Muhammad Ishaq Vs. Federation of Pakistan

IN THE FEDERAL SHARIAT C~

X ORIGINAL JURISDICTION7

P ka .E N T :

HR. S J.W- T aC L SA LilH U D D Iiv APIMED CHAIRMAN m. J U . / f l C L A FTAB H U S S A IN Me m b e r i-ut . J U S T I C E ZAKAULLAH LO D H I MEMBER *iit*:'i u Uo . I C t i KARIM ULLAH DURRANI

T

j MEMBER

SHARIAT PETITION NO. 13/1 OF 1960

Mohammad Ishaa Petitioner Versus Federation of Parisian neso; ten o r o ’-i -■> o w i v i-/ i-i

Admitted for regular heorin-z.

CHAIRMAN

)^w -—

MEMBER - II

Dated Islamabad the 6th December. 1930./

AFTAB HUSSAIN, MEMBER

This petition challenges the customary succession in the Punjab which is based on the agnatic theory.

In order to understand the point raised in this petition it is necessary to review the legislative history in connection with the succession in the Punjab. Since the residents of the Province were generally governed by custom in certain matters, the custom so followed was given the force of law by Section 5 of the Punjab Law Act, which is reproduced here:

(5)"In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision shall be:

(a)Any custom applicable to the parties concerned which is not contrary to justice, equity or good concience, and has not been by this or any other enact­ ment altered or abolished and has not been declared to be void by any competent authority.

(b)The Muhammadan Law, in cases where the parties are Muhammadans, and the Hindu Law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legis­ lative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to."

Now according to the general custom of the Punjab ancestral immovable property held by male owners who are governed by custom, is ordinarily inalienable except for legal necessity descendants, or in the absence of or with the consent of male/descendant with the consent of male collaterals of the alienor i.e., persons descended from a common ancestor of the alienor who originally held that land. An alien­ ation effected in violation of these principles was liable to be successfully challenged in a Court of law at the instance of any reversionary heir and any decree passed in favour of the plaintifi was to enure to the common benefit of the entire reversionary body. But this decree did not allow the next reversionary heir to claim possession of the property so alienated, during the life­ time of the alienor. However the next reversionary heir was e entitled to claim possession of the property from the alinee after the death of the alienor, and file another suit for the purpose.

In this respect the customary law of succession was different from the Hindu law under which a son or a grandson • on his birth is vested with the ancestral property in the hands of the father or the grandfather and can claim partition of the

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same in the lifetime of the later (55 P.R. 1903 per Chatterji, J) By operation of section 6 of the Punjab Custom (Power to Contest), Act II of 1920, the right to challenge such alienation was confined to collaterals of the alienor in the fifth or any near degree. The Punjab Custom (Limitation) Act I of 1920, fixed the period of limitation for such suits under custom.

One of the general principles of customary law of success­ ion in the Punjab was that the right to succeed enured in favour of male descendants and failing them male collateral who inherited a full estate subject to the right of their descendants or collateral* to challenge as stated above^ any

alienation of ancestral property. Some of the female descendants, ascendants and relatives could also succeed but their succession was confined to a limited interest i.e., till their death or<te_ marriage, irrespective of whether the property was ancestral or non-ancestral and each item of the property to which they succeed­ ed remained subject to the right of the collateral^, to challenge any alienation made by them except for legal necessity or with their consent.

Customary estate as will be discussed later, is different^ from the estate in Islam, in so far as Islam confers rights of inheritance of absolute property in the heirs, both male and female and consequently does not recognise the difference between ancestral or non-ancestral property or between male and female heirs. Each heirs gets the portion of the inheritance fixed by Sharia and gets an absolute right to it including the right to dispose it off, according to his free will in case he is major.

The first enactment substituting Sharia for custom and qsplicable to the Punjab was named the Muslim Personal Law (Shariat) Application Act No.XXIV of 1937, which interalia provided for succession to all the properties of a Muslim except his agricultural property according to the Muslim Personal Law (Shariat). Agricultural property was exempted from the ambit of the Act and continued to be governed by rules of custom. iu After the enforcement of, Act of 1937 a question arose whether the property in possession of full or limited owners who had succeeded to it under custom was still subject to the customary rule against alienation. Some such cases are AIR 1943 Lah. 219, AIR 1944 Lah.121. In the first case which was in respect of an alienation by a widow, it was held that the right accruing on the date of enforcement of the Act of 1937 could not be said to have been taken away by the enactment of the above Act. In the second case it was held that the Act not being retrospective it could not affect the estate inherited by male

descendant or collateral under, custom which could remain subject to the customary limitation in respect of the successor's power of alienation.

