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PUNJAB MUSLIM PERSONAL

LAW(SHARIAT) APPLICATION

(REMOVAL OF DIFFICULTIES) ACT, 1975

 

ACT XXV OF 1975 

31st March 1975

 

An Act to provide for

the removal of difficulties

of the lawful heirs of last male holders

In respect of the limited estates held by refugee females

and to protect their rights with respect to the said property

 

(First published, after having received the assent of the Governor of the Punjab, in the Gazette of the Punjab (Extraordinary), dated the 31st March 1975).

 

No. PAP/Legis.2(7)/75/45: .The Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Bill, 1975, having been passed by the provincial Assembly of the Punjab on the eighteenth day of February 1975, and assented to by the Governor of the Punjab on the 31st day of March 1975, is hereby published as an Act of the Provincial Legislature of the Punjab.

 

Preamble

 

Whereas refugee females who were limited owners under custom were allotted evacuee property in the Punjab and such allottees were erroneously treated as full owners of the property allotted to them ;

 

And whereas, the Supreme Court of Pakistan has held that allottees are limited owners under custom ;

 

And whereas, it is expedient to extend the benefit of the said decision of the Supreme Court of Pakistan to the persons aggrieved by the said erroneous view;

 

It is hereby enacted as follows—–

 

Court Decisions

 

Persons aggrieved by earlier contrary decisions regarding applicability of rule of custom to succession-Eligible to avail of law laid down by Act XXV of 1975 by filing necessary applications if no appeals filed against such decisions notwithstanding decisions having become final .Essentially in pith and substance an Act dealing with succession to agricultural land. Provincial Legislature, held, competent to make laws regulating course of succession of agricultural land allotted to females or regarding contracts or transfers thereof and matters incidental or ancillary thereto. P L D 1977 Lah. 399

 

Re-opening of cases by Revenue Officers as provided in the Act’ as in accord with the law of the land encroaching upon none of the vested rights of the parties. The provisions of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 by reopening such past and closed transactions and decided matters has not encroached on the judicial power nor impaired it in the process. The view to the contrary about the exercise of legislative power is erroneous. The Supreme Court had in Muhammad Shari’s case PLD 1971 SC 791 declared the law and that declaration has been adopted, reinforced and applied by the legislation. The observation of the Supreme Court that the declaration of law by it “would not entitle the Settlement Authorities to reopen tile orders of mutations against which no appeals have been filed and which have become final” was in fact the statement of law as it existed. A declaratory decision on a question of law by the Supreme Court has the implication of stating the law as it existed from the beginning; its misinterpretation apart. But such a declaration of law, though retrospective, could not by itself be taken to be a ground for reopening the cases which had otherwise become past and closed. It was the normal consequence and such would have been the consequence even if not so stated in the judgment. By stating so, nothing more was accomplished except to make the situation clear and undisputed. Such an indication, observation or statement was not intended nor expressed to hold good against the legislative will.

 

To hold that the evacuee laws made the female limited owners full owners of the allotted land would be misinterpretation of the law going against the decision of the Supreme Court and not accepting the declaration of law as was made by the Supreme Court in Muhammad Shari’s case P L D 1971 SC 791. It is only on this erroneous assumption that repugnance, that deprivation of proprietary rights without compensation, and the purchase of a larger interest in property than was actually possessed by the vendor can be claimed. There is no warrant for such an assumption. Consequently, there is no repugnancy anywhere to be found or seen except in interpreting and applying the law by Authorities and Courts other than the Supreme Court. Such a situation had to be remedied and cured and the remedial statute in the field accomplishes it and does not interfere or obstruct any matter in the field already covered by the law as such. Section 41 of the Transfer of Property Act and the protections there under would not apply because the very first requirement, that is, the consent, express or implied, of the persons interested in the immovable property was not there, nor there was an ostensible owner. There was no express consent of the real owner and there was no ostensible owner as such. It was all an act under the statute misconceived and misperformed by the authorities and functionaries who were supposed to know better. In the circumstances the reopening of the cases by the Revenue Officers as has been provided for in the legislation is in accord with the law of the land encroaching upon none of the vested rights of the parties. P L D 1977 Lah. 399   PLD 1971 SC 791 ref.

 

 

1. Short title, commencement and extent–

 

(1)        This Act may be called the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975.

 

(2)        It shall come into force at once but shall be deemed to have taken effect on and from the 15th day of March 1948.

