P L D 1961 (W (PLP)

INAMULLAH, J.‑

The question for our decision, is, whether the tenancy right of a widow who acquired occupancy rights before 1939, but died after 1939, devolved in accordance with section 59 [as substituted by the Punjab Tenancy (N.‑W. F. P. Amendment) Act, 1939], or according to section 59 as it stood before amendment. The facts giving rise to this question are fully given in the referring order. I may briefly state the facts, in order to make the above question intelligible.

2. One Zaina Khan was the occupancy tenant of certain land situated in the area of village Kakul. He died in 1925, leaving behind his son Shah Zaman, a daughter Mst. Khanam Jan and widow Mst. Muhammad Jan. Shah Zaman, according to the Tenancy Act then in force, was the successor‑in‑interest of Zaina Khan. Shah Zaman died after about three years of the death of his father. No mutation of inheritance was, however, attested in his name.

3. After the death of Shah Zs man on 2nd July 1928, muta tion of Zaina Khan's inheritance was attested on 22nd December 1930, in the name of Mst. Muhammad Jan, widow of Zaina Khan.

4. On 17th April 1941, Mst. Muhammad Jan made a gift of half of her tenancy rights in favour of her daughter Mst. Khanam Jan. Fateh Khan and Qalandar Khan, the collaterals of Zaina Khan, challenged the gift by a suit. It was held in that suit that the gift was invalid, and that Mst. Muhammad Jan was in possession of a limited estate as Zaina Khan's widow and had no right of alienation.

5. On the death of Mst. Muhammad Jan in October 1952, the tenancy rights held by her were attested in favour of Mst. Khanam Jan and her other heirs. The collaterals of Zaina Khan did not get anything.

6. Fateh Khan, one of the collaterals of Mst. Muhammad Jan's husband Zaina Khan, brought a suit against Mst. Khanam Jan for possession of the entire land. The suit was decreed on 25th October 1954. Mst. Khanam Jan went in appeal against this judgment and decree before the District Judge who following the case of Mst. Sarwar Jan v. Gul Muhammad and others (P L D 1952 Pesh.40) allowed the appeal.

7. It has been held in the case of Mst. Sarwar Jan by a Division Bench of the Judicial Commissioner's Court that where an occupancy tenant died leaving behind a widow before 1939, who succeeded him and the widow died after the coming into force of the amended section 59, her occupancy rights would devolve on her Muslim Law heirs and not on the collaterals under the old section 59.

8. The question before us is not free from difficulty. It is due to the nature of the interest that a widow had in the occupancy rights of her husband that devolved upon her on his death. The nature of her right would be clear from the old section 59 of the Punjab Tenancy Act, 1887 (hereinafter called the Act), which dealt with the devolution of a right of occupancy of a tenant. The relevant portion of section 59 of the Act reads as under :‑-- "(1) When a tenant having a right of occupancy in any land dies, the right shall devolve‑ (a) on his male lineal descendants, if any in the male line of descent, and (b) failing such descendants, on his widow, if any, until she dies or remarries or abandons the land or is under the provision of this Act ejected there from, and (c) failing such descendants and widow, or, if the deceased tenant left a widow, then when her interest terminates under clause (b) of this subsection on his male collateral relatives in the line of descent from the common ancestor of the deceased tenant and those relatives."

9. The widow under section 59 of the Act was not a transfer the rights of occupancy by sale, gift of mortgage, or by lease or sub‑lease for a term exceeding one year. It would, therefore, appear from section 59 of the Act that the widow had only a life estate in the occupancy rights of her husband. The widow possessed the rights of occupancy under a number of limitations, the most important being for her life only. If on the death of the widow who had taken possession of the occupancy rights of her husband as a limited owner, the occupancy rights devolved upon her heirs, it would mean that the amended section 59 had the effect of changing her limited right into an absolute right. At one stage of the hearing, I was of the view that the amended section did not have the effect of conferring absolute right upon the widow who held the occupancy rights under section 59 of the Act as a limited owner. On further con sideration, however, of section 59 of the Act as it stood unamended and the present section, I am of the view that though the widow may have come into possession of the property as al, limited owner, but if she dies after the amendment of section 59of the Act, the occupancy rights would devolve upon he Muhammadan Law heirs.

