P L D 1964 Supreme Court 842 (PLP)

CORNELIUS, C. J.?This appeal comes before the Court by special leave granted on the 7th February 1961, reviewing an earlier order of the 26th February 1960, by which the petition A for special leave to appeal was dismissed. It raises the question of succession to certain land in the Sargodha District, of which the last owner was Mst. Zainab Bibi, widow of one Wadhawa. In 1905, two squares of canal land with an appurtenant residential compound were granted to Wadhawa on horse-breeding terms. Among the special conditions relating to such grants two, in contrast to a number of other types of grants, were, firstly, the grantees were not entitled to acquire pro?prietary rights in the land, and secondly, that the succession to the tenancy was to be by primogeniture. However, in the year 1940, the Government abrogated these special conditions and .permission was given to such grantees to acquire proprietary rights on making certain specified payments. As regards succession to the grants, it was provided that for the future this would be regulated as in the case of ordinary grants under sections 20 to 23 of the Colonization of Government Lands Act, 1912. It is unnecessary to deal with these sections in detail for the reason that here the question is of succession to the proprietorship which the widow Mst. Zainab Bibi moved to acquire in the year 1943. Her husband had died before 1930. Mst. Zainab Bibi deposited the required amount of money on the 4th October 1943, the very day on which an order was made permitted her to acquire the proprietary rights. There was however delay in the execution of the sale-deed, and this was only done on the 2nd January 1947, after which the sale deed was duly registered on the 24th January 1947. In the same year, Mst. Zainab Bibi died. It seems that about the year 1940, the Government attempted to remove a lacuna in the law relating to succession to colony lands, viz., that a widow having acquired a proprietary interest in colony land which had been granted to her husband or to an ancestor of his perhaps for services rendered, became a full proprietor under the statute law, and this could defeat the purposes both of the customary law as well as of the original grant by her alienating the property outside the agnatic family, and in any case upon her death, the question would arise whether the succession was to be under her personal law, or under the custom followed by her husband's tribe. A letter from the Punjab Government to the Collector of Sargodha No. 2467-C, dated the 9th June 1941, shows that the cases of 60 such widows who had applied to buy proprietary rights had been reported, and by way of precaution, the order had been made that these widows were only to be allowed to acquire title in the land "subject to the restrictive covenant that the widow shall not alienate the land without the concurrence of the reversioners." By "reversioners", were meant of course those who at the time of her death would be entitled under the custom applicable to the tribe to in herit to the deceased husband. Mst. Zainab Bibi was one of the widows enumerated in this correspondence, and when the sale-deed was executed there was appended to it a post script in the following terms: "The deed is only prepared on the condition that the widow shall not alienate the land without the consent of legal heirs." A point which appears is that the expression "legal heirs" is not exactly equivalent in meaning to the expression "reversioners". The woman as a full proprietor being a Muslim, would have under Muslim law, as her heirs, persons who might not be agnates of her deceased husband at all. It was open to the Government to lay down in the terms of the sale-deed a condition applicable to the succession. As has been seen, in the original horse-breeding grants, by a provision in the general "statement of conditions" under which those lands were granted, it was made a rule that, whatever be the personal or other law of succession governing the grantee, rights in the land granted would go by the rule of primogeniture. The scheme of devolution of these grants was of somewhat complicated nature, but it is unnecessary to state it here in detail. I mention the fact in order to furnish an illustration of the exercise of power, in making a Crown grant, to impose as a condition a rule of devolution totally different from that applicable to the grantee personally. Equally, therefore, in the same deed in favour of Mst. Zainab Bibi, the Government might have effectively introduced a term deter-mining the succession. No such term was introduced and all that was done was to lay upon the new proprietor a restraint, namely, that any alienation would be "with the consent of legal heirs." As has been remarked, it would probably in a given case be a difficult question whether by "legal heirs" was meant the women' personal law heirs or her husband's reversioners, and the doubt I may well have the effect of rendering the condition nugatory. In any case, there is nothing in the words employed to suggest that the Crown was laying down a rule of succession, much less a rule of succession in favour of the agnates of the last male holder. Any attempt to draw such an inference from the fact that in the letter of the 9th June 1941, the expression used was "without the concurrence of the reversioners" would necessarily fail in view of the alteration of the expression in the sale deed itself to read "without the consent of legal heirs." It is quite clear that no alienation was made and the simple question which arises is whether the succession here was to be in accor?dance with custom or with the personal law. There was however an incident which intervened between the payment of