The West Pakistan Muslim Personal Law (Shariat) Act, 1962 (v of 1962

Page 1The West Pakistan Muslim Personal Law (Shariat) Act, 1962 (V of 1962)

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[1][1]The Punjab/Sind/N.W.F.P./Baluchistan MuslimPersonal 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:---

Court Decisions

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

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

Retrospective Effect:-- Sections 4 a 5 of Act, held, had retrospective effect

insofar as that affected wills which were made prior to coming into force ofShariat Act, 1962.Section 4, referred to a Will which was in operation atcommencement of Act, read with Ss. 3 and 5 of Act, it implied that. willswhich were made prior to 31.12.1962 and which created limited life estatestood affected to extent provided in Ss. 3, 4 & 5 of said Act. 1986 C L C 1165

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][Pakistan].

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.

Court Decisions

Limited estate under Colonization of Government Lands (Punjab) Act, 1912

Limited estate under Colonization of Government Lands (Punjab) Act, 1912, isat par with a customary limited estate and subject to provisions of WestPakistan Muslim Personal Law (Shariat) Application Act, 1962. 2000 Y L R 635

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 ofdeceased last male owner while rival claimants (petitioners) predecessors-in-interest had died before the death of last male owner---All the Courts belowincluding the High Court had concurrently found that plaintiff's predecessors-in-interest were not only reversioners of deceased (last male owner) but theonly collaterals in equal degree to last male owner and they alone were alive atthat time when he died---Remand of case by Appellate Court was only todetermine collaterals of last male owner---Trial Court in post remandproceedings had found that predecessors-in-interest of plaintiffs were alive atthe death of last male owner while predecessors-in-interest of petitioners weredead before his death---Finding of fact recorded by Trial Court in post-remandproceedings was confirmed by Appellate Court as also by High Court---Concurrent findings of Courts below in absence of any evidence to thecontrary, would not warrant interference in impugned judgment of HighCourt---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

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 Shari heirs of last full owner living at the time of

his death. Widow being alive at the time of last full owner's death who died

issueless was entitled to inherit 1/4th Share. High court had rightly modified

judgments of Courts below by decreeing plaintiff's suit to the extent of 3/4th share

(excluding widow's 1/4th share).Leave to appeal was refused in circumstances.

1995 SCMR 1014

High Court did not deal with those points which were left by Trial Court to bedealt with by the High Court in appeal because in an earlier revisional order ithad already been held that those points might be dealt with and decided by theAppellate Court. Leave to appeal was granted not only to examine those pointsbut also to examine whether, in the facts and circumstances of case, deceasedwould be deemed to have freely executed those documents relied upon fromrespondents' side and he was not under any coercion of general or particularnature; which would also include examination of the condition in thebackground of the case and the circumstances in which he was made to liveparticularly at a meager "Guzara" of Rs. 80 could at all be treated as free agentand could the documents concerned be treated as the result of his ownvolition; whether alienation in question, was Tamleek/gift, a relinquishment/surrender or any other form of transfer; in that context judgment rendered bySupreme Court in Ghulam Ali's case (PLD 1990 SC 1) might be attracted as alsojudgment in Abdul Ghafoor's case (PLD 1985 SC 407) might also be attracted inorder to examine; whether notwithstanding .the then prevailing customarylaw of inheritance, Punjab Muslim Personal Law (Shariat) Act (Amendment)Ordinance, 1983, which had been held to be retrospective, the property of thedeceased could be dealt with and transferred only in accordance with theMuslim Law of alienation. Question regarding gift in favour of plaintiff's sideby defendants (donors) of one house, would require further examination witha view to see; whether there was acceptance thereafter. Amongst others amajor question would also be examined; whether on admitted facts withregard 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 nottransferred despite being capable of being transferred what was the effect on



the present litigation. Many other similar questions would also requireexamination. 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

Limited estate of female landowner, devolution of' .on death of female

limited owner, devolution of her estate after 1962, would be in accordancewith the then prevailing law and that being so, decree passed in favour ofplaintiffs regarding share of suit land which was in possession of saiddeceased was proper and valid. Such decree was not liable to be set aside bythe High Court and was reversed by Supreme Court in circumstances. Appealof pro forma defendant (Mst. Maqboola) was also allowed by the Court. 1991 S