The Privy Council had also held in AIR, 1944 Privy Council 27 while interpreting an analogous Law (N.W.F.P.Muslim Personal Law Act) that:

"the effect of the Act is that it has altered the course of succession in so far as to make the ordinary rule of Muhammadan Law applicable and to exclude the operation of custom. Where, therefore, succession opened after the Act came into force, a party cannot rely upon any decision based upon the rules of custom given in his favour before the Act came into force and the succession will be governed by the rule of Mohammadan Law".

Section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act IX of 1948 which was enforced on the 15th of March, 1948 extended the Shariat rule of succession in the Punjab to agricultural land too. It interalia provided that the property of a muslim shall no longer devolve according to custom; on the other hand its devolution would be governed by the Muslim Personal Law (Shariat). Similar questions as were raised after the enforcement of Act of 1937 in regard to the restriction on the power of alienation of a Muslim male or female holding estates to which they succeeded under custom, were raised in respect of the scope of Act IX of 1948. It was held by a full Bench in Mohammad Asghar Shah vs. Mohammad Gulsher Khan and another, PLD 1949 Lah.116 that the Act of 1948 was not retrospective and did not affect the rights of the collaterals and descendants to challenge the alienations made by existing owners for so long as the property does not devolve in accord­ ance with the above Act.

The nature of the interest enjoyed by a full owner and his reversionery heirs, as well as the nature of the decree passed in a suit to challenge an alienation was discussed in the following manner by Mohammad Sharif,J:- "It would be desirable to reiterate the position of a male owner who succeeds under custom. He in the words of Rivaz, J. in 18 Punjab Record 1895 at page 77, is a full owner with an interest transmissible to his heirs, lineal or collateral, but that his power of alienation is limited, and liable to be controlled by the heirs, lineal or collateral, as the case may be ................ From this it follows that on the death of a son- less owner, the collateral heirs take the estate from him as his heirs and derive their title to possession of the ancestral land from him and through him from the common ancestor". The learned Judge continues at p. 79, "His right to sue for possession in spite of the last owner's act of alienation, is derived from no individual, but from the customary rules which places a restric­ tion upon the owner's powers of disposition of ancestral property, and renders him liable to be controlled in that respect by his collateral heirs. Such a right never accrued to the alienor himself, and is, therefore, it seems to us, one that cannot be passed on to his successor. The right to sue" for possession appears to us clearly to import something more than the right to possess­ ion, and a simple test appears to us to be this: could the donor in his life-time have sued to recover possession of the property on grounds simi- . lar:.to those which are the foundation of the present plaintiff's claim? In our opinion, he clearly could not have done so, and we cannot, therefore, affirm that the plaintiff has derived his right to sue from the donor."

"Another peculiarity about the' declaratory decree is that the person holding the.decree or the entire body of the reversioners then in existence, might never actually succeed when the time came.

On the death of the alienor, when a right to possession accrues, none of the reversioners by whom or for whom the alienation was got set aside, might be alive. The possession might be claimed by the descendants of the original reversioners and if there is no one in existence the matter ends and the alienee's possession shall not be disturbed......................... " "It might be added that the Act does not by one stroke of pen, convert owners of property with restricted powers of alienation into full and absolute owners whose powers of alienation were wholly unfettered. The Act nowhere says that all Muslim male owners by virtue of the Act become absolute owners in the same sense as would have been if Mohammadan Law had applied and they succeeded in accordance with Mohammadan Law. The estate of a person who took it under customary law would continue to be subject to limiations imposed by it till its devolution is made under the Act'of 1948 i.e., after the 15th March, 1948.

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This view was followed in all subsequent cases.

Barkhurdar Shah and others vs. Nawaz Shah and others PLD 1952 Lah. 555. Gulzarin Khan vs. Amir Ahmad PLD 1952, Lah.l.

Khair Din vs. Mohammad Hussain, PLD 1961 S.C. (Pak) 468.

Khatun Vs. Mulla 1974 SCMR 34.

The Act of 1948 was amended in 1951 in order that section 2 may cover not only intestate succession but testate succession also. A Division Bench of the Lahore High Court referred the following question to a major Bench.

(i)"Whether in a suit by a person claiming to be governed by customary law a decree declaring that an alienation shall not bind the reversionery right of the plaintiff can be granted after the passing of the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948)."

(ii)"Whether such a decree can be passed after the amendment of the Act in 1951."

The full Bench answered both the questions in the affirmative. Bashir Ahmad Vs. Mohammad, PLD 1956 (W.P) Lah.934.

It was held that the 1948 Act is not retrospective in its opera­ tion and it certainly does not affect the succession which has already taken place in custom, before its enforcement. It was further held that alienations have always been treated as an aspect of succession. This view was reiterated in Itbar Khan vs. Mohammad and others, PLD 1959 (W.P) Lah.364. Katun Alam vs. Ghulam Mohammad, PLD 1965 (W.P) Lah.73.

