P L D 1968 Lahore 302 (PLP)

(died in Khatun 1926) (P. 7) | | ___________________________________________________|___ | | | Mst. Sakina Rashid Khan Mst. Kalsum (D. 3) (P. 3) Bibi (P. 6)

3. One Muhammad Khan of village Gorhat, Tahsil Kahuta, District Rawalpindi, was enlisted in the Indian Army in the year 1892. In course of time he rose to the rank of Subedar Major and was discharged from service on the 19th of December 1914 vide Discharge Certificate (Exh. D. 6), the reason given being "missing, believed killed in action in France". He was survived by two widows, Mst. Ghulam‑un‑Nisa alias Gulab Nishan and Mst. Karam Nur, and a number of children by each of the widows. In recognition of his services, in the year 1921, the Provincial Government granted non‑occupacy rights in 406 kanals (about two squares) to Mst. Ghulam‑un‑Nisa in Chak No. 36/37, Tehsil Okara, District Montgomery. The grant was regulated by the conditions contained in Notification No. 133 dated the 11th of December 1916 set out at pages 179‑186 of the Punjab Colony Manual, 1933 Edition. Under clause (4) of these conditions, the tenant was eligible to acquire occupancy rights in the land on or after the expiry of five years on satisfying certain conditions, including making certain specified payments to the Government. It appears that on an application made in that behalf by Mst. Ghulam‑un‑Nisa, the land granted to her in Montgomery District was exchanged with the suit land in Chak No. 34, Tehsil Phalia, District Gujrat. Subsequently, by means of Mutation No. 27 (Exh. D. 11) sanctioned under the Settlement Collector's order dated the 27th of September 1927, Mst. Ghulam‑un‑Nisa was granted rights of occupancy in the suit land.

4. Mst. Ghulam‑un‑Nisa died on the 27th of April 1961. On her death the occupancy rights in the suit land were mutated in favour of Rajasab Khan, the contesting defendant, being her sole surviving heir under Personal Law, to the exclusion of children of the late Subedar Major by his other widow, namely, Mst. Karam Nur. The mutation order (Exh. D. 7) is dated the 21st of January 1962. Against this mutation, Fateh Khan and Adalat Khan filed appeal to the Collector (Consolidation) which was, however, dismissed vide order dated the 5th of November 1962 (Exh. D. 8).

5. Thereupon Fateh Khan, Adalat Khan and legal represen tatives of Mirza Khan and Lal Khan instituted a suit for declara tion and injunction claiming two‑third share in the occupancy rights in the land in dispute on the allegations that the land was in fact granted to the late Subedar Major Muhammad Khan and not to Mst. Ghulam‑un‑Nisa and that all the seven sons of the late Subedar Major had been in possession of different parcels of the land in dispute in accordance with their respective shares in the inheritance, Mst. Ghulam‑un‑Nisa being in possession of the shares of her sons Rajasab Khan and Lal Khan, by way of maintenance.

6. Rajasab Khan contested the plaintiff's suit on the allega tion that the grant was actually made in favour of his mother Mst. Ghulam‑un‑Nisa and not in favour of his father who was killed in action. It was admitted, however, that the grant in favour of his mother was made in lieu of the military services rendered by his father. He claimed to be the sole surviving heir of his mother, under section 19‑A of the Colonization of Govern ment Lands (Punjab) Act, 1912 (hereinafter called the Act). A plea of estoppel was also raised,, Sajawal Khan, whose interest on the basis of the reliefs claimed in the suit was identical with that of the plaintiffs', however, did not join them in the suit and was, therefore, impleaded as defendant. He filed a separate written statement wherein he repudiated the plaintiffs' claim and supported the defence set up by Rajasab Khan that his mother was the full owner of the occupancy rights in the suit land.

7. The parties went to trial on the following issues:‑-- (1) Was not Subedar Major Muhammad Khan the original tenant of the land granted to him in Montgomery? O. P. D. (2) If Subedar Major Muhammad Khan was the original tenant, who were his heirs at the time of his death? O. P. P. (3) Are the plaintiffs estopped from claiming their shares in the suit land? O. P. D. (4) What is the effect of Mst. Ghulam‑un‑Nisa having been given occupancy rights to the land in suit in the year 1927? O. D. (5) If Mst. Ghulam‑un‑Nisa was the first allottee of the land in Montgomery, who are her heirs? O. P. D.