C M R 515

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 (Punjab).Adoption. Inheritance to property left by Muslim female who

died in 1963, when Muslim Personal Law was in force. .Inheritance to such Muslim

female's estate would be regulated not by custom but by Muslim Personal Law

which was in force at the time of her death. Muslim Law does not recognize

adoption and does not treat adoptee as heir. Plea of adoption as son by deceased

Muslim female put forth by defendant would be of no avail as property left by such

female would have to be regulated by personal law. P L D 1988 Lah.588



Declaratory decree under Custom. Effect of, after amendment of Act V of

1962. Declaratory decree under Custom, could not, by its terms even purportto create title in any one in the alienated land. Such decree merely saved rightsof inheritance from effect of alienation when it opened out. Person obtainingsuch decree, held, could not claim any right on basis of that decree which hadbeen 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.

Muhammadan Law

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).

Court Decisions

Punjab Amendment:--Question of death of the predecessor-in-interest of

the plaintiffs before or after the promulgation of. Punjab Muslim Personal Law

(Shariat) Application Act, 1948 was irrelevant. Within the meaning of S.2.A of the

Punjab Muslim Personal Law (Shariat) Application. Act, 1962 [as incorporated by

Punjab Ordinance NO.XIlI of 1983)], the predecessor.in.interest who had acquired

the property in dispute before the commencement of West Punjab Muslim Personal

Law (Shariat) Application Act, 1948, would be deemed to be the absolute owner of

such land as if such land had devolved on him under Muslim Personal Law

(Shariat) Application Act, 1937 and after his death all his Muslim legal heirs would

inherit in accordance with their legal shares. Judgments and decrees passed by the

two Courts below were set aside and suit of the plaintiffs was decreed by the High

Court in exercise of revisional jurisdiction. 2002 C L C 689

Section 2.A [as amended for Punjab] was only applicable to the agricultural land

acquired under the custom, and had no relevance to succession under Islamic Law,

which had opened before its enforcement. 2002 C L C 819

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.

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 Revisional Court. Trial Court decided same issue and returned

a finding contrary to what had been decided previously and such finding of Trial

Court was upheld by lower Appellate Court. Findings and the views of Trial Court

as well as lower Appellate Court on the issue could not be upheld. Revision was

dismissed in circumstances. 1999 Y L R 631

PLD 1981 FSC 278 PLD 1983 SC 273 and PLD 1991 SC 71 ref.

Muhammadan law:-- Custom (Punjab).Application. Daughters of last male owner

claiming to be governed by Muslim personal law in matters of inheritance filed a

suit for declaratory decree to this effect in respect of estate left by their deceased

father. Defendants claimed that deceased having died before partition, his

inheritance was governed by Custom. Plaintiffs' (daughters') suit was dismissed by

Trial Court but decreed by Appellate Court which came to conclusion on basis of

evidence that deceased in matters of inheritance was governed by Muslim personal

law and not by Custom. Validity. Wajib-ul-Arz of three villages where property of

deceased was situate clearly mentioned that deceased being Syed was governed by

Muslim personal law in matters of inheritance and such entries related to year

1927.28 about 11 years before death of deceased. As against such documentary

evidence produced by plaintiffs, defendant's oral evidence relating to applicability

of Custom was of no significance and was insufficient to prove that deceased in

matters of inheritance was governed by Custom. Defendants were required to

prove not only that deceased in matters of inheritance was governed by Custom

but also to establish as to what that particular Custom was .Defendants could not

prove either of such factum. Parties were thus governed by Shariat law in matter of

inheritance of deceased and plaintiffs (daughters) were entitled to inherit their

shares in accordance with Shariat law. 1997 C L C 659

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.

1997 C L C 659

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


Non- Muslim

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.

