1984 PLP 3038 (CLC)

(i) The sales of the tenancy rights-were effected for legal necessity. (ii) The sales of the tenancy rights could not have been challenged after the acquisition of proprietary rights by the appellants. (iii) The judgment of the Federal Shariat Court in Shariat Petition No. 13/11 of 1980, decided on the 19th May, 1981, reported as Muhammad Ishaq v. Federation of Pakistan P L D 1981 1~ S C 278, as upheld by the Shariat Bench of the Supreme Court of Pakistan in the case titled Federation of Pakistan v. Muhammad Ishaq P L D 1983 S C 273, declaring customary law to be repugnant to the injunctions of Islam had the effect of non-suiting the respondents.

4. The learned counsel contended that the observation of the learned Additional District Judge that the appellants had not made proper inquiry before purchasing the tenancy rights as regards existence of legal necessity was controverted by the contents of the application (copy Exh. D. 9) made by Ghulam Jilani to the Collector for permission to sell the rights. The learned counsel referred to the evidence indicating that Ghulam Jilani had after the sale of the land constructed a house and set up business and a mill in Lyallpur (Faisalabad). He contended that beyond looking at the application, whose copy is Exh. D. 9, and gathering the impression there from that Ghulam Jilant wanted to sell the tenancy rights in order to pur chase land in Lyallpur they had not made any further inquiry to ascertain the existence of legal necessity, justifying the sale of the tenancy rights. It may be pointed out that the sale-deeds do not make any reference to the necessity for which Ghulam Jilani sold the tenancy rights. To appreciate the argument of the learned counsel and view point of the appellants it may be advantageous to go through the contents of Ghulam Jilani's application which are reproduced below :- A close reading of the application shows that Ghulam Jilani wanted to sell the land to meet domestic needs. He made a remark at the tail end that he could purchase saleable land in Chak No. 134/GB., tehsil Samundri, District Lyallpur, where he lived. The learned counsel con tended that Ghulam Jilani wanted to purchase land in Chak No. 134/GB.., where he used to live and this amounted to an act of good management and consequently constituted legal necessity. He stated that the appel lants were not bound to see whether Ghulam Jilani had subsequently applied the sale proceeds to the purchase of land in Chak No. 134/GB. Actually Ghulam Jilani did not purchase any land : evidence was led to the effect that he had started the business of Arhat, set up a starch mill and constructed a house in Lyallpur. s. What Ghulam Jilani said in the application was addressed to the Collector. The representation that he made to the appellants for selling the land, as brought out in the evidence, may be touched upon. Amir; appellant in the present appeal, D. W. 7. said that Ghulam Jilani had told him that with the sale price of the land in dispute he wanted to pur. chase land in Lyalipur district because be had some other land as well over there. He added that after the sale Ghulam Jilani had first started the business of arhat, then he had constructed a residential house in Lyallpur City and thereafter he had set up a mill. Raja Muhammad Akbar, appellant in appeal No. 513, D. W. 8, said that at the time of sale Ghulam Jilani had represented that he wanted to purchase property in his chak in Lyallpur district where he already had land and that he would set up a mill in some new abadi. He deposed that in reality Ghulam Jilani had invested purchase money in business of arhat, then built a bungalow in Jinnah Colony, Lyallpur, and thereafter set up a mill. Ibrhhim, appellant in appeal No. 509 D. W. 9. stated that at the time of sale of the land in dispute Ghulam Jilani had told him that in a chak of Lyallpur district be had five squares of land and that after selling the land in dispute he wanted to purchase some land in the said chak and further that he wanted to set up a mill and construct a bungalow. Rajah Ali, appellant in Appeal No. 507, D. W. 10, and Ghulam Muhamm4d, appellant in appeal No. 508, P. W. 12, bore testi mony to the fact that Ghulam Jilani at the time of selling the land in dispute had disclosed the necessity, of purchasing land in the Chak of Lyallpur district because he had to come from a very distant place to look after the land in dispute. According to Farid, appellant in appeal No. 512, P. W. 11, the reason for selling of the land in dispute given by Ghulam Jilani was that he wanted to purchase land in the Chak of Lyallpur district. Chawa, appellant in appeal No. 514, D. W. 13, deposed that at the time of selling land Ghulam Jilani had stated that with the purchase money he wanted to buy some other land in Chak No. 134/G B in tehsil Samundri. He added that Ghulam Jilani had not disclosed as to why he wanted to sell the land and why he wanted to purchase new land. Ghulam, appellant in appeal No. 511, D. W. 14, stated that the necessity of selling the land as disclosed by Ghulam Jilani was that he wanted to purchase land in Chak No. 134/GB because he wanted to consolidate his land. However, none of the appellants said that he had seen the application (whose copy is Exh. D. 9) made by Ghulam Jilani to the Collector seeking permission to sell the tenancy.

