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Civil Petition for Special Leave to Appeal No. 77‑R of 1986, decided on 28th June, 1986.
(From the judgment of the Lahore High Court, Rawalpindi Bench, dated 26‑3‑1986 in R.S.A. No. 762 of 1970).
Constitution of Pakistan (1973)‑‑
‑‑Art. 185 (3)‑‑West Pakistan Muslim Personal Law (Shariat) Application (Punjab Amendment) Ordinance (XIII of 1983). S. 2‑A‑‑Succession prior to Act (IX of 1948)‑‑'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.
Abdul Ghafoor and another v. Muhammad Shafi and other P L D 1985 S C 407 ref.
Malik Muhammad Jafar, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.
Sh. Zia‑uddin, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondents.
Date of hearing: 28th June, 1986.
Leave to appeal has been sought from judgment, dated 26‑3‑1986 of the Lahore High Court; whereby petitioners' Regular Second Appeal arising out of a land inheritance, case, was dismissed.
One Maula Bakhsh who owned the land in dispute died before 1948 leaving a widow Mehr Bano. The land was given to her as life estate. She remarried and the land then went to Mst. Gulab Bano an unmarried daughter of Mauls. Bakhsh. She married in 1954 whereupon mutation o' inheritance of Maula Bakhsh was sanctioned in favour of the widow, daughter anal his sister. The petitioners who are collaterals of Maula Bakhsh contested this distribution in inheritance by a suit, it was decreed by the trial Court. In appeal it was held that the daughter, keeping in view the custom of the parties, was better entitled to inherit. The High Court has, however, treated this aspect as irrelevant and decided the case on the basis of West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (No. XIII) of 1983 and observed as follows:
"Section 2‑A (of the Ordinance) deals with "succession prior to the Act IX of 1948". Admittedly, Maula Bakhsh died prior to the enforcement of the said Act when still Custom was applicable to him. By virtue of this provision he shall be deemed to have had acquired the land from his own father under Muslim Personal Law (Shariat). This is what the enacting portion of section 2‑A as also clause (a) thereof when read together provide for."
This interpretation is in line with the judgment of this Court in Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407 wherein, it has been held that the Amending Ordinance of 1983 has completed retrospective effect. That being so, Maula Bakhsh would be deemed to have inherited the property under Muslim Law and therefore 113 his inheritance would be governed by the same law. Hence, no justification has been made out for interference with the impugned judgment which is unexceptionable. This petition is dismissed.
M. I. Petition dismissed
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