8. The learned trial Judge found issue No. 1 in favour of the contesting defendant (appellant herein). He found it as a fact that the non‑occupancy rights in the land in Montgomery District were granted to Mst. Ghulam‑un‑Nisa personally in lieu of services rendered by her husband the late Subedar Major Muhammad Khan and, as such, she had become the first allottee of the land, and that her husband never became the "original tenant" within the meaning of section 3 of the Act. On the basis of these findings, issue No. 2 was held to have become redundant. Issue No. 3 was answered in the negative. On issue No. 4, the learned trial Judge held that having satisfied condition No. 4 of the grant. Mst. Ghulam‑un‑Nisa acquired occupancy rights in the land "in her own right" and, therefore, upon her demise, the occupancy rights devolved upon the contesting defendant (appel lant herein) under the Muslim Law of Inheritance. Issue No. 5 was also decided accordingly in favour of the contesting defendant, respondent herein.

9. On appeal by the plaintiffs, the learned Additional District Judge did not disturb the trial Court's finding on issue No.

1. He, however, went on to hold that the non‑occupancy rights in the land having been granted to Mst. Ghulam‑un‑Nisa in lieu of services rendered by her husband Subedar Major Muhammad Khan "and not in her own right", she had only a "limited interest" in the land and her subsequent acquisition of occupancy rights would be in the nature of an "accretion" to her limited interest which would anure to the benefit of all Muslim law heirs of Subedar Major Muhammad Khan whose services were reward ed in the shape of grant of land. On this view of the matter, the learned Additional District Judge further held that the inheri tance to Mst. Ghulam‑un‑Nisa would be regulated by the first proviso to section 19‑A of the Act. Accordingly, the learned Additional District Judge set aside the judgment and decree of the trial Court and declared that the plaintiffs were entitled to 26465/46080 shares in the occupancy rights in dispute, the remain der 19615/46080 falling to the share of the defendants. Injunc tion was also issued in terms of the declaration made.

10. From the above statement of the case, it thus become clear, that there is a concurrent finding of the two Courts below, on the main question of fact material for the purpose of the suit, namely, that Mst. Ghulam‑un‑Nisa and not her husband was the actual grantee of the non‑occupancy rights in the land in Montgomery District though the grant was made as a reward for A the services of the latter. This question of fact cannot, therefore, be questioned in the second appeal, and the learned counsel for the respondents very properly did not address any argument on the issue‑. He, however, supported the further inferential conclusion reached by the learned Additional District Judge, namely, that the grant having been made in lieu of the services rendered by Subedar Major Muhammad Khan partook of the character of "limited interest" vesting in Mst. Ghulam‑un‑Nisa which before her demise, devolved under the first proviso to section 19‑A of the Act upon all Muslim law heirs of her deceased husband including the plaintiffs. It is important, to observe, however, that this alternative ground of the plaintiffs' claim was never raised in their plaint nor put in issue. The plaintiffs came to the Court with the definite averment that the non‑occupancy rights were granted to Subedar Major Muhammad Khan personally in lieu of his military services which upon his death devolved on the entire body of his surviving heirs, under section 21 (b) of the Act. Paragraphs 1 and 8 of the plaint refer. Not only that in disproof of the issue No. 1 the plaintiffs pro duced copies of Fard Taqseem Exh. P. 1, Parcha Dakhil Exh. P. 3, a list of grantees Exh. P. 22 and another Fard Taqseem Exh. P. 23 to show that Subedar Major Muhammad Khan was alive in 1920‑21 and appeared personally before the Revenue Officer in proceedings in relation to the land in Montgomery Dis trict regarding which file No. 114 was started. The original file was produced in the trial Court. After, what appears to be careful analysis of this evidence produced in rebuttal of issue No. 1, the learned trial Judge rejected it off hand and accepted the cogent evidence both documentary and oral produced to show that Subedar Major Muhammad Khan having died in the year 1914 while in action in France during World War 1, the land in Montgomery was allotted to Mst. Ghulam‑un‑Nisa, personally as a reward for the services of her husband. This being the only basis for the plaintiffs' claim, they should have been non‑suited on the finding on issue No.