10. I have already reproduced the relevant portion of an section 59 as it stood before the amendment. This section was deleted in its entirety by the Punjab Tenancy (N.‑W. F. P. Amendment) Act, 1939. The substituted section reads as under:

"When a tenant having a right of occupancy in any land dies, the right shall devolve on his heirs in accordance with the personal law of the deceased tenant: Provided that if the deceased has left no such person as can inherit the right in accordance with this section, the right shall be extinguished: Provided further that notwithstanding anything in any law; custom or entries in the revenue papers a female occupancy tenant shall not be liable to do begar or render any service or pay any village cess to her landlord."

11. The most important words in the present section 59 are "when a tenant having a right of occupancy in any land dies." It is only when a tenant having a right of occupancy in any land dies that his right shall devolve on his heirs in accordance with the personal law of the deceased tenant. The important question, therefore, is whether a widow who succeeds her husband under section 59 as it stood before 1939, can be said to be a "tenant having a right of occupancy". For the answer of this question one has to refer to section 59 as it stood before 1939. Sub‑clause (1) of section 59 of the Punjab Tenancy Act of 1887, ran asunder :‑ "When a tenant having a right of occupancy in any land dies, the right shall devolve."

12. The key words in sub‑clause (1) of section 59 are "the right shall devolve". The right has a reference to the right of occupancy of the tenant who dies. It, therefore, follows that on the demise of a tenant what devolves on his male lineal descendants and failing such descendants on his widow, is "the right of occupancy". Section 59 of the Act does not make any distinction whatsoever, so far as the devolution of the right whether on the male lineal descendants or widow is concerned. In the case of male lineal descendants as well as the widow what devolves upon them on the death of the tenant is "the right of occupancy" held by the deceased tenant. So long as the widow is in possession of the land she occupies it as an occu pancy tenant irrespective of the limitations put on her enjoyment of the right. A distinction must be drawn between the right of occupancy as such and the limitation on its enjoyment. If she had a right of occupancy the devolution on her death after 1939, must take place according to personal law.

13. It would be against the principles of interpretation of statutes to put certain limitation on the words which are clear in themselves. "Right of occupancy" in the old section and the amended section 59 has been used in the same sense. It is not permissible to add any words to the clear meaning of "right of occupancy", occurring in the amended section. In order to make a distinction in the devolution of the right of occupancy of a window and that of a male tenant, the relevant portion of the amended section will read something like this (the underlined words in the section are the additions):‑-- "When a tenant having a right of occupancy in any land dies, except in the case of a widow, the right shall devolve on his heirs in accordance with the personal law of the deceased tenant." Moreover, the fact that the legislature has made no separate pro vision in the amended section 59 for the devolution of the right of occupancy of a widow would show that no distinction exists in the right of occupancy of a widow and a male tenant. That the amended section 59 applied to the case of a widow who had come in possession of the right of occupancy before 1939, is also supported from the second proviso to the amended section. In my view a widow occupancy tenant who may have been paying any cess to the landlord before 1939 could refuse to pay after the amended section came into operation. Section 59 is a piece of substantive legislation.

14. It, therefore, follows from the above discussion that if the right that devolved upon the widow before 1939, was a right o occupancy, it is immaterial if she held that right as a limited owner, and with limitations in respect of sale, gift or mortgage. For the purposes of the application of the amended section 59, all that has to be seen is, whether the widow had "a right of occupancy in any land" before her death. It cannot he denied that she had such right. The right will be an occupancy right in spite of the limitations put upon her in respect of its enjoyment and devolution.

15. In the present case in the light of what I have said above, the right of occupancy on the death of Mst. Muhammad Jan would devolve on her heirs according to Muslim Law. ABDUL HAMID, J.‑

The facts of this case have been stated in the judgment of my learned brother, and the legal question which arises out of them and to which the Bench has been called upon to furnish an answer, is, whether in relation to a widow who succeeded to the right of occupancy on the death of her husband under subsection (1) (b) of section 59 of the Tenancy Act, the words "a tenant having a right of occupancy in any land" occurring in section 59 of the Punjab Tenancy Act, 1887, after the amendment of 1939, have the same meaning and significance as those words bore in that section before the amendment.

2. With immense respects for the views expressed to the contrary, I am of the opinion that when a widow succeeded to the rights of occupancy, under subsection (1) (b) of section 59 of the Tenancy Act, under the limitations contained in sub section (3) of that section, she was not a tenant "having a right of occupancy" within the meaning of subsection (1) of section 59 of the Act. With limitations on her power contained in sub section (3) she was a tenant of a different class.

