P L D 1963 Supreme Court 347 (PLP)

Respondent No. 1 : Ex parte. S. Naseem Hassan Shah Advocate Supreme Court (Islam‑ul- Haq Advocate Supreme Court with him) instructed by Slddiq & Co. Attorneys for Respondent No.

2. Date of hearing :10th May 1963. CORNELIUS, C. J.‑This appeal by special leave raises a question of the right of a widow, whose husband and his father have been held to have died at the same time by violence in India before she crossed over into Pakistan, to claim an allotment of land in Pakistan under the Rehabilitation Resettlement Scheme on the basis that she is the sole heir of her husband's father. That would be the case under custom, although the interest, which she could take would terminate with her death or remarriage. The opponent in the case is one Badra, a solitary collateral of the deceased husband in the fifth degree. The mattes coming before a Deputy Rehabilitation Commissioner, has opined that the evidence on the point was interested and it was a difficult question to determine, but decided that Mst. Basso's father‑in‑law Sadhu and his five sons were all killed at one time, and therefore she was only entitled to the share of the property which was to be inherited by her husband, namely, Suleman. He accordingly awarded one‑fifth of the right to Mst. Basso and the remaining four‑fifths to Badra. This was done in appeal from an order of a Naib‑Tehsildar who had awarded one‑fourth to Mst. Basso and three‑fourths to Badra. Mst. Basso moved a revision petition against the order of the Deputy Rehabilitation Commissioner, before a Rehabilitation Commissioner, where the question was debated as if it fell to be decided under custom applicable to gujjars, whether the widow of a pre‑deceased son was entitled to succeed to the property of her father‑in‑law as against a collateral. The Rehabilitation Commissioner cited three rulings from the Punjab Record dealing with this question in relation to different tribes, and observing at the end that on behalf of Badra he had not been shown "any ruling wherein collateral succeeds against a widow of a pre‑deceased son," he held that Badra had no right in the pro perty of Sadhu "during the life time or till the remarriage of Mst. Basso." Accordingly, he directed that "mutation of Sadbu deceased should now be sanctioned in favour of Mst. Basso." Badra moved a writ petition before the High Court, which was dismissed by a learned Single Judge on the ground that the order of the Rehabilitation Commissioner disclosed no error of jurisdiction. The matter was then taken before a Division Bench in appeal under the Letters Patent, and the eventual decision was one restoring the order made in the first instance by the Naib‑Tehsildar. The learned Judges held that the Rehabilitation Commissioner had contravened the Rehabilitation Resettlement Scheme under which he was acting, in that he decided the case according to customary law when by paragraph 46 of the Scheme, he was expressly required to decide the matter according to Shariat Law. Accepting the statement of Mst. Basso that her husband was the last to be killed, they held that Suleman had succeeded to the whole estate of Sadhu and therefore, on Suleman's death, Mst. Basso was entitled to a 1/4th share in the estate according to the Shariat Law. Badra qualified as distinct kindred for the purposes of succession under the Muslim law and he was accordingly entitled to the remainder. Special leave to appeal against this order was granted to Mst. Basso to consider whether the High Court was justified in setting aside an order of a Rehabilitation Authority made within its powers and whether the Rehabilitation Authorities did not have exclusive jurisdiction in the matter. We have heard Mr. Muhammad Shafi in support of the appeal. His principal argument appeared to be that the devolution of rights in the present case should be deemed to have taken place in India, so that when Mst. Basso crossed the border she came here possessed of a right to the full estate of Sadhu. At the same time, Mr. Muhammad Shafi was unable to contend that the case did not fall within the principle laid down by a Full Bench of Lahore High Court in the case of Umar Draz Ali v. Khurshid Ali P L D 1960 Lah. 834, which decision has been followed by the Division Bench in the present case. The discussion of the background, and the principles of paragraphs 46 and 46‑A of the Rehabilitation Resettlement Scheme in the case of Umar Draz Ali is of direct relevancy to the present case. In paragraph 2 the learned Judges have enumerated certain typical cases where questions of succession to property left behind in India would fall to be decided in Pakistan, for the purpose of application of the resettlement provi sions, by grants of land in proportion to the rights lost. Cases were mentioned of "right‑holders (who) had died in India" but in whose case no mutation of inheritance had been entered in the (Indian) revenue record by the date of partition, and if entered, had not until then been decided; of other "right holders (who) bad died long ago leaving no male descendants" and their estates were in the possession of females holding for life, as well as a number of other cases. On the view, which Mr. Muhammad Shafi has attempted to advance before us, no "right‑holder" could conceivably have died in India leaving successors who came across the border, because in every such case the right would be deemed to inhere in such successors. But as the judgment of the Full Bench clearly indicates, the [expression "right‑holder" is used in a special sense in the judgment, that is, as referring to the name appearing in the revenue or other records in India at the time of the Partition. We note that in paragraph 46 of the Rehabilitation Resettlement Scheme, which lays down in clear terms that cases of inheritance should be decided according to Shariat Law, reference is made in several places to "deceased refugee owners" and in our view, this expression is to be understood in the same sense, namely, as referring to the last owner of the estate, as recorded in the Indian papers, the inheritance to whom is the subject of decision by Rehabilitation Authorities in Pakistan. Proceeding with the examination of the Full Bench decision, in paragraph 7, the learned Judges noted that it was contended before them as it is contended before us today by Mr. Shafi that before the introduction of para graphs 46 and 46‑A (which deals with the special case of succession to the rights of a Muslim female who held an estate in India as a limited owner), "heirs of the deceased right‑holders had already become vested with the estate of their predecessors‑in- interest and, as such, the question of regulating their inheritance did not arise and the Resettlement Scheme