1980 PLP 1319 (CLC)

KARRAR HUSSAIN ZATDI, J.-This Letters Patent Appeal is directed against the judgment of the learned Single Judge in Chambers passed in R. S. A. No. 513 of 1968 on 6th June 1969 confirming the judgment and decree dated 22nd May, 1968 passed by the learned Additional District Judge Jhang reversing the decree of the trial Court and .dismissing the plaintiff's suit against the defendants/respondents. The dispute relates to 110 kanals and 14 marlas of Agricultural land situated in Chak No. 256/JB, Tehsil and District Jhang, which was originally allotted to one Salehon as a tenant under the Colonization of Government Lands (Punjab) Act (V of 1912) (hereinafter called the Act). The said tenant died issueless in the year 1912 and the suit land was mutated in favour of his widowed mother Mst. Sah ban and after her death Mst. Bhago, married sister of Salehon, deceased original tenant inherited the tenancy rights in the suit land in the year 1916. On her death, the same rights were transferred in the name of her daughter Mst. Karam Bhari in 1929 who subsequently succeeded in getting proprietary rights therein on payment of necessary price to the Provincial Government on 2nd July, 1958. After the passing of West Pakistan Muslim Personal Law (Shariat) Act, 1962, Mutation No. 430 was sanction ed reckoning the succession from Salehon, original tenant, in favour of plaintiffs/appellants to the extent of '1/4th share as well as defendants/ respondents with regard to remaining 3/4th share as his residuaries. The plaintiffs who are the-legal representatives of Mst. Karam Bhari deceased claimed that the suit land was the self-acquired property of Mst. Karam Bhari and after her death the same had devolved upon them as her sole Muslim Law heirs to-the utter exclusion of the collaterals of Salehon the alleged original tenant.

2. Their suit was decreed by the learned Civil Judge, Jhang on 7th November, 1967 leaving the parties to bear their own costs. However, in. appeal the decree of the trial Court was reversed by the learned Additional District Judge on 22nd May, 1968. Second appeal from that decree of the lower Appellate Court was also dismissed with costs by a learned Single Judge of this Court on 6th June, 1969. However, after considering all the facts and circumstances of the case he arrived at the conclusion that on the death of Mst. Sabban, widowed mother of Salehon, tenancy rights in suit land had devolved upon Mst. Bhago sister of Salehon under the prevalent custom of the tribe by virtue of section 21 (b) of the Act and afterwards, upon her death, Mst. Karam Bhari further held the same in succession apparently under section 21 (b) of the Act. He further concluded that the. tenancy rights in the suit land were never forfeited to the. Government therefore, there was no occasion of the re-grant of those tenancy rights to Mst. Karam Bhari deceased in her own favour. His Lordship, as he then was; after considering the legal and factual circum stances of the case observed .that on the death of Mst. Karam Bhari the suit land was rightly, mutated under section 30-A (1) of the Act, reckoning from Salehon the last male-holder and the learned. lower Appellate Court was fully justified in dismissing the plaintiffs/appellant's suit.

3. We have. heard the learned counsel for the parties at length and carefully perused the impugned judgment and the relevant record of the trial Court. The main arguments advanced by the learned counsel for the appellants in support of his pleas are as follows :- (i) . That after the death .of Salehon, first tenant, property was never inherited by any one as successor as the same could not be inherited under any law. (ii) That all the three females namely Mst. .Sahban widowed mother of Salehon, Mst. Bhago sister of Salehon and Mst: Karam Bhari married daughter of Mst. Bhago did not eventually inherited from each other but in fact, in each case it was a case of new grant, with the result that all of them were holding tenancy rights as inde pendent grantees in their own rights and none of them ever enjoyed a limited interest either under Customary Law or under Colony Act terminable on remarriage or death. (iii) That since Mst. Karam Bhari that last female was an independent allottee or in other words a new grantee of disputed tenancy rights so after her death the land would devolve upon her own heirs, i.e. plaintiff/appellants under Muslim Law to the utter exclusion of Collaterals of Salehon. (iv) That even the shares worked. out under the 'Muslim Law are wrong.

