PLJ 2014 SC 124
Present: Nasir-Ul-Mulk, Mian Saqib Nisar & Iqbal Hameedur Rahman, JJ.
SAHIB JAN and others--Appellants
Mst. AYESHA BIBI through L.Rs etc.--Respondents
Civil Appeals No. 6 & 38 of 2006, decided on 4.4.2013.
(Against the judgment dated 29.11.2005 of the Peshawar High Court, D.I.Khan Bench passed in CRs No. 139/2004)
----S. 3--N.W.F.P. Muslim Personal Law (Shariat) Application Act, 1935, Scope of--Limitation Act, 1908, S. 18--Constitution of
, 1973, Art. 185(2)--Being one of legal heirs of deceased was entitled to inherit--Daughter of deceased was excluded from inheritance--Entitlement to inherit his estate to extent of 1/3rd share--In effective transaction--Upon the death of a muslim, his legal heirs automatically shall become co-sharers in estate left by him and one co-sharer cannot deprive other from his such right--When daughter of deceased against mandate of Act, 1935 and Shariah was ostensibly denuded of her lawful right to suit property as a co-sharer and was precluded from exercise of such rights and she had made out a case within purview of S. 18 of Limitation Act--Claim and entitlement of plaintiff can be well satisfied, that all such transfers/alienations would be apportioned towards the share of legal representative--Plaintiff would be given her actual share of 1/3rd out of total land left--All transactions which had been made by them from their own share, having no bearing or effect upon rights to extent of her 1/3rd share--Judgment and decree of High Court was modified. [Pp. 128 & 129] A, B, C & D Pakistan
Mr. M. Munir Peracha, ASC for Appellants (in
No. 6/2006). C.A.
Mr. Abdul Karim Khan Kundi, Sr. ASC and Mr. Tanvir-ul-Islam, AOR for Respondents 1(i) to 1(v) (in
No. 6/2006). C.A.
Ex-Parte for Respondents 2 to 66 (in
No. 6/2006). C.A.
Mr. Abdul Karim Khan Kundi, Sr. ASC and Mr. Tanvir-ul-Islam, AOR for Appellant (in C.A. No. 38/2006).
Qazi Shahryar Iqbal, ASC for Respondents 1 to 6 (in
No. 38/2006). C.A.
Ex-Parte for Respondents 7 to 77 (in
No. 38/2006). C.A.
Date of hearing: 4.4.2013.
Mian Saqib Nisar, J.--Both these appeals under Article 185(2) of the Constitution of the Islamic Republic of Pakistan, 1973 have genesis in a suit for declaration, with further relief, filed by Mst. Ayesha (note: the predecessor in interest of the contesting respondents, who also are the appellants in Civil Appeal No. 38/2006). The suit was dismissed by the learned trial Court vide judgment and decree dated 17.2.2003, primarily holding it to be barred by time, but the learned District Judge, on appeal, has reversed the said decision and has declared the plaintiff entitled to 1/3rd share in the estate of her brother Muhammad Afzal. In the revisional jurisdiction, the learned High Court has however modified both the verdicts and has found the plaintiff(s) entitled to 1/3rd share of such land which is in the name of Sarfraz (or his L.Rs. ) out of the estate of MuhammadAfzal, but has declined to interfere in the transactions of such land, which had been made by Sarfraz (or his L.Rs. ) in favour of third parties. Hence these appeals by both the sides.
