P L D 1968 Lahore 234 (PLP)

SARDAR MUHAMMAD IQBAL, J.‑--Mst. Sairan widow of one Nathu filed a claim under the Punjab Refugees (Registration of Land Claims) Act (V of 1949). On the verification of her claim she was found entitled to 224 kanals and 1 marla of land which was allotted and confirmed in her name in lieu of the land abandoned by her in India. She gifted away 134 kanals and 1 marla of land situate in village 108/L, Khanewal, to her brother Sher Muhammad, with the permission of the Rehabilitation Depart ment. Respondents Nos: 2 to 8 who are reversioners of Nathu, the last male holder of the estate abandoned in India, challenged the gift before the Rahabilitation Authorities. The Additional Rehabilitation Commissioner, Multan, held that Mst. Sairan was a limited owner and that succession to her estate should be determined under paragraph 46‑A of the Rehabilitation Settlement Scheme. Sher Muhammad (hereinafter to be called the donee) challenged the order in the writ petition with the prayer that the order be declared as without lawful authority and of no legal effect. He claimed in the writ petition that Mst. Sairan was an absolute owner of the land abandoned by her in India and that even if she was held to be a limited owner, she was a full owner of the land allotted to her under the Rehabilitation Settlement Scheme. It was he by the learned Judge in Chambers on a question of fact that she was not the absolute owner of the land in India. The other question "whether a Muslim female, who is allotted land under the Rehabilitation Settlement Scheme in lieu of the land held by her on the usual life tenure under custom in India, becomes an absolute owner thereof and a fortiori is competent to alienate it" is the subject‑matter of this reference.

2. The same question was considered by a Division Bench consisting of Masud Ahmad and A. R. Khan, JJ., in Regular Second Appeal No. 296 of 1962. They held that the widow becomes an absolute owner of the land allotted to her under the Scheme. Their order is reproduced in extenso: "There is nothing in the Rehabilitation and Re‑settlement Scheme to indicate that a person who is allotted land under that Scheme does not become a full owner and that his or her rights are in no way limited. The view of the matter taken by the District Judge, therefore, seems to be correct and hence the appellants could not dispute the power of Mst. Murad Bibi to make a gift of the property which bad been allotted to her in lieu of the property held by her in India as widow of her husband. Syed Abdur Rashid v. Pakistan and others P L D 1962 S C 42, relied upon by the appellants' counsel, does not help him, because their Lordships of the Supreme Court held in this case that when a confirmed allottee under the Scheme dies, he dies vested with `real property' which is capable of being inherited and will be inherited by persons who would, according to the general law of the land governing inheritance from such a person, be entitled to inherit from him. Their Lordships held further, in this case, that it was open to the Rehabilitation Commissioner to lay down, if he so thought fit, as a condition of the grant that if the property is not transferred by sale, exchange, gift or will it should devolve in a particular manner, which may well be inconsistent with the personal law of the allottee or even the Muslim Law of succession, but no such special rule of succession has been laid down by the Scheme." Muhammad Yaqub Ali, J. (as he then was, now the Judge of the Supreme Court) not agreeing with the view expressed in this judgment, observed: "With great respect to my learned brothers, in the case of Abdur Rashid v. Pakistan and others P L D 1962 S C 42 the Supreme Court did not deal with the question whether limited estates held by females in India were enlarged into full ownership under the Rehabilitation Settlement Scheme regardless of the reversionary rights of the collaterals of the last full owner in the land in lieu of which the females were allotted land under the Scheme. It is true that Paragraph 46‑A of the Rehabilitation Settlement Scheme in terms does not apply to the inheritance of a right -holder who has been allotted and confirmed land under the Scheme but there is no other provision in the Scheme as to how succession to agricultural land allotted to a Muslim female in lieu of the limited estate held by her in India is to be governed. Nor is there any provision as to the nature of the estate conferred on such females under the Rehabilitation Settlement Scheme. The issue has, therefore, to be decided under the general law. The interest held by a female in the property to which she succeeded under custom extended to its user and not to the corpus in which the collaterals of the last full owner held reversionary rights. A Muslim female, who registered a claim under Act V of 1949 for allotment of land in lieu of the limited rights which she held in the land left by her husband or other full owner, etc., was not an owner within the purview of paragraph 2, Part I, Chapter II, of the Rehabilitation Settlement Scheme. The claim registered by her must, therefore, be deemed to be both on her own behalf and on behalf of the reversioners of the last full owner. It follows that on her demise succession to the property obtained by her under the Rehabilitation Settlement Scheme must be deemed succession to the last full owner under the Muslim Personal Law (Shariat) Application Act or paragraph 46‑A of the Rehabilitation Scheme. As contrary view will lead to anomalous results, with utmost respect I am unable to subscribe to the view expressed in R. S. A. 296 of 1962

