1997SCMR 1412 (PLP)

ZIA MAHMOOD MIRZA, J. ‑‑‑Petitioners seek leave to appeal against the judgment of Lahore High Court dated 14‑9‑1993 passed in Civil Revision No. 1C75 of 1985.

2. Facts as stated in this petition, briefly stated, are that the State land measuring 220 Kanals comprising Killas Nos. l to 25 of square No.45 situate in Chak No. 121‑Janubi, Tehsil and District Sargodha was allotted as an army grant to Muhammad Sarwar in 1905. The allottee died in 1919‑20, leaving behind a widow Mst. Akbar Jan and a daughter Mst. Ajaib Sultana. On the death of the allottee, his widow succeeded to the tenancy and on the latter's death, the tenancy devolved upon her daughter Mst. Ajaib Sultana who, it is stated, acquired property rights thereof by paying 'Zar‑e‑Malkana' on. 20‑3‑1945 and formal sole-deed was executed in her favour by the Collector on 19‑4‑1947. Mst. Ajaib Sultana by two mutations attested on 21‑2‑1979 and 7‑4‑1979 gifted the whole of the land to her son Muhammad Yousaf petitioner. Goher Rehman respondent No. l and Khalil‑ur‑Rehman, the predecessor of respondents Nos. 3 to 6 claiming to be collaterals of the original allottee Muhammad Sarwar brought a suit to challenge the gift made by Mst. Ajaib Sultana. The suit was contested by the petitioners which gave rise to a number of issues. Issues Nos. l and 2 which epitomize the controversy forming the subject matter of this petition are reproduced hereunder: ‑ "(1) Whether Mst. Ajaib Sultana defendant No: l is a limited owner of the suit land as demanded by section 30‑A of the Colonization of Government Lands Act? OPP (2) If Issue No. l is found in the affirmative whether the impugned gifts through impugned Mutations Nos.559 and 560 from defendant No. l in favour of defendant No.2 are void and inoperative as against the rights of the plaintiffs? OPP"

3. Trial Court after recording the evidence, oral as also documentary, adduced by the parties found all the issues in favour of the plaintiffs/respondents and decreed their suit vide judgment dated 4‑12‑1992. Petitioners' appeal before the District Judge failed and their revision petition in the High Court also met no better fate and was dismissed vide the judgment impugned herein. Learned Judge in the High Court held that even after acquisition of proprietary rights by Mst. Ajaib Sultana, a clog was placed on her power of alienation by virtue of the provisions of section 30‑A of the Colonization of Government Lands (Punjab) Act, 1912 with the result that she could retain and enjoy the property during her lifetime and thereafter it had to revert to the heirs of the original allottee. It was observed by the learned Judge that "The life estate under the provisions of section 30‑A is a category apart from the limited estate under the Customary Law". Reliance far this view was placed on a case reported as Mst. Baigan v. Mst. Bai (PLD 1971 Lahore 567). In the view of the learned Judge, the provisions of West. Pakistan Muslim Personal Law (Shariat) Application Act as amended by Ordinance XIII of 1983 have no application to the instant case because the Act relates to alienations made under customary law while in the present case, the matter is governed by section 30‑A of Act V of 1912. .

4. Learned counsel appearing in support of this petition has contended that Mst. Ajaib Sultana having acquired the proprietary rights of the suit land had become its absolute owner and there was thus no clog on her power to alienate it in any manner that she liked and in any case, with the addition of section 2‑‑A in West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 by amending Ordinance XIII of 1983, reversionary rights of the collaterals to challenge the alienations made in respect of a limited estate held whether under custom or under Colonization of Government Lands (Punjab) Act, 1912 stood nullified by virtue of clause (b) thereof and, therefore, the suit filed by the respondents merited dismissal and the decree passed therein to be treated as void. In support of his submission, learned counsel relied upon (i) I'LD 1985 SC J07 and. (11) PLD 1991 SC 71. 5 Learned counsel, appearing for the caveators, on the other hand, placed reliance on three cases reported in (i) 1983 SCMR 80 , (ii) 1989 SCMR 1958 and (iii) 1991 SCMR 2397 to contend that the estate held by Mst. Ajaib Sultana was in reality a limited estate notwithstanding the acquisition of proprietary rights by her. She could not, therefore, gift away the whole of the suit land to the detriment and in derogation of the reversionary rights of the collaterals of original allottee/tenant. It was further contended by the learned counsel that section 2‑A in terms is applicable to a case "where before the commencement of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had acquired any agricultural land under custom from the person who at the time of such acquisition was a Muslim", while in the instant case, Mst. Ajaib Sultana and before her, her mother, both females had succeeded to the tenancy and that, too, not under the custom but under section 20 of Punjab Act V of 1912. Respondents' suit was not, therefore, hit by the provisions of section 2‑A.

6. Having heard the learned counsel for the parties, we are of the view that the question whether the suit filed by the respondents to call in question the alienations of gift made by Mst. Ajaib Sultana in favour of her son was hit by A the provisions of section 2‑A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and the decree passed therein was null and void, inter alia, needs further and deeper examination. Leave to appeal against the impugned judgment of the High Court is accordingly granted. A.A./A‑1423/S??????????????????????????????????????????????????????????????????????????????????? Leave granted.