 

 (3)       It extends to the whole of the Punjab.

 

2. Removal of difficulties

 

Notwithstanding anything to the contrary contained in any other law for the time being in force, all decrees, judgments or orders passed in any suit, appeal or other proceedings by any court or other authority treating a refugee female allottee as full owner of the property allotted to her in lieu of the property abandoned by her in India or to which she was otherwise entitled ; as a limited owner, shall be of no legal effect and such suit, appeal or other proceedings shall, on an application made by an affected person within one year of the commencement of this Act, be decided afresh.

 

Court Decisions

 

          Act is a special enactment with in-built provision for limitation of one year from the date of commencement of the Act–Limitation prescribed in the Act will apply and not that under the Limitation Act, 1908.

 

 

1993 S C M R 950

Two Categories of effected-persons

 

A bare reading of sections 2 and 3 of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Punjab Act, 1975 together would reveal that the words ‘suit’, ‘appeal’ or ‘other proceedings’ shall on an application made by an affected person be decided afresh” occurring in section 2 cannot be interpreted to hold that even if the suit or appeal was pending in or had been decided by a Civil Court on an application made by the affected persons, it can be decided by the Revenue Authorities. This interpretation would be anomalous. The clear intention of the Legislature seems to be that if the suit or appeal pending decision or had been decided by the

Civil Court
then on an application made by an affected person the same be decided afresh obviously by the
Civil Court
. If a suit or appeal is decided by a
Civil Court
, it would be erroneous to hold that since forum has not been specifically mentioned, the affected person can go to any other authority including the Revenue Courts. Conjunctive reading of sections 2 and 3 of the Act would show that the intention of the Legislature was to divide the affected persons into two categories different from those made by Supreme Court in the case of Hashmat Ali v. Jantan 1993 SCMR 950. In the first category would be the affected persons within the contemplation of sections 2 and 3 whose suit or appeal is either pending or has been decided by a Civil Court, who on an application shall decide the claim of the affected persons afresh in the light of the provisions of the two sections. The second category of the affected persons is of those whose proceedings are pending or have been decided by any other authority.

 

In the present case, the appellants were covered by the first category as the officers of the Revenue hierarchy had not decided the dispute of the termination of limited estate at any stage right from the allotment of the land to the allotee till the appellants had approached the Revenue Officer by way of an application. If the alienation made by allottee had remained intact then obviously the appellants could have competently approached the Revenue Officer for correction of the mutation originally made in favour of allottee,. In the present case allottee had alienated her entire limited estate in favour of, ‘G,’ which had been successfully pre-empted by respondent. No doubt another mutation had been attested in favour of respondent but that was not the basis of the judgment of the

Civil Court
in the pre-emption suit decreed in his favour. In the circumstances of the case, only the
Civil Court
was possessed of the jurisdiction to decide the claim having arisen under sections, 2 and 3 of the Act rather than the Revenue Authorities.

1999 S C M R 1852 

1991 SCMR 552; PLD 1971 SC 791; 1981 CLC 11; 1993 SCMR 950; ref.

 

Allotment of land to widow in lieu of land abandoned by her husband in India—-Sale of such land—Revenue Authorities reopening issue of termination of limited estate of widow—Effect—Jurisdiction of Civil Court—Land allotted to widow of a refugee in lieu of land abandoned by refugee in India at time of partition, was sold by widow which sale was pre­empted by respondent who obtained possession of land in execution of pre­emption decree passed by Civil Court in his favour—Appellants on promulgation of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 approached Revenue Authorities for re-opening of issue of termination of limited estate of widow and Revenue Authorities accepting contention of appellants directed that fresh mutations terminating life estate of widow be sanctioned in favour of heirs of last male owner according to Muslim Personal Law —Respondent/pre-emptor challenged order of Revenue Authorities in civil suit which suit was decreed by Trial Court, but on appeal against judgment and decree of Trial Court, Appellate Court below held widow to be a limit6d owner and also that Revenue Authorities were competent to decide question of inheritance of estate—Validity—Appellants had not challenged order by which Revenue Authorities had transferred land in dispute in favour of widow, but had simply questioned validity of alienation of land made by widow in favour of vendee, on ground that widow was a limited owner of land–­Controversy regarding termination of limited estate held by widow, raised by appellants as collaterals of her deceased husband, was cognizable by Civil Court under S. 3, Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 whereby alienation made by widow to vendee and then decree for possession by pre-emption passed by Civil Court in favour of respondent/pre-emptor could only be challenged before same Court (Civil Court) and not before Revenue Authorities—If a suit or appeal was decided by a Civil Court, it would be erroneous to hold that since particular forum had not been specifically mentioned, affected person could go to any Authority including Revenue Courts—High Court, in circumstances, had rightly found that only Civil Court was possessed of jurisdiction to decide claim arising under Ss. 2 & 3 of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975, rather than Revenue Authorities. 1999 S C M R 2565  1991 SCMR 552; PLD 1971 SC 791; 1981 CLC 11; 1993 SCMR 950 ref.

