P L D 1969 Supreme Court 338 (PLP)

SAJJAD AHMAD, J.--‑This is a defendants' certificated appeal against a judgment and decree of the High Court of West Pakistan, Lahore, passed in first appeal, whereby the judgment and decree of the trial Judge as regards the pos session of the agricultural land in dispute made in favour of the respondents, was affirmed and in variation thereof, and in partial acceptance of the cross‑objections filed by the respondents, their claim to the extent of 3/7th share in a residential ihata in Layallpur which was also in dispute, was decreed. The property in question, was a part of the estate of one, Sharaf Din, who died in 1901. His estate at the time of his death consisted of: (1) six squares of land measuring 1284 kanals, 15 marlas, in Chak No. 156/R. B. of Lyallpur District in which he held tenancy rights under the Government,Tenants (Punjab) Act, 1893; (2) another square of land in the same Chak, measuring 214 kanals, 2 marlas, which was held in occupancy rights; (3) one square of land in Chak No.' 29/R. B. in Tehsil Sheikhupura; (4) a residential ihata measuring 12 marlas and 157 square feet is the city of Lyallpur; (5) agricultural land situated in Gurdaspur. Sharaf Din, who was a Muslim Jat, hailed from village Dar in Tehsil Batala of District Gurdaspur. On his death, he was survived by two widows, Mst. Panah Bibi and Mst. Hussain Bibi, two sons, Fazal Haq and Fazal Qadir, from the former (who were the original defendants in the suit, and are represented in this appeal by the appellants, as their legal representatives), and four daughters from the latter (plaintiffs in the case), namely, Mst. Hakim Bibi, Mst. Taleh Bibi, Mst. Sardar Bibi and Mst. Resham Bibi. The last mentioned had died and was represented in the suit by her two sons, Muhammad Shafi and Muhammad Sharif, respondents Nos. 5 and 6 in this appeal. It is not disputed that on the demise of Sharaf Din, half of his estate was mutated in the names of his two sons, Fazal Haq and Fazal Qadir and the other half in that of Mst. Hussain Bibi. Exh. D/18 is a copy of the mutation pertaining to the Lyallpur lands which was sanctioned on the 27th of August 1904. Exh. D/25 is a copy of the mutation in respect of the residential plot in the city of Lyallpur. While the square of land listed at item No. 2 above, continued to be held in occupancy rights, proprietary rights were acquired in the other six squares of agricultural land in Lyallpur by the same set of heirs of Sharaf Din, namely, Fazal Haq and Fazal Qadir, in one‑half, and Mst. Hussain Bibi in the other half. Mutation (copy Exh. 1)/10) to this effect was attested tin the 17th of June 1912. In the review of events, a further noteworthy fact is that Fazal Haq and Fazal Qadir disposed of the square of land in Sheikhupura as well as their three squares of land in Lyallpur in the lifetime of Mst. Hussain Bibi. Mst. Hussain Bibi died in 1945. In the revenue records she was recorded as the owner‑in‑possession of three squares of land in Lyallpur, measuring 677 kanals, 16 marlas, and a co‑occupancy tenant of another square of land (i.e., the one held in occupancy rights by the late Sharaf Din in the same district and she was also shown as the owner of, 12 marlas and 157 square feet of a residential plot in the city of Lyallpur. Earlier in her life‑time there was a litigation between Mst. Hussain Bibi and her step‑sons, over the agricultural land in Gurdaspur held by Sharaf Din. It was finally decided by the Chief Court of Punjab by its judgment dated the 20th of April 1909, in Case No. 697 of 1908 (copy Exh. D/26 on record), wherein it was held that under a family arrangement each of the two widows of Sharaf Din had taken half the property for herself and her branch of the family, although under the Customary Law, Hussain Bibi, in the presence of the sons of her late husband, had had no right to any part of the property, but was only entitled to maintenance. It .was decreed that she was to keep her half share of the property as widow's customary estate, that is to say, for her life, which was liable to forfeiture on her death or re‑marriage. The attestation order on mutation Exh. D/18 mentioned above pertaining to the agricultural land in Layallpur, recited that the rule of chaudawand obtained in the tribe to which Sharaf Din belonged and that his property in Gurdaspur had also been mutated on that basis. On the death of Hussain Bibi, a dispute arose between her daughters and her step‑sons as to the succession to her property, leading to a suit for possession by the former, first in