1988 PLP 224 (CLC)

Malik Mukhtar Ahmad for Respondents. Date of hearing: 27th October, 1987. Second appeal arises out of a civil suit filed by Abdul Habib Khan and others for joint possession of 3/8th share of land measuring 109 Kls 11 Mls with share of Shamilat and for separate possession of 3/8th share through partition of Haveli situated in village Abadi of Jatli, Tehsil Gujar Khan, Suit was decreed on 18‑11‑1966. Appeal filed against the decision by Imam Din appellant was dismissed on 15‑5‑1968.

2. Relevant facts for decision of the points in second appeal, briefly, stated are:‑ Qutub‑ud‑Din son of Muhammad Bakhsh, Thathal Rajput by caste, resident of village Jatli, was owner of agricultural land in revenue estates of Madari, Devi, Jatli and occupancy tenant of some land in village Hassal, Tehsil Gujar Khan. He also owned 1/2 share in the Haveli situated in village Abadi of revenue estate Jatli.

3. Qutub‑ud‑Din died in 1923 and was survived by Mst. Mehr Bi, his widow, Mst. Zaib‑un‑Nisa, daughter, and Mst. Sajawal Bi, sister. Last male owner, in matters of alienation and succession was governed by custom. Consequently, on his demise, different kinds of property held by him were mutated in the name of Mst. Mehr Bi to be held by her under usual customary tenure. Mehr Bi died on 27‑4‑1961. However, before her death, by sale deed dated 19‑4‑1961, registered on 20‑4‑1961, she sold her entire property to appellant Imam Din at the sale price of Rs.3,

000. Heirs of Mst. Mehr Bi, Zaib‑un‑Nisa and Sajawal Bi claimed their respective Sharie shares i.e. 1/8th, 1/2, 3/8th in the property, subject‑matter of dispute, and sued for joint possession as also for separate possession through partition of the suit Haveli. It may be noticed that appellant was also an heir to Mst. Zaib‑un‑Nisa and received his 1/2 share from her property i.e. 1/4th share from the total property. Fakhar‑ud‑Din, husband of Sajawal Bi and Muhammad Aslam, her son, were also impleaded as defendants 2 and 3 in the suit. They did not contest and submitted concessional written statements. Only appellant, Imam Din contested the suit and in support raised number of objections. It was pleaded that plaintiff consented to the sale and was estopped to sue; that the suit Haveli since 20‑3‑1961 was in his possession; its market value was Rs.6000 and that the plaint was insufficiently stamped; that the Court had no pecuniary jurisdiction; that in the absence of heirs of Abdul Habib, who were not impleaded, Civil suit could not proceed; that, by payment of compensation under Section 114 of Punjab Tenancy Act, as amended, in respect of 44 Kls 10 Mls, Mehr Bi, acquired full ownership rights and in regard to the remaining property, sale was for consideration and was backed by legal necessity. Necessary facts in justification of legal necessity were detailed in the written statement.

4. Issue in regard to incorrect valuation was treated as preliminary issue but was not pressed at the hearing and was disposed of by a separate order dated 13‑10‑1964. On merits, contest gave rise to as many as 8 issues. These read:‑ (1) Whether Mehr Bi was full owner of the suit property? (2) Whether Mst. Mehr Bi had a right under custom to alienate the disputed property for legal necessity and consideration? (3) Whether sale took place in favour of Imam Din defendant No.l by Mst. Mehr Bi? (4) If so, whether the sale was effected with the consent of the plaintiff and whether he was a consenting party to the sale? If so, with what effect? (5) If the sale of the property is proved, whether it was for consideration and legal necessity? (6) Whether the decree in the previous suit was based on misunderstanding? If so, with what effect? (7) Whether the decree in the previous suit is res judicata between the parties? (8) Relief.

5. On examination of evidence, oral as well as documentary, trial Court found that by payment of compensation, Mehr Bi did not acquire full ownership rights in the property previously held by her as occupancy tenant and in regard to agricultural land received under rule of custom. She was found to be a limited owner. On issue No.2, it was held that as alienation by limited owner was justified on grounds of consideration and legal necessity as understood in customary law. In regard to issue No.3, it was held that sale by Mehr Bi to appellant was adequately established. On issue No.4, it was held that though Abdul Habib signed the sale deed as identifying witness, yet he was not precluded to claim his share in the suit property. In regard to issue No.5, consideration was found established but legal necessity to support the impugned sale was held wanting. In regard to issue No.7, it was held that previous decision dated 31‑7‑1963, Ex.P3 on the rights of the parties operated as res judicata. Upon these conclusions, Court gave decree to the plaintiffs for joint possession and separate possession through partition in respect of the property in suit. As said above, this decision was affirmed, on first appeal, by learned Additional District Judge.