 

Leave to appeal was granted by Supreme Court to consider whether in view of the authority of Supreme Court in Muhammad Aslam v. Abdul Hamid 1991 SCMR 552 the hierarchy of the Revenue Courts could be competently approached for relief under the provisions of S. 2, Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 and, therefore, the High Court was in error in holding that forum for making the application under the Act for giving effect to its provisions was the Civil Court and not the Revenue Officer concerned. 1999 S C M R 1852  1991 SCMR 552 ref.

 

Persons who were unable to challenge alienation for variety of reasons and legal objections including the one that suit was barred by limitation were given opportunity to file fresh suit by Ss. 2 & 3–.[Sher Muhammad v. Additional Settlement and Rehabilitation Commissioner PLD 1968 Lah. 234 and Ali Muhammad v. Mahmoodul Hassan PLD 1968 Lah. 329 overruled].

 

If sections 2 and 3, Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 are read together, then it would appear that the intention of legislature was to divide affected persons into two categories. In the first category are persons, who aggrieved on account of erroneous view, had litigated and some judgments and orders were passed in suits, appeals or other proceedings. Such judgments and orders treating refugee females as full owners were declared to be of no legal effect and such affected persons were given right of fresh hearing. The other category of affected persons is covered by section 3 which provides for permission to file fresh suits. This permission is given to persons, who could not challenge such alienation or succession for some reason. Here legislature has not used word “did” but. on purpose had used word “could” to denote the sense that such persons who are unable to challenge alienation for variety of reasons and legal objections including the one that suit was barred by limitation, were given opportunity to file fresh suits 1993 S C M R 950  PLD 1971 SC 791 ref. PLD 1968 Lah. 234 and PLD 1968 Lah. 329 overruled.

 

Evacuee property –Female limited owners were not full owners. 1993 S C M R 950  1991 SCMR 552 ref.

 

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 of a Government tenant in terms of Ss.19.A & 20, . Colonization of Government Lands (Punjab) Act, 1912, ran counter to the basic concept of Muslim law of succession as enshrined in the Injunctions of Islam–Provision of S.3(1), Enforcement of Shariah Act, 1991 declares Shariah as the supreme Law of Pakistan, S. 5 of the said Act binds down all the Muslim citizens of Pakistan to observe Shariah and act accordingly–Special tenancy of limited character as given in Colonization of Government Lands (Punjab) Act, 1912, could not have preference and precedence over the Muslim Law of Inheritance–Limited estate of widow having been terminated with effect from 31-12.1962, heirs of last male owner would inherit property in question, in accordance with Muslim Law of Inheritance.

 

Section 2 of the Muslim Personal Law (Shariat) Application (Removal of Difficulties) Ordinance, 1975 terminated, in unambiguous terms, the limited estates in respect of immovable property held by Muslim females under customary law with effect from 31.12.1962. Section 3(1) of the Enforcement of Shariah Act, 1991 declares Shariah i.e. the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah, to be the Supreme Law of Pakistan. Section 20(2) read with first proviso to section 19.A of the Colonization of Government Lands Act, 1912, no doubt, creates a special tenancy of limited character in favour of the widow of a Government tenant and describes it as a limited owner under the Act but it cannot be said that this limited estate, being a creation of special law is not within the purview of Shariat Law being repeatedly enacted by the Legislatures to bring an end to the limited estates of Muslim females. Mere reading of section 20 of the Colonization of Government Lands Act, 1912 would show that it embodied the rule of customary succession and it ran counter to the basic concept of Muslim Law of Succession as enshrined in the Injunctions of Islam. On the death of a Muslim. his heirs, according to their entitlement so clearly, and lucidly stated in the Holy Qur’an and Sunnah of the Holy Prophet, immediately inherit his estate and their right of inheritance is not deferred even for a moment for any reason whatsoever, but under the customary law, on the death of a sonless male holder of the property, his inheritance, as in the instant case, stood deferred for his reversioners until the death or re-marriage of his widow or marriage of his daughter or daughters. Since some case-law on the question of termination of the limited or life estate of Muslim females had made the application of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, doubtful, the Legislature had to enact Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 for the removal of doubts and its non obstante clause, clearly excluded the application of first proviso to subsection (10.A) and Clauses (a), (b) and (c) of section 20 besides similar other provisions of the Colonization of Government Lands Act, 1912.