the price in 1943 and the execution of the sale deed in 1947 whose effect falls for consideration in the present case. That was that eventually the Legislature of the Punjab passed a law determining, the succession to female proprietors of several categories including that in which Mst. Zainab Bibi was, and at the same time placing a restraint upon their power of alienation. This was section 30-A of the Colonization of Government Lands Act, which was enacted in 1944, and had the effect of enforcing succession under custom. In other words, rights of alienation of the land were to be the same as if the proprietary rights had been acquired by the last male tenant and she had succeeded to such rights as his heir, and the case would be the same where the tenancy was allotted to her or to another female on account of the services of some male person, in which case her rights would be the same as if she had succeeded to the said male person as his heir. Succession was to follow the same principle, namely, that upon the death of the female proprietor, the heirs of the last male tenant or of the male person on whose account the tenancy was first granted would succeed. The question whether the estate of Mst. Zainab Bibi in the land here in question devolves under the aforesaid section 30-A turns upon whether her acquisition of proprietary rights takes effect from the date upon which the payment, and the order for transfer of the rights to her were made, or on the much later date on which the deed was executed and registered. Some argument was addressed to us upon the requirements of c section 176 of the Government of India Act, 1935 which was then in force to support the contention that the contract of sale was ineffective, unless duly executed as required by the aforesaid section. The reply presented with a great deal of force is that ever since 1915, it had, in an unbroken line of cases, been held that in respect of obligations to third parties, the title in the property matures in favour of the purchaser when, transfer having been authorised, the proper dues have been deposited. The point was considered in a judgment of a learned Single Judge of the Lahore High Court in the case of Devi Datta Ram v. Girdari Lal (1) decided on the 23rd January 1945, where reliance was placed upon Mst. Millap Kaur v. Hakim Singh (2) and certain judgments of the years 1933 and 1936. Learned counsel appearing for Muhammad Din who is the personal law heir of Mst. Zainab Bibi (Imam Din, the appellant, being the customary law heir of her husband) has been able to show that in later years, 1938, 1958, 1959, 1960 and 1961 published decisions have been given which affirm the same-principle. Two of these were delivered by the Board of Revenue, viz., Rehmat Ullah and others v. Muhammad Ismail and others (3), and Muzaffar Hussain v. Nor Ahmad (4). It is argued that, however the case might lie as between the Government and the new proprietor, it is accepted on all hands by the Revenue Department as well as by the Civil Courts, that proprietary title does pass when the payment has been made in full, sufficiently to be effective in relation to or as against third parties. Accor- E dingly, I would hold without hesitation that the succession here in question does not fall to be determined under section 30-A aforesaid. Some reference was made in the course of arguments to the decision of the Privy Council in the case of Muhammad Din v. Imam Din (5). In that case, a grant to a woman had been made subject to the condition that she could not alienate the land during her life time. The Judicial Committee held this overriding con?dition which was in defeat of duly acquired proprietary rights, to be void. It is clear that in the present case the restraint upon alienation is not absolute it was directed by the Government to be applied in favour of the customary law rights of the "reversioners", which in the deed itself was altered to read as if the intention was to protect the rights of "legal heirs." Under Hindu law, a legal heir need not be necessarily a reversioner under custom, and yet his rights in the property, under the law of the joint Hindu family may be protected, against alienations which are not authorised by that law. It is probably for this reason that the expression "legal heirs" was substituted for the words "reversioners" in the actual deed. However, it is plain that here the restraint upon alienation was a qualified one and that it was based upon a valid concept of law so that the grounds advanced by the Judicial Committee for avoiding the absolute restraint which came before them for examination are not available in this case. Moreover, in the case of a Muslim owner, the expression "legal heirs" does not carry any connotation of subsisting rights in such heirs before they have actually succeeded, and as I have already remarked, the restraint upon alienation in this case is affected by vagueness so as to render it, in all probability, totally ineffective. (1) E S A No. 2075 of 1943??? ??????????? (2) 8 P R 1915 (3) P L D 1958 W P (Rev.) 77 ??????????? (4) P L D 1959 W P (Rev.) 17 (5) P L D 1947 P C 317 It is clear that under these instruments when Mst. Zainab Bibi acquired the proprietary right, she became the full owner thereof. The property was not ancestral in the hands of her husband, so that it did not attract control by the latter's rever?sioners. The proprietary rights had been acquired by and granted to her in person, and there being no customary law restraint applicable, the necessary conclusion must be that she held the property as owner under Muslim law. Upon her death the devolution would be under Muslim law, and it is clear that on that basis, Muhammad Din the respondent was entitled to succeed. The