WEST PAKISTAN MUSLIM PERSONAL LAW
(SHARIAT) ACT (AMENDMENT) ORDINANCE, 1983
An Ordinance further to amend the West
Pakistan Muslim Personal Law
(Shariat) Act, 1962
1st August, 1983
No. Legis. 3 (13)/83.-The following Ordinance by the Governor of the Punjab is hereby published for general information;
Preamble.-Whereas it is expedient to amend the West Pakistan Muslim Personal Law (Shariat) Act, 1962 to bring it in conformity with the Shariah in the manner hereinafter appearing ;
Now, therefore, in pursuance of the Proclamation of fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C. M. L. A. Order No. 1 of 1977) and the Provisional Constitution Order, 1981 (C.M.L.A. Order No. 1 of 1981), the Governor of the Punjab is pleased to make and promulgate the following Ordinance;
Inheritance. Leave to appeal was granted, inter alia, to consider the effect of the decision of the Supreme Court in Abdul Ghafoor etc. v. Muhammad Shafi PLD 1985 SC 407 regarding . the application of . Punjab Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983) on the question of devolution of property having remained at one time with a widow as a limited estate.
P L D 1991 S.C.1096
PLD 1985 SC 407 and 1990 SCMR 1667 ref.
1. Short title and commencement.-
(1) This Ordinance may be called the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance, 1983.
(2) It shall come into force at once.
2. Amendment of West Pakistan Act V of 1962.- In the West Pakistan Muslim Personal Law (Shariat) Act, 1962, after section 2, the following new section 2-A shall be inserted :–
“2-A. Succession prior to Act IX of 1948.-Notwithstanding anything to the contrary contained in section 2 or any other law for the time being in force, or any custom or usage or decree, judgment or order of any Court, where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim :—
(a) he shall be deemed to have become, upon such acquisition, an absolute owner of such land, as if such land had devolved on him under the Muslim Personal Law (Shariat) ;
(b) any decree, judgment or order of any Court affirming the right of any reversioner under custom or usage, to call in question such an alienation or directing delivery or possession of agricultural land on such basis shall be void, in executable and of, no legal effect to the extent it is contrary to the Muslim Personal Law (Shariat) Act
(c) all suits or other proceedings of such a nature pending in any Court and all execution proceedings seeking possession of land under such decree shall abate forthwith;
Provided that nothing herein contained shall be applicable to transactions past and closed where possession of such land has already been delivered under such decrees.“.
Competency of customary land-holder to make gift—Court below holding concurrently that gift made by customary land-holder to appellant was under undue influence and its possession which was an essential ingredient of a valid gift was not delivered to donee and that donor being last male holder of property could not at all make any gift because he was governed by custom. Appellant unable to make out a case to come to a finding different from one arrived by Courts below. Gift was declared invalid and of no legal effect and suit property ordered to devolve upon heirs of donor under Muhammadan Law. 1988 S C M R 1238
Points noted for consideration in orders granting leave to appeal-Notwithstanding points noted for consideration in orders granting leave to appeal in each case, Supreme Court, in the interest of justice decided that such points shall have to be decided on due consideration of general impact and effect in each case of a recent legislation of great public importance-Leave granting orders were, therefore, ordered to have been modified and scope enlarged accordingly.
P L D 1985 S.C. 407
Legislative and historical background traced with reference to other relevant laws on the subject. P L D 1985 S. C.407
P L D 1976 Lah. 930 and P L D 1984 S C 394 ref.
Implications of S. 2-A exhaustively stated In
P L D 1985 S.C.407
P L D 1956 S C (Pak) 227; P L D 1956 S C (Pak) 321 ; P L D 1959 S C (Pak.) 356 ; P L D 1961 S C 468 ; P L D 1962 S C 42 ; P L
D 1964 S C 220 ; P L D 1966 S C 349 ; P L D 1967 S C 200 ; P L D 1971 S C 334 ; P L D 1973 S C 304 ; 1974 S C M R 341 ; P L D 1974 S C 124 ;; P L D 1974 S C 207 ; 1975 S C M R 487
P L D 1977 S C 144 ; P L D 1980 S C 76 ; P L D 1581 S C 120 ; P L D 1981 F S C 2 7 8; P L D 1983 S C 273 ; A I R 1941 Lah. 22 ; P L D 1952 Dacca 272 ; P L D 1961 Dacca 389 ; P L D 1977 Lah. 292 ; P L D 1973 Notes (Lah.) 83 ; 1984 C L C (Kar.) 2997; P L D 1959 S C 387 ; P L D 1965 S C 1 ; P L D 1965 S C 157 ; P L D 1970 S C 29 ; P L D 1971 SC 252 P L D 1974 S C 180; and 1980 S C M R 443 ; also ref.