 

Section 3(l) of the Enforcement of Shariah Act, 1991 which declares Shariah as the Supreme Law of Pakistan, makes the matter clear. Section 5 of the Enforcement of Shariah Act, 1991, binds down all Muslim citizens of Pakistan to observe Shariah and act accordingly. This being so, no other law as contained in the Colonization of Government Lands Act, 1912, can still have preference or precedence over the Muslim Law of Inheritance.

 

1993 C L C 2058

 

Reopen the orders passed by the Rehabilitation Authorities which had attained finality under the Central Laws made for the rehabilitation and settlement of the refugees and the Schemes made there under and Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 was ultra vires and hit by the provisions contained in Art.143 of the Constitution; that in so far as S.3 of the said Act enabled the contenders to move the relevant Authorities appointed there under, its provisions were repugnant to the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 as the orders passed there under had attained finality by virtue of S.6, General Clauses Act, 1897 and could not be re-.opened in this manner in contravention of the provisions contained in Art. 143, Constitution of Pakistan; that the said Act by permitting the adjudication upon private rights of the parties constituted as unauthorised encroachment upon the judicial field and therefore, suffered from Constitutional invalidity; that persons having acquired rights in the lands in dispute on the hypothesis that the widow was a full owner their entitlement stood clinched by efflux of time under the Limitation Act, 1908 which was a Central Statute and this could not have been undone by the said Act of 1975 and that the said Act also enabled the alienations in favour of bona fide purchasers for valuable consideration to be challenged in conflict with the provisions contained in S.41, Transfer of Property Act, 1882 and other cognate matters forming the subject-matter of the Central Statutes. 1991 S C M R 552

 

Re-opening of cases by Revenue Officers as provided in the Act’ as in accord with the law of the land encroaching upon none of the vested rights of the parties. The provisions of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 by reopening such past and closed transactions and decided matters has not encroached on the judicial power nor impaired it in the process. The view to the contrary about the exercise of legislative power is erroneous. The Supreme Court had in Muhammad Shari’s case PLD 1971 SC 791 declared the law and that declaration has been adopted, reinforced and applied by the legislation. The observation of the Supreme Court that the declaration of law by it “would not entitle the Settlement Authorities to reopen tile orders of mutations against which no appeals have been filed and which have become final” was in fact the statement of law as it existed. A declaratory decision on a question of law by the Supreme Court has the implication of stating the law as it existed from the beginning; its misinterpretation apart. But such a declaration of law, though retrospective, could not by itself be taken to be a ground for reopening the cases which had otherwise become past and closed. It was the normal consequence and such would have been the consequence even if not so stated in the judgment. By stating so, nothing more was accomplished except to make the situation clear and undisputed. Such an indication, observation or statement was not intended nor expressed to hold good against the legislative will.

 

To hold that the evacuee laws made the female limited owners full owners of the allotted land would be misinterpretation of the law going against the decision of the Supreme Court and not accepting the declaration of law as was made by the Supreme Court in Muhammad Shari’s case P L D 1971 SC 791. It is only on this erroneous assumption that repugnance, that deprivation of proprietary rights without compensation, and the purchase of a larger interest in property than was actually possessed by the vendor can be claimed. There is no warrant for such an assumption. Consequently, there is no repugnancy anywhere to be found or seen except in interpreting and applying the law by Authorities and Courts other than the Supreme Court. Such a situation had to be remedied and cured and the remedial statute in the field accomplishes it and does not interfere or obstruct any matter in the field already covered by the law as such. Section 41 of the Transfer of Property Act and the protections there under would not apply because the very first requirement, that is, the consent, express or implied, of the persons interested in the immovable property was not there, nor there was an ostensible owner. There was no express consent of the real owner and there was no ostensible owner as such. It was all an act under the statute misconceived and misperformed by the authorities and functionaries who were supposed to know better. In the circumstances the reopening of the cases by the Revenue Officers as has been provided for in the legislation is in accord with the law of the land encroaching upon none of the vested rights of the parties. 1991 S C M R 552   PLD 1971 SC 791 ref.