3. The view expressed in the order of reference that paragraph 46‑A does not apply to the succession of a refugee right‑holder to whom the land is confirmed under the Rehabilitation Settlement Scheme and that it has to be decided under the general law is in accord with the decision of the Supreme Court in Abdur Rashid v. Pakistan and others (P L D 1962 S C 42) in which Hamood‑ur‑Rahman, J., observed that under the Rehabilitation Settlement Scheme "lands may be allotted to temporary allottees as well as non‑allottees in accordance with the instructions contained therein after drawing up a programme, preparing a proposal, notifying the same, hearing objections, if any, made to the said proposals,‑ and provisionally finalising the proposals. After the allotment has been made the allottee, if not already in possession, is put into possession and then only after the Rehabilitation fees and other Government dues have been paid is the allotment confirmed in favour of the allottee. Until such an allotment, in accordance with the Scheme, has been made in favour of a person, he is referred to in the Scheme as a `right‑holder'. "Having explained the term `right‑holder', it was held that paragraphs 46 and 46‑A of Chapter 1, Part 11 of the Scheme have laid down a special rule of succession and" that having regard to the context in which these paragraphs occur in the Scheme, the cases therein dealt with are of inheritance from deceased `right‑holders' and not from deceased confirmed allottees." It was also held that "having regard to the rights expressly conferred upon him by the Scheme itself an allottee, in whose favour an allotment has been confirmed, acquires a right which is in every sense of the term a `real property' in its true juristic concept an interest in land" and that "as the Scheme laid down no specific rule of succession to such persons, succession to him was to be governed by the Muslim Personal Law (Shariat) Application Act, 1948". In this view of the matter, after the land is confirmed in the name of a fernaie, she ceases to be a right‑holder and paragraph 46‑A is note applicable to her and in case of her death the succession to her estate has to be determined in accordance with the principles oil general law.