4. On the other hand the learned counsel for the respondents fully supported the judgments delivered by the learned Single Judge in. Chambers and the learned lower Appellate Court with the following submissions :- (1) That Salehon was admittedly an original tenant and had died issueless leaving behind no widow in 1912. (2) That after the death of original tenant, Mst. Sahban his widowed mother, succeeded to the tenancy as a successor of deceased tenant nominated by the Collector under section 20 (e) of the Act. (3) That on the death of Mst. Sahban tenancy rights were mutated in favour of her daughter Mst. Bhago, as sister of Salehon, deceased original tenant, in accordance with the special custom of the family by virtue of section 21 (b) of the Act through Mutation No. 65 (Bxh. P. 8). (4) That after the death of Mst. Bhago, Mutation No. 180 was sanc tioned in favour of Mst. Karam Bhari, daughter of Mst. Bhago and as such she inherited the tenancy rights previously allotted to Salehon deceased, the original tenant under section 21 (b) of the Act. (5) That later on Mst. Karam Bhari the daughter of Bhago acquired the ownership rights vide Mutation No. 379 dated 22nd May, 1959 as successor of Salehon, deceased original tenant. (6) That on the death of Mst. Karam Bhari in 1965, the succession in question was to be treated as a succession to Salehon, the deceased original tenant under section 21 (b) of the Act and the respondents were fully entitled to succeed to the legacy left by Salehon deceased and his collaterals to the extent of their Quranic shares along with the appellants, the heirs of Mst. Karam Bhari.

5. In our opinion all the contentions raised above by the learned counsel for the parties centre round the determination of nature of tenancy rights held by Karam Bhari deceased after the death of her mother Mst. Bhago. This again gives rise to various questions for further considera tion. For instance. had she ever come into .possession of the tenancy rights in question under soon 21 (b) of the Act and if it is not so, than it is to be as vertable from the facts proved on the file, that in what capacity obtained to bold such rights in a State land for a quite considerable period and on what basis such tenancy rights were subse quently merged into absolute rights of ownership on payment of necessary price by said in other words the only question which requires adjudication in this appeal is as so whether Mst. Karam Bhari deceased had ever succeeded to the tar rights under. section 21 (2) of the Act as self-acquired land of the original tenant namely Salehon deceased, to be devolved upon his own heirs under section 19-A or section 30-A of the Act in case of her death or whether such tenancy rights were transferred to her as a grant in her own right on the death of her mother Mst. Bhago under the Act and she consequently became a pro prietor of suit land in her own right or in other words did she herself acquire property in suit on payment of money dues from the Provincial Government

6. In support of his aforesaid contentions the learned counsel for the appellants adverted to sections 20, 21 and section 19-A of the Act. According to him section 21 (b) of the Act makes a reference of the applicability of section 20 of the Act to the succession of tenants other than original tenants. On the basis of this assumption he vehemently argued that after the death of Salehon, Mst. Sahban, Mst. Bhago and Xfst. Karam Bhari could not inherit the tenancy rights left by Salehon deceased. He further submitted that succession of such tenancy rights was completely governed by the provisions of section 20 of the Act and there fore all the aforesaid three females did not fall within the category of heirs enumerated in section 20 of the Act and despite that they continued to hold the disputed tenancy rights successively in contravention of the rule of succession laid down in section 20 of the Act. On the strength of this assumption he pleaded that each of the females was holding such tenancy rights in her own right and not as a successor to Salehon and others. The plea advanced by the learned counsel for the appellants seems absolutely fallacious and baseless with regard to the cases of Mst. Sahban and Mst. Bhago deceased females but has some force with regard to the case of Mst. Karam Bhari deceased. In order to make full appreciation of law and facts, it would be advantageous to make the reference of sections 20 and 21 of the Act, as under : - "

20. Succession to tenants acquiring otherwise than by succession Subject to the proviso to section 14, when, after the commencement of this Act, any original tenant dies the succession to the tenancy shall devolve in the following order upon- (a) the male lineal descendants of the tenant in the male line of descent. (The term lineal descendants shall include an adopted son whose adoption has been ratified by a registered deed) ; (b) the widow of the tenant until she dies, or re-marries, or loses her rights under the provisions of this Act ; (c) the un-married daughters of that tenant until they die or marry, or lose their rights under the provisions of this Act ; (d) the successor or successors nominated by the tenant by registered deed from among the following persons, that is to say, his mother his pre-deceased son's widow, his predeceased grandson's widow his married daughter, his daughter's son, his sister, his sister's son, and the male agnate members of his family ; (e) the successor or successors nominated by the Collector from among the persons enumerated in clause (b) of this section.