3. It is not disputed that occupancy rights which on the death of a person devolved upon his widow, under subsection (1) (b) of section 59 of the original Tenancy Act, were rights of a character different from the rights to which the male descendants of an occupancy tenant succeeded. The rights of the widows were subject to many limitations she held the estate as a limited owner, without any power to alienate the tenancy at all. Only a lease for a term of one year was permitted to her. On her death, or remarriage, the tenancy had to devolve on the male collaterals of her deceased husband, and not on her own heirs.

4. If a widow succeeds to a right of that character and a male succeeds to a right of unfettered ownership, can the two be said to have succeeded to a right of the same character ? The character of the estate of one is entirely different from the character of the estate of the other.

5. It is true that after the amendment of 1939, she is, within the language of the amendment, a person having "a right of occupancy". But as the right of occupancy which she originally acquired was of a limited character, and she remained clothed with that right she is not a person having "a right of occupancy" within the meaning of the amended subsection (1) of section 59, as she was not a person "having a right of occu pancy" before the amendment. She was a person having a right of occupancy circumscribed by limitations contained in subsection (3) of section 59 of the Act, and she remained ‑in possession of the right circumscribed by those limitations even after the amendment of 1939. The amending section does not apply to her case. There is a support for this view in P L D 1956 Lah. 934 where a person acquiring a right of limited character was held to be subject to the limitations under which he had acquired that right even after the change in law.

6. It appears that after the amendment of 1939, it was intended to bring the occupancy rights within the pale of Muslim Personal Law (Shariat) Application Act, 1935. It was not the intention of the amending Act of 1939, to place females in a position higher than the one due to them under their personal law. If we compare the position of a widow who succeeds to occupancy rights in a land with the position of a widow who succeeds to proprietary rights, we will find that on the interpretation given in P L D 1952 Pesh. 40, the widow succeeding to occupancy rights stands in a more beneficial position. According to section 4 (1) ‑of the Muslim Personal Law (Shariat) Application Act, 1935, when a widow who had succeeded to her husband's property other than occupancy rights as a limited owner, dies, her property, upon her death, devolves upon her heirs to the extent of 1/4 and the residue descends to her husband's collaterals.

7. But in the case of occupancy rights, on the interpretation of P L D 1952 Pesh. 40 the occupancy rights become the absolute property of the widow and have to devolve upon her heirs to the entire exclusion of her husband's heirs. Explained ‑by illustration it would be as follows :‑ "On the death of A in 1932, leaving two sets of properties, occupancy rights in one piece of land and full proprietary rights in another, the widow succeeded to both the properties as limited owner. She dies in 1940. According to the interpretation of P L D 1952 Pesh. 40, occupancy rights would devolve upon her heirs alone, and proprietary rights upon her heirs to the extent of 1/4th and upon her husband's heirs to the extent of 3/4th."

8. Was the amendment of 1939, in section 59 of the Tenancy Act intended to secure a position of this character for the widow? Was it intended to make a limited owner, like a widow, in relation to occupancy rights, a full owner and to allow her to take the whole of her husband's property in excess of her Islamic Law share? Was it intended to deprive his other Muslim Law heirs of their share in occupancy rights? To me it appears that the amendment was intended to bring occupancy rights into line with the other landed property and to make occupancy rights also heritable by the Muslim Law heirs. It was not intended to make the widow full owner of the whole of occupancy rights and to deprive the Muslim Law heirs of the last male owners of their share in those rights.

9. Section 59 of the Punjab Tenancy Act was a provision, of substantive law because that provision conferred rights upon' heirs. Any amendment in that section would also be a piece of substantive law and would not take effect retrospectively, unless there is a direction in the law to that effect. The widow who succeeded to her husband's estate under section 59 of the Tenancy Act under the limitations of subsection (3) of that section acquired a right of a limited character and a right of that character vested in her. The change in law made in 1939, would not change the character of that vested right and convert the limited estate into absolute estate. The character of the widows' previous right was preserved by section 6 of the General Clauses Act. There is a support for this view in 1943 Pesh. L J 9.

10. The proviso to section 59, no doubt absolves the female holders of occupancy rights from the obligation of rendering service. This proviso was inserted for the benefit of all female holders of occupancy rights. As under the change of 1939, females had to hold occupancy rights, and as some occupancy tenancies were held on condition of rendering begar (service); females were exempted from rendering service. That provision is of no assistance in interpreting the provisions of subsection (1) of section 59 as amended.