In the year 1962 West Pakistan Muslim Personal Law (Shariat) Application Act 5 of 1962 was promulgated in order to put an end to the interest of the female limited owners and for the Division of the property held by them among the heirs of the last full owners. This Act repealed the two Acts of 1920, the Punjab Custom (Limitation) Act, 1920 and the Punjab Custom (Power to Contest) Act,1920. The effect of the repealed Punjab Custom Act I of 1920 was considered by me in Mst.Fattan Bibi vs Fatteh Mohammad etc, PLD 1974 Lah.458. In that case the suit was filed in 1964 to challenge a gift made by Mst. Alfan Bibi a limited owner on the 28th of May, 1921. The suit was dismissed as barred under section 7 of the Punjab Custom (Limitation) Act, 1920. The District Judge held that after the repeal of the Act of fU 1920, matter was governed by Article 141 of Limitation Act. The second appeal was however, allowed. It was held that the matter is to be decided in accordance with the law of Limitation as in force at the time of institution of the action and not according to law prevailing at the time when the cause of action arose. This principle will not apply where the right to institute that proceed­ ing had become barred on the date when the amended Act was enforced!

The principle of law, therefore, is that where a plaintiff or petitioner has lost his right to institute proceeding on the date when some other Act comes into force, that right is not revived by the repeal of statute under which the limitation for those proceeding had expired. Consequently in all those cases

in which the period of limitation fixed by the Punjab Cust^dm:-.t-^tmi tat-ion) Act of 1920 had not expired before the repeal of that enactment, the limitation for suit to challenge alienation under custom would be governed by Article 141 of the Limitation Act.

Such suits are, therefore, competent despite the repeal of the above mentioned two Acts of 1920.

The present petitioner who is a purchaser of property from a full male owner who had succeed«Jto that property in custom challenges the vires of the above custom limiting the rights of alienation of the full owner.

In shariah undoubtedly "there is no distinction^ between ancestral and self acquired property. The owner for the time being has absolute dominion over all property in his possession whether he has acquired it himself, or whether it has devolved upon him by inheritance. He can sell or dispose of it in any way he likes, provided operation is given to it during his lifetime^. It is only with regard to dispositions intended to take effect after the donor’s death or made in extremis that his power of disposition is limited by the right of his heirs.

He cannot by a testamentary disposition reduce or enlarge the shares of those who by law are entitled to inherit" Mohammadan Law by Syed Amir Ali, vol.II, p.20. This principle was recog­ nised by the Privy Council in Ranee Khajoor Unnissa vs. Musammat Roshan Jehan (1876) L.R.3JA.291. This is also evident from the other cases referred to above.

Nor does Shariah recognise spes successionis. In Abdul Hussain vs. Ghaulam Hussain ILR 30 Bom.304, it was held:- "The right of son or daughter or other heir of a person to inherit his property is not an estate in remainder or in reversion in immovable property or an estate otherwise deferred in enjoyment. It is neither a vested nor a contingent right. It does not come within the definition of a vested interest in section 19 of the Transfer of Property .Act or of a contingent interest in section 21 of

that Act and section 107 of the Succession Act, 1865. So far from being vested or contingent right in present or in fujrture it is in the language of clause (a) of section 6 of the Transfer of Property Act "the chance of an heir apparent succeeding to an estate or a mere possibility of succession which cannot be transferred".

The law of inheritance is dealt with in the Holy j if *■ Quran in chapter 4 verses 11,12,& 177. The word (warisahu) >s * is used in 4;11, the word (yoorflgo) is used in 4:12 and the word < * * /.,(Yarisoha) is used in 4:177. All these words ' i uccVS have (waraea) as their root which can notes according to moajjam-i~Alfaz-i-Qurani-Hakeem, vol.2, p.838, 840 i it (absolute) vesting in the ownership with right to spend/in any tfu > manner one likes, like an heir. Such ownership is not used in a restrictive sense. This is clear from the use of the word (waris) in connection with Allah

'Allah is owner of land and every thing (growing) from it/and has power to dispose it of without any objection from any o n e j .

There is no doubt that the custom referred to above is repugnant to the Holy Quran. A declaration to this effect can be given by this Court in view of the Custom being enforceable in law by virtue of section 5 of the Punjab Law Act and its being included in the definition of law in Article 203-B of the Constitution, It may however be clarified that this declaration will not affect any custom regarding the rights of reversioners to challenge alienations made by female limited owners before the enforcement of the West Pakistan Personal Law (Shariat) Application.Act 1962, which put an end to all limited interests.

The considerations in that case may be different.

The petition is allowed and the custom allowing challenge by collaterals to the alienation of property inherited under

custom by a full owner, is declared to be repugnant to the Injunctions of Islam. The necessary amendment in the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, shall be made by the 30th June, 1981.

k * tm /fc P /

Member II

Member III

Tele: 6^8?^

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H 0.SA .16/81-SC J

RAWALPINDI A p r il 2 1 , 1983

PAKISTAN

SUPREME COURT

Fro* The R e g is t r a r Supreme C ourt o f

To The R e g is t r a r , F e d e r a l S h a r ia t Court o f P a k is t a n , Islam abad.