1. There was no averment, whatever, in the plaint arming a limited interest in the non‑occupancy rights granted to Mst. Ghulam‑un‑Nisa. Therefore, the learned Additional District Judge based his appel late judgment in favour of the plaintiffs on a point which was never taken in the plaint nor any specific issue was raised there on. And having regard to the law of pleadings, it is difficult to sustain the inferential finding on the above fact of the case, upon which the parties were not at issue. However, in view of 6 the fact that no objection was raised either before the lower appellate Court or in the memorandum of appeal in this Court, and learned counsel of the parties also addressed argument on this aspect of the case, I proceed to determine it on its merits, inadequacy of the pleadings, notwithstanding.

11. It is not controverted that prior to the enactment of section 19‑A of the Act, section 21 of the Act ruled the situation arising in this case. The latter section reads:‑-- "

21. Succession to tenants acquiring by succession.‑--When after the commencement of this Act, any male tenant, who is not an original tenant, dies, or any female tenant, dies, marries, or remarries the succession to the tenancy shall devolve‑ (a) in the case of a female, to whom the tenancy has been first allotted, on the successor nominated by the Collector from the issue of such female tenant, or from the male agnates of the person on account of whose services the tenancy was allotted to her: (b) in all other cases, on the person or persons, who would succeed if the tenancy were agricultural land acquired by the original tenant." The section on its plain reading, prescribed distinct rules of succession to female and male tenants. Here, we are concerned with a female tenant, to whom tenancy was "first allotted" in 1917, for the services of her husband. Therefore, under clause (a) of the section, the tenancy would have devolved upon a successor nominated by the Collector either from the issues of Mst. Ghulam un‑Nisa or from the male agnates of her husband Subedar Major Muhammad Khan for whose services the grant was made to Mst. Ghulam‑un‑Nisa. Therefore, prior to the enactment of section 19‑A, the choice of successor to Mst. Ghulam‑un‑Nisa entirely rested with the Collector under the provisions of the statute itself independent of rules of custom or any other law to the contrary. Other cases fell to be governed under clause (b) which is the nature of residuary clause. However, with the enact ment of section 19‑A, sections 20 to 23 of the Act stand abrogat ed so far as the succession to a tenancy held by "a Muslim tenant" under the Act is concerned. This overriding section was inserted by the Colonization of Government Lands (Punjab) (Amendment) Act, 1951, and, therefore, was in operation at the time of the demise of Mst. Ghulam‑un‑Nisa in 1961 when succession opened out in the instant case. The section for the relevant purposes reads:‑-- "19‑A. Succession under Shariat.‑When after the coming into force of the Colonization of Government Lands (Punjab) (Amendment) Act, 1951, any Muslim tenant dies, succession to the tenancy shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat), and nothing contained in sections 20 to 23 of this Act shall be applicable to his case: Provided that when the tenancy rights are held by a female as a limited owner under this Act succession shall 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 termina tion of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termination of the limited interest of the female as if 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) Provided further . . . . . . . " The expression "any Muslim tenant" in the substantive provision of the section is of very wide amplitude which would cover both male and female tenants, regardless of the fact whether tenancy was first allotted as a reward for any service rendered or other wise. To confine the application of the substantive provision in the section to a tenant who was granted tenancy in his owns right and rot as reward for any service would be to curtail the ordinary grammatical sense of the expression "any Muslim tenant" which the rules of interpretation of statutes do not countenance. Mst. Ghulam‑un ‑Nisa, being covered by the expression "any Muslim tenant" on her death, the tenancy would devolve on her heirs under Muslim Personal Law. And it is not disputed that under Muslim Personal Law, the appellant is her, sole surviving heir.

