West Punjab Muslim Personal Law Application Act 1962

W.P. Muslim Persona Law (Shariat) Application Act, 1901962

WEST PAKISTAN MULSIM PERSONAL- LAW (SHARIAT), APPLICATION ACT,

1962(V OF 190)

An Act to consolidate and amend the provisions for the .

application of Muslim Personal Law (Shariat) in the Province of1 [West Pakistan.

, 4 4

[31st December, 1962i

Preamble.--Where it is expedient to consolidate andamend the provision for the application of Muslim PersonalLaw (Shariat) in the Province of PunjabiSindh/N.W.F.P/Baluchistan :2

COMMENTS

Application of law. Widow of pre-deceased soh of theoriginal owner. Entitlement to inheritance under custom.Application Of law. Question of. Respondents plaintiffs claimedownership of property in question being heirs of deceased andthe ground that after promulgation of said Act, limitedownership under the austom held by said lady came to an end,therefore, respondents/plaintiffs were entitled to possession ofland in question being heirs of deceased. Said suit was decreedby 'Courts below. Civil appeal in Supreme Court, withsubmission that said female was limited owner, she wasentitled to the share in the property in question, as a widow ofpre-deceased son of the original owner. Said lady was notentitled to any share from property in question left by maleowner/ her father-in-law as her husband died before death ofhis father Civil appeal dismissed. 2007 PSC SC (Pak.) 432

1. Short title and extent.--(1) This Act may becalled the West Pakistan Muslim Personal ..Law (Shariat)Application Act, 1962.

(2) It . extends to whole of Province of West Pakistanexcept the Tribal Area.

•

N.W.F.P. Balochistan A.0, 1975.1

2

Subs for words "West Pakistan" by Punjab, Sindh,

Subs for words "West Pakistan" by Punjab, Sindh,N.W.F.P. Balochistan 1.0, 1975.

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

2. Application of the Muslim Personal Law.Notwithstanding any custom or usage, in all questionsregarding succession (whether testate or intestate), specialproperty of females, betrothal, marriage, divorce, dower,adoption, guardianship, minority, legitimacy or bastardy,family relations, wills, legacies, gifts, religious usages orinstitutions, including waqfs, trust and trust properties, therule of decision, subject to the provisiorid of any enactment forthe time being in force shall be the Muslim Personal Law(Shariat) in case where the parties are Muslims.

COMMENTS

A suit was filed by petitioner for declaration thatalienation of land made by their father, defendant No. 1 (nowrepresented by respondents Nos. 1-A to 1-F) be declared asvoid as he was not competent to alienate land which wasacquired by him under ."Custom" and that the alienationsmade by him do not affect the reversionary rights of petitionerswho were the sons of defendant No. 1. In view of enunciation oflaw by High Courts and Supreme Court, this Court is of theview that when the issues as to the applicability of S. 2-A ofOrd. XIII of 1983:had been decided by Mal Court twice andwas maintained by revislonal Court, same became final qua theparties and it was not open to. Trial Court to decide the sameafresh and return -a finding, contrary to what had been dedidedpreviously. Findings and view of Tridl Court as well asAppellate Court on the point cannot be upheld. Findingsrecorded by tow Courts below on issue ofiknitation are basedon correct appreciation of facts and law. Trariaction of saletook place on different dates during the yeats 1960 to 1967 bUtwere not challenged till 26.1.1981 when suit was filed by two ofthe heirs of deceased defendant No. 1. Same was . barred bytime as th.e only explanation for not filing suit earlier was thatone of petitioner was minor. This could not be proved bypetitioner . during trial by any convincing arid cogent evidencethat he was born on 27.2.1960. Only piece of evidence wasExh. P-8 showing birth entry which was made even after filingof suit. Two Courts below have rightly disbelieved such a

:document of a doubtful nature. Concurrent finding two Courtsbelow - on this issue (No. 1) do not warrant any interference inrevision and thus are upheld. Petition dismissed. 2000: CIA305

Civil suit for exclusion of respondents frominheritance. Respondents appeal allowed, suit dismissed.Challenged to. Petitioner were six sisters. Two of them were