SUBJECT: SHARIAT APPEAL HO. 16 OF 1981

The Federation of Pakistan, through Secretary, Law & Parliamentary Affairs, A p p e lla n t Islamabad.

Versus

Muhammad Ishaq ue R espondent

On a p p e a l from th e Judgment and Order d a ted th e 1 9 th M a y ,l9 8 l o f th e F e d e r a l S h a r ia t C ourt o f P a k ista n ,I sla m a b a d in S h a r ia t P e t i t i o n N0 . 1 3 -R o f 1 9 8 0 , (Muhammad Ish a q u e V s .F e d e r a tio n o f P a k is t a n ) .

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“ur’R£KS COUHP (A p p ella te J u r is d ic tio n )

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M r.J u stice Mohammad A faal aillah , Chairman K r* J u stice £r*Hasim Hasan Shah- Hr.J u s tic e Shafi-ttJvaehmaft M r.Ju stioa P ir XaTam Slab M r.J u stice Mauiana Mohammad Taqi Usmaai

MO. 16 OP 198t

(On appeal from t h e judgement dated 19*5*81 o f th e F ed era l S h a ria t Court, I ela n ah mi S h a ria t P e t i t io n Mo*13-& o f 1980;

She Federation o f Pafcietm through Secretary Law A Parlim m m tsry A f f a ir s , Xslem bad* A ppellant To.

Iahaque aoa o f S ir a j L in & another* •« ••• Respondents*

Jbr th e ip p e llw it t Rjred H 1a^ a‘UHaggftn; G ila n i, ISC fitfia Kaqbool Ahmad ^adri, AOR(absent)

wo r Respondent Bo*1t Mr.Baahlr Ahmad A nsari, ASC Ch.AhhtaT A liy APR

For Respondent Be*2s Mr.mXowfcab I q b a l, ASC (a b sen t on 17*5*82)

S a te s o f h earin g) 1 6 *5 * 8 2 A 17 *5 * 8 2 S h is i s as appeal a&ainst **r th e judgement o f th e F ed era l S h a ria t Oourty Islamabad, dated 19*5*1981 in S h a ria t P e t it io n He*l3-R o f 1 9 8 0 .

She q u estio n b e fo r e t h e F ed eral S h a ria t Court was v whether th e r e s t r ic t io n s on th e power o f a lie n a tio n of persona, who had in h e r ite d a g r ic u ltu r a l la n d under Customary L&w,as p r e v a ilin g in th e Punjab b efo re 16*3*1948, nam ely, th e date on which th e V est Punjab Muslim Law (S h a r ia t) A p p lica tio n Act (XX o f 1 9 4 8 ) cams t o t s fo ro e,w a s opposed to th e in ju n ctio n * o f Xelama

Xn th e P rovince o f th e Punjab o f undivided In d ia in q u estio n s regard in g sucesasifni e tc * th e r u le o f d e o isio n was-

^'aa wae^enanted by S e c tio n 5 o f th e Punjab Laws Act o f 1 S7 2 to b* any custom a p p lic a b le to th e p a r tie s* whioh bad not b a m a lt e r e d or a b o lish ed by th e s a id aaaohaent o r d eclared to be 'void by spy competent authority* Coder o la u se (b ) o f th e s a id Section,* although. Musl i m Lav* in o a se s whore th e p a r tie s axe Muslims* was to b e th e r u le o f d e o isio n b u t t h i s was su b je c t to t h e c o n d itio n th a t t h e s a id law had n o t been m od ified by any custom* A ccording t o th e g n ie r a l oustom o f th e Punjab enoesfcral immovable property h e ld by male owners, 1&0 were governed b y eastern* wae o r d in a r ily in a lie n a b le e x c e p t f o r l e g a l n e c e s s it y o r w ith t h e consent o f th e m ale descendants o r in th e absence o f descendants w ith t h e oonsent o f male c o l l a t e r a l s o f th e a lie n o r i*e* parsons descended from a o o n o n a a o eseto r o f th e a lie n o r , vho o r ig in a lly h e ld th a t land* An a lie n a t io n e f f e c t e d in v io la t io n o f th e s e p r in c ip le s was l i a b l e t o be su ccess­ f u l l y ch a lle n g e d in a Court o f law a t th e in s ta n c e o f any rev ersio n a ry h e ir and any d ecree p assed in favour o f th e p l a i n t i f f was to enure to th e oomsan b e n e f it o f th e e n t ir e rev ersio n a ry h e ir s to cla im p o s se s sio n o f th e property so a lie n a te d

nV T ^*i The a fo r e sa id Customary Law in th e Punjab, which r e s t r ic t e d t h e r i^ r t e f su c c e ssio n end th e power o f aiiea*yfc4aa had i t s o r ig in in t h e Momma A stern of a g n a tic k in sh ip and t h e B inds Lav (S ee Customary Law in th e Punjab by On Parkash - f i r s t S d itio n - 1939 Chapter 1* pages 15-1 & end Chapter 7IX — Page 251)«