Courts below have unanimously held to this effect. I would accordingly dismiss this appeal with costs. S. A. RAFMAN, J.?I agree, FAZLE-AKBAR, J.?I agree. HAMOODUR RAHMAN, J.?I agree. B. Z. KAIKAUS, J.?Two questions arise in this case : (i) Whether title was transferred by the deed dated 2nd January 1947, or on the 4th October 1943, the day when the required amount was deposited by Mst. Zainab Bibi? And (ii) assuming that title was transferred on the 4th October 1943, whether it was not subject to the condition imposed by the Provincial Government and whether as a result of that condition the property would be inherited by the reversioners of the husband? The first of these two questions arises because section 30-A was introduced into the Colonization of Government Lands Act in 1944, The effect of this provisions was that the acquisition of proprietary rights by a widow would not in any way affect the rights of the reversioners of her husband who would be entitled to succeed to the proprietary rights as if they were tenancy rights. For a decision of the question as to when transfer would take place in favour of widow we have to consider in the first place the ordinary law of transfer and them the effect of the special law relating to transfers by the Government. A transfer can be either by operation of law or an act of a party. We are not concerned here with transfers by operation of law. So far as transfer by an act of party is concerned when does the transfer take place in the case of an ordinary person. This takes us to the question: by whose act does it take place? The obvious answer is by an act of the transferor (the words transferor and transferee and vendor and vendee are for convenience freely used to refer to the parties to a transaction although as yet no completed transfer has taken place). The transfer surely cannot take place by an act of the transferee. The next question is: what is the kind of act by which title will be transferred? The answer is an act by which the transferor conveys that which is his to the transferee. It is an act of conveyance, alienation disposition of title residing in the transferor. Such an act can take place only by words or conduct amounting to saying I give, I convey, I transfer, I alienate or my rights stand transferred. It is possible for the transferor to say that the transfer should not be effective till a particular time when a condition is fulfilled or that it will take effect on the happening of an event, but there has to be a disposition. We are quite familiar with propositions such as "title does not pass by disclaimer", "title does not pass by admission", "estoppel does not transfer title", etc. If a person says a particular property does not belong to him, but belongs to another title still remains in him if the property in fact belongs to him. Similar is the case with admission or estoppel. Title is not affected though the right of a party to take up a particular plea may be affected by estoppel. It may be pointed out that there exist in this country no separate "equitable" and "legal" estates. We have only the "legal estate". This proposition was laid down in a number of cases in pre-Partition India, but I would refer only to the Privy Council judgment in Rani Chhatra Kurnari Devi v. Mohan Bikrani Shah (1) where it was said: "The Indian law does not recognize legal and equitable estate". In support of this proposition the Privy Council had relied on two previous judgments of its own the first of the year 1872 Tagore v. Tagore (2) and the second of 1904 Webb v. Macpherson (3). There is little room therefore for an argument that in equity al person had become the owner though he had not acquired legal title. (1) 58 I A 279? ??????????? (2) 9 B L R 399 ????????? (3) 30 I A 238 In the present case even if the Government was in the position of an ordinary transferor title would not pass by the mere payment of money because there were no dispositive words by the Government saying that title would pass on payment. On the other hand the execution of a deed had been provided for by the rules. When the parties to a transaction contemplate from the beginning the execution of a deed, title is transferred only when the deed is executed. This is because title has to pass according to intention of parties and when they intend executing a formal deed they intend passing title by the deed. In the present case there are detailed instructions by the Government as to the execution of a deed. A form of deed is provided. There are instructions as to purchase of stamps, registration, etc. and there is one instruction which is significant. It says: "only after the deed has been properly executed should any change in the revenue records be allowed". All that I have stated above is without regard to the special law relating to the Government. But there is with respect to trans?fer by the Government section 175 of the Government of India Act, 1935, or rather section 30 of the Government of India Act, 1919, which was in force at the relevant time and which appears to me to be an insuperable obstacle to the passing of title without a conveyance. This section runs: "30 (1) The Governor-General-in-Council and any local Government may, on behalf and in the name of the Secretary of State in Council, and subject to such provisions or restrictions as the Secretary of States in Council, with the concurrence of a majority of votes at a meeting of the Council of India, prescribes, sell and dispose of any real or personal estate whatsoever in British India, within the limits of their respective Governments, for the time being vested in his Majesty for the purposes of the Government of India, or raise money on any such real estate by way of mortgage, and make