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

Decree . under Customary Law with delivery ofpossession under decree would not abate and become void inview of proviso to S.2A. NLR 1991 SD 135

Implications of S. 2A. Provision of S. 2A was direct atremoving that vestige of custom which persisted on the rightsof a Muslim inheriting ancestral property and the limitationbeing founded not on the statue but on the custom recognizingan interest of the reveresioners in the ancestral property. PLD1991 SC 71

Inheritance, claim of. Whether Act, in its application,cannot be given retrospectivity. Question of. Fact that Act of1962 was not in force in area concerned on 15.1.1976 wouldnot make any difference because Islamic dispensationcontained in 1935 Act had taken over retrospectivity even priorto 15.1.1976 and even before 1962 Act was formally applied toarea concerned. Last male holder in this case had admittedlydied in 1972 or 1973. Appellants being daughters, would gettheir share in his inheritance in accordance with , Islamic Law.Appeal accepted. PIZ 1991 SC 97

Limitation. Question of Civil revision petition in HighCourt. Validity. On coming into force of the Act,respondents/ plaintiffsicollaterals of the original owner becameco-sharers in the said property on account of termination oflimited estate of said female allottee/widow. Once havingbecome co-sharer in property, no limitation ran on account ofsecuring cause of action on every denial. Civil revision petitiondismissed. 2005 SLR (Lah) 407 (c)

Limitation. Respondent's declaratory suit claimingheritory rights as being collaterals of deceased owner wasdismissed by Trial Court but such determination was reversedby Appellate Court below which decreed the said suit. Civilrevision petition thereagainst in High Court. Validity. In theinstant case said female limited owner did not alienate the suitproperty during her life-time till he died when her successionopened. Bar of limitation contained in the said section was notapplicable in the instant case. Civil revision petition dismissed.2005 SLR (Lah) 407(b)

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

Limited estate of female land owner, devolution of.On death of female limited owner, devolution of her estate after1962, would be in accordance with the then prevailing law andthat being so, decree passed in favour of plaintiffs regardingshare of suit land which was in possession of said deceasedwas proper and valid. Such decree was not liable to be setaside by the High Court and was reversed by Stipreme Court incircumstances. Appeal of pro-forma defendant (Mst. Magboola)was also allowed by the Court. 1991 SCMR 515

Mutation of gift. There 'is no dispute that deceased wassucceeded by his widow and two daughters. There is nothingon record to indicate that on his death the two daughters hadalso inherited the left over of their father. The suit land wasmutated in the name of his widow, who purported to alienatethe whole of it in favoure of her one daughter, to the exclusionof the other daughter and her successors. The rule of limitedowner came to an end with the enforcement of the WestPakistan Muslim Personal Law (Shariat) Application Act, 1962and thus disposition of the suit land by widow to thedeprivation of successors of other daughter of deceased couldnot be done. The mutation of gift, as also the consent decree,thus to the extent of share of one Iran illegal and inoperativequa her right in . the property. Approach of the AdditionalDistrict Judge in the matter was quite consistent with thefactual and legal position obtaining in the matter. This Courtdid not find any valid justification to interfere with the same.Petition dismissed. 2000 SLR 1062(b)

Question of. Question whether decree based oncustomary rights, passed in 1961 was a past and closedtransaction or it had become void after Enforcement of(Shariat) Act (Arndt.) Ord, 1983, being a question of publicimportance needing determination. Leave to appeal wasgranted. 1991 SCMR 769

Scope. Ancestral property being governed by customd whether remains subject of agricultural custom. Leave to- appeal was granted by Supreme Court to consider whetherproperty owned by Muslim which was being governed byagriculture . custom before enforcement of West Pakistan

, Muslim Personal Law (Shariat).Application Act, 1948 and WestPakistan Muslim Personal Law (Shariat) Application Act, 1962would continue to be governed by custom as was observed bySupreme Court in case titled Mst. Khatun vs. Malla and fiveothers, reported as 1974 SCMR 341 or the view taken in casetitled Abdul Ghafoor v. S. Muhammad Shari, 'reported as PLD

W.P. Muslim Persona Law (Sharidt) Application Act, 1941962

1985 SC 407, would prevail and limited owner would notacquire the status of full owner under law and whetherrestriction on alienation would be justified and would not be inconflict to fundamental right of person and law of Spariah.2007 SCMR 307

