W.P.

Muslim Persona Law (Shariat) Application Act, 1962

190

WEST PAKISTAN MULSIM PERSONAL - LAW (SHARIAT), APPLICATION ACT, 1962 (V OF 190)

An Act to consolidate and amend the provisions for the

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application of Muslim Personal Law (Shariat) in the Province of [West Pakistan.

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[31st December, 1962i

Preamble.--Where it is expedient to consolidate and amend the provision for the application of Muslim Personal Law (Shariat) in the Province of PunjabiSindh/N.W.F.P/ Baluchistan :2
COMMENTS Application of law. Widow of pre-deceased soh of the

original owner. Entitlement to inheritance under custom. Application Of law. Question of. Respondents plaintiffs claimed ownership of property in question being heirs of deceased and the ground that after promulgation of said Act, limited ownership under the austom held by said lady came to an end, therefore, respondents/plaintiffs were entitled to possession of land in question being heirs of deceased. Said suit was decreed by 'Courts below. Civil appeal in Supreme Court, with submission that said female was limited owner, she was entitled to the share in the property in question, as a widow of pre-deceased son of the original owner. Said lady was not entitled to any share from property in question left by male owner/ her father-in-law as her husband died before death of his father Civil appeal dismissed. 2007 PSC SC (Pak.) 432
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 whole of Province of West Pakistan except the Tribal Area.
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Subs for words "West Pakistan" by Punjab, Sindh, N.W.F.P. Balochistan A.0, 1975. Subs for words "West Pakistan" by Punjab, Sindh, N.W.F.P. Balochistan 1.0, 1975.

W. P. Muslim Persona Law (Shariat) Application Act, 1962 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, trust and trust properties, the rule of decision, subject to the provisiorid of any enactment for the time being in force shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims.
COMMENTS

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A suit was filed by petitioner for declaration that alienation of land made by their father, defendant No. 1 (now represented by respondents Nos. 1-A to 1-F) be declared as void as he was not competent to alienate land which was acquired by him under ."Custom" and that the alienations made by him do not affect the reversionary rights of petitioners who were the sons of defendant No. 1. In view of enunciation of law by High Courts and Supreme Court, this Court is of the view that when the issues as to the applicability of S. 2-A of Ord. XIII of 1983:had been decided by Mal Court twice and was maintained by revislonal Court, same became final qua the parties and it was not open to. Trial Court to decide the same afresh and return -a finding, contrary to what had been dedided previously. Findings and view of Tridl Court as well as Appellate Court on the point cannot be upheld. Findings recorded by tow Courts below on issue ofiknitation are based on correct appreciation of facts and law. Trariaction of sale took place on different dates during the yeats 1960 to 1967 bUt were not challenged till 26.1.1981 when suit was filed by two of the heirs of deceased defendant No. 1. Same was . barred by time as th.e only explanation for not filing suit earlier was that one of petitioner was minor. This could not be proved by petitioner . during trial by any convincing arid cogent evidence that he was born on 27.2.1960. Only piece of evidence was Exh. P-8 showing birth entry which was made even after filing of suit. Two Courts below have rightly disbelieved such a :document of a doubtful nature. Concurrent finding two Courts below - on this issue (No. 1) do not warrant any interference in revision and thus are upheld. Petition dismissed. 2000: CIA 305
Civil suit for exclusion of respondents from inheritance. Respondents appeal allowed, suit dismissed. Challenged to. Petitioner were six sisters. Two of them were

W.P. Muslim Persona Law (Shariat) Application Act, 1962

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considered to be consanguines (residuries), and plea was that collaterals/respondents had no share. Fact that all were real sisters, was revealed in appeal filed by respondents. Law is to be applied by Courts to the facts on record proved or admitted. revision petition dismissed with costs. KIR 2000 C.C. (Lah)
297 Decree . under Customary Law with delivery of

possession under decree would not abate and become void in view of proviso to S.2A. NLR 1991 SD 135
Implications of S. 2A. Provision of S. 2A was direct at

removing that vestige of custom which persisted on the rights of a Muslim inheriting ancestral property and the limitation being founded not on the statue but on the custom recognizing an interest of the reveresioners in the ancestral property. PLD
1991 SC 71 Inheritance, claim of. Whether Act, in its application,

cannot be given retrospectivity. Question of. Fact that Act of 1962 was not in force in area concerned on 15.1.1976 would not make any difference because Islamic dispensation contained in 1935 Act had taken over retrospectivity even prior to 15.1.1976 and even before 1962 Act was formally applied to area concerned. Last male holder in this case had admittedly died in 1972 or 1973. Appellants being daughters, would get their share in his inheritance in accordance with Islamic Law. Appeal accepted. PIZ 1991 SC 97
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Limitation. Question of Civil revision petition in High

