P L D 1952 Peshawar 40 (PLP)

MUHAMMAD SHAFI, J.‑One Azad, son of Ahmadji, was an occupancy tenant of 66 kanals and one marla‑of land, situa ted in Shadi, Tahsil Haripur Hazara. He died in 1930, leaving behind a widow by the name of Mst. Nawabji, and a daughter Mst. Sarwar Jan. He also left a sister by the name of Mst. Mirza Noor. By mutation No. 1801, attested on the 27th of March 1930, the occupancy tenancy was mutated in the name of his widow Mst. Nawabji. On 2nd September 1943, Mst. Sarwar Jan daughter of the said Azad, instituted a suit for the possession of half of the land mentioned above, on the allega tion that Mst. Nawabji the widow, had relinquished her rights in this property in her favour, and that she according to the Muslim Law was entitled to inherit the property from her father Azad, and she should, therefore, be given the decree prayed for. Gul Muhammad, Feroz and Mohammedj, the first cousins of Azad, and Mir Haider, Haider, Sher, Muhammad Din and Ali Haider, the sons of his first cousins were made party to that suit. On the 25th of February 1944, the parties made a state ment before the Sub‑Judge, in whose Court, the case was pending, to the effect that the property should remain in possession of Mst. Nawabji until she remarried or died, and that after her death the property should be inherited by the legal heirs of Azad. According to this compromise Mst. Sarwar Jan undertook to withdraw her suit, which she did on the same day, and the suit as a consequence thereof was dismissed. Mst. Nawabji died in 1949. Gul Muhammad etc., the cousin and the cousins' sons of Azad mentioned above, and Haider having died his widow and three daughters, have now brought a suit for the possession of the above occupancy tenancy against Mst. Sarwar Jan. They alleged in the plaint that Mst. Nawabji having died, they, as reversioners were entitled to inherit the property. The suit was very hotly contested by Mst. Sarwar Jan, who inter alia pleaded that under the law as it at present exists she was entitled to one‑half of the property in suit, under the Muslim Law. . The learned Sub‑Judge, 4th Class, Haripur, who heard the case, arrived at the conclusion that the property de volved upon the plaintiffs, and he consequently passed a decree in their favour, leaving the parties to bear their own costs. This judgment was affirmed by the learned District Judge, Hazara, by his order, dated 20th of July 1950. Mst. Sarwar Jan has now come up on revision to this Court, and it is urged on her behalf that section 59 of the Punjab Tenancy Act, as amended by‑the North‑West Frontier Province Amending Act of 1939, applied to the case, under which the plaintiffs had no cause of action to bring this suit, because the property would be divided under the Muslim Law between Mst. Sarwar Jan and Mst. Mirza Noor, the daughter and sister of Azad respectively, and no portion of it can be inherited by the plaintiffs. The only question, therefore, which has been argued before us, and which requires determination in this case is as to who inherits the property in suit. The relevant portion of the old section 59 of the Punjab Tenancy Act of 1887, ran as under:‑ "(1) When a tenant having a right occupancy in any land dies, the right shall devolve‑ (a) on his male lineal descendants, if any, in the male line of descent, and (b) failing such descendants, on his widow,‑ if any, until she dies or remarries or abandones the land or is under the provision of this Act ejected therefrom, and (c) failing such descendants and widow, or, if the deceased tenant left a widow, then when her interest terminates .under clause (b) of this subsection, on his male collateral relatives in the line of descent from the common ancestor of the deceased tenant and those relatives." under subsection (3) of this section, where the widow of a deceased tenant succeeded to a right of occupancy, she was not to transfer this right by sale, gift or mortgage, or by sub‑lease for a term exceeding one year. This section in its entirety was deleted by the Punjab Tenancy (North‑West Frontier Province Amendment) Act, 1939, and the following section was substituted therefor :‑‑‑ "When a tenant having a right of occupancy in any land dies, the right shall devolve on his heirs in accordance with the personal law of the deceased tenant ; Provided that if the deceased has left no such person as can inherit the right in accordance with this section the right shall be extinguished : Provided further that notwithstanding anything in any law, custom or entries in the revenue papers a female occupancy tenant shall not be liable to do begar or render any service or pay any village cess to her landlord." The two Courts below have held that the old section 59 applied to the facts of this case, and consequently the property devolved upon the plaintiffs and not on Mst. Sarwar Jan. They have in arriving at this conclusion followed the judgment of Malik khuda Bakhsh, J., in Civil Revision No. 239 of 1949 (Dullah, etc. v. Mst. Fazal clan and others). The perusal of the old section 59, and its subsequent substi tute will make it abundantly clear that it is a piece of substan tive law. The plain meaning of the substituted section 59, would be that if an occupancy tenant dies, his or her rights shall devolve upon his or her heirs in accordance with his or her personal law, which in this case would admittedly be the Muslim Law. According to it Mst. Nawabji, who was an occupancy tenant, having died, the