4. A question, therefore, arises whether a female succeeding under custom to the last full owner becomes the owner of the property or that her interest extends only to its user and not to the corpus of that property. In support of the contention that the widow does not become the owner, learned counsel for the reversioners relied on Mst. Kattri v. Jamiat Singh (34 P R 1893), Mst. Durgo v. Prem Singh (A I R 1924 Lah. 196) and Mst. Fateh Nishan v. Ahmad Shah (A I R 1914 Lah. 414). In Mst. Kauri v. Jamiat Singh it was held: "The widow's original right to maintenance has developed in many tribes into a right to possession of her husband's land for her maintenance by sufferance of the reversioners". In Mst. Durgo v. Prem Singh it was observed : "There are strong analogies between the estate of a widow under Customary Law and her estate under Hindu Law. Under both laws she holds for life for the purpose of maintenance with certain powers of disposition necessarily incident to her position. She is, at least in Customary Law, in no sense a co‑sharer, and on her death the succession is not to her but to her husband. In fact her estate is one interposed for a limited purpose between that of her husband and the next heir". In Mst. Fateh Nishan v. Ahmad Shah the view taken was : "Neither a mother nor a widow, who obtains possession of property left by her son or husband for enjoyment during her life or any shorter period, can be regarded as an heir to that property within the meaning of Customary Law". We are unable to subscribe to the view that the widow succeeding to her husband in the absence of a male des cendant holds the property only in lieu of her maintenance. There is a marked difference between a case where a widow is given the C property in lieu of maintenance and the one is which she succeeds to a life estate. In Paragraph 16 of the Digest of Customary Law in the Punjab by Rattigan it is stated : "In the presence of a male descendant of the deceased his widow is originally only entitled to suitable maintenance, whether such descendant is the issue of the surviving widow or of another wife." According to Paragraph 11 of the Digest "in the absence of male lineal descendants the widow of the deceased ordinarily succeeds to a life‑estate". In Nawab v. Muhammad Fazil (P L D 1964 Lah. 334), S. A. Mahmood, J. in dealing with this question observed : "Under the general custom there is an essential difference between the widow's life estate, where she succeeds in the absence of male lineal descen dants, and a widow's right to maintenance, where, there are male descendants of the deceased". He further observed that there is "a difference between a life estate enjoyed by a widow and the land held in lieu of maintenance. The other distinction between the two widows is that while the widow of a sonless proprietor takes the whole land whatever be her needs for her maintenance" a widow holding the land in lieu of maintenance "takes only a part of it". In Bhambul Devi v. Narain Singh (A I R 1915 Lah. 281) the tenure of the widow was considered by Shah Din, J., and he held "The widow's life‑tenure originated in her right to maintenance, but though originally her right was one only of maintenance which in course of time became a right to the enjoyment of the whole estate, whether it exceeded her needs or not, it is not now disputable that her right is to the whole estate". In Dhalla v. Mst. Fateh Bibi (A I R 1937 Lah.137) Addison, Acting Chief Justice, held : it is, however, too late in the day to say that a widow or a mother holds the land merely in lieu of maintenance. That may, or may not, have been the origin of their right to get the land, but it has been long held that the widow or mother of a sonless proprietor is entitled to a life‑interest in her husband's estate and not merely to maintenance. It is in extremely few cases in the Punjab and amongst very few tribes or families that a widow takes the estate merely in lieu of maintenance. In the case before us, there is no doubt that this is the usual case of females succeeding to life estate with power to burden and even to sell that estate for necessary purpose . . . . . " It is now well settled by authorities that a widow succeeding to her husband has an interest in praesenti in the property. She has the right to use the property to the exclusion of all other persons for her (i) lifetime. She is the owner of the property so long as she does not die or re‑marry. When she succeeds, she enjoys the property with all the incidents of ownership. She can in her own right as an owner apply under section 111 of the Punjab Land Revenue Act for the partition of the joint holding, and can also maintain a suit for pre‑emption in respect of the sale made by her husband. In Abdul Qadir v. Mst. Rabia (4 P R 1917), it was held that a widow in possession of her deceased husband's undivided share in a joint holding, has a locus standi under section 111 of the Punjab Land Revenue Act, 1887, for claiming that is, for applying, for partition before a Revenue Officer, she being undoubtedly a joint owner (though with limited rights of ownership) within the meaning of that section. It has definitely been settled now that a widow has a statutory right to claim partition of her share. This view was affirmed in Mst. Bhagbhari v. Wazir Khan (A I R 1923 Lah. 81) and in Gopali v. Mst. Shamon (A I R 1926 Lah. 533). In Dhalla v. Fateh Bibi the facts of the case were that a certain land was sold by two brothers to a third person and both of them had no issues and only one of them had a wife and on their death ensuing, the wife of one and their mother were entitled to succeed them respectively, and they both brought a suit for possession of the land by pre‑emption. It was held that the wife and the mother being entitled to succeed them respectively on their death had a right of pre‑emption under section 15(b), thirdly of Punjab Pre‑emption Act (I of 1913).

5. The females succeeding to life estates have not an absolute power of disposition of the property. The collaterals can assert their right against the exercise of any power, but it cannot be held on the basis of this fact alone that such females are not the owners. The power of alienation is one of the important incidents of ownership, but it does not mean that the power of disposition should necessarily be absolute. It may be exercised subject to some valid conditions under a contract, custom or a statute. The restrictions and limitations of alienation exist also in the case of male owners who inherited under custom. In Bashir Ahmad v. Muhammad (P L D 1956 Lah. 934) at p. 973 it was held by the Full Bench: "The difference in the capacities of the male and the female owners who inherited under custom to transfer ancestral property, is one of degree rather than of kind . . . . . ." In Khair Din v. Muhammad Hussain (P L D 1961 S C 468) it was observed that a male proprietor under custom in a sense was also a limited owner, and his rights of property were limited in the sense that they were subject to certain restrictions. We may with advantage refer to the observations of S. A. Rahman, C. J. in Bashir Ahmad v. Muhammad : "There is ample authority for the proposition that the initial presumption is against un restricted powers of alienation in respect of ancestral property even by a male holder. This proposition was laid down as long ago as 1895, by the Punjab Chief Court, in a Full Bench decision Ramji Lal v. Tej Ram (73 P R 1895). Some observations in Gujar v. Sham Dos (107 P R 1887) are identical in tenor. Even though the right to assert this power of control may be vested in collaterals within a certain degree of relationship under custom, it does not mean that the holder of the property for the time is not unrestricted owner of the property. The power of disposition is one of the elements in the concept of ownership, as has been pointed out by Plowden, J., in Gujar v. Sham Das and by Clark, C. J., of the Punjab Chief Court in Sadhu Singh v. The Secretary of State for India (18 P R 1908)". The majority view in the case of Bashir Ahmad v. Muhammad is based on these authorities, which clearly lay down that the description of a male proprietor under custom as a `full owner' is merely a relative term, used to distinguish his position from that of a limited female owner who suffers from greater disabilities in comparison. Thus, the widow when she succeeds to her husband or the last male owner, she is not only entitled to the benefits or the use of the property, but she has a vested right in the property itself and is its owner during her life‑time. When it is said that she is a limited owner, the limitation placed upon her is that she loses the property by re‑marriage, or on her death the heirs of the last male owner and not the heirs of such a female succeed to , the estate. So long as she is alive, she enjoys the property with all the incidents of ownership. This aspect or, the restraint on her power of alienation does not affect the nature of her right in F the property. She like the customary male proprietor remains the owner. We may further mention that the disposition of the property by a female by way of sale or gift or mortgage is not void, but is only voidable, and this also negatives the contention that the widow was entitled only to the benefits of the property and had no interest in the corpus of it. If the alienation by her was left unchallenged within the period of limitation under the Punjab Limitation Custom Act (I of 1920) the land was, under custom, lost for ever to the agnatic family.