 

Suit regarding share in life estate of last male-holder filed by collateral of that deceased last male-.holder prior to coming into force of Act (XXV of 1975) held, was not barred by time if same was filed after one year, particularly when collateral was in possession of suit land. 1989 M L D 2513

 

Provisions of S. 2 contemplates “an application by affected person” within one year of the commencement of Act seeking declaration that interest of an allottee of land was limited one. No such application having been made within one year of enforcement of the Act, allottee became full owner and entitled to alienate same. Contention that Revenue/ Settlement authorities should have taken suo motu action to declare allottee as limited owner of property allotted, repelled. Provision of S. 3 could be availed to challenge alienation made by widow “before” promulgation of Act XXV of 1975.

P L D 1987 Lah. 553  PLD 1973 S C 304 ref.

 

Limited ownership–Plea of–Determination— –Trial Court before determining plea of limited ownership of refugee female allottee, raised by plaintiff /respondent, decided question of jurisdiction of civil Court to try said suit–Trial Court dismissed suit and returned plaint for lack of jurisdiction to try that suit–Appellate Court on appeal remanded suit for fresh decision in accordance with law observing that plea of limited ownership should have been determined first before deciding question of jurisdiction of civil Court–Court, in view of provisions of Act XXV of 1975 upheld and maintained order of First Appellate Court and remanded case. 1986 C L C 2096   P L D 1971 S C 791 ref.

 

Agricultural land–Inheritance–Application challenging mutation in respect of disputed land pending at time of enforcement of Act, 1975–Held, could be decided in accordance with provisions of Act–Leave to appeal refused.  –>1985 S C M R 608

 

Inheritance of limited owner. Mutation sanctioned in favour of Muslim female as limited land owner .Notwithstanding finality of order, mutation sanctioned, held, can be called in question by filing necessary application in terms of Ss. 2 & 3. It is true, that the application made by the contesting respondents to review the mutation was application for review of mutation though pre­mature at the time of its filing, but the contesting respondents acquired the right under the Muslim Personal Law (Shariat) Application (Removal of Difficulties Act, 1975. to challenge it during the pendency of the proceed­ings before the Assistant Collector. The cause of action thus matured and the objection as to pre-mature application ceased to be valid. The Assistant Collector failed to advert to the law laid down in Act. The miscellaneous application ought to have been treated as an application for all intents and purposes in terms of section 3 of the Act. Prior to the promulgation of Act XXV of 1975, the Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972, was in existence with retrospective effect from 31st December, 1962. In terms of section 2 of the said Ordinance, the limited estates in respect of immovable property held by Muslim females under the Customary Law are deemed to have been terminated w.e.f. 31st December, 1962, notwith­standing earlier contrary decisions regarding applicability of rule of custom to succession by any decree, judgment or order of any Court or other authority. Subsection (2) of section 2 of the Ordinance specifically declared earlier contrary decisions which were inconsistent with the provisions of subsection (1) of section 2 of no legal effect. Such suite, appeals or other proceedings were required to be decided afresh on the application of any person affected by such decree judgment or order. No tine limit was fixed for making such an application. This provision of law was also not adverted to by the Collector who earlier allowed the appeal. This order was non-existent in the eye of law and of no legal effect. No exception can, therefore, be taken to the impugned orders whereby the ‘miscellaneous application filed by the contesting respondents was rightly treated as one under the provisions of Act XXV of 1975– The order is manifestly just and in accordance with law, warranting no interference in the exercise of consti­tutional jurisdiction. 1983 C L C 941

P L D 1977 Lah. 399; P L D 1978 S C 220 and 1980 S C M R 339 rel.

