P L D (Rev (PLP)

A. MAJID, F. C.--‑Ch Nazar Muhammad was an occupancy tenant in a landed gentry grant of five rectangles in the Montgomery district. He died in 1942 and left two widows (Mst. Sardar Begum and Mst. Wazir Begum) and two daughters (Mgt. Nishat Afza and Shafaat Ara) both by the latter wife. The grant widows in equal shares (Mutation was mutated in favour of the two No. 52 decided on 3rd May, 1943). On 12th March, 1952 the two daughters applied to the Collector that the grant should be mutated in their name, because a will of the deceased bad been discovered on 15th December, 1951 according to his wishes and they were the legatees according to the will. This will appear to have been executed on 14th March, 1935 and sealed in an envelope in the presence of the then D. C. Gujrat. It remained in the possession of the mother of the deceased according to his wishes and was opened by the D. C., Gujranwala, on 15th December, 1951 when it was produced by her according to his wishes (i.e., the testators wishes). When the Collector received the said application from the daughters on 12th March, 1952, he ordered that a mutation should be entered and decided according to rules. An enquiry was held and the Collector passed an order on 16th March, 1953 accepting the request in the application. He declared that he would accept the will as genuine and would give the necessary consent under section 19 of the Colonization of Government Lands) (Punjab) Act, 1912. His order automatically entailed a review of the order on mutation No. 52 decided on 3rd May 1943. Mgt. Sardar Begun, appealed to the Commissioner and he forwarded the case to me on 26th August, 1953 saying that' the Collector's order under section 19 of the Colonization Act amounted to an order by the Commissioner. This reference was entered in my Register as No. 50 of 1952‑

53. Mgt. Sardar Begum had previously appealed to me on 8th May, 1953 in order to safeguard herself against limitation, and this proceeding was entered in my Register as No. 149 of 1952‑

53. The present order will dispose of both these proceedings. Consent under section 19 of the Colonization Act is to be given by a Commissioner or such officer as he may by written order empower in this behalf. The Commissioner, Multan Division has so empowered the Collector, Montgomery district. The u Commissioner is not right in thinking that when a Collector passes an order in exercise of that Power, his order amounts to an order by a Commissioner. The order must be taken as an order by a Collector, and it is competent for the Commissioner to hear an appeal against it. I could have accordingly returned these proceed" lugs to the Commissioner, for disposal as an appeal, but I decided to treat then: as a case of revision it) order to save the parties from further legal expenses. I notice that the Collector passing orders on 16th May, 1953, (Mr. Niaz Ahmad) dealt with the question of his consent in a casual manner. He says that the order of his predecessor (Mr. M. A. Cheema) dated 12th March, 1952 directing the, entering of a mutation implied consent. I cannot, however, discover any such implication. Mr. Niaz Ahmad says that he has no hesitation in according his sanction. But he has said this without considering the question whether the law permitted him to give his consent in 1953 when the will is alleged to have been executed in 1935. Counsel for Mgt. Sardar Begum argues that the consent to a transfer has to be previous to the transfer, because the transfer without such consent is void. This argument has great force and no ruling has been cited by the counsel for the two daughters in support of the theory that a transfer can be regularized by a consent given ex‑ post facto. It is clear to me that if a transfer is already void, it cannot become valid at a subsequent date on grant of consent, unless the deed of transfer provided that it would become effective after the grant of such consent. Counsel for the two daughters argues that a will does not really become effective till after the testators' death and hence the consent under section 19 of the Colonization Act must be sought after his death. This argument violates against a grammatical interpretation of the Statute. No tenancy can be transferred by will except with due consent. This can only mean that a will relating to a tenancy cannot be valid unless its execution was with due consent. One may perhaps go one step further and say that a person may record a will relating to his tenancy and that it will become valid if he succeeds in obtaining due consent for it ex Post facto or in other words if such consent is given as a result of his application made during his life time. In this respect a will may be different from a sale, mortgage, exchange or gift. But it is quite clear that no subsequent consent in the present case can make the will valid, because the testator never sought the consent and the consent was never given during his lifetime. In these circum stances, I am satisfied that the Collector made a mistake in law in giving his consent as be did. I need not go into the question whether the will is a forged document. It relates to other property of the deceased also and the parties are already litigating in a Civil Court about its genuine ness. The nature of will is not relevant for my purposes. The result is that I accept this petition of revision and direct that the Collector's order giving consent ex‑Post facto to the transfer by will in this case should be set aside. The two widows will remain tenants in equal shares in accordance with the law. Judgment was reserved in this case. Counsel for both parties should be informed. A. H. Petition accepted.