6. Citing Muhammad Chiragh v. Fatta (A I R 1934 Lah. 452), Abdul Rafi Khan v. P. Lakhshmi Chand (A I R 1934 Lah. 998) and Abdul Aziz v. Ghulam Muhammad (P L D 1951 Lah. 187) the learned counsel for the appellants contended that the sale of the land in dispute made by Ghulam Jilani with the intending purpose of purchasing other land out of the sale-proceeds constituted an act of good management and consequently was justified as being legal necessity and binding upon the respondents. However the facts of the reported cases are distinguishable from those of the case in hand. In Muhammad Chirgh v. Fatta, the material facts found were that Chiragh Shah, father of the vendors, had migrated long ago to Multan district. The land in dispute, which was situate in Ferozepur district, was under mortgage since 1876 for Rs.700. It' was redeemed in 1922, but the vendors found it difficult to manage it from Multan district and sold it for Rs.1,500 in 1927. The vendors were patwaris and presumably they would not have sold the land after redemption unless they bad really found it necessary to do so. It was alleged that the vendors were men of bad character, but the allegation was not proved.- The major sons of the vendors did not come forward to contest the sale and the suit has brought on behalf of two of their minor sons and a distinct collateral, Muhammad Chiragh, who did not seem to have any prospect of inheriting the land. There was a recital in the sale-deed that the vendors intended to purchase other land with the proceeds of the sale and it showed that a representation of that kind had been made to vendees and it might well have been believed by them in good faith in the circumstances of the case.

7. In Abdul Rafi Khan v. P. Lakhshmi Chand, the relations between the family of the plaintiff and tenants in the village, where the land was situated, had become very strained and three members of the family including the father of the vendor had been recently murdered. Security proceedings were taken under section 107 of the Code of Criminal Proce dure against the tenants but those proved infructuous. As a result the members of the family, finding their position in the village precarious, sold their lands one by one as they found it difficult to manage them or recover rent. It was, therefore, not surprising to find that the vendor Shamshad Ali, who was a youngster aged less than 20, had lost his parents and was living with his maternal relations in the United Pro vinces, found it necessary to adopt the same course. The sales were made with the sanction of the Deputy Commissioner under the Punjab Alienation of Land Act. The circumstances necessitating the sale were mentioned in Shamshad Ali's application to the Deputy Commissioner, dated the 23rd April, 1915. It was also stated in the sale-deeds that the vendor wanted to buy other land. Further it was in evidence that he did actually buy some land in the United Provinces for Rs.11,000 and also purchased mortgagee rights in other land for Rs.24,682 shortly after the sales.

8. In Abdul Aziz v. Ghulam Muhammad, the vendor bad to discharge debt and was found in uncomfortable pecuniary position. Therefore, for alienation of land to relieve himself of debt and financial burden existence of legal necessity was accepted.

9. Relying upon the observations in Abdul Aziz v. Ghulam Muhammad that the essence of the vendee's defence lies in the knowledge that he is dealing with an honest man and that what the vendor professes to be object of the sale is an object recognized by custom, the learned counsel contended that the appellants believed Ghulam Jilani, who was not shown to be of a man of immoral charac ter, that he wanted to purchase land in his Chak in Samundri tehsil by selling the land in dispute and that the purchase of other land was an act of good management recognised by custom. Further the learned counsel maintained that all that the law required of the appellants was that they were taking steps to satisfy themselves that the money was required for expenditure on legitimate purposes and that they could not be held res ponsible for its application afterwards.

10. As remarked above, none of the appellants armed in evidence that he had occasion to have a look at Ghulam Jilani's application (copy Exh. D. 9) which he moved before the Collector for securing -per mission to sell the tenancy land in dispute. In the application he gave out that be wanted to sell the land to meet domestic needs. He did not clarify or elaborate the needs. It was just in passing that he made refer ence to the availability of land in Chak No. 134/GB,, which he said be could purchase. The contents of the application do not spell out that it was with a view to purchasing land in Chak No. 134/GB., that he wanted to sell the tenancy in question. Again as deposed by Raja Muhammad Akbar, D. W. 8, Ghulam Jilani had represented to him that he wanted to purchase property in his chak in Lyallpur district and set up a mill in new abadi. The statement of Ibrahim, D. W. 9, was to the effect that Ghulam Jilani had told him that after selling the land in dispute he wanted to purchase some land in his chak and further that he wanted to set up a mill and construct a bungalow. Building of a bungalow and setting up of a mill by no means constitute a legal necessity under custom for which the tenancy could have been disposed of by Ghulam Jilani. There is nothing on the record indicating that he had developed some sort of enmity with the inhabitants of the area where the tenancy land was situate or that circumstances bad taken such a turn as to compel him to leave that place. It is in the appellants' evidence, and there is no denying the fact, that the land in dispute was easily acces sible to and connected with the means of communication with the major towns of the district. No mention of any necessity was made in the sale-deeds. In these circumstances it cannot be said that there existed legal necessity justifying the effecting of alienations in dispute or that the appellants made adequate inquiry regarding the existence of legal necessity to meet which Ghulam Jilani made the alienations.

