P L D 1962 (W (PLP)

FAIZULLAH, J.‑This judgment would govern the two Regular Second Appeals Nos. 28 and 50 of 1956 as they arise out of the suit instituted by Mst. Bholan, daughter of Jhanda respondent, which was decreed by the judgment and decree dated 21st January 1955.

2. The following pedigree would be helpful in understanding the relationship of the parties LAL KHAN | _______________________ | ____________________ | | Allah Yar Khud Yar | | Ghasita Hassu | | Jhanda Malla | | Mst. Bholan=Malls Hakam=Mst. Bholan (plaintiff) (mother of Hakam) propositus.

3. The admitted facts giving rise to the present appeal are that Jhanda was the owner of 1000 kanals of land, which is the subject‑matter of the suit giving rise to the appeals. He died in year 1948 and his estate devolved on Mst. Bholan under the then Customary Law as widow of Malls. Mst. Bholan died in the year 1952, and mutation of inheritance was sanctioned In favour of Allah Ditta and Hakam Khan, sons of Khushi, defendants Nos. 1 and 2 and daughter's sons of Mst. Bholan (appellants in R. S. A. 28 of 1956) to the extent of 5/8th share, and Ali Muhammad, Muhammad Husain and Mahmud Husain, sons of Balanda, defendants Nos. 3 to 5, nearest collaterals of Malls, (husband of Mst. Bholan), the remaining 3/8th share.

4. Mst. Bholan, daughter of Jhanda, (hereinafter to be referred to as plaintiff) sued the defendant‑appellants for a declaration that the inheritance mutation had been wrongly sanctioned in their favour and she being daughter of the "last full owner " was under the Muslim Personal Law (Shariat) Application Act (IX of 1948), entitled to inherit half of the land in dispute. The plaintiff, as a consequential relief prayed for joint possession of the suit land. The defendants contested the suit and denied that Jhanda, father of the plaintiff, was the last full owner of the suit land.

5. On the pleadings of the parties, the following issues were framed: ‑ " (1) Was Jhanda, father of the plaintiff, the last full owner of the land in suit ? (2) If so, is not the plaintiff entitled to inherit one‑half of this land on the death of Mst. Bholan ? (3) Relief.

6. The learned Senior Civil Judge, Sialkot, on 21st of January 1955, passed a decree in favour of the plaintiff as prayed for with costs as he thought that the case of the plaintiff was governed by section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) (herein after to be referred to as the (Shariat Act of 1948). He observed that Jhanda, father of the plaintiff, was the " last full owner" within the meaning of section 3 and, as such, she was entitled to inherit one‑half share.

7. Feeling aggrieved, Allah Ditta Hakam preferred an appeal (No. 23 of 1955), while All Muhammad, Muhammad Husain and Mahmud Husain filed Appeal No. 46 of 1955 against the judgment and decree of the learned Senior Civil Judge. The learned District Judge, by a consolidated order, dated 20th October 1955, dismissed both the appeals on the strength of the decision of B. Z. Kaikaus, J. In Muhammad Hussain etc. v. Alam Din etc. (P L D 1955 Lah. 420). Defendants Nos. 1 and 2 and defendants Nos. 3 to 5, as already indicated, have come up on further appeal separately.

8. Mr. Karam Elahi Chauhan, the learned counsel for the appellants, in Appeal No. 28 of 1956 and Mr. Ghias Muhammad, learned counsel for the appellants, in Appeal No. 50 of 1956 frankly conceded that the expression " last full owner " In sec tion 3 of the Shariat Act of 1948 has been interpreted in two cases (i) in Mst. Amiran and another v. Nadra (P L D 1958 Lah. 448) and (ii) in Muhammad Husain v. Alam Din etc. delivered respectively by Akhlaque Husain, J. and B. Z. Kaikaus, J. (as his Lordship then was), as to mean the " last male holder ". They, however, tried to canvass the correctness of those decisions and invited us to hold that the expression "last full owner " should mean the nearest collateral of the last male holder, namely, Malls and not the "last male holder" himself, namely, Jhanda, father of the plaintiff.

9. Mr. Chauhan when confronted with the question as to what was the meaning of the expression " full owner ", stated that "the full owner" was one in whom according to the Customary Law the estate vested prior to the death of the limited owner. Mr. Ghias Muhammad, on the other hand, defined the expression as follows: ‑ " As an abstract proposition of law, the essential difference between a `full owner' and `limited owner' depends upon his or her capacity to constitute a fresh stock of descent because other attributes of ownership are practically common to `both to full owner' end 'limited owner'. Since expressions, in section 3 of the Shariat Act the two expressions, viz. ' full owner ' and 'limited owner' are used in a relative sense, i.e., one in relation to the other, the expression 'full owner' will in relation to limited owner In a given case, mean a person to whom inheritance has to be traced in respect of the property held by a limited owner on her death under Customary Law which held the field when Shariat Act came into force."