6. We are also unable to accept the view that the reversioners of the last male owner have an interest in the corpus of the property. The reversioner has no right or interest in the property during the lifetime of the widow. He has only an expectation to succeed which may or may not mature into a right after the termination of the life estate of the widow. In Lal Chand v. Manohri (A I R 1925 Lah. 108) it was held "that the limitations imposed upon the estate of widow or daughter under Hindu Law are not imposed on her for the benefit of reversioners". In Muhammad Asghar Shah v. Muhammad Gulsher Khan (P L D 1949 Lah. 116) Sir Abdur Rahman, Acting Chief Justice, observed : "It is true that a reversioner does not, both under the Hindu Law and under the Customary Law of the Punjab, possess any right or interest in praesenti in the property held by a female owner for life and that a reversioner's right under the Punjab Customary Law to succeed to ancestral land is in the nature of a spes succcssionis". This observation was cited with approval in Gul Zarin Khan v. Amir Ahmad (P L D 1952 Lah.1). In Abdullah v. Bakhto Mai (P L D 1956 S C 321) this view was re‑affirmed and the observations of Muhammad Munir, Chief Justice, were that a person who succeeds under custom or under Hindu Law as a reversioner has before his succession no higher or more tangible interest than a Muslim heir and his interest‑is as much a spes successionis as that of a Muslim heir. The contention raised on behalf of the collaterals of the last male owner that they and not the widow had rights in the corpus of the property is not tenable. The reversioners have no interest in praesenti in the property. They, therefore, have no interest in the corpus of the property during the lifetime of the widow.

7. There is yet another aspect of the case. If the widow had not been the owner of the property, she could not have her claim registered under the Claims Registration Act, 1949, and it would not, on those premises, have been possible to make any allotment of the land in her favour. It was under the Punjab Refugees (Registration of Land Claims) Act (V of 1949) that claims were invited in respect of land abandoned by the refugees in respect of the lands within the territories comprised in the Provinces of East Punjab, and Delhi, the East Punjab States and the States of Alwar, Bharatpur and Bikaner. Under subsection (1) of secti3n 4 of the Act, a refugee could submit to the Registration Officer, on the prescribed form and supported by an affidavit, an application for the registration of his claim in respect of his land abandoned by him, or which he had been made to abandon. Claim is defined in clause (a) of section 2 to mean a statement of loss or damages suffered by a refugee since the 1st day of March 1947, in respect of his land within the territories now comprised in the Provinces of East Punjab, and Delhi, the East Punjab States and the States of Alwar, Bharatpur and Bikaner. Refugee is defined in clause (d) of section 4 as: " `refugee' means a land‑holder in the territories now comprised in the Provinces of East Punjab and Delhi, the East Punjab States, and the States of Alwar, Bharatpur and Bikaner, who has since the 1st day of March 1947, abandoned or been made to abandon his land in the said territories on account of civil disturbances, or the fear of such disturbances, or the partition of the country". The land‑holder is defined in clause (c) to mean "an owner of land or a tenant having a right of occupancy under the Punjab Tenancy Act, 1887 (XVI of 1887) or a tenant as defined in section 3 of the Colonization of Government Lands Act, 1912 (Punjab Act V of 1912) and such holder or grantee of land as may be specified by the Provincial Government". It is thus clear that unless a person was the owner of land or a tenant having a right of occupancy, he could not submit the claim. The widows or the females succeeding to' the life estate submitted claims only in their capacity as the owners of the land. One of the Advocates, half‑heartedly contended that the widows fall within the category of "such holders or grantees of land as may be specified by the Provincial Government" under clause (c), but he failed to produce any order of the Government in this behalf. The learned Settlement Commissioner (Legal) did not support him in this contention, and he made a categorical statement that the Government had not made any such order. The females submitted their claims as owners and the claims were accordingly registered.