6. Sheikh Zamir Hussain, Advocate, for appellant raises five submissions; (1) by payment of compensation under Section 114 Punjab Tenancy Act, Mehr Bi acquired full ownership rights in the property previously held by her as occupancy tenant and in regard to this item of property, there were no fetters on her powers of disposition; (2) in regard to the agricultural land received by her under custom, sale made was supported by consideration as also legal necessity (3) Abdul Habib consented to the sale by Mehr Bi and was precluded to impugn the alienation; (4) consent decree dated 31‑7‑1963 did not operate as res judicata; (5) on the strength of rule relating to feeding the estoppel, appellant was entitled to retain the share of Mst. Mehr Bi. Except the contentions noted above, no other point was urged.

7. It propose to deal with the afore‑noted contentions in the serriatim. Succession to right of occupancy is regulated by Section 59 of the Punjab Tenancy Act. On the death of Qutub‑ud‑Din, who died without leaving a male issue, occupancy rights devolved on his widow, who was to occupy the property until she died, remarried abandoned land or was ejected there from. In terms of subsection (3), Section 59, she was not entitled to transfer it by sale, gift or martgage, or sublet the same for a term exceeding one year. Thus as . a widow she had a right to succeed the right of occupancy under this Section but her rights of disposition in the property were very limited and were to come to an end in the eventualities already specified above. Therefore, though she was an occupancy tenant for all intents and purposes, her status could not be equated to a female succeeding to the estate under custom. The two estates were totally different. On payment of compensation and acquisition of proprietary rights, estate of a widow held by her under Section 59 would not materially change and rights of ownership acquired by her were a mere accretion to the limited rights received by her on the death of her husband under Section 59 of the aforesaid Act. If payment of compensation had not been made and the rights of ownership not conferred, Mehr Bi could not transfer the property even for necessity. By mere payment of compensation and acquisition of proprietary rights, right to transfer the property for necessity cannot be conceded to her. Therefore, in respect of this item of property, she had no right of transfer and the one made by her was wholly void. Effect of conferment of proprietary rights in the result of compensation paid by widow came up for consideration in Miskin and another v. Mst. Hassan and others P L D 1968 Peshawar 94 and on this aspect this Court observed that the widow having acquired the property as a limited owner could not arrogate to herself the status of full‑fledged proprietor free from the trammels of the rules of Customary Law. The right of proprietorship acquired by her was, an accretion to the limited estate inherited by her and ensured for the benefit of all persons, who under the law claimed the heritage left by 1st male holder. The purchase of proprietary rights by a widow would not change the nature of the estate that she originally inherited". In Rab Nawaz v . Jahana P L D 1974 S C 210, the Supreme Court of Pakistan, on effect of Section 114 Punjab Tenancy Act, in respect of the estate of a widow under Section 59 Punjab Tenancy Act observed "the plain object of the amending Act of 1952 (by which section 114 was inserted) was to prohibit the creation of occupancy tenancies in the province and to abolish all existing occupancy tenancies in all lands other than the lands owned by Government or the evacuee land. On no canon of interpretation of statutes, the section can be interpreted to free a widow from the limiting conditions under which the occupancy tenancy had initially devolved upon her and which remained an inseparable incident of her tenure until succession opens for the last male‑holder of the occupancy tenancy under proviso to subsection (1) of the amended section 59" . This view was reiterated in Muhammad Sadiq and another v. Mst. Ghulam Sakina and another P L D 1982 SC 1; Sakhawat Hussain Shah v. Asghar Ali alias Zulfiqar Ali 1982 SCMR