10. The learned counsel for the appellants argued that according to well recognised canon of interpretation the words of a statute be understood In the sense which they bore when it was passed.

11. As regards the attributes of the term "owner" the learned counsel for the appellants contended that the ownership had the following three recognised attributes, namely, (i) enjoy ment, (ii) right to transfer, (iii) right to pass on property by inheritance.

12. Sardar Muhammad Iqbal, the learned counsel for the respondent, firstly argued that the point raised in both the appeals had been settled by the two Single Bench decisions delivered by Akhlaque Husain, J. and Mr. Kaikaus, J. referred to above. Sardar Muhammad Iqbal readily accepted the aforesaid three attributes of the term "ownership." He also accepted the proposition that if words and phrases have been previously Interpreted by the Courts, it will be presumed that the Legislature when they were used in the later enactment intended to use them with same meaning that the Court had already given to them and the same term was used in the enactment. He, however, vehemently contended that the expression " full owner" has been used in regard to the "last male holder" and that it had never been used in regard to a collateral of the " last male holder " whose widow bad succeeded to a limited estate. With regard to the attributes of the ownership, Sardar Muhammad Iqbal contended that under the Customary Law, a collateral of the "last male holder" was incapable of possessing the first two attributes, namely, enjoyment and right of transfer for the short and good reason of his having pre. deceased the "last male holder " and only under Customary Law his widow inherits collaterally the estate which is treated as an accretion of her husband and after her death goes to the heirs of the husband and not to the heir of the "last male holder" or that of the widow.

13. As regards the third attribute of ownership, namely, to pass on property by Inheritance, it was argued that only by fiction of law and under the Customary Law, the property of the "last male holder" In the bands of the widow of a collateral is treated as an accretion of the estate of the husband. In other words, factually, a collateral does not possess the right to pass property.

14. Since the decision of the appeal largely depends on the interpretation of the term " full owner " as it occurs In section 3 of the Shariat Act, 1948, it will be convenient to read that section which is in the following terms :‑ " In respect of immovable property held by a Muslim female as a limited owner under the Customary Law, succes sion shall be deemed to open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death and In the event of the death of any of such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termi nation of the limited interest of the female as 1f the afore said such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat) : I Provided that the share which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of death."

15. The decision in Mst. Amiran v. Nadra, furnishes a complete answer to the arguments raised by the learned counsel for the appellants that the term "full owner" should apply to a customary collateral, who was not a full owner of the property not in actual fact but fictionally in accordance with the theory of Customary Law. His Lordship at page 450 observed: ‑ " It is contended by the learned counsel for the appellant that that expression would be applicable even to a person who was the full owner of the property, not in actual fact but fictionally in accordance with the theory of Customary Law. He has cited two rulings reported as Mst. Gango v. Mst. Hukam Kaur A I R 1938 Lah. 111 and Mst. Fatima BIN v. Nur Muhammad Shah P L D 1951 Lah. 147 for the propo sition. In the first case it was held that where a widow had succeeded collaterally after her death it is the heirs of her husband who have to be sought for and not the heirs of the last male holder of the property. In the second case, Mst. Fatima Bibi v. Nur Muhammad Shah, it was laid down that according to custom, the mother succeeds not as the mother of her son but as the widow of her husband and on her death inheritance has to be traced to the latter and not to the last male holder. With these propositions there can be no dispute. The question is whether a widow's husband who had never actually succeeded to the property and had died before the succession opened can be treated as the last full owner. It would be noticed that in both the cases the widow's husband was not treated as the last male holder. Learned counsel has been unable to refer to any case which may support him. The widow or other heirs, of a predeceased son of the last male holder of the property succeeded, to a part or the whole of it, not because the deceased ever held or owned the property but because of the right of representation which is one of the basic principles of the Customary Law govern ing succession amongst the agriculturists. I have, therefore, no hesitation in agreeing with the learned lower appellate Court that the last full owner in this case must be deemed to be Chughatta who actually owned the property and not his predeceased son Mehdi. The appeal (No. R. S. A. 224 of 1955), therefore, fails and is hereby dismissed with costs.