Suit for possession. Be that as it may, suit standsabated, decree had become void, appeal stands abated, whichIs disposed of accordingly. Respondent No. 1, shall however, beat liberty, to file an independent suit, if validity of transactionis otherwise challenged on ground,of any defect in execution ordenied of execution'. Appeal accordingly. 1999 PLR 664

WidcT inheriting land in question, as limited owner,after death of her • husband who died issueless. Widowsubsequently applied for grant of proprietary rights which weregranted to her with regard to whole of the tenancy. On widow'sdeath her estate was inherited by respondents viz. her brother4nd•.sister;:Widow was holding land as a limited owner till herdeath after the demise of her deceased husband. Collector'sorders passed after ,coming into force of West Pakistan MuslimPersonal Law, (Sh'ariat) Appliction Act, 1962, granting herproprietary rights with. regard to whole of tenancy, werewithout legal force and were set aside. Widow having diedwhen Act (V of 1962) was in force, she was entitled to 1/4 shareof property which would be inherited by her legal heirs i. e.respondents; while remaining 3/4 share would be inherited bythe legal heirs of her husband. Conveyance deed executedunder S. 30(2), Colonization of Government Lands (Punjab)Act, 1912, whereby widow was granted proprietary rights tothe extent of the whole tenancy was rescinded and fresh deed v.in accordance with orders of Board of Revenue was directed tobe executed. PLD 1991 Rev. 7

Words & Phrases. Words "subject to the provisions ofany enactment for the time being in force" in S. 2, WestPakistan Muslim Personal Law (Shariat) Application Act: 1962ceased to have effect as fro -n 30th June, 1983 as per rule laiddown by Supreme Court in Muzaffar Khan's case reported asPLD 1984 Sc 394. PLD 1991 SC 213

3(2-A. Succession prior to Act IX of 1948.Notwithstanding anything to the contrary contained in section2 of any other law for the time being in force, or any custom or

3 Inst. by West Pakistan Muslim Personal Law (Shariat)Act (Amendment) Ordinance (XIII of 1983)

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

usage or decree, judgment or order of any Court, where beforethe commencement of the Punjab Muslim Personal Law(Shariat) }Application Act, 1948, a male heir had acquired anyagricultural land custom from the person who at the time ofsuch acquisition was a Muslim:—

(a) he shall be deemed to have become, upon suchacquisition, an absolute owner of such land, as ifsuch land had devolved as him under the MuslimPersonal Law (Shariat);

(b) any decree, judgment or order of any Courtaffirming the right of any reversioner undercustom or usage to call in question such analienation or directing delivery or possession ofagricultural land on such basis shall be void, inexecutable and of no legal effect to the extent it iscontrary to the Muslim Personal Law (Shariat)Act;

all suits or other proceeding of such a naturepending in any Court and all executionproceedings seeking possession of land undersuch decree : shall abate forthwith;

Provided that nothing herein containedshall be applicable to transactions past andclosed where possession of such land has alreadybeen delivered under such decrees.]

COMMENTS

That "cases which involve hesitance inter se among thelegal heirs, Court should make efforts to ensure that no legalheir is denied of his legal approach will also be in consonancewith the "Injuctions of Islam". On this view this Court is notinclined to hold that the suit of plaintiffs is barred bylimitation. Widow of deceased was entitled to inherit and 1/3rdout of the estate of her deceased son and rest 2/3rd was todevolve on the legal heirs of said deceased. In thecircumstances, the Trial Court was correct in holding in theproperty and proforma defendants the legal heirs entitled to2/3rd share in the property of deceased. While accepting thiscivil revision petition, this Court set aside judgment and decreeof Appellate Court and restore that of Trial Court with theresult that suit of the plaintiffs and proforma defendants forinheritance of 2/3rd share in the property of deceased is


declared in their favour and all the transactions madepursuant to Mutation . No. 527 . 1 beyond 1/3rd share aredeliberated as void, ineffective on the rights of the plaintiff andproforma defendants. Civil revision petition accepted. 2000PLR (D.I.Khan) 892