8. There is nothing in the Registration of Claims Act or the Rules made thereunder that any person was competent to submit the claim on behalf of another person and for his benefit. It is also not provided in the Act or the Rules that the widows were to submit such a claim for the benefit of the reversioners of the last male owner. The Act and the Rules are also con spicuous by an absence of reference to the customary females or to the last male owner or to the reversioners. In this context, it may be necessary to consider a situation which might arise in any of the eventualities. Supposing a widow who has succeeded to the last male owner does not come to Pakistan, could a reversioner file a claim under the Act ? Secondly, supposing she came to Pakistan and did not file any claim, and lastly, supposing she came to Pakistan and before she submitted any claim or before the allotment was confirmed in her name, she died or re married. The last case is covered by paragraph 46‑A of the Rehabilitation Settlement Scheme. But so far as the other two cases are concerned, a reversioner had no right to have the claim registered on account of the property held by such a widow as a limited owner. The reason is obvious. The widow who does not come from India as a refugee and, therefore, no person on her behalf or in his own right could submit the claim of the land held by her in India as limited owner. Similarly, in the case of the widow who has arrived in Pakistan but she refuses or fails to file the claim, a collateral of the last male owner cannot file the claim because in her lifetime no other person could be the owner of the land abandoned in India. The reversioners as we have already observed, have no interest in praesenti in the land during the lifetime of the widow and they, therefore, are not the owners of the property and for that reason they have no locus standi to file any claim.

9. There is no provision in the Rehabilitation Settlement Scheme for recognizing a right under custom, or for giving any effect to the same. A reversioner has no right to file claim even in a case where the last male owner died in India (but his name bad not been incorporated in the jamabandi) or died subsequent in Pakistan before he could be any claim. In such case, the right of succession is given under paragraphs 46 and 46‑A to persons under the Muslim Shariat Act. Therefore, if a female right‑holder died during the disturbances or she died in Pakistan before the allotment was confirmed, the customary heirs of the last male owner could not lay claim to succession on the basis of custom although under the law in India the property would have devolved on them on, the termination of her limited interest. The rule of succession in such a case is provided in paragraph 46‑A as held in Umar Draz Ali v. Khurshid Ali (P L D 1960 Lah. 834), Abdur Rashid v. Pakistan (P L D 1962 S C 42) and Basso v. Rehabilitation Commissioner (Land) (P L D 1963 S C 347). The grant devolves in such cases on the persons who are the heirs of the last owner under the Shariat Law and not on his heirs under custom by which he was governed in India.

10. It may be noted that under the Registration Act of 1949 and the Rules made thereunder, provision was made only for the registration of claims. There was no provision made in the Act or the Rules for the verification of such claims, or for the allotment of any land on the basis of the claim submitted under the Act. The Central Government in exercise of the powers conferred on it by section 7 (1) of the Pakistan (Rehabilitation) Ordinance XIX of 1948 prescribed the Rehabili tation Settlement Scheme, Punjab for pooling evacuee property and allotting it to the refugees. It is provided in paragraph 2 of the Scheme that "all persons, who, in the prescribed area, owned land or held occupancy or other rights of a similar nature in land as may be specified by the Rehabilitation Commissioner (Lands) from time to time, may be allotted land subject to such terms and conditions as may be prescribed by him". This paragraph applies to all the persons who are governed by section 4 read with section 2(b), (c) and (d) of the Registration of Claims Act, 1949. The land was to be allotted subject to such terms and conditions as may be prescribed by the Rehabilitation Commissioner (Lands). To the persons who owned the land in India, the land was to be allotted to them under main paragraph

4. As to the persons who held the occupancy rights or other rights of similar nature, the allotment could be made under clause (g) of paragraph