2. The admitted facts, which are relevant for the purposes of the present appeals are quite simple, in that, one Sarfraz died on 26.10.1931, he had two wives, namely Mst.Jugoo and Mst. Bakhto; from the former, Sarfraz had one son, Muhammad Nawaz and a daughter, Mst. Sabhai, while from the other, Muhammad Afzal was the son, andMst. Ayesha (the plaintiff) and Mst. Fatima are the two daughters; both the wives predeceased Sarfraz. After the death of Sarfraz, the estate left by him including the suit land as per the custom was mutated only in favour of his two sons and three daughters were excluded from the inheritance. Be that as it may, when Muhammad Afzal died issueless on 10.12.1935, again his share in such inherited land (from Sarfraz) was mutated in favour of his consanguine brother, Muhammad Nawaz under the custom. Muhammad Nawaz or his successors, as the case may be, has/have disposed off some parts of that inherited land in favour of the third parties (note: who ware arrayed as the defendants in the suit filed by Mst. Ayesha and they are parties thereto as well). It may be relevant to mention here, that the consolidation of the Mozah where the suit land is situate was held in 1976-77 and Muhammad Nawaz in lieu of such inherited holding, has been assigned the land now in question. Anyhow, in 1993, Mst. Ayesha instituted a suit, seeking inheritance to the estate left by Muhammad Afzal, her real brother, on the ground that on the enforcement of the North-West Frontier Province Muslim Personal Law (Shariat) Application Act, 1935, on 5.12.1935 (Act, 1935), she being one of the legal heirs of Muhammad Afzal was entitled to inherit his estate to the extent of 1/3rd share, because the customary law had been abolished by that time, thus she sought declaration of her title in his behalf and asked for the annulment of the mutation(s) and other entry(ies) in the revenue record, which were contrary to her such rights; besides she assailed the transaction of sale(s)/transfer(s) of that part of the suit land which had been made by Muhammad Nawaz or his successor, in favour of third parties, as void and ineffective transaction; she also claimed joint possession of the suit property. The result(s) of the suit at different stages has already been highlighted above.
3. It has been argued by Mr. Muhammad Munir Peracha, ASC, appearing on behalf of the successors of Muhammad Nawaz (in C.A, No. 6/2006), that the Act, 1935 ibid had not been published in official gazette when Muhammad Afzal died on 10.12.1935 and, therefore, as the said law yet had not come into force, resultantly MuhammadNawaz under the custom was the only person entitled to inherit the estate of Muhammad Afzal, his consanguine brother, thus the plaintiff had no right in the suit property; that the suit had been rightly dismissed by the learned trial Court, as being barred by time, which was filed about fifty eight years from the date of the death of Muhammad Afzaland the plaintiff's exclusion from such alleged right of inheritance, therefore, such decision could not validly be interfered by the learned appellate Court; the learned High Court though on the one hand has opined in the impugned judgment that the suit filed by Mst. Ayesha was barred by time and was liable to be dismissed in respect of the transfers/alienations made by Nawaz (or his L.Rs) to the third parties, but on the other hand, in contradiction thereof, the bar of limitation has not been resorted to, to the remaining land, which was left with Nawaz (L.Rs. ) (note: minus the transactions he/they made in favour of third parties). This according to the learned counsel is a clear anomaly and inconsistency in the said judgment, which therefore cannot sustain, on that score alone.
Before proceeding with the matter further, it may be relevant to mention here that the other appeal (C.A. No. 38/2006) has been filed by the legal heirs of Mst. Ayesha (the plaintiff), who seeks the annulment of all the sales/transfers, which had been made by Muhammad Nawaz or his legal heirs in favour of third parties, which according to their learned counsel are the transactions unauthorizedly made, and are void, qua plaintiffs rights having no sanctity in the eyes of law whatsoever. In the alternate, however, it has been argued by the learned counsel that because Mst. Ayesha was a co-sharer in the estate of Muhammad Afzal along-with Nawaz, therefore whatever transactions infavour of third parties were effected by him (or his legal heirs) those can be apportioned towards the share of Muhammad Nawaz exclusively, and even if those are protected in this manner, Mst. Ayesha's share can be satisfied from the remaining joint land, which is more than 1/3rd of her share and is still held by Muhammad Nawaz (his L.Rs).
4. Heard. About the plea, that the Act ibid had not been published in the official gazette till the death of Muhammad Afzal therefore, mere assent of the Governor on 5.12.1935 would not make it a valid law, until so notified, we do not find any substance in the said submission, because this plea has not been set out as a defence by the appellants in their written statement before the trial Court, therefore no issue was framed; this was not their stance when the appellate Court's judgment and decree was challenged before the learned High Court. Even this is not a ground set forth in the present memo. of appeal. We are not persuaded in the facts and circumstances of this case to treat and consider the noted plea as a pure question of law and to decide the same, therefore, it is liable to be discarded on that score alone.