Provision. Provision of S. 2A does not apply to estateacquired u/s. 20(a), Colonization of Government Lands(Punjab) Act, 1912. It nullifies right granted by Court toreversioners to call in question alienation by a Musliminheriting ancestral property. NLR 1991 SD 101

Owner. A female owner may or may not have a limitedinterest under custom, therefore all female owners ipso factowould not be treated as limited owners. Review petition.dismissed. ' KJ 2007 SC 583(c)

Custom. Last male owner died in year 1926 leavingbehind a daughter and widow. Mutation of inheritance givingwhole estate of deceased to widow. Effect. Widow could havetaken whole estate of deceased either as . a widow under customas limited owner or to the extent of 1/8th share under IslamicLaw. Mutation giving whole estate to the widow wouldnecessarily and essentially mean that she had got property notunder Islamic Law, but as per custom. Had such not beenunder the custom, widow would not have got whole estatemutated in her favour. Widow, held was not the limited owner.PLD 2004 (Lah.) 1(a)

4[3. Termination of limited States under CustomaryLaw.--The limited estates in respect of irremovable property heldby Muslim female under the customary law are herebyterminated:

Provided that nothing contained shall apply to any suchestate saved by any enactment, repealed by this Act, and theestate so excepted shall, continue to be governed by thatenactment notwithstanding its repeal by this Act.]

COMMENTS

Land left behind by deceased who died in 1915 wasmutated in names of his two sons under customs. Afterdeath of legal heirs, mutation was sanctioned in favour of

4 section 3 subs. by W.P. Muslim Personal Law (ShariatiApplication (Amendment) Ordinance, 1963.


appellant and predecessors-in interest in accordance broughtby present appellant claiming declaration and possession iswithin time. It certainly is beyond time. Whether a period ofone year under Art. 14 or six years under Art. 122 or twelveyears under Arts. 122/144 to Schedule of Limitation Act, 1908is applied from date of mutation of 11-8-1951. Facts of casesrelief upon by appellant were different and, as observed in citedjudgment, Court has endavoured to reduce rigours of law oflimitation in fovour of female daughters and sisters excludedfrom inheritance by male members. Facts of this case aredifferent. Appellant has got her share sanctioned to her inmutation and, if she thought that she has not been given legalshare, she had to sue within time. Findings of two Courtsunder Issue No. 3 are affirmed. Appeal dismissed. K.L.R. 1999C.C. 201

Injunctions of Islam. Impleadment. Customary Law(by Supreme Court). "However, after commencement of processof Islamization of laws in Pakistan, situation has changedfurther. Thus in PLD 1983 SC 273 it was restrictions placed onpower of alienation of persons inheriting agriculture landunder customary law providing in Punjab before 16.3.1948 i.e. .

before coming into force of West Punjab Muslim Personal Law(Shariat) Application Act, 1948 were opposed to the Injunctionof Islam. It was, accordingly, directed that amendments becarried out for removing all such restrictions, which has sincebeen done. In view of this approach of Law Maker in regard toexisting law, Supreme Court consider that impugned judgmentof High Court wherein prayer for setting aside the sale wasrefused a view taken which is consistent with spirit ofjudgment subsequently delivered by this Court, in PLD 1991SC 247 and in consonance with which all law-making is beingdone, does not need any interference. These observations,although in the nature of °biter dictum, are entitled to greatestrespect. In view of the above, first Appellate Court used in lawin setting aside judgment and decree of Trial Court. Appealallowed. K.L.R 2000 Rev C. 90

No evidence worth the name to substantiate adversepossession of the defendants therefore the possession of co-owner shall be deemed to be possession of all other co-owners.Hence limitation plea that suit was barred by time is alsowithout any foundation. The concurrent findings of the learnedCourts below neither suffer from any misreading of evidence

. nor are based on surmises or conjectures, hence no exceptionthereto can be taken in revisional jurisdiction. Consequently


revision petition is dismissed with no order as to costs C.M.No. 521/95 is also dismissed. 2000 PLR 237

