1972 PLP 243 (SCMR)

HAMOODUR RAHMAN, C. J.‑This appeal, by‑ special leave, arises out of a judgment of a learned Single Judge of the former High Court of West Pakistan, Lahore, dismissing I6gular Second Appeal No. 79 of 1968 in limine, on the ground that the questions of law arising in the appeal are covered by a Full Bench decision of that Court in the case of Slier Muhammad v. The Additional Settlement and Rehabilitation Commissioner (P L D 1968 Lah. 234). The learned Single Judge also refused to grant a certificate under Clause 10 of the Letters Patent of the High Court. Leave was granted in this case to consider the question as to whether a female allottee of agricultural land under the Rehabilitation Act becomes an absolute owner thereof to the exclusion of the collaterals of the last full owner. The dispute relates to agricultural lands situated in Square No. 29 of Chak No. 46/J. B. in the District of Lyallpur which were allotted and confirmed in the name of Mst. Mehtab Bibi under the provisions of the Displaced Persons (Land Settlement) Act (XLVII of 1958), after she migrated to Pakistan. Her husband, Barkat Ali, was owner of some agricultural lands in village Ghariala, Tehsil Qasur, District Lahore, which have now fallen in Bharat. These lands were the ancestral lands of the said Barkat Ali. On the death of Barkat Ali who died without leaving any male lineal descendent, the lands were mutated in the name of his widow, Mehtab Bibi, as a limited owner, according to the customary law of the Lahore District as per the fifth regular settlement. She filed her claim on migration to Pakistan on the basis of her mutation as limited owner of her husband's estate. After the allotment of these lands, Mst. Mehtab Bibi purported to transfer her rights therein by way of gift to one Ghulam Rasul, son of Mehtab Din, by a mutation attested on the 30th of May 1960. The appellants, claiming to be collaterals of Barkat Ali, the deceased husband of Mehtab Bibi, challenged the validity of this transfer by a suit before the Civil Judge, Lyallpur, for a declaration that the gift was invalid, as it was without considera tion and for no legal necessity. At the trial, the following, amongst other issues were raised:‑ "(1) Was Mehtab Bibi limited owner of the land in dispute? (2) If so, was she governed by customary law? What is the particular rule of custom applicable to this case? (3) Was M,st. Mehtab Bibi incompetent to make gift of the suit land? (4) Are the plaintiffs reversioners of the last male owner? If so, to what share, if any, are they entitled?" Earlier, a specific issue had also been raised as a preliminary issue regarding the question of jurisdiction to try the suit and the trial Court had, by its decision of the 18th of June 1964, held that it bad such jurisdiction. Mst. Mehtab Bibi admitted that the lands, which had been transferred to her on migration to Pakistan, were in lieu of the lands which had been mutated in her name after the death of her husband, as a limited owner. She also admitted that her husband had died leaving no male lineal descendent and that the lands were ancestral lands and her husband's family was governed by custom which allowed her to retain possession of her husband's lands till her death. It was, however, claimed on her behalf that since the lands had been confirmed in her favour as from the 24th of December 1964 under the provisions of the Displaced Persons (Land Settlement) Act, 1953, this was a fresh grant in her favour and, therefore, the lands so granted were not subject to the limitations imposed by custom on her possession of her husband's estate. The trial Court found that as Mehtab Bibi had, on her own admission, received the lands in dispute in lieu of the lands held by her as her husband's heir under custom, she did not acquire an absolute title to these lands and, therefore, was in no way competent to transfer these lands either by gift or otherwise except for valuable consideration and for valid legal necessity. The suit was, accordingly, decreed on the 21st of June 1966. The Additional District Judge of Lyallpur, however, reversed this finding on appeal and held that allotment of evacuee land in Pakistan was not made in favour of the displaced persons in lieu of the lands left by them in India but that it was a grant. The suit land had, therefore, no connection with the land owned by Barkat Ali. Mst. Mehtab Bibi was thus not a limited owner in respect of the lands so allotted to her. The appeal was, accordingly, allowed and the suit was dismissed. A second appeal to the High Court was dismissed in limine because in the meantime a Full Bench decision of the High Court had, in the case of Sher Muhammad v. The Additional Settlement and Rehabilitation Commissioner, already held the same view that was taken by the learned Additional District Judge. This Court has, however, in the case of Addl. Settlement Commissioner (Land), Sargodha v. Muhammad Shafi and others (P L D 1971 S C 791), reversed the Full Bench decision of the High Court and held that a female obtaining an allotment of land in lieu of land abandoned in India by her as limited owner does not become full owner of the land allotted in Pakistan in satisfaction of such a claim. The allotment in Pakistan only notionally restores her husband's property in Pakistan and therefore, on the termination of her limited estate, it is the reversioner of the last male owner who will become the allottee of such land and not the heirs of the female limited estate‑holder. In this view of the matter, the transfers by such a female limited estate‑holder will also be subject to the same restrictions as attached to a female estate under custom and will not pass any greater right to the transferee than what would have passed under the general law. This proposition is not controverted by the learned counsel appearing on behalf of the respondents. He concedes that the transfer by Mehtab Bibi in favour of the respondents will be valid only to the extent of the share that Mehtab Bibi would have inherited from her husband after the termination of the life estate under the provisions of the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962). In view of her own admissions that the lands that were allotted to her in Pakistan were in lieu of the lands inherited by her from her husband as a limited owner in Bharat, the learned counsel appearing on behalf of Mehtab Bibi does not contend that her limited estate has not yet terminated either under the Shariat Act of 1962 or its subsequent amendments in 1963 and 1964, nor has any question been raised as to the locus standi of the appellants, presumably because none of these questions were raised in any Court below or in the concise statement. In this view of the matter, it is clear that the High Court's decision cannot be maintained as it was not based on any independent reason other than those given in the Full Bench decision. This appeal is, accordingly, allowed and the decree passed by the Civil Judge, Lyallpur is restored. The appellants are declared to be the owners of 3/4th share in the suit lands and the transfer by Mehtab Bibi will be valid only to the extent of 1/4th share which would have come to her by way of inheritance under the Shariat Law. There will, however, be no order as to costs. Appeal dismissed