5. Notwithstanding the above, in support of his contention that the Act, 1935 would come into operation on the date of its publication in the Official Gazette, the learned counsel for the appellants has relied upon the provisions of Section 3 of the West Pakistan General Clauses Act, 1956, which reads as under:--
"Coming into operation of enactments.--Where any West Pakistan Act is not expressed to come into operation on a particular day, the it shall come into operation, on the day on which the assent thereto of the Governor is first published in the Official Gazette and if it is an Act of the Governor, on the day on which it is first published as an Act in the Official Gazette and in every such act the date of the first publication thereof shall printed either above or below the title of the act and shall form part of every such Act."
We are afraid that the noted law was promulgated in the year 1956 and by no rule of interpretation it can either be given retrospective effect or made applicable to an enactment coming in force two decades prior thereto. Rather the Act, 1935 shall undisputedly be governed by the provisions of the General Clauses Act, 1897 (Act X of 1897), which was the only relevant law, prevalent at that time covering the field, and according to Clause 5 thereof, it is mandated "Where any Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent of the Governor General" (underlined by us to supply emphasis). However, in 1937 the word "Act" was substituted by [Central Act]. Be that as it may, in the instant matter, admittedly the Governor General assented to the Act, 1935 on 5.12.1935 and, therefore, the said law became operative immediately thereupon, whereas Muhammad Afzal had died on 10.12.1935, which is an event subsequent to the coming into operation of the said enactment, by virtue whereof, the inheritance on the basis of custom was abolished and the inheritance of a Muhammaden was to be governed and settled according to the Muslim personal law. Therefore, Mst. Ayesha was duly entitled to inherit the estate of her brother, according to her share under theShariah.
6. About the submission that the suit was barred by time, because it has been filed after fifty eight years or more (note:-after the death of Muhammad Afzal) and from the date of mutation, by virtue whereof, Mst. Ayesha was excluded from the inheritance, suffice it to say that upon the death of a muslim, his legal heirs automatically shall become the co-sharers in the estate left by him and one co-sharer cannot deprive the other from his such right. It is also not disputed that Mst. Ayesha was one of the legal heirs of Muhammad Afzal under the Shariah, if the rights of the parties were governed by the Personal law (note: not under the custom). Obviously, in the situation, whenMst. Ayesha against the mandate of Act, 1935 and the Shariah was ostensibly denuded of her lawful right to the suit property as a co-sharer and was precluded from the exercise of such rights and she had made out a case within the purview of Section 18 of the Limitation Act, 1908 and nothing was brought on the record by the appellant that she had a direct or indirect knowledge of the mutation, the limitation in such peculiar circumstances shall hardly come in the way of the respondent. This is particularly so, as shall find mention in the latter part of this judgment that it is the case of the appellant that on account of some family settlement the respondent has been compensating from the legacy of her deceased brother. The plea therefore has no merits and is hereby discarded.
7. We however are intentionally refraining ourselves to go into the question if the suit with respect to the challenge(s) thrown qua the transactions made by MuhammadNawaz (or his L.Rs. ) in favour of third parties was/is barred by time or not. Because in our view without annulling and interfering with those transactions, the claim and entitlement of the plaintiff can be well satisfied, in the manner, that all such transfers/alienations should be apportioned towards the share of Muhammad Nawaz (his L.Rs. ) and thus by keeping those intact, as has been argued by the learned counsel for the appellants in C.A. No. 38/2006, the plaintiff should be given her actual share of 1/3rd out of the total land left by Muhammad Afzal, as according to the learned counsel (representing the L.Rs of Mst. Ayesha) such share is still available.
8. In view of the above, it is held that all the transactions, which have been made by Muhammad Nawaz (his L.Rs. ) shall be taken to have been made by them from their own share, having no bearing or effect upon the rights/entitlement of Mst. Ayesha to the extent of her 1/3rd share. Resultantly, the judgment and decree of the learned High Court is, accordingly, modified. However, it may be observed that if on account of any family settlement, as has been propounded by the learned ASC for the appellants in C.A. No. 6/2006, Mst. Ayesha (her L.Rs) has received any share in the estate of Muhammad Afzal, obviously such share shall be excluded from the share Mst. Ayesha, to which she has been found entitled by us.
9. In the light of above, Civil Appeal No. 6/2006 is dismissed, while Civil Appeal No. 38/2006 is partly allowed in the terms of the modification hereby made, in the impugned judgment of the learned High Court.
(R.A.) Order accordingly