4. It is not denied that to the widows the land is always allotted under main paragraph 4 as owners of the land abandoned in India. Under paragraph 2 the allotment was to be made "subject to such terms and conditions as may be prescribed by" the Rehabilitation Commissioner (Lands). If the framers of the Scheme had intended that the widow should enjoy the allotment subject to certain present or future rights of the heirs of the last male owner, they would have provided such a condition. Under paragraph 14, an allottee can transfer by sale, exchange, gift, will, mortgage or other private contract his rights or interests in the land allotted to him under the Rehabilitation Settlement Scheme. Again, if they had any intention that the widow be placed under some restraint in her power of alienation or that she should not alienate at all, they could make a provision to that effect in paragraph 14 which otherwise contains a bar to alienation in certain other cases where (a) the allottee concerned had not made full and final settlement of any Government dues, including the Rehabilitation fee; (b) the land held by the allottee concerned was the subject‑matter of an appeal, revision or review before a Rehabilitation Authority, etc. In paragraph 23, it was laid down that the Rehabilitation Commissioner (Lands) could "at any time pass such orders consistent with this scheme and issue such instructions concerning details, etc., as may be found necessary with a view to securing the proper implementation of the Scheme". In pursuance of this paragraph instructions were issued which are contained in Part 11 of the Scheme. Under paragraph 1 of the instructions, the Deputy Rehabilitation Commissioner (Lands) was to settle proprietors, occupancy tenants and other similar right‑holders on land of approximately the same produce value. The females were always considered as proprietors and at no time they were categorised in any other manner.

11. It is laid down in paragraph 29 of the instructions: "Rights under the Rehabilitation Settlement Scheme, should be given to a claimant in accordance with the entries in the special jamabandis received from the prescribed areas of India . . . . ." Claimant in this paragraph has to be understood with reference to paragraph 2 of the main Scheme read with para. 1 of the instructions. The entitlement of a person who owned land in a prescribed territory in India was determined with reference to the entries in the special jamabandis. The claim of a person who owned land in India was verified in accordance with the entries in the jamabandis. It was contended on behalf of the reversioners that since the females, according to the tenor of special jumabandis, were shown as limited owners of land abandoned to India, they, in terms of paragraph 29, were allotted the land only as limited owners. According to them, if a female was shown in the column of ownership in the special jamabandis she was presumed to be a limited owner and was given allotment also as a limited owner with all the rights and liabilities of such an owner in the land. In other words, she could hold and enjoy the land till her death or remarriage and on the termination of the limited estate, the collaterals of the last male‑holder would succeed to the estate to the exclusion of the heirs of the female. We are unable to accept this position. Such an intention cannot be spelt out of paragraph

29. If they had any such intention about the limited owner, they could have made it more explicit as they have done in paragraph 31 about the occupancy tenants. Such an intention otherwise cannot be attributed to them for another reason. As we have already observed, the framers of the Scheme in the case of refugee right‑holders did not recognise the claim of the customary heirs. It is, therefore, inconceivable that in l the case of a confirmed allotment in the name of a widow they should have, on the termination of a limited estate, thought of a devolution of interest, in accordance with the Customary Law` as opposed to the Muslim Law of inheritance.

12. The framer of the Scheme had no intention to create limited ownership or life estate. We may, with advantage, refer' to the entries in R. L. II. It is a register maintained for making the provisional permanent allotment under the Scheme. It contains entries based on paragraph

29. Column No. 5 is for "Rights in abandoned land". A note is given under the form to read "The rights of ownership, occupancy and mortgage should be shown separately under the sub‑head `rights on land' in column No. 5, while the Produce Index Units will be entered only once at the end". Under this column 5, there is a provision for the land which was cultivated and the land which was not cultivated. Again, the land under cultivation is classified as Chahi, Nahri, Abi, Niayain, Barani and Sailab; and of the land which was uncultivated in India there are classifications as 3anjar Jadid, Banjar Qadim and Ghair Mumkin. There is no column in this R. L. 11 to indicate whether the rights of any claimant in India were limited or otherwise. It is manifest that the allotment made to the widow was not subject to any term and condition in favour of the reversioners that on her death or re‑marriage the allotment would revert to the reversioners. We may also refer to paragraph 47 of the Scheme which provides : "Those persons only, whose names are actually recorded in the Records‑of‑Rights of the prescribed territory and who have migrated to Pakistan, will be eligible for allotment of land under the Rehabili tation Settlement Scheme up to the extent of their own shares . . . . . " If we read paragraphs 29 and 47 together, it becomes manifest that the allotment was to be made to the widows because they were recorded in the special jamabandis as the owners. The allotment is made to the widow as an owner on the basis of the entry of her name in the column meant for ownership in the special jamabandis and it is not subject to any term or condition in favour of any heir of the last male owner. r A widow, after the allotment, is entitled to the same rights and is subject to the same liabilities which are applicable to the other persons to whom the land is allotted as owners. She on the confirmation of the allotment, became vested with the same rights as are created in favour of other allottees and the property therefore has to devolve on her heirs under the Shariat Law and not on the heirs of the last male owner. In Muhammad Ramzan v. Muhammad Bagir (P L D 1964 W P (Rev.) 54), the learned Member, Board of Revenue held: "The second and third points have been con sidered by the officers below and the ground that Hamidun Nisa had in the Court in India accepted the position that she had a life interest in the property left to her by her husband has no force. She has not gifted away the property left by her husband in India but a grant has been made to her under the Rehabilitation Settlement Scheme and it is this grant which she has gifted away . . . . . . ".