proper assurances for any of those purposes, and purchase or acquire any property in British India within the said respective limits, and make any contract for the purposes of this Act. (2) Every assurance and contract made for the purposes of this section shall be executed by such person and in such manner as the Governor-General-in-Council by resolution directs or authorises, and if so executed may be enforced by or against the Secretary of State in Council for the time being. (3) All property acquired in pursuance of this section shall vest in His Majesty for the purposes of the Government of India." This is a constitutional provision which cannot be overridden by anything in any other taw and in accordance with which alone a transfer will be valid. In a number of cases in pre-Partition India the view had been taken that no contract or transfer by the Government could be valid until it was executed in accordance with this section. I do not feel the necessity of referring to those judgments in detail, not only because to my mind this section clearly contemplates the execution of a deed, but because there is a further consideration which appears to me to be conclusive and that is this: what is the authority the law gives to the Collector? The property vested in the Crown and a contract in relation to it could be executed by virtue of section 30 or section 175 by the Governor or the Governor-General as the case may be. But what is the authority that could be conferred on the Collector? Only one authority, that is, the power to "execute" a contract. The law does not contemplate grant of any power to the Collector to transfer property. It is only the limited power of executing documents on behalf of the Governor or Governor-General that can be conferred on him. The reply of my Lord the Chief Justice to the argument based on section 175 is contained in the following extract: "Some argument was addressed to us upon the requirements of section 175 of the Government of India Act, 1935, which was then in force to support the contention that the contract of sale was ineffective, unless duly executed as required by the aforesaid section. The reply presented with a great deal of force is that ever since 1915, it has, in an unbroken line of cases, been held that in respect of obligations to third parties, the title in the property matures in favour of the purchaser when, transfer having been authorised, the proper dues have been deposited." It will be observed that the answer to the objection based on section 175 is only the distinction drawn between obligations to the Government itself and obligations to third parties. In subsequent passage too my Lord the Chief Justice says: "It is argued that, however, the case might lie as between the Government and the new proprietor, it is accepted on all hands by the Revenue Department as well as by the Civil Courts, that proprietary title does pass when the payment has been made in full, sufficiently to be effective in relation to or as against third parties". My Lord has not gone into the question whether title would pass from the Government without a deed in view of section 175 because, assuming that it does not so pass my Lord is of the opinion that as regards third parties it has passed. Speaking with great respect it is not possible for me to subscribe to the proposition that there is a distinction between transfer of title between the transferor and the transferee and as regards a third party. No case, commentary, provision of law or text on jurisprudence or argument was relied upon by the respondent in support of the proposition that while title may not pass between the transferor and the transferee it may still have passed as against some third party and I myself have never come across such a proposition. We are dealing with rights in rem. They either pass or do not pass. They either remain with the transferor or vest in the transferee. If they do not pass as between the transferor and the transferee I know of no principle on which it can be urged that they have passed as against a third party. As pointed out in Salmond's Jurisprudence there is in a transfer a loss of title by the transferor and a vesting of title in the transferee. If there is no loss there is no vesting. The extract reproduced above from the judgment of my Lord gives the impression that in the cases which are relied upon by the respondents such a distinction had been made. A perusal of those judgments would show that they do not refer to any such distinction. In those case it was decided that title had in fact passed from the Government to the widow and the correctness of those decisions is to be judged on that basis and not on the basis of any distinction between the Government and a third party. It is true that there is line of decisions in which title was held to pass by payment of money; but an examination of those cases does not disclose any sound basis for the broad proposition that, in the absence of rules which produce this effect (whether such rules could be valid is considered separately) title will pass by deposit of money. So far as section 175 is concerned there is no reference to it in those cases (except for Ibrahim v. Rajji (P L D 1956 Lah. 609)) and, therefore they are hardly relevant when the question of the effect of section 175 is concerned. The first and the most important case relied upon is an unreported judgment of a learned Single Judge of the High Court of Judicature at Lahore delivered on 23rd January 1945, in case F. Devi Ditta Ram-Rum Das through Ram Das v. Girdhari Lal and others. In view of the importance of this case I will reproduce the judgment in full. It runs : "This is an appeal from an order of the learned District Judge of Sargodha, allowing