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Civil Petitions for Special Leave to Appeal Nos. 1145 and 1151 of 1980, decided on 2nd September. 1985.
(From the judgments of the Lahore High Court Lahore, dated 26‑5‑1980 and 1 4‑1980 in Regular Second Appeals Nos. 52 of 1968 and 1012 of 1965) .
‑‑‑Art. 185(3)‑‑Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948)(as amended by West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983)]‑‑Inheritance Agricultural land‑‑Alienation under custom‑‑Parties Muslim and property in dispute inherited by them from their Muslim fathers‑‑Parties, held, would be deemed to have inherited property under Muslim Law regardless of fact whether both or either of them died before promulgation of 1948 Act and no suit challenging alienation made by any such landowner would be set aside on basis of custom‑‑All pending proceedings in that behalf, held further, would be deemed to have abated.
S. Inayat Hussain, Advocate‑on‑Record for Petitioners.
Nemo for Respondents
Ch. Muhammad Ashraf, Advocate Supreme Court and S. Wajid Hussain, Advocate‑on‑Record (absent) for Petitioners.
Raja Muzaffar Ahmad, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Respondent No. 2.
Date of hearing: 2nd September, 1985.
The question of law involved in both these cases is the same, therefore, they are being disposed of together.
In C.P. No. 1145 of 1980, the petitioner filed a suit (out of which this petition has arisen) challenging an alienation of agricultural land made by one Saeed son of Zamindar on the ground available under Customary Law that the land being ancestral it was without consideration and necessity. The declaration and relief sought has been refused with regard to the land now in dispute. Therefore, leave to appeal has been sought.
In the other case, C.P. No. 1151 of 1980, Ahmad Ali son of Labhu having died, the question arose whether he died before the promulgation of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1948, so as to involve inheritance under Custom or after the said promulgation and consequential inheritance would be governed by Shariah. Findings of fact were rendered (against the contention of the petitioner side) to the effect that he died after the said promulgation. And accordingly the inheritance was correctly determined in accordance with Muslim Law. The petitioners are aggrieved by this finding and thus seek leave to appeal.
Both the cases are to be decided in the light of the Punjab Ordinance No. XIII of 1983 as interpreted and applied in C . A . No. 144 of 1972 (Abdul Ghafoor v. Muhammad Shafi); C.A. 159 of 1972 (Mst. Zenab Bibi v. Mst. Maryam Bibi); C.A. 48 of 1973 (Mehtab Bib v. Yaqub); and C.A. No. 95 of 1973 (Javed Mahmood Akram v. Nazir Ahmad) decided by this Court on 22‑5‑1985. Both sides in C.P. 1145 of 1980 and Ahmad Ali in C.P. 1151 of 1980 undoubtedly were Muslims and the property now in dispute had been inherited by them from their Muslim fathers. Under the changed law regardless of the fact whether both or either of them died before the promulgation of the 1948 Act as asserted from the petitioner side, under the new law they shall be deemed to have inherited the property under the Muslim Law.) That being so, as already held by this Court in the above referred cases, the inheritance from persons like Saeed and Ahmad Ali deceased shall be governed by the Muslim Personal Law (Shariat). Moreover, as is clear in the, new law no suit challenging the alienation made by any such land‑owner would be set aside on the basis of the Customary Law. All pending proceedings in that behalf would be deemed to have abated.
C.P. No. 1145 of1980 accordingly on account of the last mentioned consideration be deemed to have abated as it arises out of a challenge to the alienation made by Saeed, on the basis of Customary Law. The petition also merits dismissal because inheritance from Saeed would be governed by the Muslim Personal Law (Shariat). Similarly, for the B reasons discussed above the inheritance of Ahmad Ali (in C.P. 1151 of 1980) in view of the latest law, regardless of the question of the date of death is required to be determined by the Muslim Law. Accordingly that petition also merits to be dismissed.
In the light of the foregoing discussion both these petitions, are dismissed.
M . Y . H . Petitions dismissed.
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