Protection of reversionary interest. Suit for. Son of vendor of land in dispute

had challenged sale by filing suit for possession contending that land indispute was ancestral qua hi and his father had sold same without anyconsideration and legal necessity for it. Son also accused his father of loosemorals and said that he lived a luxurious life and squandered the ancestralland. Suit filed by son was dismissed by Trial Court, but judgment and decreeof Trial Court was reversed in appeal. Upon insertion of S. 2.A in the Act,whole scenario was altered as in terms of aforesaid section alinor would bedeemed to be an absolute owner of land as if it had fallen to him under Shariat.With above transformation, inhibitions attaching to alienation of land underCustom evaporated altogether. Islamic Law recognised no restriction on intervivo transfer, of property by its owner. Decree passed by Appellate Courtbelow in favour of son of alienor, was rendered void, inexecutable and of nolegal effect to the extent it was contrary to Muslim Personal Law (Shariat) Act[as amended] and suit would be deemed to have abated forthwith. 1994 C L C

453

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 India

. Proprietary rights in respect of such land vested in allottee since 1964 and he sold

the said land in 1970 and 1971 . Allotment of land made to allottee being a grant he

was not holding same under custom and custom thus no longer applied to him

when he sold land in 1970 and 1971 . Matter having ended by S.2.A, all suits and

other proceedings based on custom challenging such transaction pending in any

Court had abated. 1991 C L C 1304 P L D 1962 Lah. 42 ref.

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 (Punjab).Neither the plaintiff alleged in plaint the custom, that agnates

excluded the collaterals nor led any evidence to establish the custom. Neither of the

parties as a matter of fact led any evidence nor raised such question before the first

Appellate Court. Such a new point involving mixed question of law and facts

meriting enquiry could not be raised in second appeal. 1990 M L D 1503

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


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 (Punjab). Petitioner filed suit under Custom, challenging alienation aswithout consideration and legal necessity. Plaint was rejected under O.VII,



R.11, C.P.C.Held, notwithstanding the fact that the petition when filed primafacie, had some force but as the law stood today, the petitioner could not at allsucceed in so far as subject matter of the petition was concerned. Leave toappeal refused.

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 filedunder custom, even if taken to have been validly made, would be renderedvoid, inexecutable and of no legal effect. Consent decree passed in suit tiledunder custom could not be deemed to be transfer of land in recognition ofsuperior 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 (Punjab). Reversioners of last male owner having challenged

alienations made by widow of last male owner during her lifetime, obtaining

decrees under custom. Such decrees, under S.2.A, of the Act, 1962, held, became

void and appeals brought against them had abated as custom was abolished in all

its aspects. Successions having taken place prior to 1948 also were deemed to have

been governed by personal law. Decrees obtained meanwhile on basis of

reversionary rights recognized by custom alone were set at naught for such reason.

1987 M L D 3301 PLD 1985 S C 407 rel.

[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.]

Court Decisions

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 India. Contention of the defendants was that widow was

issueless, and on termination of her limited interest in the estate by virtue of the

provisions of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962,

she had inherited 1/4th share under Islamic Law, thus, sale made by her to extent

of 1/4th share was valid, but none of the Courts below had attended to this aspect

of the case. Supreme Court granted leave to appeal to consider said question

2002 S C M R 1000

-->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.

Suit for cancellation of mutation. Applicability of West Pakistan Muslim

Personal Law (Shariat) Application Act, 1962. Mutation in respect of land indispute was sought to be cancelled by plaintiffs contending that predecessor-in-interest of parties, who was owner of land in dispute having died in 1948before promulgation of West Pakistan Muslim Personal Law (Shariat)Application, Act, 1962, defendant, the daughter of deceased was deprived ofinheritance and that mutation attested under Muslim Personal Law wasagainst custom under which daughter/female member was not entitled to theinheritance. Both the Courts below as well as High Court had concurrentlyconcluded that predecessor-in-interest of parties was governed by MuslimPersonal Law in the matter of inheritance and not by custom. Witnessesproduced by plaintiffs had nowhere mentioned in their statement that as towhat was the custom prevalent between the parties. Witnesses did not pointout any detail as to whether the parties were governed by custom beforepromulgation of Muslim Personal Law. Initial presumption, in circumstances,was in favour of application of Muslim Personal Law unless custom wasstrictly proved. Plaintiff having failed to prove custom so as to deprivedefendant daughter of deceased from inheritance of her father, suit filed byplaintiff, which was also barred by time, was rightly dismissed by Courtsbelow and also by High Court., 2001 M L D 212

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

Limited estate held by Muslim female. Such estate held under customary law

was terminated on promulgation of West Pakistan Muslim Personal Law(Shariat) Application Act, 1962. Limited estate after the promulgation, of thesaid Act was opened for succession amongst Sharia heirs of last full owner.2001 Y L R 2521

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 India and that the land was

owned by her husband. No case was made out that appellants were heirs of

husband of female allottee. In absence of evidence, no finding could have beer,

recorded that female allottee was limited owner of property in lieu of which

property in question, was transferred to her. Appellants were, thus not entitled to

inherit property in question. 1996 S C M R 1393

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

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S. 3.