In t h e in s t a n t ease* th e respondent, Mohammad Xshaque, s h a ll edged t h e a fo r e sa id Customary Lew* which was k ep t i n f o r c e tn d er Seat io n 5 o f th e Punjab Lara Aot

and haa been h e ld to be s t i l l in fo r o e d e s p ite th e p ron u lgation o f th e s u c c e s s iv e Shariat A e ts in th e oountry* The f i r s t im portant enactment on t h i s eu b jeo t, nam ely, th e M ie lia P erso n a l Las (S h a ria t) A p p lica tio n A ot, 1 9 3 7 — c e n tr a l enactment - made Muni in Las applicable^ •V'' r \ / tsr iiim itA w r u fr idlere th e p a r t ie s s e r e Musi las-but i t excep ted Muslim Las i n q u estio n s r e l a t in g t o su c ce ssio n t o a g r ic u ltu r a l laud*

The next relevant enactment vas the Meat Punjab Ifasllm Personal Las (Shariat) Application Aot, 1943, whioh sas eoforoed with offeot fren 16*3*1948* Aooerding to th is enactseat Musii s Las bee ameapplioable to a ll natters including suoooaaioa to agricultural land* Sosever, in a *V'-Of'-’Y / : - seriee^deoiaieas by the superior Courts i t was held that th is enaotaant was sot retrospective in as such as the agricultural land inherited before 16*3*1948 was found to r

Oaray limitation of Cnstonaxy .Law as to alienations (see Muhammad As^aT Shah Ts* Muhammad Qulshar Khan (PLD 1949 Lahore 1 l6 (FB), Oul Sarin Khan A others 7a* «*<*- (PLD 1952 Lahore 1 (IB), * ythars Ts. Muhammad A others (PLD 1956 Labor* 934 (SB), Khair Din A others Vs.

Muhammad tessals A ethers (PLD 1961 S*G* 468) and Khatun Vs. M^n n _etc.{ ( l97d S.0.1US.341)* The effect e f the provisions e f th is Act in the relevant regard was explained in Mahawnad (PLD 1948 Labor* 116 '.(IB) At peg* 128 -in these words:- • I t might b e added th a t t h s Act does n o t by o n e str o k e e f p m , con vert o ssa r a o f property w ith r e s t r i c t e d powers o f a lim a t io n in to f u l l end absolute 'owners ifeese

powers of alienation

w ereifeellyim fettered* The Aot noin ere e v e c ; .•v-had•v"' that allM aelim sa le ewnare/by v ir t u e e f th e Aot beomae".absolute i s the sane sense a s they muld^h^re bean ^ *ahanmade» Law had applied m d •they/ mooseded ineooerdanoe with Koheeaaadan Low* Tbs estate o f a person who took i t under

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ousto nary law would oontinue to ba su b jeot t o th e l i m i t a t i o n .^ *,

lim ita tio n * imposed fey i t t i l l i t s d ev o lu tio n i s mads under th e Aot o f 1 9 4 8 i* e * a ft e r th e 15th Kerch, 1948 • • • « • • • • * • • • • • • • • • • " Another^ im portant enactment promulgated in t h i s oanneotion i s th e V est P a k ista n Muslim Personal haw (S h a ria t) A p p lica tio n A ct, 1962, which same in to f o r e e on 31*12*1962, alth ough th e p r e v is io n s o f t h i s enactment g r e a tly extended ■,/ th e a / th e soope o f /a p p lie a t ia a o f S h a ria t Lavs in th e Punjab feat under S e c tio n 2 snooessiem s opmaing b e fo r e 1 6 , 3 .1948 s t i l l con tin u ed to Carry t h e lim it a t io n s o f th e Customary l e v w ith r e s p e c t to a lie n a tio n s * S e c tio n 2 o f th e Aot 1 9 6 2 sta te d * -

"2* A n g lic a tio n o f th e Knalim P erson al Law.

