Court shall not affect the reversionary rights of respondents Muhammad Khan and Saleh after the death of said Ghulam Muhammad appellant No. 1 on the ground that the same was contrary to Customary Law by which parties were governed.

2. The facts of the case are that respondents Muhammad Khan and Saleh filed a declaratory suit to the effect that the suit land alienated by appellant No. 1 Ghulam Muhammad in favour of his wife Mst. Bhagey appellant No.2 did not affect their reversionary rights after the death of Ghulam Muhammad as the parties were governed by Customary Law before the enforcement of Shariat Act and appellant No. 1 being issueless was not entitled under the custom to alienate the said ancestral land. In that suit, they also prayed for grant of an alternative decree for possession of the suit land through pre-emption on the ground that they had superior right of pre-emption of the said land.

3. The learned Civil Judge Mandi Bahauddin dismissed the suit of respondents on 27-3-1978 on the ground that though the land was ancestral, custom for alienation, as available in the family, had not been proved and also on the ground that the plaintiff had no superior right of pre-emption.

4. Respondents Muhammad Khan and Saleh filed appeal in the District Court, Gujrat. This came up for hearing before the Additional District Judge, Gujrat before whom the said respondents relinquished their claim for possession of the suit land through pre-emption and relied only upon the relief prayed for by them on the basis of Customary Law. The Additional District Judge, Gujrat, by his judgment and decree, dated 4-4-1979 accepted the appeal and decreed the suit of declaration that the transfer of suit land by appellant No.1 Ghulam Muhammad in favour of Mst. Bhagey appellant No.2 will not be effective on the reversionary rights of the present respondents after the death of Ghulam Muhammad appellant No. 1.

5. During the pendency of the appeal West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 (XIII of 1983) was promulgated, which added the following section in West Pakistan Muslim Personal Law (Shariat) Act, 1962 (V of 1962):-

"Section 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 on usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim--

(a) he shall be deemed to have become, upon such-acquisition, an absolute owner of such land as if such land had devloved 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 of possession of agricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it is contrary to 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."

6. I have heard the learned counsel for the parties. I have also perused the record.

7. There is no direct finding in judgment of the Additional District Judge that Ghulam Muhammad had acquired the disputed agricultural land under the custom before the commencement of Punjab Muslim Personal Law (Shariat) Application Act, 1948. However, in para. 3 of the plaint, it had been given that Ghulam Muhammad was bound by custom of District Gujrat in matter of alienation and inheritance before the promulgation of Shariat Act, and had got the disputed land through inheritance. An inference can clearly be drawn from it that the case of the respondents-plaintiffs in their suit was that the land had devolved upon Ghulam Muhammad alienor before the promulgation of Shariat Act under the custom. Even otherwise, this position has been made clear by the witnesses produced by the parties in their evidence. P.W. 1 Nadir, appeared on behalf of respondents-plaintiffs and stated that the disputed land devolved on Ghulam Muhammad appellant through inheritance from his forefathers and he had got the same before the establishment of Pakistan. D.W. 3 Ghulam Muhammad, the present appellant, himself made a statement that the land belonged to his forefathers and had devolved upon him about 60 years ago. It is, therefore, clear that the land had come to the appellant Ghulam Muhammad before the promulgation of Shariat Act, 1948 under the custom. Under section 2-A of West Pakistan Muslim Personal Law Shariat Act 1962 (V of 1962) as amended by the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983 (XIII of 1983) Ghulam Muhammad is to be deemed to have become upon such acquisition an absolute owner of such land since before 1948 as if such land had devolved on him under Muslim Personal Law and any decree and judgment of any Court affirming the right of respondents reversioners under custom to call in question such an alienation is to be considered void and of no legal effect and even the suit of respondent reversioners which is deemed to be pending due to pendency of this appeal (which is a continuation of the suit) is to be considered to have abated forthwith. In this view of the matter, the judgment and decree passed by the Additional District Judge has to be considered by operation of law to be null and void and the suit of respondents reversioners Muhammad Khan and Saleh is to be considered to have abated forthwith. This appeal is accordingly allowed, the judgment and decree of the learned Additional District Judge is set aside and suit of respondents is declared to have abated and Ghulam Muhammad appellant No.1 having been considered to have become full owner of the disputed property by operation of law, the transfer of land by him in favour of appellant No.2 Mst. Bhagey deceased is declared to be a valid transaction. There shall, however, be no order as to costs.

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