P L D 1956 Lahore 94 (PLP)

AKHLAQUE HUSSAIN, J‑These ‑are two consolidated appeals against two decrees of the learned Senior Civil Judge, Montgomery, dated the 26th of April 1951. The appellants Faiz Ali and Mst. Begum Jan, daughter of HUSSAIN, filed a suit (No. 183 of 1950) against Mst. Rafia Jan, widow of Gul Hasan, Ada lat Khan and Mst. Jewani for possession of square No: 56 and ihatas Nos. 59 and 62, situate in Chak No. 106/12‑L in the District of Montgomery, alleging that the defendant, Mst. Rafia Jan,. who was possessed of only a widow's estate in the property in suit, had wrongfully made a gift of it to defendant No. 2 Adalat Khan, her stepbrother. The same plaintiffs filed a second suit (No. 184 of 1950) in respect of the land in squares Nos. 58 and 60 and ihata No. 58 situate in the aforementioned Chak against Mst. Rafia Jan, Ghulam Haider and Mst. Jewani. alleging that the widow Mst. Rafia Jan, who was entitled to hold the property during her lifetime, had wrongfully gifted it to her brother, Ghulam Haider. Both the suits were consolidated and tried together and were dismissed by the trial Court by one judgment. R. F. A. No. 79 of 1951 is against the decree passed in suit No. 183 of 1950 and R. F. A. No. 78 of 1951 is against the decree passed in suit No. 184 of 1950. The relief claimed in both the suits was a declaration that the transfers by the widow, Mst. Rafia Jan, in respect of the properties in the suits, were null and void against the plaintiffs and were not binding on them. The following issues were framed in both the cases :‑ (1) Was Mst. Rafia Jan, defendant No. 1, not the absolute owner of the property in question? (2) Is the family of the plaintiffs and the defendants governed by the customary law of the agriculturists in matters of alienation and inheritance? If so, what is that custom (3) What is the effect of the Muslim Personal Law (Shariat) Application Act on the suit? (4) Relief. Under the second issue, it was held by the learned trial Court that a widow in the family of the parties inherits only life interest in the estate of her husband and that she has no powers of alienation over such property. This finding has not been questioned before us by the parties. The finding on the first issue was that Mst. Rafia Jan was the absolute owner of the property which is the subject‑matter of the two suits and that she did not merely possess it in a widow's estate. This finding alone has been challenged in these appeals. In view of the finding on the first issue, the trial Court naturally held that the Shariat Act had no beating on the cases before it. It was conceded on behalf of the appellants that the late Jamadar Gul Hasan had nothing whatever to do with the ihata No. 62, and that it had been granted to the widow, Mst. Rafia Jan, after his death. In view of this admission the appeal No. 79 of 1951 must fail in so far as it relates to that ihata. As regards the remaining property in both the appeals, it was contended on behalf of the appellants that the late Jamadar Gul Hasan, being a Government tenant in respect of it, his widow, who came into possession of it on his death, had no power in law to alienate it. Learned counsel for the respondents, however, replied that as the proprietary rights in the property were acquired by the widow after her husband's death, she became full owner of it, and, therefore, could transfer it at her will. Eventually it was conceded by the appellants' learned counsel that the widow must have become owner of those items of the property in the two suits in respect of which she had obtained a sale deed from the Government before the Colonization of Government Lands (Punjab) (Amendment) Act, 1944, came into force. According to this admission R. F. A. No. 79 of 1951 would fail in so far as it relates to the land situate in square No. 56, as the deed of conveyance in respect of it was executed on the 31st of July, 1941. The argument of the learned counsel for the appellants requires a little explanation. Before the amend ment of the Colonization Act, it had been consistently held under the original Act that whenever a widow, succeeding to a life‑estate in the tenancy rights of her deceased husband in Government lands, purchased the proprietary rights therein, she ceased to be a life‑estate owner in respect of such lands and became full owner with heritable and transferable rights. This position was not denied by the learned counsel for the appellants. He relied upon the provisions of subsection (1) of section 30‑A of the Act inserted by the Amending Act of 1944, which runs as under :‑ '30‑A. (1) Notwithstanding any custom and the pro visions of any law to the contrary, when after the commencement of the Colonization of Government Lands (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 male person, either to her, or to