| Citation(s) |
|---|
| 2013 SLG 1659 2013 SLD 1659 2013 SCMR 1540 |
Supreme Court of Pakistan
Civil Appeals Nos.6 and 38 of 2006, decision dated: 4-04-2013. (Against the judgment dated 29-11-2005 of the Peshawar High Court, D.I. Khan Bench passed in C.R. No.139 of 2004.)
NASIR-UL-MULK, MIAN SAQIB NISAR AND IQBAL HAMEEDUR RAHMAN, JJ
M. Munir Peracha, Advocate Supreme Court for Appellants (in C.A. No. 6 of 2006). Abdul Karim Khan Kundi, Senior Advocate Supreme Court and Tanvir ul Islam, Advocate-on-Record for
Respondents Nos.1(i) to 1(v) (in C.A. No. 6 of 2006). Ex parte for Responden
Civil Appeals Nos.6 and 38 of 2006, decision dated: 4-04-2013. (Against the judgment dated 29-11-2005 of the Peshawar High Court, D.I. Khan Bench passed in C.R. No.139 of 2004.)
NASIR-UL-MULK, MIAN SAQIB NISAR AND IQBAL HAMEEDUR RAHMAN, JJ
M. Munir Peracha, Advocate Supreme Court for Appellants (in C.A. No. 6 of 2006). Abdul Karim Khan Kundi, Senior Advocate Supreme Court and Tanvir ul Islam, Advocate-on-Record for
Respondents Nos.1(i) to 1(v) (in C.A. No. 6 of 2006). Ex parte for Responden
SAHIB JAN and others
VS
Mst. AYESHA BIBI through L.Rs. and others
Law:
Section:
(a) Constitution of Pakistan---Art. 185(2)---Appeal before Supreme Court---Discarding of a plea by the Supreme Court---Scope---Defendant not setting out a plea in his written statement as a defence before the Trial Court---Defendant not raising such plea before the High Court and also not setting out such plea as a ground in his memo of appeal before the Supreme Court---Effect---Supreme Court, in such circumstances, would refuse to treat and consider such plea as a pure question of law for deciding the same---Such plea was liable to be discarded by the Supreme Court. (b) Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act (VI of 1935)--- ----S. 2---General Clauses Act (X of 1897), S. 5---Custom---Operative date of Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935---Right of sister to inherit in the estate of her brother---Real brother of plaintiff died issueless on 10-12-1935 and his estate was mutated only in favour of plaintiff's consanguine brother as per custom at that time---Plea of plaintiff that Governor-General assented to the Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935, on 5-12-1935, i.e. prior to death of real brother, therefore, custom had been abolished because of which she was one of the legal heirs of her real brother, and was entitled to inherit his estate to the extent of 1/3rd share---Plea of consanguine brother that Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 had not been published in the official gazette when real brother died, therefore said law had not come into force and resultantly consanguine brother under the prevailing custom was the only person entitled to inherit the suit land---Validity---Section 5 of General Clauses Act, 1897 provided that where any Act was not expressed to come into operation on a particular day, then it shall come into operation on the day on which it received assent of the Governor-General---Admittedly, Governor-General assented to Khyber Pakhtunkhwa Muslim Personal Law (Shariat) Application Act, 1935 on 5-12-1935, therefore said Act became operative immediately, thereupon real brother of plaintiff died on 10-12-1935, which…
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