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Civil Petition for Special Leave to Appeal No. 720 of 1985, decided on 28th October, 1985.

‑‑‑Art.185(3)‑‑Punjab Muslim Personal Law (Shariat Application) Act (IX of 1948), S.2‑A‑‑Custom in succession prior to enforcement of Act IX of 1948‑‑"Male heir" within meaning of S. 2‑A of Act, 1948 had acquired or inherited land under Custom before commencement of Shariat Act in 1948‑‑Leave to appeal granted to consider contention that there being no allegation of alienation or delivery of possession of agricultural land inherited by "male heir", question involved in suit only related to calculation of share of each party under Shariat law, therefore, cl. (c) of S. 2‑A, Shariat Act, 1948 relating to abatement was not applicable to case.

Muhammad Ismail Qureshy, Senior Advocate Supreme Court and Mian Ataur Rehman, Advocate‑on‑Record for Petitioners.

Ch. Muhammad Anwar Binder, Advocate Supreme Court and S. Wajid Hussain, Advocate‑on‑Record (absent) for Respondents.

The facts giving rise to this petition are that one Lal had two sons namely Khuda Bakhsh (predecessor‑in interest of the respondents) and (2) Hayat (predecessor‑in‑interest of the present petitioners). On the death of Lal both of his above‑mentioned sons inherited the land equally in accordance with Custom. Subsequently Khuda Bakhsh died in 1935 leaving behind two widows namely Mst. Nawab Bibi (mother of Mst. Kaniz and Mst. Faizu (respondents 1 and 2) and (2) Mst. Bhagan (mother of Mst. Haideran respondent No.3 herein). Since inheritance was governed by Custom at that time, the share of Khuda Bakhsh devolved upon his daughters i.e. respondents 1 to 3, as limited owners, till their marriage or death. Mst. Hiaderan Bibi respondent No.3 died in 1939 and thus lost her limited interest and her share of the property reverted to Mst. Bhagan as a limited owner having life interest in the said property. Life interest of Mst. Bhagan termitted on her death in the year 1966 and 5/24th share thereof was given by the Revenue authorities to the present petitioners (i.e. the heirs of Hayat. Mst. Faizu and Mst. Kaniz Bibi (respondents 1 and 2) also married in 1946‑47 i.e. before the coming into force of Muslim Personal Law (Shariat) Act, 1948 and their life interest thus came to an end according to Custom.

Muhammad Hayat (the predecessor‑in‑interest of the present petitioners) got the land mutated in his name and mutations were sanctioned in favour of the petitioners in 1946. Mst. Faizu and Kaniz filed an appeal against that order before the Collector which was accepted and it was held that the petitioners were entitled only to 2/24th share of the property of these respondents. The petitioners then filed a suit against the order of the Collector in the Court of Civil Judge Gujranwala in 1968 for a declaration to the effect that they are owners of 5/72nd share in the property which was in the name of Mst. Bhagan. It was decreed by the learned Civil Judge on 30‑7‑1973. The respondents then filed an appeal before the District Judge who dismissed the same affirming the order of the trial Court. The respondents then filed an R.S.A. before the High Court which was dismissed as having abated, in view of the provisions of section 2‑A of Ordinance (XIII of 1983).

3. Learned counsel for the petitioners submitted that the High Court had erred in holding that the suit had abated and urged that in view of clauses (b) and (c) of section 2‑A of the Act, which was inserted in Act (V of 1962), through an amendment vide the West Pakistan Muslim Personal Law (Shariat) Act Amendment Ordinance (XIII) of 1983, which reads as follows:‑

"2‑A. Succession prior to Act IX of 1948. Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim:‑

(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat) Act.

(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."

4. On the other hand the learned counsel for the respondents submitted that only suits of certain nature abated under the new law and not all types of suits, although the suit‑land in those cases may have been inherited by a male heir under Custom, prior to 1948.

He submitted that after Lal died, Khuda Bakhsh, who was one of his 'male heirs', alongwith Hayat, had inherited agricultural land under Custom, prior to the commencement of the Punjab Muslim Personal Law (Shariat Application) Act, 1948 and as such he must be deemed to be the full owner under Shariat Law by virtue of the 1983 amendment. He submitted secondly that a careful reading of clause (b) of section 2‑A would show that it is only where the requisite conditions are fulfilled, i.e. (i) such a male heir had alienated or parted with the possession of any of the land inherited by him under Custom before the commencement of the 1948 Act and (ii) the reversioners (i.e. the collaterals and other persons to whom the land would have reverted after the termination of the limited estate of the said male heir under Custom) had filed a suit to challenge such alienate etc. and (iii) Where such a suit or appeal or other proceeding of such a nature are still pending in any Court the aforementioned right of a reversioner, that the suit of other proceeding of such nature (as mentioned in clans(, (b), shall abate under clause (c) of section 2‑A of the 1983 Act;.

5. Learned counsel for the petitioners asserted that, in this case, it was Hayat son of Lal who was the 'male heir' within the meaning of section 2‑A who had acquired or inherited the land under Custom before the commencement of the Shariat Act in 1948. On the other hand the counsel for the respondents asserted that Khuda Bakhsh was' also such a 'male heirs', having inherited land from his father, under Custom before 1948 and that the appeal before the High Court arising of the suit filed by the reversioner stood abated.

Petitioners counsel however submitted as there was no allegation of alienations or delivery of the possession of agricultural land inherited by a 'male heir' the question involved in the suit only related to the calculation of the share of each party under the Shariat Law, therefore the clause relating to abatement did not apply to the present case.

6. The question needs consideration. Leave is, therefore, granted for this purpose. Security in the sum of Rs.2,000.

To be heard on the same record with permission to file additional documents.

M. B. A. Leave granted.

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