2019 PLP 99 (SCMR)

UMAR ATA BANDIAL, J.

Learned counsel for the contesting parties have been heard.

2. The tenancy in issue was granted to two brothers, Mustali and Wali Muhammad, by the State of Bahalwapur in 1937. The said State (being a Princely State) had adopted (subject to certain adaptations not presently relevant) the Colonization of Government Lands (Punjab) Act, 1912 ("the Colonization Act") in or about 1924. Both Mustali and Wali Muhammad, successively, died in 1940. Mustali was succeeded by two sons and three daughters. In terms of section 20 of the Colonization Act, it was only the sons (being the male lineal descendants of the original tenant) who succeeded to Mustali's tenancy rights; the three daughters stood excluded from any share therein. When, however, the two sons died, then under the provisions of section 21(b) the succession was to be determined as though the original tenant had died, the succession being treated as having opened up at that time. Furthermore, at that time the relevant rules of the Islamic law of inheritance had to be applied. In those terms, all of Mustali's heirs (including in particular the three daughters) then became entitled to a share. This is the result that obtains in terms of the rule laid down by this Court in Umar Din and another v. Mst. Sharifan and another PLD 1995 SC 686, a case that involved, as here, a tenancy granted by the erstwhile State of Bahawalpur. It is also clear from this judgment that the relevant time for determining whether Mustali's daughters had any entitlement was the date on which the suit in this regard was filed. In the present case, one of the daughters, the respondent Mst. Fatima Bibi (now represented by her legal heirs) filed a suit on 28.02.1999. On that date (as specifically confirmed by learned counsel for the appellants on a query from the Court) both of Mustali's sons, by name Noor Muhammad and Muhammad Bukhsh, had died. Consequently section 21(b), as applied by this Court in the aforementioned judgment, entitled Fatima Bibi to her share in the tenancy.

3. Learned counsel for the appellants seeks to argue that Mustali's daughters in any case stood disentitled on another basis, this time relying on the insertion of section 19-A in the Colonization Act in the year 1951. It is submitted that when the State of Bahawalpur merged in the Province of West Pakistan (which happened in 1955), section 19-A became applicable to tenancies granted by the erstwhile State. Under section 19-A the persons that succeed upon the death of a Muslim tenant are his successors under Islamic Law. On that basis, learned counsel submits that Mustali's daughters, i.e., the sisters of Noor Muhammad and Muhammad Bukhsh (both of whom admittedly died after 1955), could not succeed because they stood excluded by the heirs of the two men.

4. The effect of the argument advanced by learned counsel is that whereas the Colonization Act in its original form granted succession in tenancy rights to all of Mustali's heirs as per the rules of Islamic law, the subsequently added section 19-A which was meant to apply those same Islamics Law rules to tenancies under the Colonization Act, operated to exclude his female heirs. Such a perverse consequence would, to say the least, constitute a very harsh interpretation of the amendment. The right of inheritance of a female heir under Islamic Law which was conferred under the un-amended law cannot be defeated by such a reading of section 19-A. In the circumstances, we consider that the plaintiff Fatima Bibi, being one of the female heirs of Mustali, succeeded to her share in her father's tenancy by operation of the rule enunciated by this Court in Umar Din's case (supra).

5. Insofar as Mustali's brother Wali Muhammad is concerned, he was married but died issueless. His widow survived him, but she passed away in 1951. In such circumstances, the operation of sections 20 and 21(b) in terms of Umar Din's case (supra), meant that in terms of the relevant rule of inheritance under Islamic law it was the only Wali Muhammad's nephews (i.e., Mustali's sons) who succeeded to his tenancy, to the exclusion entirely of his nieces including, of course, Mst. Fatima Bibi.

6. For the foregoing, and such further reasons as may be explicated, this appeal is partly allowed, all in terms as may be stated in the detailed judgment. MWA/B-5/SC Order accordingly.