rights of occupancy would devolve on her heirs in accordance with the Muslim Law. It is admitted that the plaintiffs are not those heirs, and they would, therefore, in that view of the case, be completely out of Court. It is, however, argued by the learned counsel for the respondents that the old section 59 applied to the facts of this case, because at the time when Mst. Nawabji entered into the possession of this property, the new section had not come into being, and under the old section the reversionary rights vested in the plaintiffs, which could not be taken away by the substitu ted section in the absence of a clear provision in the amending Act that the substitution shall have the retrospective effect. On the death of Mst. Nawabji, therefore, the plaintiffs claim that they automatically became the owners of the property and were entitled to get its possession. The learned counsel for the respondents contended that no sooner Azad died, the property devolved upon .the male colla teral relatives, although they were, not entitled to take posses sion of the property until the widow died or remarried. His argument amounts to this that on the death of Azad, the pro perty at once vested in the plaintiffs, but their right to enjoy the property was postponed until the death or remarriage of the widow. If this interpretation of section 59 of the Punjab Tenancy Act were correct, then undoubtedly certain rights vested in the plaintiffs of which they could not be divested until and unless it was clearly embodied in the amending Act that it would have a retrospective effect from a certain date. We are, however, unable to interpret section 59 of the Punjab Tenancy Act in the way in which the learned counsel for the respondents wishes us to do. The bare reading of old section 59, would make it perfectly clear that immediately on the death of an occupancy tenant if he died without leaving male lineal descendants in the male line of descent but leaving behind a widow, the property devolved on the widow and not on the male‑ collaterals, if there were any. No doubt the widow was to occupy the property until she died or remarried, and was also not entitled to transfer it by sale, gift or mortgage, or sub‑let it for a term exceeding one year, but then it does not mean that simply because certain restrictions and limitations were placed on her rights, the property did not devolve on her, or she could not be termed as' an occupancy tenant of the property. In spite of those limitation and restrictions she was to all intents and purposes an occupancy tenant. Since the death of the widow did not take place at the time when the old section 59 was in force, no property or right vested in the plaintiffs. When the widow died the old section 59 had been completely deleted, and was substituted by new section 59, under which the occupancy rights in question, which were then the property of Mst. Nawabji, would in law devolve upon her Muslim‑law heirs. The learned counsel for the respondents cited before us an authority, Mst. Jane v. Ali Zaman and others, reported in 1943 Peshawar Law journal, p. 9, in support of his view that the property should devolve according to the old section

59. This authority in our view goes against rather than in favour of the plaintiff‑respondents. In that case one Khani Zaman died before the substitution of section 59 of the Punjab Tenancy Act, leaving behind a widow and a daughter. Subse quently the daughter also died, leaving behind her husband and four children, who instituted a suit against the widow for possession of their share under the Muslim Law of the occu pancy tenancy owned by Khani Zaman, alleging that under the substituted section 59, they were entitled to get their share in the property, and the widow was not entitled to retain posses sion of it in its entirety. Their Lordships held the following :‑ "The word "devolve" in section 59 as it originally stood conclusively shows it was a piece of substantive law and not adjective law. The amendment of section 59 does not divest rights which had vested under the old section 69, because those rights are protected by section 6 (c), N.‑W. F. P. General Clauses Act. Consequently a Muhammadan widow who had acquired occupancy rights of her husband under the old section 59, is entitled to hold those rights till death or remarriage." According to this authority then, the rights of occupancy at once devolved upon the widow, and these rights she was entitled to enjoy so long as she lived, and did not remarry. It is no authority for the view that no rights vested in the widow, and that she by her existence only postponed the enjoyment of the rights which had vested in somebody else. In our view, the plain and the only meaning of the old and the new sections 59 of the Punjab Tenancy Act is that Mst. Nawabji was an occupancy tenant of the land in suit, and on her death the property had to devolve on her heirs, and the plaintiffs upon whom the property would have devolved if section 59 had not undergone the alteration have no cause of action to institute a suit for the possession of the property in dispute, because the rights as the law now stands do not devolve on them. The result is that we accept this revision petition, set aside the judgments and decrees of the two Courts below, and dismiss the plaintiffs' suit As a difficult question of interpretation of law is involved in the case, we leave the parties to bear their own costs throughout. A. H Petition accepted.