Law: Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948)

Section: 3

  (On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 2nd November 1961, in Regular Second Appeal No. 137 of 1956).   (a) Custom (Punjab)-Alienation of ancestral land by male- holder-Nature of restriction placed on-Only male agnatic qua whom property is ancestral is entitled to impeach alienation-Even collaterals beyond fifth degree not entitled to impeach aliena tion- Declaratory decree obtained against alienation-Enures only for benefit of person entitled to impeach alienation-Daughters and widow of last male-holder-Not entitled to impeach alienation nor entitled to derive any benefit of decree, obtained by son-Nor can such daughters or widow claim to succeed to property alienated Replacement of custom by Islamic Law in matter of succession by Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948)-Has neither enhanced nor diminished powers of alienation possessed by holder under custom-Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), S. 3 Punjab Custom (Power to Contest) Act (II of 1920).   In accordance with what is called the agnatic theory the male holder for the time being of property which had descended from the common ancestor could not alienate it so as to defeat the right of succession of other descendants of the common ancestor except in circumstances in which an alienation was permitted by custom. The descendants of the common ancestor were regarded as deriving their right to succeed to ancestral property from the common ancestor which right could not be adversely affected by the descendant in enjoyment of the property. But this restriction on the power of alienation was intended only to protect the interest of the descendants of the common ancestor qua whom the property was ancestral and such descendants alone could impeach the alienation which otherwise remained a good and valid alienation not only between the alienor and the alienee but also as against the whole world except those entitled to impeach it. Even when a declaratory decree was obtained the transaction remained good between the alienor and the alienee and against every person except those who had the…