forma pauperis and then as a regular suit instituted in December 1953. The plaintiffs based their claim on the ground that Mst. Hussain Bibi was the absolute owner of 'her half share. As the mutation in her name was attested despite the presence of her step‑sons, it amounted to a fresh allotment. It was further alleged that in any case, Mst. Hussain Bibi's prescriptive title to the property had matured. It was also claimed that the plaintiffs were legatees under a Registered Will executed in their favour by Mst. Hussain Bibi. The defendant‑appellants (which term includes their predecessors‑in‑interest) contested the suit on the main plea that Mst. Hussain Bibi succeed to half share of the estate under a family arrangement in accordance with the family custom by way of maintenance and that there was neither .any fresh allotment in her favour nor had she acquired a prescriptive title thereto. They denied the alleged will in favour of the respondents and its validity. They maintained that the proprietary rights in the six squares of land in Lyallpur were acquired by them with their own funds and that acquisition by Mst. Hussain Bibi of the proprietary Tights, if any, was to be treated as an accretion to the widow's estate. Several issues were struck in the case, but it is not necessary to refer to them in this Judgment, as the fate of the present appeal turns on two points only which have been argued before us by the learned counsel and which relate to the character of the estate in the hands of Mst. Hussain Bibi in the year 1901 when she succeeded to it as a widow .on the death of her husband Sharaf Din, and the change brought about in her status qua this estate after the acquisi tion of proprietary rights in the six squares of land in Lyallpur. The other question requiring determination is the extent of her share in the residential plot in dispute. The trial Court has held that on the death of Sharaf Din, Mst. Hussain Bibi, who was without a male issue, got half share of the estate under the chundawand rule of succession which prevailed in the tribe of Sharaf Din. It is pointed out in the trial Court's judgment that the Customary Law of Gurdaspur District which was compiled in the year 1912, long after the death of Sharaf Din, recognized this chundawand rule of succession for the Muslim Jat tribe of Gurdaspur, as stated in answer to question No. 1 in Part II of the Book on the Customary Law of that District compiled by Mr. Louis W. Dane, the then Settlement Collector. Her rights in the property were, however, that of a customary widow with a life‑estate which were terminable on her death or re‑marriage. Nonetheless, when the proprietary rights were acquired in the year 1912, according to the trial Judge, she became the full‑fledged proprietor of the three squares of land held by her. The plaintiffs' claim as her heirs, was decreed in respect of these squares, but dismissed as regards the square which was held in occupancy rights as also with regard to the residential plot, as her rights in both these items of property were that of a customary widow and a limited owner which came to an end on her demise. The trial Judge did not accept the argument urged on behalf' of the respondents that the acquisition of proprietary rights by Mst. Hussain Bibi was an accretion to her widow's estate. The appeal preferred by the appellants to the High Court was dismissed. The High Court affirmed the view of the trial Judge that on the conferment of the proprietary rights in 1912 on Mst. Hussain Bibi, she became the absolute owner of three squares of land which, on her death, fell: to the inheritance of her heirs, to the exclusion of her step sons and their descendants. The respondents filed cross‑ objections, claiming also the square of land held in occupancy rights as well as the residential plot of land which, as already stated above, were partially accepted only as regards 3/7th share of" the residential plot in dispute. The High Court has taken note of the plea of the appellants that the entire money for the acquisition of the proprietary rights in these squares was paid by them, part of which was raised by the sale of one of their own squares. The High Court while accepting this plea has found on the evidence of some of the witnesses of the appellants themselves that all these lands were being managed by the appellants. The price for acquisition of the proprietary rights was thus paid by them on behalf of the entire estate, which included the share of Mst. Hussain Bibi. If they have paid any sum in excess of her share, that is a