S e t w ith sta n d in g a*V eu sto a o r u sa g e in a l l q u estio n s reg a rd in g su c c e ssio n (whether t e s t a t e o r i n t e s t a t e ) , s p e o ia l property o f fem a les, b e tr o th a l, m arriago, d iv o r c e , dower, adoption, gueT dianship, m in o rity , le g itim a c y o f b astard y, fa m ily r e la t io n s , w i l l s , le g a c ie s , g i f t s , r e l ig io u s u sa g es o r in s t it u t io n s , in c lu d in g w aqfs, t r u s t s and t r u s t ap s^ p ro p ertiee, th e r u l e o f deci s io n , su b je c t to t h e p r o v isio n s o f - e a r en actn en t f o r th e time b e in g I n fo r o e s h a ll b e th e P erson al Law (S h a ria t) in e a s e s where th e p a r tie s are Ifaslime"* (u n d erlin in g i s ours)*

She words m fter lln ed . above were in te r p r e te d to mean th a t th e e s t a t e s in h e r it e d b e fo r e 1 6 *3 * 1 9 4 8 , to which th e r u le s o f Customary Las con tin u ed to apply by v ir t u e o f th e p r o v is io n s o f S e c tio n 5 o f th e Punjab Lavs A ot, would n o t be governed by Ifa slia . Law n o tw ith sta n d in g t h e prom ulgation o f t h e Act o f 1962* ■

th e oaaeoffchanTniad la b aqua, rmspsndent, b e fo r e th e F ed eral S h a ria t Court was. t h a t th e Customary Lav in th e P m jab , t ^ f^ g g o o r d ia g t e whiafo th e system o f a0 *aftio euooesaien was fo llo w e d , v p *

was th e r a l e o f law fo llo w e d amongst th e Hindus, w h ile.

X a la n 'n a g a tlv e d .th f a g n a tio th eory o f s u c c e ssio n , because th e e s t a t e o f a deoeased person under M uslin Law devolved on agnates and cogn ates in c lu d in g widow end d is ta n t kindred.

C onseq uently i t was oontended th a t S e c tio n 5 o f th e Punjab Laws d o t, 1872, which con tin u ed th e r e s t r a in t s o f th e Customary Law in q u e stio n s e f th e a lie n a t io n s o f th e lend in h e r ite d b e fo r e l6*3*l948,w as a g a in st th e in ju n c tio n s e f th e H oly $ ira h and Bminah andy th e r e fo r e , m s l i a b l e to b e d eclared a s void*

The F ederal S h a ria t Court in i t s judgm ent dated 19*5. 1 9 8 1 upheld t h i s o o n t v t io n o b serv in g th a t a Customary e s t a t e d i f f e r s from an e s t a t e wider Isleeiy in eo f a r a s th e a b so lu te property i s co n ferred m d e r Islam t o th e h e ir s , b o th male «rd f e s a l e andy con seq u en tly, Islam does n o t r e c o g n ise t h e d iffe r e n c e between a n c e str a l o r n o n -a n o estra l property o r between m ale and f anal# h e ir s * JSaoh h e ir g e ts th e p ortion o f th e in h e r ita n c e f ix e d V S h a ria t tfsi g e ts an a b so lu te r ig h t t o i t in c lu d in g t h e r ig h t t o d isp o se i t o f f aeoording t e h i s f r e e w ill* B elia n o e was p la ced f o r t h i e view oa t h e fo llo w in g p assage from Muslim Law by Syed Amir H i - F o ltn e I I , page 20 1-

"There i s Mhaoctatalst no d is t in c t io n between th e a n c e str a l and s e l f acquired property* The o w « f o r th e tim e b ein g h a s a b so lu te dominion over a l l property in h i s p o s se s sio n whether he has acquired i t h im s e lf, o r whether i t has devolved upon him by in h e r ita n c e . Ee eaa s e l l o r d isp o se o f i t in any war h e l i k e s , provided operation i s g iv e n t o I t du rin g h i s l i f e tim e . I t i s on ly w ith regard t o d is p o s itio n s inten ded t o tak e e f f e c t a f t e r t h e donor’s death o r made in extrem is t h a t M s power o f d is p o s it io n i s lim ite d by th e r ig h t e f h is h e ir s . So eannet by a testam entary d is p o s itio n reduce o r e n la r g e th e sh a res o f th e s e , who b y law are e n t i t l e d to in h e r it" .

She p r in c ip le , above en u n cia ted , was r ee o g a ised by th e P riv y Counoil in Rwiec Meteor th m issa Vs. Kst.Roahan Jett«n

( 1 8 7 6 ) L*&. 3 PA. 291.

R elian ce was a ls o p la ced by th e Federal S h ariat

Court on Qaapter 4 P arses 11, 12 and 175 o f th e Holy Qarsn to shov th a t th e r e i s a b so lu te v e s t in g in t h e ownership w ith r i^ r t t o spend i t in any Banner on e l i k e s , l i k e a h e ir end suoh ow a ereiip i s n et u sed in a r e s t r i c t i v e s e n s e . In th e r e s u l t , i t wan h e ld by th e F ed eral S h a ria t Court th a t th e easton isp agn ed in th e p e t i t i o n and oentinned in fo r e e by S e c tio n 5 e f t h e PunjabLaw s A ct in th a Punjab, was in c lu d e d in t h e d e f in it io n e f law , g iv en i n A x tio le 203-B e f t h e O onntittttipn and th a t, i t was repugnant to th e Holy Quran end S m a sh . A d e c la r a tio n was, th e r e fo r e , g iv en th a t th e custom a llo w in g o h a llen g e by o o lla t e r a ls to th e a lie n a tio n o f th e property in h e r it e d under CUstoa by e f u l l e w e r i s repugnant t o th e in ju n c tio n s o f Islam and a d ir e o tio n was is s u e d th a t th e n e c essa ry amandsmxt in th e V est P ak istan Muslim P erson al Law (S h a ria t) A p p lica tio n A ct, 1962, be made b y th e 30th o f June, 19$1* Hence t h i s ap p eal.

