1971 PLP 235 (SCMR)

SAJJAD AHMAD, J.‑This is a petition for a review of the judgment of this Court dated the 23rd of May 1969, in Civil Appeal No. 58 of 1966, by which the decision of the High Court was affirmed, holding that Mst. Hussain Bibi, the predecessor‑in title of the respondent, who was one of the two widows of Sharaf Din, the original tenant grantee of the disputed land, had, on Sharaf Din's demise to hold three out of 6 squares of land, measuring 1284 canals 15 marlas in Cbak No. 156/R B of Lyallpur district, as a life estate under a family arrangement, which ripened into ownership rights on the acquisition of the proprietary rights therein from the Government on payment of the price. The decree of the High Court was varied in respect of the residential plot in Lyallpur, which was also in dispute, on the view that the life interest of Mst. Hussain Bibi in that plot had come to an end on her death, and as she did not have any heritable right in that plot, it could not be inherited by her heirs under the Shariat Act of 1937, which was prospective in operation. The right of inheritance to this plot consequently devolved on the customary heirs of Sharaf Din, who bad died in the year 1901, when the custom was the rule of succession. Mr. Manzur Qadir, the learned counsel for the petitioners, has argued that in reaching its decision, this Court has ignored the fact that Mst. Hussain Bibi was no more than a life estate‑holder of the disputed land, as upheld by the Chief Court of the Punjab, by its judgment dated the 20th of April 1909, in Case No. 697 of 1909, and was not qualified to acquire proprietary rights in the land. It is argued that Sharaf Din, being the original tenant and the grantee of the land under the Government Tenants (Punjab) Act of 1893, he or his heirs (i. e. his male descendants), and not the intervening life estate‑holder had the right under the law to acquire proprietary rights in the land. This aspect of the case was fully considered during the hearing of the appeal, and the Court came to the conclusion that Mst. Hussain Bibi, being the tenant of the disputed land, at the time of the acquisition of the proprietary rights even though she was holding the same as a life estate, was alone entitled to acquire the proprietary rights, which were duly mutated in her favour without any objection by the male heirs of Sharaf Din. It was also argued by Mr. Manzur Qadir that it was not brought to the notice of this Court during. the hearing of the appeal that in the Shajra‑i‑Nasab prepared m the settlement of 1935, the name of Mst. Hussain Bibi bad been scored out. We are unable to appreciate how would this fact make any difference in the case, even if we were to accept this document as a freshly discovered piece of evidence, which was not obtainable to the petitioners at the stage of the hearing of the appeal in spite of due diligence of their part. It needs to be recorded that the appeal was argued by Sheikh Bashir Ahmad, a senior Advocate of this Court, who was not present today, and the point arose whether under rule 5 of Order XXVI of the Supreme Court Rules, this review petition was entertainable without his appearance in Court. The rule aforesaid requires that an Advocate, who has appeared at the hearing of the case, shall, unless his presence had been dispensed with by the Court, be present at the time of the bearing of the application for review. Mr. S. S. Haider the junior counsel, who had assisted Mr. Bashir Ahmad at the hearing of the appeal, was present today also to assist Mr. Mauzur Qadir. It was held by this Court in C. R. P. No. 21/70 in Appeal No. 121 of 1965 (Sh. Anwar‑ul‑Haq v. Miss Surraya Parveen and others) (1971 S C M R 171) that the singular word `Advocate' in this rule include the plural `Advocates'. As such, the presence of Mr. S. S. A Haider in Court today is a sufficient compliance of that rule. As the review petition involves a very small point, it should be made ready for hearing during the current month.