P L D 1964 (W (PLP)

(3) Whether the defendants are entitled to inherit the suit land ? (4) Belief.

4. The trial Court found that defendants Nos. 1 to 3 were offsprings of Mst. Fazlan from Muhammad Bakhah ; that the land in suit was mutated in her favour under custom as sonless widow and she was to benefit by it till death or re‑marriage that though the occupancy holding would revert to the male heirs of Ahmad Ali on the death of Mst. Fazlan, but the proprietary land would devolve on Ahmad Ali's heirs under section 3 of the Shariat Act, and that mutation Exh. P. 3 in respect of the proprietary land was correctly sanctioned. The learned trial Judge, therefore, decreed the plaintiff's suit regarding the occupancy holding, but dismissed the suit in respect of the proprietary land. The plaintiffs then preferred an appeal. In the appeal, the Senior Civil Judge, with enhanced appellate powers, did not agree with the trial Court that Mst. Fazlan held a life‑estate in the proprietary land and was its limited owner so as to attract section 3 of the Shariat Act. His view was that Mst. Fazlan, as a sonless widow, in the presence of sons of the last‑male holder, was only entitled to maintenance, and if half the land in village Mamoowal was mutated in her name for the purpose of maintenance in accordance with the rule of Customary Law contained in answer to question No. 43 in the Customary Law of the Gujrat District by Mr. H. S. Williamson, she could not be treated as holding a widow's estate, i.e. as a female limited owner under custom. He, therefore, accepted the appeal and decreed the plaintiff's suit in full. This is a second appeal by the defendants.

5. The suit by the plaintiffs was instituted to challenge the mutation Exh. P. 3. to the one‑eighth share of land held by Mst. Fazlan was mutated in favour of defendants Nos. 1 to 3 and 1/5th of 7/8th was mutated in the name of Mst. Naik Bibi, mother of defendant No.

4. They claimed the whole land as theirs. Their case was that the land must revert to them as they were its owners, and as section 3 of the Shariat Act had no application to the case. In this second appeal, this is the only question agitated before me. The learned counsel for the appellants contends that Mst. Fazlan did not held a life‑estate and was a female limited owner under custom, and succession was rightly sanctioned in mutation Exh. P. 3 according to section 3 of the Shariat Act.

6. The question which falls for determination in this case is whether the land mutated in favour of Mst. Fazlan as a sonless widow on the death of Ahmad Ali was held by her as a limited owner under custom within the meaning of section 3 of the Shariat Act, or only for maintenance. It is well established that a widow who succeeds in the absence of male lineal descendants is a limited owner within the meaning of section 3 of the Shariat) Act. Section 3 deals with succession to immovable property held by such a Muslim female under the Customary Law. If Mst. A Fazlan was also a limited owner, then section 3 of the Shariat Act would have equal application, but if on the death of Ahmad Ali his estate devolved on his sons and she was entitled merely to maintenance, the property which was mutated in her name for maintenance only would revert to them, and section 3 of the Shariat Act would have no application. It is, therefore, necessary to compare the status of a widow who succeeds to the estate of a male proprietor in the absence of male lineal descendants and of a widow like Mst. Fazlan.