The s a in subm ission e f Syed R ia s a l Hassan G ila n i, le a r n e d oo u n sel f o r th e a p p eU e u t, M oderation e f P a k ista n , i s th a t i t i s p e r m is s ib le in Islam t o p la n e r e s t r ic t io n s on a b so lu te owner s h ip over;p r op e r ty b c c e e s e under t h e in ju n c tio n s e f Islam im p o sitio n o f lim it a t io n s and r e s t r ic t io n s on th e u n fe tte r e d r ig h t s o f e m e r e b ip i s n o t fo rb id d en . Aooording t o him , th e q u estio n l a e ss e n c e in t h i s o w e i s whether in an Isla m ic P o lic y ary p r o p e r ty , which h a s bean in h e r ite d b efo re enforcaatant o f S b a ria t a t e p o in t e f tim e whan Customary Law was e t i l l th e gevexaing r u l e in n a tte r * e f i t s a lie n a t io n , oan oontinuc to b e th e subJeoV t o th e M B e r e s t r l o t i o a s c id lim it a t io n s ,

or m et ip g faeta y ie ld to the Islan ie conception o f the absolute owerahip o f property even without any sa llifio e tio a o f those restriction s by express legislation ? _ s •

Xa th is ooaaeetioa he has referred to a Hadith allegedly jurratedhy H asrat Abbas which i s to the r- follow ing o ffse t *» '..-'V../.

\if.t

f h e urdu tr a n s la tio n fu r n ish e d by him i s t o t h e fo llo w in g e ffe c t : -

A'!

' ’ J > U s - to to *

In E nglish t h e S e d ith r e f e r r e d t o may he tr a n s la te d th u s : — . _ . t';

*Vasrab Ih h as (A lla h h e p le a sed w ith him) 'rep orted .411ah ,s A p eetle (aay peace he upon h i n ) # a j i ^ t h a t p r o p e r t y devolrad h e fe r a 1dn'ia^.ant;#f-:..Islan. w i l l r en a ia th e sane h ^ y f^ ^ |th a ^ a d s r e a t. e f I s l a * , ■ it «ili d M ^ £ | ^ | ^ t e ; l e l « l e .hair."

. Shis i s the>.only Sadith dieted by Xr.Syed Biazul Haanaa. O i l « i i a support of h ie sahniseioa. Oa the otter hand our attention has beaadraw to the following verses of the 2oly Q uw i~

Marra A l^ iset ffliaptar iy,verees 7fS, 1 1 , 1* s a d 177*

We t e v e *»ae t h » 5^ t h e s e v e iw is o f th e if e ly Quran* He, h o w O T :e* |j||^ (and

n o t lT7 ) a r e * r e a l l y in p o in t , th e s e v e r s e s alongw ith |«5«»m2a*riM t h e ir .. . .

V

t h s i r treeLe la t io n V i l l ana Tnsuf i l i i s as fo llo w s * - Ysass (7)

° o ^ V b .cAJ 01 C&l£

■ ^ i’ r'*Z>vr'c&

"From what i s l e f t by par a i t s And th o se n e a r e s t r e la te d Share i s a share f o r bol And a share for woman, Whether th e property h e s n a il Or la r g e , - a determ inate share"• v ir s e (n ) . i 'St> i / A i * 2 3 - s i^ X

u ^O j '\ j & M > < * < y *i r & V

A. A>“' ^

’a i 'z&> "Allah (th u s) d ir e c t s you As reg a rd s y o u r o h ild r *s (I n h e r it a io e ) : to th e B a le ,' A p o rtio n eq u a l t o th a t Of two fem ales* i f on iy D aughters, two o r more, S h a ir share i s tw o -th ir d s Of th a in h er ita n c e;

I f o n ly on e, h er share I s a h a lf , For p a ren ts, a s ix t h share Of th e in h e r ita n c e to each, . I f th e deoeased l e f t oh ildren ; I f no c h ild r e n , and th e parents Are th e (o n ly ) h e ir s , th e mother has. a th ir d ; i f th e deceased L e ft b ro th ers (o r s i s t e r s , She mother : s six th * (She d is tr ib u tio n in a l l e a se s ,2 3 i 2 s ) a f t e r t h e payment O f le g a c ie s and d e b ts, iMlesM *-!•* •/ *»**»*• ? e hnov s e t whether Tours

Tour parents o r your ch ild ren Are n e a r e st t o you In b e n e fit* These are S e t t le d p o rtio n s ordained By A llah a id A lla h i s A ll-know ing, A ll-W ise*tt

VERSE (12)

f e ^ \ > 1 ' £Jp*

S A J S ^ - O

9/s py s « < > . / Vv

U^J c £ p .