21. Succession to tenants acquiring by succession When after the commencement of this Act any male tenant, who is not an original tenant, dies or any female tenant dies, marries, or re married, the succession to the tenancy shall devolve - (a) in the case of a female, to whom the tenancy has been first allottes, on the successor nominated by the Collector from the issue of such female tenant, or from the male agnates of the person, on account of whose services the tenancy was allotted to her. (b) in all other cases, on the person or persons, who would succeed if the tenancy were agricultural land acquired by the original tenant,"

7. Section 20 supra clearly indicates that the law as to succession contained therein provides a special mode of succession after the death of an original tenant and does not deal with the case of succession of person other than the original tenant. According to mutation No. 34 dated 15th July, 1912 Mst. Sahban mother of Salehon was nominated as successor after the death of her son Salehon by the Collector. This nomination was obviously made under section 20 (e) of the Act and as such Mst. Sahban inherited the tenancy rights left by her issueless son under section 20(e) of the Act. Similarly a perusal of copy of Mutation No. 65 dated 17th August, 1917 (Exh. P. 8) placed on the record reveals that after the death of Mst. Sahban mutation of inheritance was sanctioned in favour of Mst. Bhago, married sister of Salebon deceased original tenant in preference to distant collaterals of Salchon deceased on the strength of special Custom of Family of the deceased. Obviously she succeeded exclusively under Customary Law of succession applicable to the family of the deceased in accordance with the provisions of sec tion 21(b) of the Act. We are not in agreement with the learned counsel for the appellants that section 21(b) refers to that applicability of section 20 of the Act. As it is stated earlier the section 20 of the Act provides a self-contained law of succession to tenancy of original tenants, and it is not all applicable to the cases of inheritance relating to persons other than the original tenant. In fact section 21(b) itself does not lay down any suitable rule of succession, but it is clear from the import thereof that the Customary Law or other Law of succession, as applicable to the parties would be the sanction behind it. Undoubtedly the tenancy held by Mst. Bhago after the death of her mother, Mst. Sahban was mutated in her favour under the Customary Law applicable to the family of the deceased by virtue of section 21 (b) of the Act as a successor to Salehon, the original tenant.

8. The question of succession however, became complex and doubtful after the death of Mst. Bhago as it is quite evident from Exh. P. 9 and P.

10. At an early stage the revenue authorities had recommended for the forfeiture of the tenancy but the District Collector and subsequently the then Financial Commissioner held a lenient view and treated Mst. Karam Bhari deceased, daughter of Mst. Bhago a best claimant on the basis of compassionate grounds to hold the tenancy rights in the suit land owned by the state in her own rights. Exh. P. 10 clearly makes this disclosure and the concluding portion of that order may be referred for facility as under :

"As to whether the appellant Mst. Karam Bhari, should succeed there is much room for doubt. But for the decision of this case it must be remembered that there is no claim, by the Crown as landlord that it is entitled to succeed by lapse on the extinction of occupancy rights. It does not therefore seem necessary to go into the rights of Mst. Karam Bhari. Even if the rights were held to be extinguished, it would fall to the Collector to re-grant the land and he has already decided that Mst. Karam Bhari has the best claim. I accept the appeal and set aside the order of the learned Commissioner. In default of any intervention from the side of the Crown, the order of the learned Collector, is restored."

9. On the strength of the judgment, the learned counsel for the appellants strenuously argued that Mst. Karam Bhari deceased was held eligible to hold the tenancy rights in the suit land as a new grantee and not as a successor under section 21(b) of the Act. On the basis of this reasoning he further deviated the point and asserted that the facts of the instant case do not attract the application of section 30--A (1) of the Act but would be governed by the main clause of section 19-A of the Act.