12. Quite apart from the above aspect of the matter, it is impossible to agree with the conclusion reached by the learned Additional District Judge that in the circumstances of the instant case, Mst. Ghulam‑un‑Nisa's interest in the occupancy tenancy was that of a limited owner and, therefore, succession to the tenancy would be governed by the first proviso to section 19‑A. A‑plain reading of the proviso leaves no manner et doubt that it envisages a "full owner" who once held the tenancy and under the proviso, the succession would notionally open out at the time of the death of the last full owner and be regulated by the Muslim Personal Law as if it had been applicable at the time of the death of the last full owner. In the instant case, as pointed out already, the tenancy was never held by Subedar Major Muhammad Khan. In the absence of this fact, the legal fiction created by the proviso would not come into operation. The expression "limited interest" presupposes that it had devolved upon the limited owner by operation of law which plainly is not the case before us. Here the grant was made in favour of Mst. Ghulam‑un‑Nisa under the executive fiat of the Government to reward the services rendered by her husband. So it is not a case of devolution of tenancy of rights by operation of law, as would have happened in case the late Subedar Major Muhammad Khan bad been the original allottee and the tenancy had devolved upon Mst. Ghulam‑un‑Nisa on her demise To say that because the grant was made to Mst. Ghulam‑un‑Nisa in recognition of services rendered by her husband would make it assistable to her succession as an heir to her husband would be doing violence to plain English. It is also a travesty of fact to suggest, that in the circumstances of this case, there was a devolution of tenancy from the late Subedar Major Muhammad Khan to his wife Ghulam‑un‑Nisa, no tenancy having been conferred upon him during his lifetime. Moreover, it is not disputed that the occupancy rights were not granted to ohm. Ghulam‑un‑Nisa in 1927 on account of services rendered by her husband. She acquired these rights as a consequence of her having held the tenancy for a period exceeding five years as required by condition 4, and having observed the other conditions specified in Government Notifica tion No. 133 dated 11th December 1960.

13. To support his conclusion that Mst. Ghulam‑un‑Nisa had limited interest in the tenancy, the learned Additional District Judge also referred to the statement of objects and reasons append ed to the Colonization of Government Lands (Punjab) Amend ment) Act 1944, which inserted section 30‑A in the Act. The section was enacted to curtail "the rights of alienation" of female tenants who had succeeded to tenancy under section 21 of the Act or to whom grants had been made in recognition of the services of a male relative but who subsequently acquired proprietary rights. Prior to that amendment acquisition of property right had been treated by Courts in a series of cases as rights of full ownership with plenary powers of alienation. The section was intended to impose restriction on the powers of alienation of a female tenant, who (l) has directly or indirectly inherited the tenancy from a male tenant and (2) who has subsequently acquired pro prietary rights in such tenancy. It is not contended that the section in terms is applicable to the instant case for it is nobody's case that Mst. Ghulam‑un‑Nisa alienated tenancy in favour of the appellant or had even acquired proprietary rights in the tenancy. Therefore, two conditions requisite for the application of the section are wanting in this case. It is not understandable, how in these circumstances, the section in terms or even the principle underlying it would apply to the instant case, which is manifestly a case of succession to an occupancy tenancy in which only occupancy rights were acquired by the tenant, though the initial non‑occupancy was granted as a reward for the services of the tenant's deceased husband.

14. Incidentally, I am not oblivious to the anomaly arising from the invidious preference given to Mst. Ghulam‑un‑Nisa as against the other surviving widow of the late Subedar Major Muhammad Khan namely Mst. Karam Nur. But the grant was in the nature of gratuity and the choice from among the potential pretenders for the grant lay within the absolute discretion of the grantor. Of the two surviving widows, the choice fell undoubtedly 1 upon Mst. Ghulam‑un‑Nisa and hence a devolution of her interest upon her death on the appellant, her sole surviving heir. Nothing turns on the possession by the plaintiff of the certain area in dispute, for their possession appears to be permissive from inception; at any rate, the plaintiff did not set up a title by prescription.

15. For the foregoing reasons, it is difficult to maintain the judgment of the learned Additional District Judge, accordingly, I accept the appeal, set aside his judgment and restore that of the trial Court, dismissing the plaintiffs' suit. In the circumstances of the case, I leave the parties to bear their own costs throughout. A.H. Appeal accepted.