could not be given a retrospective effect." The learned Judges held that this argu ment was without force. They came to the conclusion that it was not the intention of the Rehabilitation Resettlement Scheme, "to determine the rights of the heirs of the deceased right‑holders in the estate abandoned by them in India." They went on to hold that the mutations of inheritance, which the Rehabilitation Authorities place on record in such cases are "in fact a measure to determine who shall be allotted land in Pakistan in lieu of the land abandoned by the deceased right holders." They pointed out that the intention of the Scheme was to give relief to many more persons than would have been possible if either custom or pure Muslim law had been made applicable, that custom being subject to variation from region to region, from tribe to tribe and even from family to family, there would have been "innumerable difficulties" in setting rights on the basis of custom, and therefore in the circumstances "the safest and the speediest course was to adopt the law of Shariat with certain modifications." The validity of the provisions in paragraphs 46 and 46‑A, which lay down rules of ascertainment of successors to the estate of a "deceased refugee owner" being challenged before the Full Bench, the learned Judges observed that allotments under the Scheme were in the nature of a grant, and that no refugee had a vested right to such a grant. The law had given the Govern ment the power to make such provisions as it thought fit to rehabilitate refugees and to "apply special rules of inheritance as it considers expedient for determining how much land should be allotted to the heirs of a deceased right‑holder." They distinguished the case where the right‑holder having died, a mutation of succession had already been entered in the (Indian) revenue record, observing that in such cases no question arose of determining the inheritance once again, but where no mutations had been sanctioned or entered there "the Rehabilitation Autho rities in Pakistan had to determine the heirs of the deceased right holders for making allotment of land to them, and the mode of determining it has been provided in paragraphs 46 and 46‑A of the Scheme." They concluded by saying that orders of mutation by the Rehabilitation Authorities in such cases were "simply a measure for resettlement of refugees in Pakistan and no question of retrospective application of the provisions of paragraphs 46 and 46‑A arises in these cases. On the view taken by the learned Judges in the case of Umar Draz Ali, it seems to us to be quite clear that the learned Judges of the Division Bench were justified in holding that the Rehabi litation Commissioner in choosing to follow custom in the instant case, and to ignore the clear provision in paragraph 46 of the Scheme, had acted beyond his powers. In a recent case decided by this Court, namely, the case Abdur Rashid v. Pakistan ((1962) 1 P S C R 292 =P L D 1962 S C 42) certain observations were made which go to support the view taken by the Full Bench of the West Pakistan High Court. It was said that the Rehabilitation Scheme does not provide for grant of compensation or any quid pro quo, but has for its object the alieviating of hardships and miseries of as large a number as possible of displaced persons by compensating or rehabilitating them, and consequently property granted to displaced persons in Pakistan is not as of right, but merely as a privilege or benefit. The case before the Supreme Court was one of succession to deceas ed confirmed allottees, and of succession to a deceased right‑holder, and the latter question comes before this Court for the first time in the present case. We consider that the view of the matter expressed in the Full Bench decision of the High Court is in all respects based on a correct appreciation of the terms as well as the purposes of the relevant provisions in the Resettlement Scheme. In our opinion, the learned Judges are right in distinguishing between those cases where rights were settled on the basis of records available in India prior to the partition, and those in which on account of such an incident as death or re‑marriage, etc. there has been devolution of rights, and it falls to the Rehabilitation Authorities in Pakistan to decide upon whom the rights devolve. In the latter case, the duty of the Rehabilitation Authorities under the Scheme, which possesses legal force, is to deal with the case as if the rights in the estate devolved under the law of Shariat, irrespective of any special law by which the parties were governed in India. That rule which is laid down in paragraph 46 should apply in the case of the estate of Sadhu, notwithstanding that he lost his life in India. For the purpose of determining the basis upon which his successors could be given relief under the Scheme in Pakistan, the shares of those successors in the rights which Sadhu possessed until his death must be determined according to Shariat Law. We uphold the view expressed in the judgment of the Full Bench that when, in cases like the present the Rehabili tation Authorities draw up mutations of inheritance, they do not do so with a view to the devolution of the estate left behind in India, but with the single purpose of providing a just and equit able basis or measure for granting relief to the successors. The central feature of the Scheme is that relief is given, per capita, to all living heirs, no line being barred by pre‑deceased of a progenitor, the scale of distribution being that laid down in the Shariat, as between relations in different degrees, and as between males and females. The Scheme does no more than assert the will of the Legislature that the available properties should be applied to meet the requirements of the incoming refugees to the maximum extent, and in the greatest possible number as well as on the most equitable basis. As the refugees were coming into a country where the law of the Shariat was applicable to Muslims (with some few residuary exceptions to assist in the transition from rights previously held under custom to the more precise system under Shariat) it was only right that from the outset, in the making of grants, it should be the Shariat Law that was to be applied. On this view, it is clear that the order of the Rehabilitation Commissioner suffered from a visible error in law, and in correct ing this error, and directing that the action should be taken in accordance with paragraph 45 of the Scheme, the learned Judges have exercised a power in the prerogative which was properly vested in them. We accordingly dismiss this appeal, but in view of the difficult nature of the question involved, we direct that the parties should bear their own costs. A. H. Appeal dismissed