Court. Validity. On coming into force of the Act, respondents/ plaintiffsicollaterals of the original owner became co-sharers in the said property on account of termination of limited estate of said female allottee/widow. Once having become co-sharer in property, no limitation ran on account of securing cause of action on every denial. Civil revision petition dismissed. 2005 SLR (Lah) 407 (c)
Limitation. Respondent's declaratory suit claiming

heritory rights as being collateral s of deceased owner was dismissed by Trial Court but such determination was reversed by Appellate Court below which decreed the said suit. Civil revision petition thereagainst in High Court. Validity. In the instant case said female limited owner did not alienate the suit property during her life-time till he died when her succession opened. Bar of limitation contained in the said section was not applicable in the instant case. Civil revision petition dismissed.
2005 SLR (Lah) 407(b)

W.P. Muslim Persona. Law (Shariat) Application Act, 1962 Limited estate of female land owner, devolution of. On death of female limited owner, devolution of her estate after 1962, would be in accordance with the then prevailing law and that being so, decree passed in favour of plaintiffs regarding share of suit land which was in possession of said deceased was proper and valid. Such decree was not liable to be set aside by the High Court and was reversed by Stipreme Court in circumstances. Appeal of pro-forma defendant (Mst. Magboola) was also allowed by the Court. 1991 SCMR 515 Mutation of gift. There 'is no dispute that deceased was succeeded by his widow and two daughters. There is nothing on record to indicate that on his death the two daughters had also inherited the left over of their father. The suit land was mutated in the name of his widow, who purported to alienate the whole of it in favoure of her one daughter, to the exclusion of the other daughter and her successors. The rule of limited owner came to an end with the enforcement of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962

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and thus disposition of the suit land by widow to the deprivation of successors of other daughter of deceased could not be done. The mutation of gift, as also the consent decree, thus to the extent of share of one Iran illegal and inoperative qua her right in . the property. Approach of the Additional District Judge in the matter was quite consistent with the factual and legal position obtaining in the matter. This Court did not find any valid justification to interfere with the same. Petition dismissed. 2000 SLR 1062(b)
Question of. Question whether decree based on customary rights, passed in 1961 was a past and closed transaction or it had become void after Enforcement of (Shariat) Act (Arndt.) Ord, 1983, being a question of public importance needing determination. Leave to appeal was granted. 1991 SCMR 769 Scope. Ancestral property being governed by custom whether remains subject of agricultural custom. Leave to appeal was granted by Supreme Court to consider whether property owned by Muslim which was being governed by agriculture . custom before enforcement of West Pakistan , Muslim Personal Law (Shariat).Application Act, 1948 and West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 would continue to be governed by custom as was observed by Supreme Court in case titled Mst. Khatun vs. Malla and five others, reported as 1974 SCMR 341 or the view taken in case titled Abdul Ghafoor v. S. Muhammad Shari, 'reported as PLD
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W.P. Muslim Persona Law (Sharidt) Application Act, 1962

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1985 SC 407, would prevail and limited owner would not acquire the status of full owner under law and whether restriction on alienation would be justified and would not be in conflict to fundamental right of person and law of Spariah.
2007 SCMR 307 Suit for possession. Be that as it may, suit stands

abated, decree had become void, appeal stands abated, which Is disposed of accordingly. Respondent No. 1, shall however, be at liberty, to file an independent suit, if validity of transaction is otherwise challenged on ground,of any defect in execution or denied of execution'. Appeal accordingly. 1999 PLR 664 WidcT inheriting land in question, as limited owner, after death of her husband who died issueless. Widow subsequently applied for grant of proprietary rights which were granted to her with regard to whole of the tenancy. On widow's death her estate was inherited by respondents viz. her brother 4nd.sister;:Widow was holding land as a limited owner till her death after the demise of her deceased husband. Collector's orders passed after ,coming into force of West Pakistan Muslim Personal Law, (Sh'ariat) Appliction Act, 1962, granting her proprietary rights with. regard to whole of tenancy, were without legal force and were set aside. Widow having died when Act (V of 1962) was in force, she was entitled to 1/4 share of property which would be inherited by her legal heirs i. e. respondents; while remaining 3/4 share would be inherited by the legal heirs of her husband. Conveyance deed executed under S. 30(2), Colonization of Government Lands (Punjab) Act, 1912, whereby widow was granted proprietary rights to the extent of the whole tenancy was rescinded and fresh deed v. in accordance with orders of Board of Revenue was directed to be executed. PLD 1991 Rev. 7
Words & Phrases. Words "subject to the provisions of

any enactment for the time being in force" in S. 2, West Pakistan Muslim Personal Law (Shariat) Application Act: 1962 ceased to have effect as fro -n 30th June, 1983 as per rule laid down by Supreme Court in Muzaffar Khan's case reported as PLD 1984 Sc 394. PLD 1991 SC 213
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(2 - A. Succession prior to Act IX of 1948.