matter of adjustment between them and Mst. Hussain Bibi. But whether they have: made the payment out of the income of their estate or out of their own resources, the payment must be deemed to have been made on behalf of Mst. Hussain Bibi qua the lands in her possession. She was the tenant of those lands even as a life estate holder and she alone was entitled to acquire the proprietary rights therein under para. 18 of the Yeomen's Grant under which she had actually secured the proprietary rights. Incidentally, the position taken up by the appellants that although they were managing the lands and derived the income yet Mst. Hussain Bibi remained in possession of these lands in lieux of maintenance, is self‑contradictory. The fact that Hussain Bibi became the absolute owner of the lands in question and was recognized as such, is apparent from the relevant mutation (copy Exh. D/10) which was attested on the acquisition of the proprietary rights. When the mutation was first entered on the 17th of August 1912, by the Patwari, the Girdawar objected that the mutation of" of proprietary rights in favour of females was forbidden. The Assistant Collector on the 15th of June 1913, overruled this objection and directed that "Females who have deposited the purchase money before August 1912, have been permitted by the order of the headquarters to be recorded as having acquired proprietary rights. The acquisition of proprietary rights is, therefore, sanctioned in the names of Fazal Haq and Fazal Qadir, sons of Sharaf Din, in equal shares, one half, and Mst. Hussain Bibi, widow of Sharaf Din, one‑half". The appellants did not object to this mutation which recorded Hussain Bibi as the full owner of half of the six squares of land and subsequently in 1925 when Fazal Qadir sold a part of his land he stated in the sale‑deed (copy Exh. P/3) that he was owner of 1/4th share only in the joint khata, thus conceding that one‑half in the joint khata belonged to Mst. Hussain Bibi. We are in full agreement with the Courts below that on the demise of Sharaf Din, Mst. Hussain Bibi held three squares of land, which are in dispute, as a life estate under, a family arrangement in recognition of the chundawand rule of succession which was in vogue in the family, but these rights ripened into full ownership on the acquisition of proprietary rights therein The learned counsel for the respondents has referred to some decided cases which support the view that a widow who inherited a limited estate under custom or inherited occu pancy rights on the death of her husband, became a full fledged owner on the acquisition of the proprietary rights by her. (See A I R 1921 Lah. 315, 129 P R 1916 and A I R 1937 Lah. 78). In the last‑mentioned case it was decided that " even when the proprietary rights are acquired by a widow under the Punjab Colonization of Government Lands Act out of g, the income of the land, the widow must be recorded as the owner of the property". It becomes a case of merger of the tenancy or occupancy rights in absolute rights of ownership. But the position as regards the urban residential plot in dispute is different. Mst. Hussain Bibi was in possession of this plot as a limited owner holding the widow's customary rights therein, which came to an end on her death. She had not left any life interest or right of her own in that property which devolved on her heirs under the Shariat Application Act of 1937, which was applicable in futuro to Muslim owners in respect of their inheritance to their urban immovable properties. This Act did not have a retrospective operation to cover urban properties the owners of which had died prior to its enforce ment and succession to whose urban properties was postponed by the intervening life estates. Therefore, on the termination of the life interest of Hussain Bibi in this residential plot it will be deemed to have reverted to its last male owner, i.e., Sharaf Din, the succession to which will take place under the law which prevailed at the time of his death in 1901, which was the Customary Law. Under this law, the appellants as the male descendents of Sharaf Din, would succeed to this item of property and not the shariat law heirs of Mst. Hussain Bibi or Sharaf Din. In the result, we vary the decree of the High Court in respect of the residential plot in Lyallpur while upholding the rest. This means the restoration of the judgment and decree of the trial Court, dated the 27th of August 1955. In view of the divided success of the parties, we leave them to bear their own costs. K. B. A. Appeal partly accepted.