P L D 1962 (W (PLP)

(d) failing such descendants and widow, or widowed mother or if the deceased tenant left a widow or widowed mother, then when her interest terminates under clause (b) or (c) of this subsection, on his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives: Provided with respect to clause (d) of this subsection, that the common ancestor occupied the land. Explanation.‑For the purpose of clause (d), land obtained in exchange by the deceased tenant or any of‑his predecessors‑in- interest in pursuance of the provisions of subsection (1) of section 58‑A shall be deemed to have been occupied by the common ancestor if the land given for it in exchange was occupied by him. (3) As among descendants and collateral relatives claiming under subsection (2) the right shall subject to the provisions of that subsection, devolve as if it were land left by the deceased in the village in which the land subject to the right is situate. (4) When the widow of a deceased tenant succeeds to a right of occupancy under subsection (2), she shall not transfer the right by sale, gift or mortgage or by sub‑lease for a term exceeding one year. (5) If a deceased tenant has left no person on whom his right of occupancy may devolve under subsection (1) or subsection (2), as the case may be, the right shall be extinguished." While before this amendment, the section reads as follows: ‑ "(1) When a tenant having a right of occupancy in any land dies, the right shall devolve‑ (a) on his male lineal descendants, if any, in the male line of descent, and (b) failing such descendants, on his widow, if any, until she dies or re‑marries or abandons the land or is under the pro visions of this Act ejected therefrom ; and (c) failing such descendants and widow, on his widowed mother, if any, until she dies or re‑marries or abandons the land or is under the provisions of this Act ejected therefrom ; (d) failing such descendants and widow or widowed mother, or, if the deceased tenant left a widow or widowed mother, then when her interest terminates under clause (b) or (c) of this subsection, on his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives: Provided, with respect to clause (d) of this subsection, that the common ancestor occupied the land. Explanation.‑For the purpose of clause (d) land obtained in exchange by the deceased tenant or any of his predecessors -n‑interest in pursuance of the provisions of subsection (1) of section 58‑A shall be deemed . to have been occupied by the common ancestor if the land given for it in exchange was occupied by him. (2) As among descendants and collateral relatives claiming under subsection (1), the right shall, subject to the provisions of that subsection, devolve as if it were land left by the deceased in the village in which the land subject to the right is situate. (3) When the widow of a deceased tenant succeeds to a right of occupancy, she shall not transfer the right by sale, gift or mortgage or by sub‑lease for a term exceeding one year. (4) If the deceased tenant‑ has left no such persons as are mentioned in subsection (1) on whom his right of occupancy may devolve under that subsection, the right shall be extinguished."

4. It was contended by learned counsel for Muhammad Shall, who is the appellant in both the appeals, that as sub section (3) of section 59 of the Punjab Tenancy Act, as it stood before the amending Act of 1951, contained a prohibition against a widow transferring the occupancy rights which had come to her, but the contents of that subsection did not find any place in the amended section introduced by the Punjab Tenancy (Amendment) Act, 1951, the result of the amending Act of 1951 was that the restrictions on the power of a widow to make an alienation of occupancy rights had been wiped off and, therefore, the alienations which were the subject of suits out of which the present proceed ings arise were perfectly valid, but as I will presently show this contention cannot be accepted.

5. It is true that section 59 of the Punjab Tenancy Act, as amended, does not contain a clause restricting the power of aliena tion of a Muslim widow in regard to occupancy rights as the original section did in regard to all widows, but I am clear in my mind that the rule which applies to alienations of land held under custom which is to the effect that the person who got lard under a particular system of law would continue to hold it subject to the restrictions contained in that system of law in spite of the fact that ‑the law had been changed in so far as powers to deal with the property after the new law had come into force were concerned, would be equally applicable to transfer of occupancy rights by widows. It need hardly be mentioned that it has been authoritatively laid down that the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, as amended from time to time, did not change customary rights in property into full ownership from the date of its enactment, and I am clear iii my mind that the same principle applies to cases which fell within section 59 of the Punjab Tenancy Act, as it stood before its amendment by the Act of 1951. Moreover; as worded, section 59 of the Punjab Tenancy Act'; as amended by means of Punjab Tenancy (Amendment) 'Act of 1951, clearly indicates that it is prospective and not retrospective in its application as would be clear from the first subsection of the amended section which deals with situations that would arise after the section came info force. This means that if a widow inherited occupancy rights after the passing of the Punjab Tenancy (Amendment) Act of 1951, she would not be governed by subsection (3) of section 59 'of the Punjab Tenancy Act as it stood before it was amended inA951, by means of the abovementioned Act, but from this it is not permissible to infer that by reason of the amendment of section 59 of the Punjab Tenancy Act in 1951, her limited right in an occupancy tenancy which had come to her before the amendment changed into rights of a full owner of the occupancy 'rights.

6. In view of what I have said above, I hold that the widows did not possess the power to transfer the occupancy tenancy for a period exceeding one year. The result therefore,' is that both the; appeals are dismissed but as the point of law which arose had not been authoritatively decided by this Court or the Supreme Court of Pakistan, and there could be ground for believing that the transfer were valid, I would leave the parties to bear their own costs in all the courts. K. B. A. Appeals dismissed.