           

 Alienation by refugee female allottee, suit to challenge ­Affected persons required to file application under S. 2 in case of any decree, judgment or order having been passed by any Court or any other authority declaring refugee female allottee as full owner of disputed land. No such decree, judgment or order having been passed when Act XXV of 1975 came into force and transfer order passed by Rehabilitation Authorities not expressly stating land having been transferred to female allottee as full owner, S. 2, held, not applicable. Affected person having been aggrieved by alienation made by female allottee in favour of respondents, he could file a suit within one year of commencement of Act. Suit of affected person having been filed in 1964, decreed by trial Court in 1966 respondent’s appeal accepted later in 1966, affected person’s appeal against such order filed within time in same year and still pending at time of commencement of Act XXV of 1975, original and appellate proceedings thus steps in one proceeding, hence, not necessary for affected person (appellant) to file a fresh suit within one year of commencement of Act and S. 3 could be pressed for seeking relief. 1981 C L C 11  1962 S C M R 243 and P L D 1964 S C 520 rel

 

3. Permission to file fresh suits, etc

 

Any person aggrieved by an alienation or an order of succession with regard to any property allotted to a refugee female in lieu of the property abandoned by her in India or to which she was otherwise entitled as a limited owner under custom, and who could not challenge such alienation or succession, may call it in question in a Court or before any other authority within one year of the commencement of this Act.

 

Court Decisions

 

            Forum deciding effect of provisions of S.3, Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975–Dispute with regard to pendency of proceedings under S.2 of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975, before Assistant Commissioner–Validity–Forum before which the application under S.2 of the Act was pending was to decide as to the effect of S.3 of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975–Where the decision rendered was that the application was competent, the same would be heard and decided on merit and where the forum concluded that the parties should go to Civil Court, the order would be passed accordingly–Maintainability of petition under S.2 of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 was to be examined under S.3 of the Act by the forum concerned which was to render the decision in accordance with law. 2001 C L C 355

 

Intention of the Legislature illustrated — Categories of  affected persons. The phraseology “all decrees, judgments, or orders passed in any suit, appeal or other proceedings by any Court or other authority”–” and such suit, appeal or other proceedings shall, on an application– be decided afresh” used in section 2 of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 and may call in question in a Court or before any other authority–” enacted in section 3 of the said Act create ambiguity as to the choice of forum for the litigant. If the words of a statute are ambiguous as to the choice of forum, as is in the present case, the Court would be justified in construing the words in a manner which will make the provision purposeful and unambiguous. Where the language is of doubtful meaning, or where an adherence to the strict letter would lead to injustice, to absurdity, or to contradictory provisions, the duty devolves upon the Court of ascertaining the true meaning. It is in this area of legislative ambiguities that Courts have to fill up gaps, clear doubts and eliminate hardships which leaves a sufficient discretion for the Judges to interpret laws in the light of their purpose.

 

A bare reading of sections 2 and 3 of the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Punjab Act, 1975 together would reveal that the words ‘suit’, ‘appeal’ or ‘other proceedings’ shall on an application made by an affected person be decided afresh” occurring in section 2 cannot be interpreted to hold that even if the suit or appeal was pending in or had been decided by a Civil Court on an application made by the affected persons, it can be decided by the Revenue Authorities. This interpretation would he anomalous. The clear intention of the Legislature seems to be that if the suit or appeal pending decision or had been decided by the

Civil Court
then on an application made by an affected person the same be decided afresh obviously by the
Civil Court
. If a suit or appeal is decided by a
Civil Court
, it would be erroneous to hold that since forum has not been specifically mentioned, the affected person can go to any other authority including the Revenue Courts. Conjunctive reading of sections 2 and 3 of the Act would show that the intention of the Legislature was to divide the affected persons into two categories different from those made by Supreme Court in the case of Hashmat Ali v. Jantan 1993 SCMR 950. In the first category would be the affected persons within the contemplation of sections 2 and 3 whose suit or appeal is either pending or has been decided by a Civil Court, who on an application shall decide the claim of the affected persons afresh in the light of the provisions of the two sections. The second category of the affected persons is of those whose proceedings are pending or have been decided by any other authority. In the present case, the appellants were covered by the first category as the officers of the Revenue hierarchy had not decided the dispute of the termination of limited estate at any stage right from the allotment of the land to the allotee till the appellants had approached the Revenue Officer by way of an application. If the alienation made by allottee had remained intact then obviously the appellants could have competently approached the Revenue Officer for correction of the mutation originally made in favour of allottee,. In the present case allottee had alienated her entire limited estate in favour of, ‘G,’ which had been successfully pre-empted by respondent. No doubt another mutation had been attested in favour of respondent but that was not the basis of the judgment of the
Civil Court
in the pre-emption suit decreed in his favour. In the circumstances of the case, only the
Civil Court
was possessed of the jurisdiction to decide the claim having arisen under sections, 2 and 3 of the Act rather than the Revenue Authorities.