the judgment-debtor's appeal and upholding their objections under section 18 of the Colo?nization of Government Lands (Punjab) Act. The facts are that Jiwan Mal, deceased, had applied to the Collector for acquiring the proprietary rights in half a square of land which he had been occupying as an occupancy tenant. This application was granted and Jiwan Mal had deposited Rs. 537-8-0 on account of the purchase price of half the square, i.e., 107 kanals of land on the 25th January 1929, with the result that the assessment of malikana was ordered by the Collector to be discontinued with effect from the kharif of 1929. According to the Execution Court the property had passed to Jiwan Mal on the payment of the price, but according to the lower appellate Court the title did not come to vest in Jiwan Mal as the conveyance had not been executed in his favour by the Collector. The short question, therefore, to decide is, whether Jiwan Mal had become the owner of the property on payment of the price irrespective of the fact that the conveyance could not be executed in his favour on account of his death? In the absence of the provisions of the Transfer of Property Act being applicable to the land in dispute, one must necessarily go to the Colonization of Government Lands (Punjab) Act and find whether there is anything either in that Act or in the Manual which makes the passing of title to the land conditional on the execution of a conveyance in favour of grantee. The parties are not agreed on the point whether this grant was a military jagir grant or a grant of what is described as non-horse breeding nazrana grant. But this appears to be immaterial as even conceding that it was a military jagir grant (as Exh. J. D. 1, wherein Ram Kishan father of Jiwan Mal has been described to be a military grantee of non-horse breeding grant in Chak No. 135 appears to show) the pro?prietary right in the land passed to the grantee before the execution of a conveyance in his favour under the provisions of sub-clause (2) of paragraph 18 of the Military Jagir Grantees printed at page 18 of the Punjab Colony Manual (1933 edition), on which reliance was placed by learned counsel for the respondent. We are not concerned in this case as to the applicability of certain conditions by which the grantee may or may not be bound but with the simple question as to whether the title to the property had come to vest in Jiwan Mal or not on payment of the price. Under section 30 of the Colonization of Government Lands (Punjab) Act, 1912, a tenant may acquire proprietary right in any land including his tenancy either in pursuance of any condition under the Gover rent Tenancy Act or otherwise by agreement with or under rules issued by the Provincial Government and as soon as the proprietary rights are acquired the tenant would in respect of such land cease to be subject to any statement of conditions issued under the Government Tenants (Punjab) Act whether he has agreed in terms to be bound by those conditions or not. That would show that the execution of a conveyance in favour of the tenant is not as the lower appellate Court seemed to think, essential to make him bound by the conditions of the grant which are given in the Act itself, although after execution of the document he may not, if he happens to be a Military Jagir Grantee, remain bound by certain condition, referred to in sub-clause (2) of paragraph 19 of the Military Jagir Grantee's conditions printed at page 48 of the Manual. A perusal of the provisions would show that the passing of title to the property to the tenant does not depend on the execution of a conveyance but obviously on payment of the price. This was so held in Kishan Singh v. Labh Singh Civil Appeal No. 1891 of 1933 referred to in Ali Muhammad v. Sant Lal A I R 1936 Lah. 60 and in an earlier Punjab case reported as Malap Kaur v. Hakim Singh 8 P R 1915. It was decided in those cases that the tenant comes to be possessed of the proprietary rights in the property after the payment of the price and could deal with it after payment as a proprietor regardless of the fact whether the conveyance had been made in his favour or not or even whether the Collector had sanctioned the execution of conveyance in his favour or not. For the above reason I would hold that Jiwan Mal had become proprietor of the land and it was, therefore, attach-able in payment of his debt. As the point was not free from difficulty I would leave the parties to hear their own costs throughout." The first two paragraphs relate to facts. In the third paragraph it is stated that the Transfer of Property Act not being applicable there was no bar to the passing of title without a conveyance and it would pass by virtue of sub-clause (2) of para.. 18 of the Punjab Colony Manual. In the fourth paragraph it is said that "a perusal of the provisions ' relating to Military jagir grantees would show "that the passing of title to the tenant does not depend on the execution of a conveyance, but obviously on payment of price". The provisions relied upon have not been produced nor any reference made to the words used in them so that it is not possible to say whether they would be applicable to the present case which is not the case of a Military Jagir Grant, nor are we in a position to know the basis of the proposition that title would pass "obviously on payment of the price". What the learned Judge would have held if he had to consider the effect of section 30 of the Government of India Act, 1919, which corresponded to section 174 of the Government of India Act, 1935, it is difficult to say. It may be pointed out on that section there existed a judgment of a Division Bench of the Lahore High Court reported as Secretary of State v. G. T. Sarin (I L