10. In our opinion the contention of the learned counsel for the appellants has great force. Mst. Karam Bhari being the daughter of the sister of Salehon the original tenant was not entitled to succeed to the tenancy rights in the presence of collaterals under the Customary Law of succession applicable to the parties by virtue of section 21 (b) of the Act. Paragraph 24 of Rattigan's Digest lay down that sisters are usually excluded as well as their issues, though in certain tribes Custom had allowed sister and not her daughters to succeed a usual limited interest terminable at her remarriage or death. The learned counsel for the respondents contended that in fact Mst. Karam Bhari got the suit land through a mutation of inheritance after the death of her mother under section 21 (b) of the Act. We are constrained not to accept this conten tion of the learned counsel for the respondent as the same is not based upon the correct interpretation of section 21 (b) of the Act. An earlier Division Bench of this Court while interpreting the meaning of sec tion 21 (b) in Allah Dad and another v. Mst. Noor Bibi and another (P L D-1050 Lah. 356) observed as under :- "A Division Bench of this Court in Khuda Dad and others v. Mst. Rabla Bibi A I R 1929 Lab. W0 has taken the view that the person entitled to succeed under clause (b) of section 21 of the Colonization of Government Lands (Punjab) Act 1912, is the person who would be the heir of the original tenant if the tenancy were the self-acquired property of the original tenant. I am is respectful agreement with this interpretation of clause (ii) of section 21 as it appears unlikely that it Legislature intended the succession to be a succession toy Eat person on the termination of whose interest the succession bad opened, while the tenancy itself was to be treated as if it were the self-acquires property of the original tenant. No doubt, the Legislature did not mention is clause (b) of section 21 that the succession was to be succession to the original tenant but I am, of the opinion that the fact that the pro perty was to be treated as the property of the original tenant is a sufficient indication of the intention of the Legislature that the succession was t4 be treated as a succession to the original tenant." The similar view eras again affirmed in Alta Mohammad and others a Mst. Khurshid Begum (P L D 1964 Lah. 224.) lay another Division Bench and after making the reference of section 21 of the Act it was observed as under :-- "sit will be seen that according to clause (b) above the question of inheritance is to be determined on the assumption that the tenancy was self-acquired property of the original tenant Ahmad Khan, the father of Jalal and grand father of the plaintiffs/respondents." If was further held that according to the special Custom of Gujrat, daughters exclude collaterals however, in near, in matters of succession regarding the self-acquired property. Again in Jiwana v. Sahbi P L D 1954 Lab. 253 it was laid down that for the purpose of cases falling under subsection (b) of section 21 of the Act, the tenancy was to be treated as agricultural land acquired by the original tenant and Muslim Personal Law would have been applicable even before the West Punjab Muslim Personal Law (Shariat) Application Act, 1948 of some succession to some tenancies held by Muslims, because some such tenancies must have been allotted to persons who followed their personal Law and not Custom."

