P L D 1971 Supreme Court 580 (PLP)

The principal issue framed in the suit was whether Mst. Zardar Begum had, on account of her marriage, lost her right in the land given to her on the death of Subedar-Major Qurban Ali Khan. The trial Judge found the issue in favour of the appellant and dismissed the suit, but on appeal a Division Bench of the erstwhile High Court of West Pakistan, Lahore Seat, came to the contrary conclusion and held that the daughters of Muhammad Aslam Khan had inherited only a limited estate under the customary law which terminated on their marriage. The appeal was accordingly allowed and the suit filed by the respondents decreed for possession leaving the parties to bear their own costs throughout. The judgment delivered by the High Court is based solely on the view that the nature of title inherited by the daughters of Mohammad Aslam Khan depended on what title was given to them by the sons of Subedar-Major Qurban Ali Khan. It was reasoned that if Mohammad Aslam Khan died leaving no issues the daughters under customary law which governed the parties family would have inherited only a limited estate liable to termination on marriage or death. In that case the learned Judges opined Mohammad Azim Khan could not have intend ed to give the daughters of his deceased brother more than what they would have got from their father. The plea raised by Mst. Zardar Begum that she had become an original tenant was ruled out on the basis of the definition of "original tenant" in section 3 of the Colonization of Government Lands (Punjab) Act viz: "any male, to whom tenancy is first allotted by the Collector : . . . .". In substance the same arguments were addressed before us on either side. It appears that the learned Judges in the High Court omitted from their consideration the relevant provisions of the Coloni zation of Government Lands (Punjab) Act and based their conclusions on customary law which had no application in case of succession to Montgomery lands. As brought out by the Assistant Collector in his order dated the 3rd July 1946, the daughters of Muhammad Aslam Khan were under section 20 of the Colonization of Government Lands (Punjab) Act not entitled to succeed to 1/4th share in the suit land which in its unamended form laid down the following course of devolution "

20. Succession to tenants acquiring otherwise than by succession.-Subject to the proviso to section 14, when, after the commencement of this Act, any original tenant dies the succession to the tenancy shall devolve in the following order upon- (a) the male lineal descendants of the tenant in the male line of descent. (The term lineal descendants' shall include an adopted son whose adoption has been ratified by a registered deed) ; (b) the widow of the tenant until she dies, or re-marries, or loses her rights under the provisions of this Act ; (c) the unmarried daughters of the tenant until they die or marry, or lose their rights under the provisions of this Act; (d) the successor or successors nominated by the tenant by registered deed from among the following persons, that is to say, his mother, his married daughter, his daughter's son, his sister, his sister's son, and the male agnate members of his family ; In accordance with this course of succession the entire estate comprising tenancy rights in Chak No. 122/7-ER District Montgomery, devolved on the three sons of Subedar-Major Qurban Ali Khan, but out of affection for the daughters of their deceased brother they surrendered 1/4th share and the Collector gave the same to Mst. Zardar Begum and Mst. Khurshid Begum as a fresh grant. In the alternative they transferred 1/4th share to Mst. Zardar Begum and Mst. Khurshid Begum and under section 19 of the Colonization of Government Lands (Punjab) Act the Collector gave consent to it. This was the only method provided in law under which 1/4th share could be given to Mst. Zardar Begum and Mst. Khurshid Begum. In either case they became grantees in their own rights and on acquisition of proprietary rights became absolute owners thereof. The learned Judges referred to the definition of original grantee in section 3 of the Colonization of Government Lands (Punjab) Act and held that as only a male person can be an original grantee Mst. Zardar Begum could not claim to be a tenant in her own right by virtue of the mutation of inheri tance attested with the approval of the Collector on 31st August 1922. Under the Act there is no bar to grant of tenancy rights to a female. On the contrary section 21 to which the B learned Judges did not refer lays down the rule of succession) to a female to whom tenancy is first allotted. The learned Judges mixed up the term "original tenant" and tenant to whom tenancy is first allotted and made an incorrect inference that the daughters of Mohammad Aslam Khan could not be treated as tenants in their own right. Succession to tenancy rights is regulated by sections 20 and

21. Succession to an original tenant is regulated by section 20 which has been reproduced above. The succeeding section 21 which deals with succession to tenant acquiring by possession provides as under

21. When, after the commencement of this tenant, who is not an original tenant, dies, or any female tenant dies, marries or remarries, the succession to the tenancy shall devolve (a) in the case of a female, to whom the tenancy has been; first allotted, on the successor nominated by the Collector' from the issue of such female tenant, or from the male agnates of the person, on account of whose services the tenancy was allotted to her; (b) in all other cases, on the person or persons, who would succeed if the tenancy were agricultural land acquired by the original tenant." The rule of succession thus varies in case of original tenant and his successors and a female to whom tenancy was first allotted. It is in this context that "original tenant" is defined in section 3 as a male whom any tenancy is first granted. It did not, however, follow that tenancy rights cannot be first granted to a female. The finding given by the learned Judges that Mst. Zardar Begum could not claim to be a tenant in her own right, because she was not an original tenant is, therefore, not correct. Though it is not necessary to advert to the position of daughters under custom because succession to statutory tenancy was not governed by custom, but it may be mentioned that the share given to the appellant in the lands in Rawalpindi district was on her marriage mutated in the name of Mst. Khurshid Begum and on the latter's marriage the entire 1/4th share was mutated in the name of their mother Shah Jahan Begum. This course of devolution was in accordance with the general custom of the province and no dispute has arisen regarding this land between the parties. The intention with which Mohammad Azim Khan and his two brothers had got the mutation of land in. District Rawalpindi entered in the names of Mst. Zardar Begum and Kharshid Begum was, therefore, a relevant factor. It is obvious that what was given to them was a limited estate terminable on their marriages or demise as the case may be. The reasons given by the learned Judges of the High Court, therefore, applied with full force to this part of the estate of Subedar-Major Qurban Ali Khan. Succession to the lands in dispute was, however, not governed by custom, but regulated by the Colonization of Government Lands (Punjab) Act. Therefore those reasons did not hold good in determining the nature of the estate con ferred on the appellant and her sister Khurshid Begum by Mutation No. 1 attested on 1st August 1922, with the approval of the Collector. This distinction was not kept in view which led to the error in the High Court judgment. It may be mentioned in passing that the share of Mst. Khurshid Begum in the, Montgomery land was on her death claimed by her husband Mohammad Karim Khan. The trial Court decreed the suit holding her to be a full owner and the decree was upheld by the District Judge. On a second appeal by Mohammad Azim Khan and others a learned Judge of the High Court held Mst. Khurshid Begum to be a limited owner and decreed the respondents' suit. The decision is reported in Lt.-Col. Mohammad Siddiq Khan and others v. Major Muhammad Karim Khan (P L D 1954 Lah. 167) and proceeds on the reason that the title claimed for by Mst. Khurshid Begum depended on transfer by the sons of Subedar-Major Qurban Ali Khan. She had no title to inherit and whether a life estate or full estate was transferred depended only upon the intention of the person making the transfer. It falls to be said that the judgment in that case does not lay down tile law correctly. As in the case of Mst. Zardar Begum her sister Khurshid Begum was also a tenant of 1/8th share in her own right and on acquisition of proprietary rights she had become full owner thereof. It is not possible to re-open the decision in that case, but since the judgment is reported in P L D, we considered it necessary to make reference to it. In the light of the foregoing discussion we allow the appeal, set aside the judgment and decree passed by the High Court and dismiss the respondents' suit. In view of the close relationship of the parties we leave them to bear their own costs throughout. K. B. A. Appeal accepted.