R 11 Lah. 375) in which it had been held that the provision in section 30 (2) was mandatory. The learned Judge had relied in support of his conclusion on three cases. The judgment of the civil appeal referred to is not before us. As to 8 P R 1915 which is really the first authority on the point and the basis of all subsequent judgments, I propose reproducing this judgment in full. It runs: "In this case Mr. Sheo Narain on behalf of the respondents has raised the preliminary objections that no appeal lies. His point is that the issue, after deciding which the lower appellate Court remanded it for fresh decision, is either a question of fact or one of custom; that if it is a question of fact, no second appeal, lies, and if it is a question of custom, appellants should have obtained a certificate for the appeal from the lower appellate Court, which they have not done; and he refers us to Sawan Singh v. Mothu. We are unable to assent to this way of dealing with the matter. The first question for decision is whether section 21, Punjab Act V of 1912, governs the case, and this is a pure question of law. We therefore over-rule the objection. On the merits also we have heard arguments and have examined the record and the law aforesaid, and we find it clear beyond all doubt that the decision of the lower appellate Court is incorrect and that its order must be recalled and the suits dismissed (Civil Appeal No. 1720 and Civil Appeal No. 1721) are intimately connected and can conveniently be disposed of together). Jawala Singh first obtained the tenancy of this land from Government in 1890. He died, and eight or nine years before suit the two widows (defendants in these two cases), one of whom is Jawala Singh's son's widow and the other his son's widow, admittedly paid to Government the necessary sums for acquisition of proprietary right's. Plaintiffs are the descendants of Gulab Singh, father of Jawala Singh, through a son Mewa Singh; and the lower appellate Court, applying section 21 aforesaid of the Colony Act, finds that the land must be treated as ancestral qua plaintiffs. But Jawala Singh died long before the Act came into force, and the lower appellate Court has overlooked the words in section 21 "when after the commencement of this Act any tenant dies", and Mr. Sheo Narain very rightly admits that section 21 cannot be rightly applied in this case, even if defendants could be said still to be tenants. Further we incline to the opinion that defendants, when they had paid in full the necessary sums to Government became ipso facto owners in their own right of the lands in suit; and thus, whichever view is taken of their present status, plaintiffs' suit must fail. We are unable to see any force in Mr. Sheo Narain's contention that even in these circumstances there remains a possible case for plaintiffs on the score of "custom". We cannot imagine any possible custom under which plaintiffs can oust defendants in either of the two alternatives stated above. In neither case have they any possible locus standi. For these reasons we accept these appeals and dismiss the plaintiffs' suits with costs throughout, the remand orders being set aside." It will be observed that there is no discussion at all and there is merely an expression of opinion. In Ali Muhammad v. Sant Lal (1) there is only a reference to the proposition put forward in Civil Appeal No. 891 without any discussion. In Jagat Singh and others v. Mst. Raj Devi and others (2) there was no question as to when title passed to the widow, the only question being whether the acquisition of proprietary rights by the widow would enure for the benefit of reversioners of the husband. In Faiz Ali v. Mst. Rafia Jan (3) two arguments were employed in support of the proposition that title passes by deposit. The first was: "If the matter in issue were to be decided with reference to the ordinary law there cannot be any doubt that the ownership was acquired when the Government accepted the purchase money because the Transfer of Property Act requiring execution of the sale-deed is not applicable to this province." I have already stated my views as to how a transfer takes place in the case of an ordinary person. The second argument was that section 30 of the Colonization of Government Lands Act did not stand in the way of passing of title on deposit of purchase money. No reference was made to section 175 of the Government of India Act, 1935. Rehmat Ullah v. Muhammad Ismail (4) and Muzaffar Husain v. Nur Ahmad (5) are two judgments by Members of the Board of Revenue who simply felt bound by High Court judgments. Ibrahim v. Mst. Rajji (6) is the only case where there is a reference to section 175 of the Government of India Act. A large number of authorities were cited before the learned Judges who decided this case in support of the proposition that section 30 of the Government of India Act, 1919, prevented any agreement or transfer from being effective till a deed was executed. The learned Judges distinguished the cases on the ground that the transaction in those cases was governed by section 30 of the Government of India Act, 1919, whereas the transaction before them was governed by section 175 of the Government of India Act, 1935, and in their opinion "the provisions of subsection (3) of section 175 of the Government of India Act, 1935" were "substantially different from those of section 30 (2) of the Government of India Act, 1915" because section 30 (2) expressly provided that "a contract if so executed may be enforced against the Secretary of State" which words had been omitted in section

