P L D 1957 (W (PLP)

AKHLAQUE HUSAIN, J.

The plaintiff Khan Muhammad has filed this appeal against the judgment and 'decree dated the 29th of October 1954 passed by the learned District Judge, Compbellpur, upholding the decree of the learned trial Court by which the plaintiff's suit was dismissed. The facts relevant to the present appeal lie within a small compass. After the death of one Ghulam Muhammad, which occurred before the passing of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, his land com prising of 207 kanals and 10 marlas was mutated in the names of his son Khan Muhammad plaintiff and his widow Mst. Lalan, the plaintiff's stepmother, in equal shares, On appeal, mutation was granted only to the plaintiff. The defendant thereupon instituted, on the 12th of December 1946, a suit for possession of half of the landed property and one-eighth of a Haveli left by her husband, A compromise decree was passed on the 29th of July 1947. by which the present defendant Mst. Lalan was given the right to receive from the plaintiff appellant Khan Muhammad, 121 maunds of wheat annually and in default of payment of the grain Mst. Lalan was given the right to obtain possession of half of the landed property. Khan Muhammad having made default, Mst. Lalan obtained possession of the land in execu tion of the decree. After some time she applied to the Revenue Court for partition of her share. The plaintiff; instituted the present suit for a declaration that Mst. Lalan is not entitled to claim partition. The only point which was urged before me on behalf of the appellant was that the authorities relied on by the learned lower appellate Court for its decision that defendant is entitled to claim partition relate to widows who had obtained possession of portions of their husband's estate by inheritance and not to those who got it in lieu of maintenance or under an agreement not based upon the claim to inheri tance. The contention, in so far as it goes, is correct ; but the point still remains whether a widow who holds a portion of her husband's estate for life only for maintenance or under a contract is not entitled to claim partition under section 111 of the Punjab Land Revenue Act. Unfortunately no help was rendered by either side in resolving this question: The decision turns upon the meaning of the expression "owner of the land" as used in section 111 of the Punjab Land Revenue Act. A Full Bench of the Late Punjab Chief Court con sidered, in Buta v. Mst. Jiwani (82 P R 1898), the question whether a widow who succeeds to her husband's interests in a joint holding on a life tenure is entitled to claim partition under section 111 of the Punjab Revenue Act. Chatterji. J. delivering the judgment of the. Court made the following observations:-- "The word 'owner' has not been defined in the Act, and according to the accepted cannons of interpretation we must, unless the context negatives such a construction, take it to have been used in its ordinary sense. Now the connotations of the term are somewhat indefinite, and it is commonly applied to persons whose rights in property are unlimited as well as those whose rights are more or less restricted . The obligation to respect .the rights of others and the restrictions imposed by law frequently limit the power of the owner to deal with his property . . . . . in the Punjab among agriculturists custom does not allow the male owner in possession an unrestricted right of alienation of ancestral land to the prejudice of his male heirs. But though thus possessing a limited power of transfer for necessity he is all the same termed an owner in common parlance. As respects acquired land as well as ancestral land he is equally described as owner. The same remark applies to a widow succeeding to her husband's estate on a customary tenure. She is not strictly a life tenant, but her rights of alienation are restricted like that of the male holder as regards ancestral land, and the conditions constituting legal necessity are more stringent in her case. But she is also called an owner in the revenue records and in the language of common life. The word 'owner' is thus ordinarily applied indiscriminately to persons having rights in property which are in some cases plenary and in others restricted, and this must be understood to be the sense of the word in section 111, A widow therefore is an owner, and in this case a joint owner under that section". Although the present case is not directly covered by the decision in Buta's case, the observations made therein are weighty authority for the proposition that even a person who is not a full owner but is possessed of rights in land which are restricted or limited may be an "owner of land" within the meaning of section 111 of the Land Revenue Act. Broadly speaking, the incidents of ownership are the rights of free and exclusive enjoyment, of free and unfettered power of disposition and of holding the property for an indeterminate period of time which is sometimes described as a heritable interest. It can be definitely asserted on the authority of the ruling in Buta's case that a person possessing these rights to a limited extent is an " owner of land "; but the further question (82 P R 1898) whether a person possessing only one or two of the three rights which together go to make up the full ownership is an owner and (2) whether a person having only one or two of these rights in a limited sense can also be considered to be an owner within section 111 of the Land Revenue Act, have not been, at any rate directly, dealt with in that case. Considering the nature of the estate which was held by even the male owners under the custom in the Province of the Punjab, at the time when the Land; Revenue Act was passed, I have no hesitation in answering the first question in the affirmative. The second question, however, requires some further consideration but, to my mind, presents no great difficulty. In England even tenants for life are commonly called "owners" or "land owners" even though they may be deprived at law of the right to commit waste. There is the authority of the statute in that country for speaking of a tenant for life as a "limited owner" (vide Limited Owners Residences Act, 1870, and Limited Owners Reservoirs etc. Act, 1877). There fore, in English language and law the word is used in common parlance in respect of persons possessing even one of the ingredients of ownership and even when that one right is not possessed in its plenitude. A tenant for life has only the right of exclusive, but not free, enjoyment; and even that right is subject to the condition that the character, of the property shall not be altered or unduly interfered with, The further question arises whether this is also the position under section 111 of the Land Revenue Act. It has been often pointed out that while the expression "land owner" has been defined in the Punjab Land Revenue Act-and has been given a very wide meaning-the "owner of land" was left undefined. The words "land owner" has not been defined in the Punjab Tenancy Act, but it is significant that both the Punjab Tenancy Act and the Punjab Land Revenue Act were passed by the same authority in the same year; one being Act XVI of 1887 and the other Act XVII of 1887. Section 5 (1) (b) of the Tenancy Act runs:

" A tenant- (b) who having owned land and having ceased to be the landowner thereof has, since he ceased to be the landowner, continuously occupied the land has a right of occupancy in the land so occupied: The expression " having owned land" obviously seems to mean "having been the owner of land" and is used as synonynous with the expression "land owner". This would indicate that' a "land owner", as used in the Act, is, so far as the Act goes, included in the expression "owner of land". By section 4 (9) of the Tenancy Act the expression "land owner" has the same meaning in that Act as in the Land Revenue Act. This would further strengthen the conclusion that the expression "owner of land" or its equivalent expression in both the Acts mean the same thing and, therefore, include a "land owner" within the meaning of the two Acts. Since "land owner" includes "a person to whom a holding has been transferred, .. and every other person not here-in-before in this clause mentioned who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate" the respondent Mst. Lalan, who admittedly holds the land for her life in lieu of her main tenance, would be a "land owner" and, therefore, an "owner of land". It should be noted that the right to apply for partition is not conferred by section 111 of the Land Revenue Act only upon a joint owner of land but also upon any joint tenant of a tenancy in which a right of occupancy subsists. It is thus clear that the right was not made dependent upon ownership alone. The consideration, which is common both to an owner of land and to and an occupancy tenant, is their right to exclusive possession and enjoyment of the land, and thus it would appear that a person possessing such a right, if not an occupancy tenant in the technical sense of the expres sion, must be deemed to have been intended by the Legisla ture to be included in the expression "owner of land". The respondent in this case having such a right must, therefore, be considered to be a person entitled to apply for partition under section 111 of the Land Revenue Act. For the above reasons, I dismiss this appeal. The parties shall bear their own costs. A.H, Appeal dismissed.