956. Learned counsel for the appellant has not brought to my notice any decision taking a contrary view. Therefore, on the strength of the plain provisions of statute law and the decided cases, I have no manner of doubt to say that this item of property could not have been sold by Mst. Mehr Bi. No question of necessity arises in respect thereof. This disposes of the first contention. In regard to the second contention, whether the sale made was for consideration and also legal necessity it looks appropriate to make a reference to the findings of trial Judge. Issue No.5 covered the question of necessity. In para 10 of his judgment, learned trial Judge says "the legal necessity as represented in the sale‑deed copy Ex.D 2 is as under:‑ (a) Payment of debt to certain persons. (b) Payment of debt for medical and (c) Payment to be made before the Joint Registrar, to Abdul Rashid and Raja Adalat Khan. These debtors, Abdul Rashid and Raja Adalat Khan were never 1 produced before Joint Registrar to receive the amount. These fellows never appeared in this Court to depose in favour of the defendant. It is admitted by the defendant that Mst. Mehr Bi had been with Major Abdul Habib Khan for sufficiently long time and he had been bearing expenses of medical treatment. D.W. 4 would not say who was the medical consultant of Mst. Mehr Bi. D.W.3 Zaman Ali also supported the version that the medical treatment was done at the expense of Major Abdul Habib Khan. The vendee should have made proper enquiry about the necessity. Mere recital in the sale deed is not sufficient to prove the necessity as was held in AIR 1936 Lahore

769. The legal necessity is not established. The vendor had received) the amount of Rs.3000 before the Joint Registrar. The consideration is thus established". On appeal, learned Additional District Judge found that consideration to the extent of Rs.3000 which were paid before the Sub Registrar was established but in regard to the remaining amount, it was found that there was no evidence. However, legal necessity for the impugned sale was not found to have been established. Undeniably, Mehr Bi succeeded to ownership rights in the property under rule of custom. She held only a limited estate and her powers to deal with the property were not unrestricted. She could sell only if there was a legal necessity for it. In the written statement, filed by Imam Din, it was averred that Mehr Bi alike Zaib‑un‑Nisa, her daughter, suffered from tuberculosis, and for her treatment had taken loans for the repayment whereof property was' alienated by her. Sale deed Ex.D.2 indicated that out of the stated sale consideration, Rs.1000 were paid to Abdur Rashid creditor, Rs.1500 to another creditor, namely Raja Adalat Khan and only a, sum of Rs.500 was retained by her. Neither Abdur Rashid nor Raja Adalat Khan, to whom the bulk of sale price was paid, appeared at the trial to support the debt. Onus to prove legal necessity in justification of the impugned sale rested upon defendant No.l. There is no satisfactory evidence that Mehr Bi had taken loans to meet expenses of her medical treatment. One of the defendants' witnesses conceded that she received medical treatment at the instance of Habib Ahmad, her son‑in‑law, who was then Major in Pakistan Army. Turning to question of legal necessity, it is sufficient to say that concurrently findings arrived at by the Courts below, clearly appears to be findings of fact and are not open to re‑examination in second appeal. Even otherwise, examination of the evidence, as stated above does not prove that there was any legal necessity for the impugned sale. Imam Din, who was dealing with the female limited estate holder, was bound to enquire whether Mehr Bi really had the legal necessity to dispose of her entire property. Mere recital in the deed of sale was not sufficient. On this point, I would agree with the Courts below and hold that legal necessity for the sale has been established. Now comes the question whether Abdul Habib in appending his signatures to sale deed Ex. D.2 shall be deemed to have consented to the sale and acquesced in it, so as to debar him from claiming inheritance to the estate left by Zaib‑un‑Nisa. Mere attestation of Ex.D2 did not import consent to the sale and additionally, at that time, he had no existing interest in the property dealt within the document. He claimed share in the property as heir of Mst. Zaib‑ub‑Nisa, his wife. Therefore, by merely signing as a witness, he could not be held to have deprived him of his share in the property. As for res judicata, in my opinion dated 31‑7‑1963 Ex.P.3 which related to the estate of Mst. Mehr Bi and the dispute was between the same parties deed finally conclude the question between them and operated as res judicata. As for the share of Mst. Mehr Bi i.e. 1/8th to which the petitioner laid claim on the doctrine of feeding the estoppel, decision of the Supreme Court in,Said and others v Fazal Hussain and other P L D 1959 S C (Pak) 356, gives effective reply. Limited interest of Mst. Mehr Bi in the disputed property terminated on her death and her share in the property which she could have been taken if alive, devolved upon her Muslim law heirs and in this circumstance, Imam Din could not justifiably lay claim to this part of the property. Relationship inter se parties and qua last male owner was not in dispute. Similarly, there was no dispute in regard to the shares of the parties in the disputed property. As the contentions raised in support of the second appeal have not succeeded, it fails and is dismissed with no orders to costs. M.Y.H./I‑45/L Appeal dismissed.