Succession-Owner who as a “male heir ‘ had inherited agricultural land before 15-3-1948 under custom shall be deemed to have inherited such land under Muslim Shariat Law and was thus absolute owner enjoying full power over it-No restriction as visualised by custom would annul alienation of such property by such person-All suits and “other proceedings” of the nature visualised in S. 2-A (b) shall abate forthwith-Expression “other proceedings” would also include appeals, wherever pending-Mere fact that appeal by virtue of jurisdiction conferred by Constitution was pending in Supreme Court, would not make any difference-Supreme Court in exercise of appellate jurisdiction conferred by Constitution decides case in accordance with relevant substantive laws provided such .laws were valid laws-Appeal dismissed on merits and as also having abated. P L D 1985 S. C.407
Person having inherited agricultural land under custom before 15-3-1948 to be deemed to have inherited such land under Muslim (Shariat) Law and was, therefore, its full owner-Widow of such male owner gifted half portion of said land to her two out of four daughters in 1953 and died soon after making said gift-Transaction was past and closed only when possession of land was already .delivered under decree-Remaining land, if not distributed-under any decree for purpose of determination of due shares, could be treated as available in its entirety for distribution of total share of other two daughters of widow in entire land Remaining land, therefore, would be available to satisfy claim of other two daughters as Shariat Law heirs of father as also of their mother’s share under Muslim Shariat Law for father’s property Daughters who had already obtained half of land, would not again obtain their share from land in dispute in circumstances. P L D 1985 S.C.407
Last full male owner who had inherited property under custom before 15-3-1948 died before that date–Such male owner to be deemed to have inherited property under Muslim Shariat Law-Half of his land which was mutated initially in favour of his widow on her death (after 15-3-1948) came to daughters of widow while other half was given to his son from another predeceased wife-Widow holding customary life estate, or her death, succession qua that land should have opened in accordance with Act TX of 1948 and also be governed by S. 2-A of Act, 1962-Daughters, therefore, would inherit property left by their father in accordance with Muslim Shariat Law and same would apply to share of their mother (as her being a Muslim Law heir of her husband)-Sons (of male owner) having already been given 1/2 of entire land left by father, remaining ½ being with daughters would be utilized for distribution of their shares in entire land as Muslim heirs. P L D 1985 S. C. 407
Appellant a vendee from a person who had inherited land in dispute before 15-3-1948 under custom-Vendor in view of S. 2-A of Act 1962 to be treated as absolute owner and deemed to have inherited under Muslim Shariat Law-Decree in favour of respondent whereby alienation by vendor was set aside (conditionally) was, by operation of statutory bar, not executable as said sale could not be set aside.
P L D 1985 S.C.407
Sale of agricultural land— Declaratory suit–Competency of–Sale of agricultural land-Subsequently minor sons of vendor instituting suit through their mother seeking declaration that sale after the demise of vendor would not affect their reversionary rights as it was illegal and of no effect-Suit dismissed as incompetent because no declaratory relief could be had in custom in view of Act (V of 1962) and because plaintiffs respondents had no locus standi to file the suit–High Court, on appeal, remanded case for deciding suit on merits–Order impugned-Suit being incompetent under S.2-A of Ordinance (XIII of 1983), order of High Court allowing appeal and remanding case for trial on merits, held, was against the provisions of law and was thus set aside. 1988 S C M R 1320
P L D 1984 S C 394 and P L D 1985 S C 407 rel.
‘M’ dying prior to 1948, his widow, daughter and sister inheriting property left by deceased Collaterals challenged distribution of inheritance by filing a suit which was decreed in their favour–In appeal it was held, that in view of custom of parties, daughter was better entitled to -inherit–In second appeal, High Court taking view that ‘M’ having died prior to enforcement of Act (IX of 1948) when still custom was applicable, he shall be deemed to have had acquired land from his own father under Muslim Personal Law (Shariat) Application Act and, therefore, his inheritance would be governed by same law–Decision impugned–View that Act had retrospective effect being not open to interference, judgment thus was unexceptionable-Petition for leave to appeal dismissed.
1986 S C M R 1539(2)
P L D 1985 S C 407 ref.