1996 PLP 562 (CLC)

"Section

20. Succession to tenants acquiring otherwise than by succession.‑‑Subject to the proviso to section 14, when, after the commencement of this Act, any original tenant dies the succession to the tenancy shall devolve in the following order upon‑‑ (a) the male lineal descendants of the tenant in the male line of descent. (The term 'lineal descendants' shall include an adopted son whose adoption has been ratified by a registered deed); (b) the widow of the tenant until she dies, or remarries, or loses her rights under the provisions of this Act; (c) the unmarried daughters of that tenant until they die or marry, lose their rights under the provisions of this Act; (d) the successor or successors nominated by the tenant by registered deed from among the following persons that is to say, his mother, his predeceased son's widow, his married daughter, his daughter's son, widow, his predeceased grandson's widow, his sister, his sister's son, and the male agnate members of his family; (e) the successor or successors nominated by the Collector from among the persons enumerated in clause (b) of this section. Section

21. Succession to tenants acquiring by succession ‑‑When after the commencement of this Act any male tenant, who is not an original tenant dies, or any female tenant dies, marries or re‑marries, the succession to the tenancy shall devolve:‑‑ (a) In the case of a female, to whom the tenancy has been first allotted on the successor nominated by the Collector from the issue of such female tenant, or from the male agnates of the person, on account of whose services the tenancy was allotted to her; (b) in all other cases, on the person or persons, who would succeed if the tenancy were agricultural land acquired by the original tenant. " Learned counsel for the petitioner, has referred to a judgment of the Hon'ble Supreme Court reported as Mst. Began v. Mst. Bai (1983 SCMR 80) to convess that the point in issue in the instant case has been settled in the aforereferred judgment. I have gone through that judgment. The facts in that case were, however, different, therefore, it would not be applicable to the case in hand. In that case, Mst. Bai succeeded to the tenancy rights of her husband who died issueless on 15‑10‑1946 under section 21(b) of the Colonization of Government Lands (Punjab) Act, 1912. After the deposit of dues, she became proprietor in 1959. With the promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) her estate was terminated in terms of section 3 which provides as under:‑‑ "Termination of life estate under Customary Law‑‑‑The limited estates in respect of immovable property held by a Muslim female under the customary law, are hereby terminated." Resultantly, on 24‑12‑1973, Mutation No.73 was sanctioned Mst. Bai was given 1/4th share and Mst. Began who was sister of Sado was given 3/4th share of the land left by him. Mst. Bai challenged this mutation in a civil suit which was decreed. Appeal filed by Mst. Began was dismissed and her second appeal was also dismissed by the High Court on the ground that: "With the acquisition of proprietary rights sections 20 and 21 of the Act, remain no longer applicable and as such the‑ question of loss of their rights in the event of re‑marriage of a widow or marriage of a daughter, which is one of the essential characteristics of a limited estate under custom would no longer be relevant." The august Supreme Court set aside the judgment of the High Court by holding as follows: (a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑ ‑‑‑‑ Ss. 20(b) & 30‑A read with West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), Ss. 2, 3 & 5‑‑‑Life estate rules of succession contained in clauses of S.20‑‑‑Mainly derived from rule of customary succession‑‑‑No condition as to holding of estate only till widow re‑married or dies etc. being recognized in Muslim Law of Succession, widow tenant could legitimately be assumed to have held rights under.S. 20(b) as a customary limited owner."

10. Commenting on the nature of the estate after acquisition of proprietary rights with the insertion of section 30‑A of the Colonization of Government Lands Act, the Court observed as follows: "It can be safely presumed that the legislature wanted to bring the law relating to the nature of the estate of a female, after the acquisition of proprietary rights, in line with the nature of the estate she held as tenant prior to such acquisition." While accepting the appeal, the ratio decidendi of the aforereferred judgment of the Hon'ble Supreme Court is contained in the concluding paragraph wherein it was held as follows:‑‑ "That being so, the provisions of section 3 of West Pakistan Muslim Personal Law (Sheriat) Application Act, 1962 would be attracted. The limited estate held by Mst. Mai, as found above, was governed by the said law. It having been terminated, she was entitled to hold only her share under Muslim law of inheritance. Sadoo having died issueless, she was given 1/4th share."