11. Referring to the observations of the Supreme Court in Mst. Zardad Begum v. Sultan Mahmood (P L D 1971 S C 580), that the two ladies who had been granted tenancy rights by Collector had become absolute owners on acqui sition of proprietary rights the learned counsel for the appellants tried to equalize the position of the appellants with that of such ladies and main tained that after the acquisition of proprietary rights they had become absolute owners and their ownership could not-be interfered with. Apart from the fact that the Supreme Court did not deal with the question raised in this appeal, namely, whether the alienations of tenancy rights could not be challenged after the alienees had afterwards acquired proprietary rights, the argument loses sight of the fact that it is the basic alienations of tenancy rights in favour of the appellants which are being attacked. Mere acquisition of proprietary rights by the appellants does not affect in the least the respondents' right to assail the validity of the alienations of the tenancy in dispute.

12. Referring to the provisions of Article 203-D, clauses (2) and (3) (b) and Article 203-H, clause (1) of the Constitution, the learned counsel for the appellants contended that by virtue of the decision of the Federal Shariat Court in Muhammad lshaq's case declaring the colla terals' powers to throw challenge to the alienation of property by an owner to be repugnant to the injunctions of Islam the respondents' right to question the validity of the sales in dispute would be extinguished.

13. The precise point dealt with and decided by the Federal Sharia Court was that the custom allowing challenge of collaterals to the alienations of property inherited under custom by a male full owner was repugnant to the injunctions of Islam. The Court did not touch upon or consider the question pertaining to the rights and powers of the colla terals to challenge the alienation by a tenant of the tenancy rights which are granted to or which devolve upon the alienor, as in the case of Ghulam Jilani, in accordance with the provisions of the Colonization of Government Lands (Punjab) pct, 1912. The Court expressly excep. ted from the operation of its judgment any custom regarding the rights of reversioners to challenge alienations made by female limited owners before the enforcement of the West Pakistan Personal Law (Shariat) Application Act, 1962. As is apparent from the perusal of the last two paragraphs of its judgment, reproduced below, the Court limited the application of its declaration to alienations of property inherited under custom by male full owner, it did not extend its scope to the alienations of tenancy rights by a tenant and for that reason the judgment of the Court is not relevant for the purpose of the decision of the present appeal which deals with the alienations of tenancy rights by a tenant :- "There is no doubt that the custom referred to above is 'repugnant to the Holy Quran. A declaration to the effect can be given by this Court in view of the Custom being enforceable in law by virtue of section 5 of the Punjab Laws Act and its being included in the definition of law in Article 203-B of the Constitution. It may, however, be clarified that this declaration will not affect any custom regarding the rights of reversioners to challenge alienations made by female limited owners before the enforcement of the West Pakistan Personal Law (Shariat) Application Act, 1962, which put an end to all limited interests. The considerations in that case may be different. "The petition is allowed and the custom allowing challenge by col laterals to the alienations of property inherited under custom by a full owner is declared to be repugnant to the injunctions of Islam, the necessary amendment in the West Pakistan Muslim Law (Shariat) Application Act, 1962, shall be made by the 30th June, 1981."

14. Alluding to what is contained in Masood Ali v. Ali Haibat Khan (P L D 1958 (W. P.) Lah. 340), the learned counsel for the appellant contended that the term `full owner' could very will be applied to Ghulam Jilani who was the full owner of the tenancy rights which he had in the land in dispute and, therefore, the alienations would be amenable to the operation of the judg ment of the Federal Shariat Court. It is difficult to share the view pro pounded by the learned counsel. The term full owners has undoubtedly been used for male full owner of milkivat land and not for a tenant having tenancy right only.

15. In view of what has been said above the appeals fail and are dismissed with costs, M. B. A. Appeal dismissed.