13. The position which emerges is that after a claim is submitted for registration under the Claims Registration Act of 1949, it is to be dealt with at three stages : Firstly, when a claimant gets his claim registered under the Act and applies for the allotment of the land under paragraph 2 of Chapter II of Rehabilitation Settlement Scheme read with paragraphs 1 and 29 of Chapter I of the instructions contained in Part II of the Scheme, but before the land is confirmed the claimant dies or the limited interest of the widow right‑holder comes to an end. Secondly, when the land is confirmed under the Rehabilitation Settlement Scheme; and, Lastly, when the land is permanently settled under the Displaced Persons (Land Settlement) Act (XLVII of 1958). So far as the first stage is concerned, it is now well settled that the right of succession to a deceased right‑holder will be governed under paragraphs 46 and 46‑A of the Rehabilitation Settlement Scheme. In respect of the cases falling under the second category, i.e., when the land is confirmed but before it is permanently settled, since there is no rule of succession provided which if the Rehabilitation Commissioner had so intended, he could do under paragraph 2 of the Rehabilitation Settlement Scheme, the law of succession in such cases would be the ordinary law of the country which in the case of Muslims would be the Law of Shariat. We are left now with the case when the property is permanently settled under the Displaced Persons (Land Settle ment) Act (XLVII of 1958). It is provided in clause (3) of section 15 of the Displaced Persons (Land Settlement) Act (XLVII of 1958): "A displaced person to whom any land has been allotted by a Rehabilitation Authority before the commence ment of this Act under a scheme as defined in clause (7) of section 2, or by a Settlement Authority under subsection (1) shall be settled permanently on that land in such manner and on payment of such fees as may be prescribed by the Central Government : Provided that no order of permanent settlement shall be passed in cases where‑(a) the land held by the allottee concerned is the subject‑matter of an appeal, revision or review before a Rehabilitation Authority ; or (b) the land has been allotted in lieu of rights as a mortgagor or mortgagee and the allottee has not fulfilled the prescribed terms and conditions ; or (c) the land has been allotted provisionally on the basis of inconclusive data. "When a female limited owner is allotted land under paragraph 2 of the Scheme read with paragraphs 1 and 29 of the Instructions and the other provisions of the Scheme in this behalf, she becomes entitled to a permanent settlement on the said land and by virtue of section 16 she becomes vested with proprietary rights in the said land. It is not provided in the Act that in such a case the female would be holding the property as a limited owner. It is also not provided in the Statute that on her death or re‑marriage, the property would not devolve on her heirs and the heirs of her husband would succeed. In the absence of any provision, it is difficult to hold that she got any limited estate under the Act and that the law of succession applicable in her case would be different from the one which is the law of the land. Such a question was raised also in the case of a widow succeeding to the tenancy held by her husband who was a tenant under the Colonization of Government Lands (Punjab) Act (V of 1912) she purchased the proprietary rights from the Government, and on a contention raised that she only acquired a life‑estate for the benefit of her reversioners, it was held in Jagat Singh v. Mst. Raj Devi (A I R 1938 Lah. 554) that where a widow, on succeeding to the tenancy held by her deceased husband on peasant terms, purchases the proprietary rights from the Govern ment she does not acquire them as a life‑estate for the benefit of her reversioners; she does so in her own capacity and is an absolute owner. In Faiz Ali v. Rafia Jan (P L D 1956 Lah. 94) a Division Bench of this Court held that "the widow became gull owner of the tenancy lands in her possession on the date when she deposited, and the Government accepted, the sale price". Again in Ibrahim v. Rajji (P L D 1956 Lah. 609) it was held that a widow who succeeded to the tenancy on the death of her son and who, in compliance with the terms and conditions prescribed under he Colonization of Government Lands (Punjab) Act (V of 1912) had deposited the price for the purchase of proprietary rights in the land included in her tenancy, acquired, from the date of deposit, an absolute estate in the land. There had been the consistent judicial authority that under the Colonization of Government Lauds (Punjab) Act (V of 1912) whenever a widow succeeded to a fife estate in the tenancy rights of her deceased husband in Government lands, purchased the proprietary rights therein, she ceased to be a life‑estate owner in respect of such lands and became full owner with heritable and transferable rights. This necessitated the Colonization of Government Lands (Punjab) (Amendment) Act, 1944, and section 30‑A was added, which reads as "30‑A. (1) Notwithstanding any custom and the provisions of any law to the contrary, when after the commencement of the Colonization of Government Lands (Punjab) (Amendment) Act, 1944, proprietary rights in any land are acquired by a female tenant, her rights of alienation of any such land shall be the same‑ (a) if she succeeded to the tenancy directly or indirectly from a male tenant, as if the proprietary rights had been acquired by the last male tenant, and she had succeeded to such rights as his heir ; and (b) if the tenancy was first allotted on account of some male person, either to her, or to another female to whom she succeeded either directly or in a continuous line of female succession, as if the proprietary rights had been acquired by such male person, and she had succeeded to such rights as his heir, and in cases falling under clause (a) or clause (b) in the event of such female proprietor dying while in possession of the proprietary rights in question, the said rights shall devolve upon the persons who would be entitled to succeed, if such rights had been acquired by the last male tenant, or the male person on whose account the tenancy was first allotted, as the case may be." Again, in the Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) as amended by Punjab Muslim Personal Law (Shariat) Application (Amendment) Act (XI of 1951), section 3 specifically dealt with the case of limited female owner under custom and it was clearly provided as to who should inherit her under Muslim Law after the termination of her limited estate by death or otherwise. If the Legislature had any intention that a limited female owner on getting the proprietary rights in the land should have a limited ownership, or that she should not have an absolute power of disposition over it, or that after her death the property should vest in the heirs of the last male holder and not in her own heirs, it would have clearly provided for it by an adequate provision in the Displaced Persons (Land Settlement) Act (XLVII of 1958) like section 30‑A of the Colonization of Government Lands Act and section 3 of the Muslim Personal Law (Shariat) Application Act.