1999 S C M R 1852 

 

Revenue Authorities reopening issue of termination of limited estate of widow—Effect—Jurisdiction of Civil Court—Land allotted to widow of a refugee in lieu of land abandoned by refugee in India at time of partition, was sold by widow which sale was pre­empted by respondent who obtained possession of land in execution of pre­emption decree passed by Civil Court in his favour—Appellants on promulgation of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 approached Revenue Authorities for re-opening of issue of termination of limited estate of widow and Revenue Authorities accepting contention of appellants directed that fresh mutations terminating life estate of widow be sanctioned in favour of heirs of last male owner according to Muslim Personal Law —Respondent/pre-emptor challenged order of Revenue Authorities in civil suit which suit was decreed by Trial Court, but on appeal against judgment and decree of Trial Court, Appellate Court below held widow to be a limit6d owner and also that Revenue Authorities were competent to decide question of inheritance of estate—Validity—Appellants had not challenged order by which Revenue Authorities had transferred land in dispute in favour of widow, but had simply questioned validity of alienation of land made by widow in favour of vendee, on ground that widow was a limited owner of land–­Controversy regarding termination of limited estate held by widow, raised by appellants as collaterals of her deceased husband, was cognizable by Civil Court under S. 3, Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 whereby alienation made by widow to vendee and then decree for possession by pre-emption passed by Civil Court in favour of respondent/pre-emptor could only be challenged before same Court (Civil Court) and not before Revenue Authorities—If a suit or appeal was decided by a Civil Court, it would be erroneous to hold that since particular forum had not been specifically mentioned, affected person could go to any Authority including Revenue Courts—High Court, in circumstances, had rightly found that only Civil Court was possessed of jurisdiction to decide claim arising under Ss. 2 & 3 of Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975, rather than Revenue Authorities. 1999 S C M R 2565  1991 SCMR 552; PLD 1971 SC 791; 1981 CLC 11; 1993 SCMR 950 ref.

 

limitation

In absence of any objection of limitation, Courts were not bound to act under S. 3, Limitation Act, 1908. 1999 Y L R 2351

Suit regarding share in life estate of last male-holder filed by collateral of that deceased last male-.holder prior to coming into force of Act (XXV of 1975) held, was not barred by time if same was filed after one year, particularly when collateral was in possession of suit land.

1989 M L D 2513

 

Persons who were unable to challenge alienation for variety of reasons and legal objections including the one that suit was barred by limitation were given opportunity to file fresh suit by Ss. 2 & 3–.[Sher Muhammad v. Additional Settlement and Rehabilitation Commissioner PLD 1968 Lah. 234 and Ali Muhammad v. Mahmoodul Hassan PLD 1968 Lah. 329 overruled].

If sections 2 and 3, Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 are read together, then it would appear that the intention of legislature was to divide affected persons into two categories. In the first category are persons, who aggrieved on account of erroneous view, had litigated and some judgments and orders were passed in suits, appeals or other proceedings. Such judgments and orders treating refugee females as full owners were declared to be of no legal effect and such affected persons were given right of fresh hearing. The other category of affected persons is covered by section 3 which provides for permission to file fresh suits. This permission is given to persons, who could not challenge such alienation or succession for some reason. Here legislature has not used word “did” but. on purpose had used word “could” to denote the sense that such persons who are unable to challenge alienation for variety of reasons and legal objections including the one that suit was barred by limitation, were given opportunity to file fresh suits 1993 S C M R 950  PLD 1971 SC 791 ref. PLD 1968 Lah. 234 and PLD 1968 Lah. 329 overruled.

 

Return of plaint–Trial Court before determining plea of limited ownership of refugee female allottee, raised by plaintiff /respondent, decided question of jurisdiction of civil Court to try said suit–Trial Court dismissed suit and returned plaint for lack of jurisdiction to try that suit–Appellate Court on appeal remanded suit for fresh decision in accordance with law observing that plea of limited ownership should have been determined first before deciding question of jurisdiction of civil Court–Court, in view of provisions of Act XXV of 1975 upheld and maintained order of First Appellate Court and remanded case. 1986 C L C 2096   P L D 1971 S C 791 ref.