Alienation by widow of last male owner who was holding land in question, as

limited owner. Alienor claiming 1/4 share of widow on termination of limited

estate when alleged alienation of land in question, was declared to be without

consideration and legal necessity. Heirs of widow being locked in litigation with

alienee, he was not allowed to retain 1/4 share of widow. Such dispute could,

however, be thrashed out through appropriate proceedings. -->1995 C L C 123



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 Shari shares whether

alive or dead. Widow of last full owner/limited owner was also entitled to inherit

her husband to the extent of 1/4 share because of his having died issueless. 1992 S

C M R 1721

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.

P L D 1988 Lah. 186

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.

1987 C L C 1048

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 Shari heirs

at the time of his death. Finding of Appellate Court being in accordance with the

legal requirement was upheld by High Court. P L D 1987 Pes. 121

Termination . of limited estate. Limited estates, held, were terminated by Act V of

1962. Sale deed and mutation of land during continuance of life estate i.e. before

promulgation of Act V of 1962 could not be annulled on enforcement of the Act.

Question of life and, death of last full male owner would, be irrelevant for

determination of transactions entered into during continuance of life estate.

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 (Punjab) Act, 1912. Section 3, West Pakistan Muslim Personal Laws (Shariat)

Application Act, 1962, held, applicable. Orders of Commissioner and Member,

Board of Revenue holding otherwise declared illegal and set aside.

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.

Punjab Muslim Persona Law (Shariat) Application (Removal of Doubts) Act

(XXV of 1975), S. 3. Succession. Female holding limited estate, held, entitled only to

get fractional share in land of last male holder. Claim of such female to have whole

land to exclusion of collaterals cannot be accepted. Petition dismissed. Constitution

of Pakistan (1973), Art. 199. 1983 CLC 3134

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 Shari heirs

at the time of his death. Finding of Appellate Court being in accordance with the

legal requirement was upheld by High Court. -->P L D 1987 Pes. 121

Termination of limited estate. Limited estates, held, were terminated by Act V of

1962. Sale deed and mutation of land during continuance of life estate i.e. before

promulgation of Act V of 1962 could not be annulled on enforcement of the Act.

Question of life and, death of last full male owner would, be irrelevant for

determination of transactions entered into during continuance of life estate.

P L D 1987 Pes. 121 P L D 1966 (W.P.) Pesh. 1 ref.

Muhammadan Law

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

Life estate-Succession-Section 3 allowed inheritance to take place on

termination of limited interest as it would have taken place if Muslim Lawwere applicable when propositus died-Last male-holder’s pre-deceased’s son’swidow succeeds to last male-holder’s interest on fiction of law created byprinciple of representation as applied in Sialkot District-Such widow being notentitled to succession, if last male-holder were governed by Shariat, due topredeceased son being excluded by surviving sons, nor such succession beingpermitted under Family Laws Ordinance (VIII of 1961), widow of predeceasedson being not allowed to inherit even under such law, widow of predeceasedson having succeeded only under custom, held, left no share in property aftertermination of her limited interest-Limited interest of widow even if notterminated sons of surviving sons of last male-holder, held further, entitled toinherit entire property on death of such widow thus leaving plaintiff withoutany 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.

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 Pakistan to female in lieu of her limited estate

abandoned in India. Devolves on termination of limited estate under S. 3, West

Pakistan Muslim Personal Law (Shariat) Application Act, 1962 on persons who

would have succeeded had the Act applied at the demise of last full owner.