175. The learned Judges went on to say after reproducing section 175 that this section had not the effect of repealing other laws to the contrary and could not take away the power otherwise residing in the Government of entering into oral contracts. They said: (1) A I R 1936 Lah. 60??????????? ??????????? (2) A I R 1938 Lah. 554 (3) P L D 1956 Lah. 94??????????? ??????????? (4) P L D 1958 W P (Rev.) 77 (5) P L D 1959 W P (Rev.) 17 (6) P L D 1956 Lah. 609 "Therefore, unless subsection (3) of section 175 expressly or impliedly purports to repeal all other laws to the contrary, the authority of the Government to enter into oral contracts of sale shall not be deemed to have been taken away." As the transaction before us is governed by section 30 (2) of the Government of India Act of 1919 this case would rather be an authority in favour of the appellant than the respondent. But I am unable to accept either that the omission of the words, reproduced by the learned Judges, in section 175, has made a difference, or that section 175 does not override other laws. As to the last mentioned point it has to be stated that section 175 is a constitutional provision which does override other laws. The existing laws had been continued only to the extent they were not inconsistent with the Constitution (the Government of India Act, 1935). Even if there was any law which permitted the Govern?ment to enter into oral transactions (surely there was no such enactment) that law ceased to have force when section 175 came into existence. But the correct position is that before section 175 there was section 30 (2) of the Government of India Act, 1919, and it is not correct to say that previously the Government had a power of entering into oral contracts which was not taken away by section

175. As to the difference between section 175 and section 30 (2) I reproduce below section 175 (section 30 has already been reproduced). "

175. Power to acquire property and to make contracts etc.?(1) The executive authority of the Federation and of a Province shall extend, subject to any Act of the appropriate Legislature, to the grant, sale, disposition or mortgage of any property vested in His Majesty for the purposes of the Government of the Federation or of the Province, as the case may be, and to the purchase or acquisition of property on behalf of His Majesty for those purposes respectively, and to the making of contracts. (2) All property acquired for the purposes of the Federation or of a Province, as the case may be, shall vest in His Majesty for those purposes. (3) All contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made by the Governor-General or by the Governor of the Province, as the case may be and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the Governor-General or Governor by such persons and in such manner as he may direct or authorise. (4) Neither the Governor-General, nor the Governor of a Province, (nor the Secretary of State) shall be personally liable in respect of any contract or assurance made or executed for the purposes of this Act, or for the purposes of the Government of India Act or of any Act repealed thereby, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof: The words to the effect that the contract so executed may be enforced appearing in section 30 (2) were redundant for when the section granted power to Government to enter into contracts it was a necessary implication that the contracts could be enforced. Ordinarily all provisions relating to incorporation in the case of corporate bodies like Municipal Committees, Companies, etc. simply say that they can enter into contracts. No need is felt of adding that the contracts can be enforced. In agreement with a large number of decided cases I would hold in view of the use of the word "execute" that oral contracts are not permissible. At the same time 1 may repeat what I have already stated that here we are concerned only with the authority of the Collector. Does the Collector possess any authority for entering into an oral contract? According to section 175 the contracts are to be executed by the Governor-General or Governor or his nominee. The Collector can only be a nominee and the only authority which can be granted under this section to the Collector is an authority to "execute". He possesses no authority apart from this section and an oral transfer by him would be without legal authority. My conclusions on the first point are: (i) There was nothing in the relevant rules saying that on deposit of money proprietary title would stand transferred and there were on the other hand detailed provisions as to the execution of a sale-deed, and a direction forbidding change in revenue records before a deed was executed. A number of conditions had to be attached to the transfer. A transfer was by the Government which in practice too acts by deeds and therefore apart from section 30 (2) of the Government of India Act title was intended to pass only when the deed was executed. (ii) Section 30 of the Government of India Act, 1919, was a complete bar to the passing of title except by a deed. It would override any other enactment to the contrary being a consti?tutional provision, so that had there been any provision in rules empowering oral transfer they would be without effect in view of their inconsistency with section