14. Learned counsel for the Settlement Department placed reliance on a memorandum bearing No. 4539‑65/1964‑R(L), dated the 14th of April 1966 issued from the Deputy Secretary (Rural) to the Chief Settlement and Rehabilitation Commissioner, West Pakistan, addressed to all the Deputy Commissioners, etc., to contend that the Chief Settlement Commissioner had by this memorandum made it a condition that on the death of a widow the property will go to the heirs of her husband. For con venience of reference, the relevant part of the memorandum is reproduced:‑-- "A question has arisen, whether a widow claimant from agreed Areas becomes full owner of the land allotted to her in the satisfaction of her claim of land abandoned in India. In agreed Areas, a widow used to be a limited owner of land. The answer is that if a person had been a limited owner in the land abandoned in India, she does not become a full owner of the land allotted to her in Pakistan in the satisfaction of her claim. For the removal of doubt, it was considered necessary to clarify the existing position which may please be made known to all concerned." It will be clear from the memorandum that this is not a condition of the grant made in pursuance of paragraph 2 of the Settlement Scheme. It is evident from the tenor of this memorandum that on a question raised before the Chief Settle ment Commissioner as to the nature of the rights of the widow in the land allotted to her under the Rehabilitation Settlement Scheme he has given his own interpretation. The interpretation is not the same thing as laying down a condition of grant. The memorandum, under reference is not, as is the contention of the learned Settlement Commissioner (Legal), an instruction issued in the exercise of the power under paragraph 23 of the Scheme, because it aims at explaining something which in the opinion of the Chief Settlement Commissioner already existed and it does not provide for something new.

12. After giving our most careful consideration to the arguments advanced by the learned counsel for the parties and reviewing the case‑law op the subject, we have reached the conclusion that a widow succeeding to the life‑estate under custom is an owner of the property; the reversioners or the collaterals of the last male owner, so long as her life‑estate does not terminate, do not have any right or interest in praesenti in the property ; the female who held a limited estate in India and submitted a claim under the Punjab Refugees (Registration of Land Claims) Act (V of 1949) did so as an owner within the A purview of paragraph 2, Part I, Chapter II of Rehabilitation Settlement Scheme in her own right and not on behalf of the reversioners; she, on the confirmation of the allotment in her name, becomes vested with a heritable and transferable right and the collaterals of the last male owner have no control on her power of disposition or a right to succession and that she is entitled to the permanent settlement of the land under section 151 and becomes vested with the proprietary rights under section 161 of the Displaced Persons (Land Settlement) Act (XLVII of 1958) which she is competent to alienate; and, on her death she is to be succeeded by her own personal heirs and not the heirs of the last male owner. A.H. Reference answered.