 

Alienation by refugee female allottee, suit to challenge ­Affected persons required to file application under S. 2 in case of any decree, judgment or order having been passed by any Court or any other authority declaring refugee female allottee as full owner of disputed land. No such decree, judgment or order having been passed when Act XXV of 1975 came into force and transfer order passed by Rehabilitation Authorities not expressly stating land having been transferred to female allottee as full owner, S. 2, held, not applicable. Affected person having been aggrieved by alienation made by female allottee in favour of respondents, he could file a suit within one year of commencement of Act. Suit of affected person having been filed in 1964, decreed by trial Court in 1966 respondent’s appeal accepted later in 1966, affected person’s appeal against such order filed within time in same year and still pending at time of commencement of Act XXV of 1975, original and appellate proceedings thus steps in one proceeding, hence, not necessary for affected person (appellant) to file a fresh suit within one year of commencement of Act and S. 3 could be pressed for seeking relief. 1981 C L C 11  1962 S C M R 243 and P L D 1964 S C 520 rel.

 

Provisions of S. 2 contemplates “an application by affected person” within one year of the commencement of Act seeking declaration that interest of an allottee of land was limited one. No such application having been made within one year of enforcement of the Act, allottee became full owner and entitled to alienate same. Contention that Revenue/ Settlement authorities should have taken suo motu action to declare allottee as limited owner of property allotted, repelled. Provision of S. 3 could be availed to challenge alienation made by widow “before” promulgation of Act XXV of 1975. –>P L D 1987 Lah. 553  PLD 1973 S C 304 ref.

            Inheritance of limited owner. Mutation sanctioned in favour of Muslim female as limited land owner .Notwithstanding finality of order, mutation sanctioned, held, can be called in question by filing necessary application in terms of Ss. 2 & 3. It is true, that the application made by the contesting respondents to review the mutation was application for review of mutation though pre­mature at the time of its filing, but the contesting respondents acquired the right under the Muslim Personal Law (Shariat) Application (Removal of Difficulties Act, 1975. to challenge it during the pendency of the proceed­ings before the Assistant Collector. The cause of action thus matured and the objection as to pre-mature application ceased to be valid. The Assistant Collector failed to advert to the law laid down in Act. The miscellaneous application ought to have been treated as an application for all intents and purposes in terms of section 3 of the Act. Prior to the promulgation of Act XXV of 1975, the Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972, was in existence with retrospective effect from 31st December, 1962. In terms of section 2 of the said Ordinance, the limited estates in respect of immovable property held by Muslim females under the Customary Law are deemed to have been terminated w.e.f. 31st December, 1962, notwith­standing earlier contrary decisions regarding applicability of rule of custom to succession by any decree, judgment or order of any Court or other authority. Subsection (2) of section 2 of the Ordinance specifically declared earlier contrary decisions which were inconsistent with the provisions of subsection (1) of section 2 of no legal effect. Such suite, appeals or other proceedings were required to be decided afresh on the application of any person affected by such decree judgment or order. No tine limit was fixed for making such an application. This provision of law was also not adverted to by the Collector who earlier allowed the appeal. This order was non-existent in the eye of law and of no legal effect. No exception can, therefore, be taken to the impugned orders whereby the ‘miscellaneous application filed by the contesting respondents was rightly treated as one under the provisions of Act XXV of 1975– The order is manifestly just and in accordance with law, warranting no interference in the exercise of consti­tutional jurisdiction. 1983 C L C 941 P L D 1977 Lah. 399; P L D 1978 S C 220 and 1980 S C M R 339 rel

 

4. Bar to claim adverse possession

 

Any person who claims to have acquired any right or interest in property whether by alienation, succession or otherwise, originally allotted to a refugee female limited owner, shall have no right to plead adverse possession against any lawful heir of the last male holder.

 

Court Decisions

 

        Bar to claim adverse possession—Persons claiming to have acquired any right or interest in property whether by alienation, succession or otherwise, originally allotted to a refugee female limited owner, would have no right to plead adverse possession against any lawful heir of last male holder—Widow of last male holder having been allotted land as female limited owner in lieu of such estate which he had left in India, donees from her could not claim plea of adverse possession against lawful heir of last male holder.1993 M L D 1620

 

5. Repeal of Punjab Ordinance No. V of 1975

 

 

The Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Ordinance, 1975 (Punjab Ordinance No. V of 1975), is hereby repealed.

 

 

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