another female to whom 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". The real question, therefore, for decision in this case is whether Mst. Rafia Jan acquired the proprietary rights in the lands in squares Nos. 58 and 60 (R. F. A. No. 78 of 1951) and in ihata No. 59 (R. F. A. No. 79 of 1951) and ihata No. 58 (R. F. A. No. 78 of 1951) "after the commencement of the Colonization of Government Lands (Punjab) (Amend ment) Act; 1944" which came into force on the 12th of June, 1944. D. W. 1., Conveyance Clerk, Colony Office, Montgomery, has deposed that Mst. Rafia Jan deposited the purchase money in respect of ihata No. 59 (along with that of square No. 56) on the 28th of July, 1941 and that the price of the lands in squares Nos. 58 and 60 and ihata No. 58 was deposited by her on the 5th of January, 1944. The colony conveyance regarding ihata No. 59 and squares Nos. 58 and 60 was accepted in favour of the Government of the Punjab on the 13th. of July, 1945. Regarding ihata No. 58, there is no deed of conveyance on the record and the mutation in respect of the proprietary rights was sanctioned sometime in 1944‑

45. These facts give rise to a further question whether Mst. Rafia Jan became owner when she deposited the price or when she obtained the sale deeds from the Government. If the matter in issue were to be decided with reference to the ordinary law, there cannot be any doubt that the ownership was acquired when the Government accepted the purchase money, because the Transfer of Property Act, requir ing the execution of the sale‑deed, is not applicable to this Province. The widow being already in possession of the property the question of the delivery of possession does not arise. We have, however, to determine whether even according to the law applicable to the Government colony lands the position is the same Section 10 of the Colonization of Government Lands Act (V of 1912) says that the tenants of Government lands shall hold the lands leased to them subject to any statement of conditions issued under that section by the Provincial Government. The only section in the Act, which relates to the acquisition of proprietary rights by the tenants of Government lands, is section 30 which

30. Notwithstanding anything entered in any statement of conditions issued under the Government Tenants (Punjab) Act, 1893, a tenant who, either in pursuance of any such condition or otherwise by agreement with, or under rules issued by the Provincial Government, has acquired proprietary rights in any land included in his tenancy shall in respect of such land cease to be subject to any statement of conditions issued under the above‑mentioned Act; provided always that he shall in respect of such land be bound by the conditions set out in Schedule II of this Act and be bound by the other provisions of this Act applicable to proprietors of land." According to section 3 of the Act, a tenant includes a successor‑in‑interest of a tenant, and, therefore, the widow of a deceased tenant would have the right under this section to acquire the proprietary rights in the tenancy lands of her husband. Section 30 does not say that a tenant cannot pur chase proprietary rights in his tenancy lands without obtain‑icing a sale‑deed from the Government. It would also appear from a perusal of the section that where such proprietary rights are acquired" by agreement with the Provincial Government " their acquisition is not governed by any rules issued by the Government or by anything in the statement of conditions relating to leases. As regards the proviso to this section, there is nothing either in Schedule II of the Act or any other provisions of the Act relevant to the question under consideration. There is also nothing in the deed of conveyance relating to squares Nos. 58 and 60 which has any bearing on the subject. The only relevant rules framed by the Government, which we have been able to discover from the various Colony Manuals, are contained in the statement of conditions issued by the Government under section 10 of the Colonization of Government Lands Act. The only condition regarding the acquisition of proprietary rights in this statement is as follows :‑ "(1) Upon the expiry of seven years from the date of the commencement of the tenancy in the said lands, or at any time thereafter, during the continuance of the tenancy, the tenant shall, if during the continuance of the tenancy, he shall have duly complied with and observed each and all of the conditions in this statement of conditions contained, and shall have duly paid, in the manner in the said condi tions provided, all sums due to the Government under the provisions of the said conditions and each and all of them, but subject always to the terms and conditions hereinafter in that behalf made and provided, be entitled to purchase from the Government