Alienation pl. property by limited beyond her legalshare. Widow of the deceased was a limited owner in the estateand she sold the whole estate to the respondents. Petitionerswere also legal heirs of the deceased and had assailed suchtransactions in the ground that widow could not alienate thesuit property beyond her legal share. Trial Court decreed _thesuit whereas the Appellate Court reversed the findings of theTrial Court and clismiss&I the suit. Validity. Widow wasentitled to inherik.

the property only to the extent of her share

under the provision of S.' 3 of West. Pakistan Muslim PersonalLaw (Shariat) Application Act, 1962. and the remaining was to-devolve on the other legal heirs of the deceased. Widow, thus,was not entitled, to dispose of the pr'operty by way of salebeyond her legal share in estate' of the deceased. Judgmentand decree of the Appellate Court was set aside and that of theTrial Court restored by High Court. 2000 CLC 1863_

Validity. Such ownership would terminate onenforcement of S. 3 of West Pakistan Muslim Personal LawShari . t) Application Act, 1962 and property for purposes of

inheritance would revert back to last male owner. Gift madebefore such law by widow as limited owner would be absolutelyillegal and void fob . not being absolute owner of property.Distribution of share in estate left by last male owner would beon the basis of Islamic Law; according to which widow wouldget i /8th share not of total estate, whereas 1/2 excluding 1/8thshare would go to daughter .and remaining 1/2 to collateral.2004 PLD (Lah), 1(b)

p.

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


Muslim Personal Law (Shariat) Application Act, 1962, which isonly restricted to the female limited "B" and the alienationmade by her is concerned, it definitely stands annulled onaccount of such provisions of law, and in view of the judgmentsreported as 1987 SCMR 2008 and PLD 1990 SC 1, thetransaction made by a limited owner would have no effect onthe right of inheritance of the petitioner, and her case wouldalso not be out of limitation. Resultantly, I modify the findingsof the Court of Appeal holding that the petitioner is entitled to5/16 share in the estate of and not 1/2, as claimed by her. Thefinding on the issues of limitation, are also reversed, holdingthat the suit of the petitioner is well within limitation.Therefore, by allowing this revision, on the question of

limitátion but while exercising my power, under section 115,C.P.C. by modifying/ reversing the findings of the Court ofAppeal on issue No. 9-A, it is held that the petitioner is entitledto 5/16 share in the estate of "5" and to this extent her suitstands decreed. Suit decreed. 2004 SLR (Lah) 206

4. Further operation of certain will shall cease onthe death of legatee-in-enjoyment.--Wherefor more than one legatee succeeding to the testator's propertyone after the other is operative at the commencement of thisAct, its further operation shall cease upon the death of legatee-in-enjoyment.

5. Devolution of property on the termination oflife estate. and certain wills.---- The life estate terminatedunder section 3 or the property in respect of which the furtheroperation of will has ceased under section 4 shall devolve uponsuch persons as would have been entitled to succeed under theMuslim Personal Law (Sha•iat) upon the death of the last fullowner or the testator as though he had died intestate; and ifany such heir has died in the meantime, his share shalldevolve in accordance with Shariat on such persons as would,have succeeded him if he had died immediately after'termination of the life estate or the death of the said legatee:

Provided that the share to which a Muslim femaleholding limited estate under customary law would have beenentitled under the Muslim Personal Law (Shariat) upon thedeath of the last full owner shall devolve on her.

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

Dissolution of Muslim Marriages Act, 1939 200

6. Section 3, 4 and 5 only to be retrospective.--Save as expressly provided by the provisions of sections 3, 4and 5, this Act shall have. no retrospective operation.

7. Repeal and Savings.---The following enactmentsare hereby repealed:---

(a) The Punjab Limitation (Custom) Act, 1920;

(b) The Punjab Limitation (Power to Contest) Act,1920;

(c) The Muslim Personal Law (Shariat) ApplicationAct, 1937, in its application to West Pakistan;

(d) The North-West Frontier Province MuslimPersonal Law (Shariat) Application Act, 1935;

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

(f) The Muslim Personal Law (Shariat) Application(Sind Amendment) Act, 1950;

(g) The Bahawalpur State Shariat (Muslim PersonalLaw) Application Act, 1951;

(h) The Khairpur State Muslim Female Inheritance(Removal of Customs) Act, 1952.

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Documents

West Punjab Muslim Personal Law Application Act 1962