Notwithstanding anything to the contrary contained in section 2 of any other law for the time being in force, or any custom or
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Inst. by West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983)

W.P. Muslim Persona Law (Shariat) Application Act, 1962 usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) }Application Act, 1948, a male heir had acquired any agricultural land 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 as him under the Muslim Personal Law (Shariat); 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, in executable and of no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act; all suits or other proceeding 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.]

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(b)

COMMENTS
That "cases which involve hesitance inter se among the legal heirs, Court should make efforts to ensure that no legal heir is denied of his legal approach will also be in consonance with the "Injuctions of Islam". On this view this Court is not inclined to hold that the suit of plaintiffs is barred by limitation. Widow of deceased was entitled to inherit and 1/3rd out of the estate of her deceased son and rest 2/3rd was to devolve on the legal heirs of said deceased. In the circumstances, the Trial Court was correct in holding in the property and proforma defendants the legal heirs entitled to 2/3rd share in the property of deceased. While accepting this civil revision petition, this Court set aside judgment and decree of Appellate Court and restore that of Trial Court with the result that suit of the plaintiffs and proforma defendants for inheritance of 2/3rd share in the property of deceased is

W.P. Muslim Persona Law (Shariat) Application Act, 196 1962 declared in their favour and all the transactions made pursuant to Mutation . No. 527 1 beyond 1/3rd share are deliberated as void, ineffective on the rights of the plaintiff and proforma defendants. Civil revision petition accepted. 2000 PLR (D.I.Khan) 892
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Provision. Provision of S. 2A does not apply to estate acquired u/s. 20(a), Colonization of Government Lands (Punjab) Act, 1912. It nullifies right granted by Court to reversioners to call in question alienation by a Muslim inheriting ancestral property. NLR 1991 SD 101
Owner. A female owner may or may not have a limited interest under custom, therefore all female owners ipso facto would not be treated as limited owners. Review petition .dismissed. ' KJ 2007 SC 583(c)

Custom. Last male owner died in year 1926 leaving behind a daughter and widow. Mutation of inheritance giving whole estate of deceased to widow. Effect. Widow could have taken whole estate of deceased either as . a widow under custom as limited owner or to the extent of 1/8th share under Islamic Law. Mutation giving whole estate to the widow would necessarily and essentially mean that she had got property not under Islamic Law, but as per custom. Had such not been under the custom, widow would not have got whole estate mutated in her favour. Widow, held was not the limited owner. PLD 2004 (Lah.) 1(a)
[3. Termination of limited States under Customary Law.--The limited estates in respect of irremovable property held by Muslim female under the customary law are hereby terminated:
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Provided that nothing contained shall apply to any such estate saved by any enactment, repealed by this Act, and the estate so excepted shall, continue to be governed by that enactment notwithstanding its repeal by this Act.]
COMMENTS Land left behind by deceased who died in 1915 was mutated in names of his two sons under customs. After death of legal heirs, mutation was sanctioned in favour of
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section 3 subs. by W.P. Muslim Personal Law (Shariati Application (Amendment) Ordinance, 1963.

W.P. Muslim Persona Law (Shariat) Application Act, 1962 appellant and predecessors-in interest in accordance brought by present appellant claiming declaration and possession is within time. It certainly is beyond time. Whether a period of one year under Art. 14 or six years under Art. 122 or twelve years under Arts. 122/144 to Schedule of Limitation Act, 1908 is applied from date of mutation of 11-8-1951. Facts of cases relief upon by appellant were different and, as observed in cited judgment, Court has endavoured to reduce rigours of law of limitation in fovour of female daughters and sisters excluded from inheritance by male members. Facts of this case are different. Appellant has got her share sanctioned to her in mutation and, if she thought that she has not been given legal share, she had to sue within time. Findings of two Courts under Issue No. 3 are affirmed. Appeal dismissed. K.L.R. 1999 C.C. 201