the proprietary right in the said lands, and, in the event of any such purchase being duly carried into effect and completed, the purchaser and his heirs and legal representatives shall hold and possess the said lands and every part thereof in proprietary right, free of any payment on account of malikana, but subject to the due and regular payment of the land revenue, rates and cases and all other charges leviable in respect thereof under any law for the time being in force in that behalf. It will be noticed that this clause does not require a deed of conveyance for the completion of a purchase. The next clause sets forth the terms and conditions upon which the tenant purchases the proprietary rights in his tenancy lands from the Government; but no term or condition therein requires the execution of a deed of conveyance. The third clause is as follows :‑ " When any tenant shall, under the provisions and in pursuance of the preceding clauses of this condition, have purchased the proprietary right in any lands from the Government and shall have duly paid the whole of the purchase‑money therefore to Government, and shall have complied with all the terms and conditions hereinbefore provided in that behalf, Government shall execute, or cause to be executed, a valid conveyance granting, convey ing and assuring the proprietary right so purchased to the purchaser, and the purchaser shall thereupon, in respect of the land so purchased, cease to be subject to the condi tions herein contained, with the exception of conditions Nos. 6, 7, 8, 9, 13 and 25 of this statement, by which, and by the provisions of Punjab Act, V of 1912, applicable to proprietors of land, he shall continue to be bound." It is noteworthy that by this clause " the Government shall. execute . . a valid conveyance granting, conveying and assuring the proprietary right so purchased to the purchaser" only after the " tenant shall . . . . have purchased the pro prietary right . . . . " Therefore, according to the statement of conditions, by which the tenure of a Government, tenant is governed, a sale‑deed is not required to complete the purchase, and its execution is, probably, intended only for the greater satisfaction and surety of the purchaser. Learned counsel for the appellants has not been able to point out to us any law, or rule having the force of law, according to which proprietary rights in tenancy lands cannot be acquired by the tenants without a deed of conveyance. Section 30‑A of the Amending Act (VI of 1944) is applicable only to the cases where the proprietary rights are " acquired "after the com mencement of that Act. We are unable to hold that the rights cannot be acquired without a sale‑deed. Although the point was not discussed, it was observed in Mst. Malap Kaur v. Hakim Singh and others (8 P R 1915) that the " defendants (the widows), when they had paid in full the necessary sums to the Government, became ipso facto owners in their own rights of the lands in suit". This observation was relied upon by a Division Bench of this High Court in Jagat Singh v. Mst. Rai Devi (A I R 1938 Lah. 554). The precise point under consideration arose before a Division Bench of this Court in Kishan Singh etc. v. Labh Singh etc., (Civil Appeal No. 891 of 1933), decided on the 14th of January, 1935, and was disposed of in the following passage:‑ "Equally devoid of force is the contention that as she did not enjoy proprietary rights on the 12th February she could not make a valid gift on that day. It maybe of interest to note that on appeal against the mutation order in favour of the donees both the Collector and the Com missioner held that as she was entitled to acquire the proprietary rights on the fulfilment of the necessary condi tions she should be deemed to have acquire them the very moment that the requisite amount was deposited. We see no reason to differ from this opinion and have no hesita tion in holding that Mst. Askaur acquired proprietary rights simultaneously with the deposit of the price of the land, irrespective of the fact that the Collector had passed his order three days after the deposit had been made." No ruling to the contrary has been brought to our notice by the learned counsel for the appellants. We are, there fore clearly of the opinion that, in the circumstances of this case, the widow became full owner of the tenancy lands in A her possession on the date when she deposited, and the Government accepted, the sale price. It has not been con tended before us that she failed to fulfil any of the necessary conditions. Had it been so, the Government would have with held the grant of the proprietary rights, which it did not. For the reasons stated above, we are satisfied that both the suits were rightly dismissed by the Court below and we dismiss these appeals with costs. A H. Appeals dismissed.