30. I come now to the second of the two points argued in the appeal, namely, assuming that title passed on the day when the money was deposited was it subject to a condition which would entitle the reversioners of the husband to inherit the land. I have already stated that property vested in the Crown and a deed could be executed by the Governor-General or his nominees. The first point to be determined is whether the condition operative was the concurrence of the reversioners which was the condition mentioned in the permission of the Provincial Government for transfer of land or the concurrence of the legal heirs which was the condition mentioned in the deed itself. If I were to come to a conclusion that the words "without the consent of legal heirs" governed this transaction I would not find it easy to hold that the intention of these words was different from the words used by the Government. The Collector could not be intending to transfer a title different from that contemplated by the Provincial Government, but even if he intended to transfer such, a title he could not have done so because his authority is derived only from the Governor and he can transfer only to the extent permitted by the Governor and no more. But really the whole of this argument is unnecessary, because it will become clear that the words "without the consent of legal heirs" could not possibly have any effect. These words appear only in the deed. On the date when the deed was executed already section 30-A was in force and if title passed by the deed there was a far stronger condition already attached by statute to the transfer. If on the other hand title was transferred not by the deed, but on the date when the money was paid then on that date the only condition in force was the condition contained in the order of the Provincial Government. Obviously, therefore, if title passed on the 4th October 1943, it would be subject to the condition imposed by the Government unless, of course, we were to say that the widow would take the land free of all conditions which could be imposed in such cases by the Government and which were already mentioned in the statement of conditions. That would not be a possible argument for it would defeat the very plea that title passed by deposit of money. It should be clear therefore that if title passed on payment of money it passed subject to the condition that the widow could not alienate "without the concurrence of the reversioners". The next point to consider is as to the effect of this con?dition. It is urged that it only prevented an alienation and would not affect the inheritance. To put such a construction upon the condition would render the condition meaningless. Let us look at the background of this condition. A widow has under the customary law which was applicable to agriculturists in the Punjab only a life estate in the property of her husband. After she dies inheritance opens to the heirs of her husband, it having been supposed that the life of the husband was continued in her. The Colonization of Government Lands (Punjab) Act too did not give the widow an estate better than she had under the customary law. It provided that the widow would hold the land "till she dies or remarries". The marriage was to terminate her rights because she could continue in possession only as representative of her husband. The personal heirs of the widow have got nothing to do with the land inherited by a widow from her husband either under custom or under the Colonization of Government Lands Act. When the Provincial Government attached this condition to the transfer the intention was to protect the rights of reversioners. If on account of this con?dition the widow could not alienate but on her death the property was nevertheless to go to her own heirs there was no protection to the reversioners. It is urged that we are to look to the words of the condition imposed and the words only prevent an alienation. I say we have to look to its full implication and its substance. We are not dealing with skilled draftsmen, but with the orders of the Government in a country where even the draftsman has much to learn. However there is no need for any great apology in the present case for the words sufficiently carry their true import. The word "reversioners" obviously conveys the sense that the persons referred to are reversioners even after the acquisition of proprietary rights because it is in respect of the alienation of proprietary rights that they have the power to concur or not to concur. When it is said that they are reversioners it is accepted that they are entitled to inherit the property. Reversioner means a person who inherits an estate not from the last person who dies and whose estate terminated with his death, but from a previous holder of land who had a heritable estate. At the same time there appears to be an inconsistency in a person having control over alienation of land, but having no right to inherit the land. It is an established principle of customary law, which provides the basis for the imposition of this condition, that it is only a person who has right to inherit as can object to an alienation. He may be one out of that body of persons which is to inherit the land, but he must be in that body. The tenancy rights were the property of the husband of the widow and the reversioners had a residuary interest in those rights after the death of the widow. The widow could not by her act defeat the rights of the reversioners. In equity the personal heir of Mst. Zainab Bibi never had a case. In law too I find he has none. Property is transferred only when the transferor actually makes a transfer and here the parties con?templated transfer by a deed. Also section 30 (2) of the Government of India Act, 1919, was a complete bar to the transfer of rights except by an instrument. The Collector had no authority in view of this provision except to "execute" a document. No proprietary rights were transferred to the widow before the enactment of section 30-A of the Colonization of Government Lands Act. I would accept this appeal and dismiss the suit, leaving the parties to bear their own costs. ORDER OF THE COURT In accordance with the view of the majority we dismiss this appeal with costs. A. H.??????????????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.