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Injunctions of Islam. Impleadment. Customary Law (by Supreme Court). "However, after commencement of process of Islamization of laws in Pakistan, situation has changed further. Thus in PLD 1983 SC 273 it was restrictions placed on power of alienation of persons inheriting agriculture land under customary law providing in Punjab before 16.3.1948 i.e. before coming into force of West Punjab Muslim Personal Law (Shariat) Application Act, 1948 were opposed to the Injunction of Islam. It was, accordingly, directed that amendments be carried out for removing all such restrictions, which has since been done. In view of this approach of Law Maker in regard to existing law, Supreme Court consider that impugned judgment of High Court wherein prayer for setting aside the sale was refused a view taken which is consistent with spirit of judgment subsequently delivered by this Court, in PLD 1991 SC 247 and in consonance with which all law-making is being done, does not need any interference. These observations, although in the nature of biter dictum, are entitled to greatest respect. In view of the above, first Appellate Court used in law in setting aside judgment and decree of Trial Court. Appeal allowed. K.L.R 2000 Rev C. 90 No evidence worth the name to substantiate adverse possession of the defendants therefore the possession of coowner shall be deemed to be possession of all other co-owners. Hence limitation plea that suit was barred by time is also without any foundation. The concurrent findings of the learned Courts below neither suffer from any misreading of evidence . nor are based on surmises or conjectures, hence no exception thereto can be taken in revisional jurisdiction. Consequently

198 W.P. Muslim Persona Law (Shariat) Application Act, 1962 revision petition is dismissed with no order as to costs C.M. No. 521/95 is also dismissed. 2000 PLR 237

Alienation pl. property by limited 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 in the ground that 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 clismiss&I the suit. Validity. Widow was the property only to the extent of her share entitled to inherik. 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 pr'operty by way of sale beyond her legal share in 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 CLC 1863_
Such ownership would terminate on Validity. enforcement of S. 3 of West Pakistan Muslim Personal Law Shari t) Application Act, 1962 and property for purposes of inheritance would revert back to last male owner. Gift made before such law by widow as limited owner would be absolutely illegal and void fob . not being absolute owner of property. Distribution of share in estate left by last male owner would be on the basis of Islamic Law; according to which widow would get i /8th share not of total estate, whereas 1/2 excluding 1/8th share would go to daughter .and remaining 1/2 to collateral. 2004 PLD (Lah), 1(b)
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p.

Inheritance. 'Owner of land (1/3rd share) died in 1934. Widow, limited owner. Remarriage of widow. Property went to petitioner. Customary law. Findings of Court of appeal modified. Alienation, annulment of. Under section 115 of the Civil Procedure Code, "the High Court may make such order in the case as it thinks fit" which means that in the exercise of - supervisory jurisdiction, if a material irregularity or error f of jurisdiction comes to the notice of the findings of an issues. Therefore, while exercising this power, I have come to the conclusion, that Jaffar, had inherited the property, though under the Customary Law, but for all intent and purposes, had become the complete and full owner and for the purposes of inheritance of his estate, it is the hierarchy of his legal heirs, who shall be entitled, and the estate would not revert back, to "S" on the enforcement of Section 3 of the West Pakistan

W.P. Muslim Persona Law (Shariat) Application Act, 1962 Muslim Personal Law (Shariat) Application Act, 1962, which is only restricted to the female limited "B" and the alienation made by her is concerned, it definitely stands annulled on account of such provisions of law, and in view of the judgments reported as 1987 SCMR 2008 and PLD 1990 SC 1, the transaction made by a limited owner would have no effect on the right of inheritance of the petitioner, and her case would also not be out of limitation. Resultantly, I modify the findings of the Court of Appeal holding that the petitioner is entitled to 5/16 share in the estate of and not 1/2, as claimed by her. The finding on the issues of limitation, are also reversed, holding that the suit of the petitioner is well within limitation. Therefore, by allowing this revision, on the question of limittion but while exercising my power, under section 115, C.P.C. by modifying/ reversing the findings of the Court of Appeal on issue No. 9-A, it is held that the petitioner is entitled to 5/16 share in the estate of "5" and to this extent her suit stands decreed. Suit decreed. 2004 SLR (Lah) 206 4. Further operation of certain will shall cease on the death of legatee-in-enjoyment.--Where 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 legateein-enjoyment. 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 will has ceased under section 4 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shaiat) 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 '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.

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PLD 1981 Sc 120; NLR 1980 Civil Pesh. 392; NLR 1980 Civil SC 29; NLR 1979 Revenue 23.

Dissolution of Muslim Marriages Act, 1939

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6. Section 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. 7. Repeal and Savings.---The following enactments are hereby repealed:--(a) (b) (c) (d) The Punjab Limitation (Custom) Act, 1920; The Punjab Limitation (Power to Contest) Act, 1920; The Muslim Personal Law (Shariat) Application Act, 1937, in its application to West Pakistan; The North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935;

(e)

The Punjab Muslim Personal Law (Shariat) Application Act, 1948

The Muslim Personal Law (Shariat) Application (Sind Amendment) Act, 1950; The Bahawalpur State Shariat (Muslim Personal Law) Application Act, 1951; The Khairpur State Muslim Female Inheritance (Removal of Customs) Act, 1952.

(f) (g) (h)

[( 2 ) * * * *1