11. In view of this interpretation the plaintiff is entitled to the Muhammadan Law share in the occupancy tenancy of Zaina deceased. The whole of it cannot devolve upon the widow.

12. I find that Zaina deceased died leaving a widow, Muhammad Jan, a daughter, Khanam Jan, and two collaterals, Fateh Khan plaintiff, and one Kalandar Khan. According to rule of inheritance, Mst. Khanam Jan's share is 8/16, Mst. Muhammad Jan's 2/16 and Fateh Khan and Kalandar Khan's 3/16 each. Fateh Khan is, therefore, entitled to 3/16 of Zaina's estate. Kalandar Khan does not claim his share and his share will remain where it lies. Fateh Khan can claim his own share only, and that being 3/16, he is entitled to a decree for the possession of 3/16th share of Zaina's‑ occupancy rights. The order of the Appellate Court is to be set aside and the decree of the trial Judge is to be modified in the light of this decision. HABIBULLAH KHAN, J.‑--With the greatest respects, I do not find it possible to agree with my learned brother Inamullah Khan, J. If his interpretation of the words "a tenant having a right of occupancy in any land" occurring in section 59 as amended in 1939, is accepted, it would operate an anomalous position. For instance, while a widow who had succeeded to the estate of her husband before 1939, as a limited owner in respect of proprietary right in any land but had died after the amended section came into force, would inherit 1/4th or 1/8th share as the case may be, in respect of occupancy right under similar circumstances she would inherit the entire estate to the exclusion of all other heirs, collaterals and reversioners of her husband, a situation which was never intended or contemplated by the Legislature. As has been rightly observed by my learned brother Sheikh Abdul Hamid, J., the intention of the Legislature by amending section 59 was to bring the rule of succession in the case of occupancy rights at par with proprietary rights, in relation to widows and other females who had succeeded to estates as limited owners before the Muslim Personal Law (Shariat) came into force.

2. In the present case, Mst. Muhammad Jan admittedly entered into possession of occupancy right in the estate of her husband with all the limitations imposed upon a widow by section 59 of the Punjab Tenancy Act, 1887. Under this section widow's heirs could not succeed to any share in her rights on her death or remarriage, or her abandonment of the land, or her ejectment there from. On the happening of any of these events, the right of occupancy in the estate had to devolve on her husband's male collateral relatives in the line of descent from the common ancestor and other relatives. The widow's right of occupancy in her husband's estate was limited even during her lifetime as is clear from subsection (3) of section 59, which says: "When the widow of a deceased tenant succeeds to a right of occupancy, she shall not transfer the right by sale, gift or mortgage or by sub‑lease for a term exceeding one year." With these limitations attached to the right of a widow in her husband's estate, the words "a tenant having a right of occupancy in any land" clearly refer to an absolute owner and do not include a limited owner like a widow.

3. The proviso to the amended section 59 in no manner supports the argument that the words "a tenant having a right of occupancy in any land" include a limited owner also. The object in adding the proviso to the section simply was to exempt all female occupancy tenants from the performance of begar and other similar services and from payment of village cesses to their landlords. This had to be provided for, because after the amendment females are also entitled to inherit their shares according to the Muslim Personal Law (Shariat).

4. It is well‑settled that an amendment of substantive Law has no retrospective effect, unless it is expressly provided for in the amended provision. The right to inherit is not a procedural but a substantive law, and unless there is an express direction to the contrary, it cannot operate retrospectively. In the case under discussion, the widow succeeded as a limited owner and the amendment cannot convert her limited rights into full ownership so as to be inherited on her death by her heir alone.

5. Under the Muslim Personal Law (Shariat) which now governs the parties, share in the estate of Zaina Khan deceased, the last male owner, will devolve on his daughter Mst. Khanam Jan, and 1/8 share on the heirs of the widow. The residue of 6/16 share will be inherited by Fateh Khan and Qalandar Khan collaterals jointly or in other words, Fateh Khan, plaintiff will get 3/16 share only. Consequently, for the reasons given above and concurring with the conclusions reached by my learned brother Sheikh Abdul Hamid, J., I would allow the revision petition, set aside the order of the Appellate Court and modify the decree of the trial Court to this extent, that Fateh Khan will get 3/16 share in the suit land (Zaina Khan's occupancy rights), with proportionate costs. A.H. Petition allowed.