16. In Muhammad Hussain and others v. Alam Din and others, Kalkaus, J. was called upon to decide the expression " last full owner" within the meaning of section 3 of the Shariat Act. His Lordship repelling the very same contention that the term " last full owner ", should mean the person from whom the inheritance would be reckoned in accordance with the provision of agricultural custom, summed up the position tressly as follows. "The learned District Judge has held that as Mst. Nasiban had come into possession of this property as the widow of Ghulam Ali, therefore, Ghulam Ali should be considered to be the last full owner of the whole of this property. He relies for this proposition on the principle accepted in the Customary Law that when a mother inherits, she inherits as the widow of her husband, and when a widow inherits collaterally the estate which she inherits becomes an accretion to the estate of her husband and after her death goes to the heirs of her husband and not to those of the last male holder. That is a rule of custom which has nothing to do with section 3 of the Muslim Personal Law (Shariat) Application Act. This section mentions the last full owner and by no canon of interpretation can `the last full owner ' mean ` the person from whom inheritance would be reckoned in accordance with the provisions of agricultural custom.' I may point out that even in the judgments upon which the learned District Judge relies, i.e., those relating to collateral succession it is stated that inheritance is to be reckoned not from the last male holder but from the husband of the widow. These judgments themselves recognise that the last male holder was different from the person from whom inheritance should be reckoned. They do not say that the widow's husband becomes the last male holder. In any case, we are not to import the considerations of Customary Law when interpreting the phrase 'last full owner' in section

3. The result is that we will have to find separately the heirs of Saif Ali, Amir Alam and Sher All in order to determine who are the persons entitled to their estates at the death of Mst. Nasiban."

17. The observations of Kaikaus, J. and Akhlaque Husain, J. in my view furnish complete answer to the point raised on behalf of the appellants and I have not the least hesitation in expressing my respectful agreement with the above statement of law enun ciated by their Lordships and this would be sufficient to dispose of the appeals but in difference to the arguments raised on behalf of the appellants I would pursue the discussion a little further by examining a few authorities in which the term "full owner" has been used in respect of the last male holder. The nature of the estate of the male holder of ancestral property of last male holder has been described by Rivaz, J. in 18 P R 1895, at page 77, wherein it is stated "that he is a full owner with an interest transmissible to his heirs, lineal or collateral, but that his power of alienation is limited and liable to be controlled by the heirs lineal or collateral, as the case may be . . . . . . : ' A very instructive description of such an owner is given by Plowden J. In the referring order of the same case which has been quoted in the judgment i.e., Roda HIM and others v. Harnam and others (18 P R 1895 p. 76). The learned Judge says :‑ "The peculiar position of land‑holders in the Punjab who are full owners as to interest but have a limited power of alienation was not within the cognizance of the Legislature . . .. " It will be manifest from the above observation that "fullness" of his interest is not denied. Only defect in the estate of such an owner is that there is a limitation on his powers of alienation. If this restriction on the powers of alienation should disappear there shall not remain anything to derogate from the absoluteness of his ownership.

18. In Jowahir and 5 others v . Mst. Chandi and S others (90 P R 1892), Stogdon, J. observed: "It has been repeatedly pointed out that a childless proprietor and a widow are not on the same footing. A man without sons is as much a proprietor as a man with sons. A widow, as such, is not a proprietor. She has a life‑interest with a power, under certain circumstances, of disposition."

19. The observation of Kayani J. (as his Lordship then was) in the Full Bench decision of Bashir Ahmad v. Muhammad (P L D 1956 Lah. 934 at 975) may be very profitably quoted when his Lordship used the word "full owner" with reference to the last male holder. Though the Full Bench was concerned to answer the two questions pertaining to the rights of the reversioners in obtaining declaration, regarding the alienation made by the last full owner. His Lordship at page 977 observed as follows:‑ "The conclusion of the Full Bench in Muhammad Asghar Shah's case that the power of alienation continues to be restricted until the next succession whatever be the reasoning on which it is based‑appears to present a just view of the situation, if I may say so with great respect. It is also an equitable view because, firstly, the 'full owner' had himself succeeded to an estate which was subject to customary restrictions and he cannot claim a larger estate unless the new law expressly confers it on him ; secondly, in the instance of the sister cited above, he denies the benefit of enlargement to the sister and should not be allowed to avail of It himself." I would wind up the examination of the authorities by quoting some of the observations of Muhammad Sharif J. In the decision of Abdullah v. Bakhto Mai (P L D 1956 S C (Pak.) 321). At page 328, His Lordship observed as under: ‑ "Under the old dispensation the 'agnatic theory' held the field and the persons descended from the common ancestor in the male line were held entitled to get the land In preference to the female relations of the last male owner'. The Act of 1948 has changed all this and from 16th of March 1948 onwards, the estate of a Muslim shall be divided among the heirs In accordance with the rules of the Muhammadan Law and the 'agnatic theory' of custom would no longer apply and would be a thing of the past." It will be manifest from the above observation that after the passing of the Shariat Act, 1948, and the termination of the limited estate, the "agnatic theory" of the custom would no longer apply and would be a thing of the past. In other words, after the passing of the Shariat Act and the termination of the limited estate, the Customary Law cannot be applied. If we were to accept the argu ments of the learned counsel for the appellants, we would not only `t apply the Customary Law after the termination of the life estate but would convert the customary collateral from a fiction only into an 'owner' and not only in an owner but a full owner which position he never occupied.

20. For all the foregoing reasons, I dismiss both the appeals with costs. A. R. CHANGEZ J.‑I agree. A. H. Appeal dismissed.