11. We are therefore, in full agreement with the contention of the learned counsel for the appellants that Mst. Karam Bbari, the last female who could neither succeed nor actually had succeeded under Customer Law or Muslim Law of Succession to the utter exclusion of the respondent was not holding the tenancy rights under section 21 (b) of the Act but was occupying the same on the basis of fresh allotment made in he favour under the Act. It is further very pertinent to note that tip possession of Mst. Karam Bhari had never been held to be that of squatter or trespasser by the concerned authorities at any stage. On other hand on the basis of those possessory rights she had been clothed with the ownership rights in the suit land. If her possession bad been that of an unauthorised person what to speak of clothing her with proprietary rights in the suit land, she would not have been allowed to remain there for a moment and would have been ejected forthwith by the Collector. In view of the above discussion we are left with this only inescapable conclusion that Mst. Karam Bhari had come into possession of suit land neither as successor nor as squatter but as a new tenant with the sanction of the competent authorities. We are further reluctant to hold that acquisition of disputed land by her was governed by the provi sions of section 30-A (1) of the Act. -In order to elucidate the matter further section 30aA, may be referred for convenience as under :- "30-A. Right of alienation in respect of and rule of succession to certain proprietary rights acquired by a female.(1) Notwithstand ing custom and the provisions of any law to the contrary, when after the commencement of the Colonization of Government Land (Punjab) (Amendment) Act, 1944, proprietary rights in any land are acquired by a female tenant, her rights of alienation of any such land shall be the same-- (a) If she succeeded to the tenancy directly or indirectly from a male tenant, as if the proprietary rights had been acquired by the last male tenant, and she had succeeded to such rights as his heir ; and (b) if the tenancy was first allotted on account of some mall person, either to her, or to another female to whose she succeeded either directly or in a continuous line of female succession, as if the proprietary rights had been acquired by such male person and, she had succeeded to such rights as his heir, and in cases falling under clause (a) or clause (b) in the event of such female proprietor dying while in possession of the proprietary rights in question, the said rights shall devolve upon the persons who would be entitled to succeed, if such rights had been acquired by the last male tenant or the male person on whose account the tenancy was first allotted as the case may be shall be construed to alter the law of succession applicable to any female tenant, in respect of proprietary rights 3n land acquired by her, if the tenancy in such land was acquired by or accrued to her in circumstances other than those specified in sub section (1). (3) For the purposes of this section the expression "any such land" shall be deemed to include any land obtained in exchange for part or all of the land in which proprietary rights have been acquired.

12. According to section 30-A (1) above when a widow had succeeded to occupancy rights and then herself acquired proprietary rights therein it shall be deemed that such rights had been acquired by the last male holder whom she succeeded, and in cases where even the original allotment was made in the name of a woman in recognition of the services of a male, and she acquired first occupancy and then proprietary rights, it should be deemed that male in lieu of whose services the allotment had been made, had acquired such rights. In the instant case Mst. Karam Bhari as stated above, had neither succeeded either under section 20, or section 21 of the Act nor obtained the allotment of the suit land in lieu of services rendered by any male to the Government. Hence the applicability of this provisions of law cannot be attracted to the facts of the instant case. Admittedly family of Salehon. the alleged original tenant as it is evident from Exh. P. 8, was governed in matters of succession by the general custom of the Province and there fore, Mst. Karam Bhari had neither inherited the suit land under Customary Law nor under Muslim Law. The conclusions drawn by the learned Single Judge in chambers as well as the lower Appellate Court with regard to the nature of acquisition of tenancy rights by Mst. Karam Bhari deceased do not represent the correct appraisal of low and facts and as such are assailable in this appeal. On the basis of the above discussion we are left with no other option except to hold that Mst. Karam Bhari had acquired the suit land as a tenant in her own right and also acquired the proprietary rights therein herself with the result that her own heirs under Shariat Law would succeed to her. The instant case does not fall within the mischief of section 30-A (1) of the Act, but is fully covered by subsection (2) of section 30-A of the Act which clearly lays down that if the tenancy to land was acquired by or accrued to a female in circumstances other than those specified in subsection (1), of secti0in 30-A of the Act, the law of succession applicable to any female tenant he respect of proprietary rights in land acquired by her was not to be altered. A perusal of subsection (2) of section 30-A, pf the Act is also indicative of the fact that land could also be allotted to Mst. Karam Bhari deceased female tenant or in other words a female may acquire State land as tenant under the circumstances other than those mentioned in subsection (1) of section 30-A of the. Act. This shows that there was no statutory bar to prevent Mst. Karam Bhari ,from getting the allot ment of State land under the Act. The learned Si9gle Judge in Chambers was influenced by the definition of original tenant laid down in section 4 of the Act and wrongly came to the conclusion that it was male who could be an original tenant under the Act. the light of the above discussion we are firmly of the view that the law of succession applicable to the inheritance of Mst. Karam Bhari, the deceased full proprietor will be found in section 2 of West Pakistan Muslim Personal Law (Shariat) Application Act IX of 1962. Resultantly we hereby accept this appeal, set aside the impugned judgment and decree passed by thel learned Single Judge in Chambers affirming the judgment and decree of the learned Lower Appellate Court and restore the judgment and decree of the trial Court dated 7th November, 1967 decreeing the plaintiffs/appellants' suit with costs throughout. S. Q Appeal accepted.