' b ^ U ^ J S ^ i P p / > & £ 7 '> V C* • *v*., j j < O , ^ 1 !, <v* ^ T J 'T i ^ \ ' jS 3 ^ / K J .

"O i/jy jh i ‘^ ri f a i '; i - ^

^ u ie ip * y » 3 r *o £ y i %! /i ’♦ l a what your w ives le a v e , Tour share i s a h a lf , Xf th e y le a v e no ch ild ; But i f th e y le a v e a o h -Id , Te g e t a fo u rth ; a f t e r p a r e n t Of le g a c ie s <a&d d e b ts. In what y e le a v e , T h eir share i s a fo u r th , I f y e le a v e no c h ild ; But i f y e le a v e a c h ild , Thegr g e t so. eig h th ; a f t e r payment Of le g a c ie s gad d e b ts, I f th e mah o r woman Whose in h e r itsn e e i s in q u estio n Hgs l e f t n e it h e r ascendants nor descendants, But has l e f t a brother Or e i e t e r , each one o f th e two Gets a s ix th ; but if more S u n two th d f share in a th ir d ; A fte r payment o f le g a c ie s And, debts; so th a t no lo s s I s oansed ( t e anyone). Tans i s i t ordained by A lla h , And A lla h i s A ll-Show ing, I Most Forbearing."

Contd.****p*iO

V3BSE(l76^

i

"Shay ask th ee For « l e g a l d e c is io n . Sayi A lla h d ir e c t s ( t 1ms) About th o s e who le a v e So dasoandante o r asoendacts da h e ir s* I f i t i s a man She* d ie s* le a v in g a s i s t e r But no C hild, she s h a ll S a v e h a lf th e in h erita n ces I f (swoh a d eceased mss ) d woman, who l e f t no o h ild i Her b ro th er ta k e s h er in h eritsn o es I f th e r e are two s i s t e r s , Shay s h a l l have tw o -th ir d s Of th e in h erita n ce (Between them): i f th e r e are B roth ers and s i s t e r s , (th e y sh a r e), She male havin g tw ic e She share o f th e fem ale* Shas d oth A lla h make c le a r . Sb y o u (E is la w ), l e s t Ye err* And A llah l a t h knowledge o f a l l th in gs* ” As r ig h t l y * ..............

**• - It -

As rigid*!? p a in ted e u t by A ftab H ussain, J . (now

C hief J u s tic e ) t ifco d e liv e r e d th e judgement e f th e fe d e r a l S h ariat Court t h a t " a ll th e s e words h are * O l* (v a r is) as t h e ir r o o t i& ioh oannotes according te Ma±1an-d»<Alfa8-i^ qamaii.-Bakeon. Vbl*2, F* 8 3 8 , 8 4 0 a b s o lu te , r e s t in g in th e ownership w ith r ig h t t o spend i t in so? Banner one l i k e s , l i k e a h eir* Suoh ownership i s n o t u s e d in a r e s t r i c t ire sense"*

Thus, we o s m o t aooept t h e c o n te n tio n o f th e learn ed o o m s e l o f th e a p p e llm t , Syed Rias-ul-H asBan Q ila n i, th a t r e s t r ic t io n a on t h e r ig h t o f a lie n a t io n imposed by (baton o f peraons in h e r it in g a g r ic u ltu r a l la n d b e fo r e 1 8 *3 * 1 9 4 8 oan be imposed in Islam beoanoe th e fia d ith c i t e d by him i s i n a d if f e r e n t c o n te x t and i s n o t a ttr a c te d here] end th a t f o r t h i s reason i t i s n o t n e c e ssa r y t o g» in to t h e o th er q u estio n o f i t s a u th e n tic ity o r o o n f lio t w ith t h e & l y Qxran in t h i s c a s e .

The r e s u l t i s t h a t th e r e i s no f o r c e in t h i s appeal which f a i l s end i s d ism issed hereby*

We would, a cco rd in g ly , uphold th e d ir e c tio n o f th e F ederal S h ariat Court th a t t h e n eoessaxy emendaant should be c a r r ie d o u t in th e West P a k ista n M tslia P erson al l a v (S h a r ia t) A p p lica tio n A ct, 1962,, T his was ordered t e b e done by t h e 3 0 th o f Jane, 1981* However, t h i s d ir e c tio n wen sta y e d b y t h i s Oourt pending th e d is p o s a l o f 'tiie appeal* S in e* th e appeal has been d ism issed