11. In the instant case, however, the parties are non‑Muslims. The proprietary rights had still not been granted qua the suit land. Hence, the acquisition of interpretation of section 30‑A of the Colonization of Government Lands Act, 1912 as also Muslim Personal Law (Shariat) Application Act (V of 1962) is not relevant. The fact being distinguishable, the precedent case‑law relied upon by learned counsel for the petitioner is of not much help to him. In the case in hand, the question revolves around the succession to a tenant (Mst. Mehndi) who had acquired that estate by succession after the death of her husband and the relevant provision would be section 21, "succession to tenants acquiring by succession" and within this section para (b) would be applicable which reads as under:‑‑ "Section 21(b).‑‑‑In all other cases, on the person or persons, who would succeed, if the tenancy were agricultural land acquired by the original tenant." Respondents‑plaintiffs had successfully proved before the learned trial Court about the fact that she is daughter of Nathu, the original grantee. Exh.P‑1 is copy of the certificate of marriage issued by Registrar General, Birth, Death and Marriages (Christian Punjab). This shows that Mst. Rozy was married to one Bhagdin in March, 1933 and the parentage of Mst. Rozy is mentioned as Nathu Mal. In the impugned mutation, which is being strenuously defended by petitioners‑defendants (sanctioned on 15‑4‑1974), plaintiff is described as daughter of Nathu deceased. Exh. P‑2 is copy of the mutation of inheritance sanctioned in favour of Mst. Mehndi and in the said mutation, Mst. Rozy is entered as daughter of Nathu deceased. The evidence led in rebuttal could not upset the overwhelming affect of the documentary evidence. The oral evidence produced by petitioners‑defendants was merely to the effect that Mst. Rozi was daughter of Mst. Mehndi from previous husband but even the name of the said alleged previous husband was not brought on record. It remained as allegation of unsubstantiated by any credible material to warrant any reliance. So far as, the claim of Mst. Inayat Bibi daughter of Mst. Niko (daughter of Nathu deceased) is concerned, learned Courts below had rightly held that at the time of the death of Mst. Mehndi. Mst. Rozy was the only surviving daughter. This finding of fact has not been shown to be against the weight of evidence and does not therefore, merit interference. In a Division Bench Judgment of this Court, i.e. Allah Dad and another v. Mst. Noor Bibi and another (PLD 1950 Lahore 356), the question of provisions of section 21(b) of the Colonization of Government Lands Act, 1912 came up for consideration. The facts in the said case were that Noor Dad the original grantee after his death, left behind the following heirs:‑‑ (i) Mehndi Khan (son) (ii) Noor Bibi and Sardaran Bibi (daughters ) (iii) Ahmad ( ) (iv) Muhammad, ( brothers ) (v) Allah Dad ( ) After the death of the grantee, the' land was mutated in the name of his son Mehndi Khan. Said Mehndi Khan died issueless and the land was mutated in favour of his unmarried sister Mst. Noor Bibi. Subsequently, Mst. Noor Bibi married and the land was mutated in the name of Allah Dad, Muhammad and Ahmad brothers of Noor Dad, the original grantee. Mst. Noor Bibi challenged this mutation by way of a civil suit and sought declaration that she was occupancy tenant of the land and her maternal uncles had no right into it. The defendant pleaded that on the death of Mehndi Khan, the land was mutated in the name of plaintiff as the sister of Mehndi Khan and not as a daughter of Noor Dad, and therefore, she had no right to the land after she contracted marriage. The suit was decreed to the extent of one‑half of the land and it was held that Mst. Sardar Bibi was entitled to the other half. This judgment and decree was challenged in appeal which was dismissed. They challenged the same by way of a second appeal before this Court which too was dismissed and it was held at page 360 as under:‑‑ "A Division Bench of this Court in Khuda Dad and others v. Mst. Rabia Bibi AIR 1929 Lah. 100 has taken the view that the person entitled to succeed under clause (b) of section 21 of the Colonization of Government Lands (Punjab) Act, 1912, is the person, who would be the heir of the original tenant if the tenancy were the self‑acquired property of the original tenant. I am in respectful agreement with this interpretation of clause (b) of section 21 as it appears unlikely that the legislature intended the succession to be a succession to the person on the termination of whose interest the succession had opened, while the tenancy was itself was to be treated as if it were the self‑acquired property of the original tenant. No doubt, the Legislature did not mention in clause (b) of section 21 that the succession was to be succession to the original tenant, but I am of the opinion that the fact that the property was to be treated as the property of the original tenant is a sufficient indication of the intention of the Legislature that the succession was to be treated as a succession to the original tenant. I hold, therefore, that Mst. Nur Bibi succeeded to the property as a daughter of Nur Dad, the original tenants and not as the sister of Mehdi Khan.

12. As Mst. Rozy, plaintiff‑respondent had successfully proved herself to be the only surviving child, she alone would inherit in terms of section 37 of the Succession Act. So far as the arguments of the learned counsel for the petitioner that petitioners‑defendants were entitled to inherit the land as per suctoms is concerned, the same has not been established by unrebutable evidence; rather Exh.P‑6 shows that in the Register maintained by the Collector's Office, no such custom is mentioned amongst the local Christian. Even otherwise, this is rather late in the day to convass this as the august Supreme Court has settled the controversy in Mst. Inayat Bibi through Legal Heirs v. Issac Nazir Ullah and 2 others (PLD 1992 SC 385) wherein it was held as under:‑‑ "(a) Succession Act (XXXIX of 1925)‑‑‑ ‑‑‑‑S.29‑‑‑Customary succession, so far as Christians were concerned, altered by Succession Act, 1925 which also abolished customary law in Punjab for the Christians. (b) Succession Act (XXXIX of 1925)‑‑‑ ‑‑‑‑S. 29‑‑‑Christian female was allowed to inherit in presence of the male heirs‑‑‑Succession Act, 1925, by statutory dispensation having determined the mode of succession when a Christian male died neither the custom nor the other law would be applicable."

13. For what has been discussed above, there is no merit in this appeal which is dismissed with no order as to costs. A.A./S‑487/L Appeal dismissed.