Existing limited estates terminated with effect from 31.12.62. After termination,

devolution of estate regulated by S. S of Act V of 1962. Punjab Muslim Personal

Law (Shariat) Application (Removal of Doubts) Ordinance (IX of 1972), S. 2. [Sher

Muhammad v. The Additional Rehabilitation Commissioner. P L D 1973 S. C. 304

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 (Punjab) Act,

1912. In March 1959, the widow was allowed to acquire proprietary rights in the

tenancy. After enforcement of the West Pakistan Muslim Personal Law (Shariat)

Application Act, 1962, mutation was sanctioned by the Assistant Collector in

respect of the land in question according to which one fourth share was allowed to

be, retained by the widow while the remaining three fourth was given to her

husband's sister. The mutation was challenged on the ground that having already

acquired proprietary rights in the land the widow was not a limited estate holder

under customary law and as such was not hit by the provisions of section 3 of the

West Pakistan Muslim Personal Law (Shariat) Application Act. 1962. On the other

hand it was urged that the provisions contained in sections 21(b) and 30.A of the

Colonization of Government Lands (Punjab), 1912, read together showed that the



position of a widow under that Act was precisely identical with that of a widow

under custom.

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 1971 Lah.567

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.



P L D 1966 W. P. (Rev.) 102 P L D 1964 W. P. (Rev.) 54 ref.

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.

Court Decisions

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.



Court Decisions

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 Dacca 190; A I R 1925

Cal. 1193; A I Ii; 1948 Oudh 270; AIR 1930 Lah. 904 and P L D 1959 Lah. 616 ref. P L

D 1958 Pesh. 213 and P L D 1975 Lah. 1463 rel.

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.

1986 C L C 1165

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.

Court Decisions

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 Punjab Limitation (Custom) Act, 1920[6][5];

(b) The Punjab Custom (Power to Contest) Act, 1920[7][6];

(c) The Muslim Personal Law (Shariat) Application Act, 1937[8][7], in its

application to West Pakistan;

(d) The North-West Frontier Province Muslim Personal Law (Shariat)

Application Act, 1935[9][8];

(e) ThePunjabMuslim Personal Law(Shariat)ApplicationAct, 1948[10][9];

(f) The Muslim Personal Law (Shariat) Application (Sind Amendment) Act,

1950[11][10];

(g) The Bahawalpur State Shariat (Muslim Personal Law) Application Act,

1951[12][11];

(h) The Khairpur State Muslim Female Inheritance (Removal of Customs) Act,

1952[13][12].

(2) [14][13][* * * * * * * * * * * * ]

Legal Amendments



1. Sub-Section 2 of S.7 omitted by W.P. Muslim personal Law (Shariat)

Application (Amendment) Act, 1964.

Court Decisions

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 (Punjab). Gift. Plaintiff. Appellant in challenging gift of land made by his

father in favour of mosque asserting that the custom applicable to donor did not

permit such a power of alienation particularly when land in dispute was ancestral

qua him. Court below dismissing suit and appeal of appellant on ground that

powers to contest alienation under custom had been taken away under S.7 of West

Pakistan Muslim Personal Law (Shariat) Application Act, 1962. Suit of appellant

and present proceedings in the shape of second appeal based upon custom stood

abated under Cl.(c) of S.2.A of Amendment Ordinance of 1983. Donor, even

otherwise, having inherited the property from his own father somewhere earlier

than 1948, was to be assumed to have inherited it under Personal Law and thereby

become its full owner and deemed to be free from all fetters in making alienation of

same. Appellant son would have no cause of grievance under Personal Law to

challenge the alienation and for that reason too the appeal which was continuation

of the suit would abate. Provision of S.2.A of Amendment Act of 1983 being quite

pre-emptory and categorical, held, had caused total extinction of custom and its

survival or revival could not be construed by any interpretation. Not only pending

suits /proceedings but ever) decrees obtained had been rendered void. Custom was

made to die irretrievably so that it was no more open to rely upon it in any form.

1987 M L D 1262

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 West Pakistan, dated 15th December, 1962,

(Extraordinary), pages 4275-4276.

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 Province of

West Pakistan except the Tribal Areas.”

[3][3]Added by the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1963

(XIII of 1983).

[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]Sind XXII of 1950.

[12][11]Bwp. I of 1950.

[13][12]Khairpur I of 1950.

[14][13]Deleted by the West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act,

1964 (XXVIII of 1964).

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The West Pakistan Muslim Personal Law (Shariat) Act, 1962 (v of 1962