7. The widow's life estate is described in paragraph 11 of the Rattigan's Digest of Customary Law in the Punjab. It states that in the absence of male lineal descendants the widow of the deceased ordinarily succeeds to a life estate. The widow's right to maintenance is stated in paragraph 16 of the same Digest of Customary Law as follows :‑ "In the presence of a male descendant of the deceased, his widow is ordinarily only entitled to suitable maintenance, whether such descendant is the issue of the surviving widow or of another wife." Under the general custom, therefore, there is an essential difference between the widow's life estate, where she succeeds in the absence of male lineal descendants, and a widow's right to maintenance, where there are male descendants of the deceased. In the District of Gujrat, the position is no different. In the case of a widow like Mst. Fazlan, the answer to question No. 43 in the Customary Law of the Gujrat District, Volume I, by Mr, H. S. Williamson states as follows :‑ "Son or sons or their male lineal descendants have prior claims of inheritance to all others. But the sonless widow or widows get equal shares with the son or sons till death or re marriage. Though mutations are sanctioned accordingly, yet such widow generally held no actual possession of their share and are given its produce as maintenance." On the death of Ahmad Ali, his sons had the prior claim to Inheri tance, but for purposes of maintenance some land was mutated in her favour and probably she did not hold actual possession of the land. The plaintiffs led evidence that they gave Mst. Fazlan the land voluntarily for maintenance only, that she did not have possession and that she was given a share of the produce only for maintenance. The defendants' evidence is that the land mutated in her name was cultivated by tenants and she continued to obtain half the share of the produce. Khasra Girdawris of the relevant years have not been produced, but as Mst. Fazlan was living with her sons, it is not improbable that possession remained with the sons. This is in accord with the custom of all tribes in the Gujrat District. It does not, however, appear that Mst. Fazlan obtained equal share of the land of Ahmad Ali with the sons. The sons obtained the entire land held by Ahmad Ali in villages Miran Chak and Rangra. One half of the land in Mauza Mamoowal was mutated in favour of the widow and the other half in favour of the sons. It is not claimed on behalf of the appellants that there was equal division of the property. Be it as it may, the position is incontrovertible that the widow got half share in the land in village Mamoowal by way of main tenance.

8. There is similarity between the status of the two widows only to the extent that they are entitled to maintenance, but there ends the similarity otherwise they differ in their rights.

9. As I have stated above, a sonless widow like Mst. Fazlan is only entitled to maintenance and not to a life estate. Her status is governed by paragraph 16 of the Rattigan's Digest of Customary Law in the Punjab, while the other widow, in the absence of male lineal descendants, gets a life estate, as stated in paragraph 11 of the Digest. Though originally widow's life tenure, in the absence of male lineal descendants of the last male holder, originated in her right to maintenance, it gradually, in the course of time, became a right to the enjoyment of the whole estate, whether it exceeded her needs or not. It is now well settled that such a widow is her husband's representative and she, represents him even in collateral succession‑per Shah Din J, in Mst. Bhambul Devi v. Narain Singh (39 P R 1915). Sir Meredyth Plewdes, Senior Judge, observed in Mst. Kauri v. Jammiat Singh and others (34 P R 1893) that the widow's original right to maintenance had developed in many tribes into a right to possession of her husband's land for her maintenance. Addison, A. C. J. in Bhalla v. Mst. Fateh Bibi and others (I L R 17 Lah. 373) observed:‑ "It is, however, too late in the day to say that a widow or a mother holds the land merely in lieu of maintenance. That may, or may not, have been the origin of their right to get the land, but it has been long held that the widow or mother of a sonless proprietor is entitled to a life interest in her husband's estate and not merely to maintenance. It is in extremely few places in the Punjab and amongst very few tribes or families that a widow takes the estate merely in lieu of maintenance." The above observations would show that there is a difference between a life estate enjoyed by a widow or a mother of a sonless proprietor and the land held in lieu of maintenance. The other distinction between the two widows is that while the widow of a sonless proprietor takes the whole land whatever be her needs for her maintenance, a widow like Mst. Fazlan takes only a part of it. In the Gujrat District she shares equally with son or sons. While the widow of a sonless proprietor has a right to alienate the property held by her as a life estate for valid necessity, this right is generally denied to a widow like Mst. Fazlan. Under paragraph 16 of the Rattigan's Digest of Customary Law, a widow as entitled to suitable maintenance in the presence of a male descendant of the deceased, whether such descendant is the issue of the surviving widow or of another wife. The position of the mother of a male descendant and a step‑mother of a male descen dant is the same qua the land held for maintenance. No one will claim that the real mother of a male descendant of the last male holder holds a life estate in the land, to which succession opens under section 3 of the Shariat Act. A widow like Mst. Fazlan is in exactly the same position. The property of the last male holder devolves on his son or sons, and in whatever land the sonless widow gets for maintenance in his or their presence, she does not hold a life estate under custom. I, therefore, hold that Mst. Fazlan was not a limited owner under custom, within the meaning of section 3 of the Shariat Act. For the reasons given above, agreeing with the view of the lower‑appellate Court, I dismiss the appeal, but as the question of law involved was of some difficulty and without a precedent leave the parties to bear their own costs. K. B. A. Appeal dismissed.