1987 PLP 1232 (SCMR)

"Mat. Maryam naturally inherited as a limited owner, the occupancy rights in respect of the suit land from her husband Mehra deceased. In pursuance to section 114 of the Tenancy Amendment Act, 1952, the occupancy rights held by Mst. Maryam, were converted into ownership on payment of prescribed compensation in the year 1956" and as such she could gift the suit land to Ghulam Muhammad appellant.

3. On appeal, as mentioned above, the learned Additional District Judge reversed the finding of the learned trial Court on issue No.4 on the ground that the case relied upon by the learned trial Court i.e PLD 1971 Lah. 266 has since been over‑ruled by PLD 1974 SC 210 wherein the following question came up for consideration before this Court: (i) Whether a life‑estate‑holder under the un‑amended provision of section 59 of the Punjab Tenancy Act, 1887 has, under the amendments of 1951 and 1952, acquired the full right of ownership in an occupancy holding to the exclusion of the other Muslim Law heirs of the last male owner? And (ii) Whether the holder of a limited life estate under un‑amended section 59 of the Punjab Tenancy Act could alienate property taken by her in such a limited right without restriction and a learned Full Bench held as follows: "From the legislative history of the un‑amended section 59 of the Punjab Tenancy Act, 1887 coupled with the mandatory prohibition contained in sub‑section (3) against any transfer, whatsoever, for a period exceeding one year, it would be reasonable to infer that under the un‑amended section 59, the widow and the widowed mother were given what in essence, appeared to an extension of their right for maintenance. In other words a special estate was interposed for a limited purpose between her husband (in the absence of his male lineal descendants) and his male collaterals. If that be the true nature of the right of a widow or a widowed mother succeeding to a deceased occupancy tenant under un‑amended section 59 the next question to consider is, whether on a proper interpretation of section 114, on the acquisition of the proprietary rights, she would become a fresh stock of descent in her own right in respect of the entire holding of the deceased occupancy tenant, and shall exclude Muslim Law heirs of the last male‑holder and thereby reduce the proviso to sub‑section (1) of the amended section 59 almost to a redundancy? It would indeed be very told to answer this question in the affirmative for that would entail a cataclysmic change in the old jural relations of widow or as the case may be, a widowed mother with the occupancy holding which has devolved upon her under the un‑amended section

59. Such a far reaching legislative intent, in the absence of a clear provision in section 114, cannot appropriately be read into the statutes. 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 the 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." These findings clearly mean that the widow of a son‑less occupancy tenant succeeding to her husband under the amended section 59 of the Punjab Tenancy Act, 1887 (hereinafter referred to as the Act) cannot become an absolute owner of the entire holding of her husbands on acquisition by her of the proprietary rights under section 114 of the Act so as to become a fresh stock of descent in her own right in respect of the entire holding of the deceased occupancy tenant, excluding Muslim Law heirs of the last male‑holder. In view of this the learned Additional District Judge gave the following finding: "I, therefore, set aside the findings of the learned trial Court under issue No.4 and decide it in the negative. I also decide issue No.5 in the affirmative holding the appellants entitled to 1/16th share in the suit property leaving the remaining 1/16th as share of Mst. Maryam having been rightly gifted away by her in favour of respondent No.1."

4. Learned counsel for the appellant contended that the cited authority i.e. PLD 1974 SC 210 is distinguishable from the facts and circumstances of the instant case inasmuch as Mehra the original tenant had died in the year 1925 and the law laid down in the said authority is not applicable to the present case; that Mst.Maryam had deposited the whole of the compensation money as required by section 114 of the Act; that the heirs of Mehra deceased having not asserted their rights and having not paid the compensation, lost their rights to acquire the said land according to the terms of section 114 of the Act and as such the respondents cannot claim their share out of the land transferred in favour of Mst. Maryam, subsequently, gifted in favour of the appellant. The learned counsel further contended that the respondents had relinquished their rights and as such they are now estopped from claiming their shares in the suit land. In the alternative, he maintained that even though it may be found that they are entitled to a share in the land, they cannot claim it unless they had paid to Mst. Maryam their proportionate shares of compensation money because a charge has been created in her favour; that the respondents have no locus standi to challenge the gift made in favour of the appellant; that Mutation No.1977 was sanctioned on 9‑5‑1956 in favour of the appellant while the suit had been instituted on 4‑11‑1968 which is clearly barred by time and as such deserved to be dismissed, and, lastly, that the possession of the suit property had been delivered to the donee in 1956 and continues to be in possession of the appellant who holds it adversely to the respondents and his possession has matured in the adverse possession.

5. Leave was granted by this Court on the following ground: "On the finding given by the High Court that Mst. Maryam counsel challenges the maintainability of the suit on the ground that Mst. Jatti and her daughter Mst. Amiran Khatoon had no legal right to institute the suit for possession as they had no reversionary rights qua the share of Mst. Maryam in the land. This objection was not taken in the suit at any stage but as it is fundamental, we would grant leave to appeal to the petitioner. " In view of this the arguments of the learned counsel for the appellant should have been confined to the point of which leave was granted i.e. Mst. Jatti and Mst. Amiran Khatoon had no locus standi to institute the suit. However, the learned counsel for the appellant addressed the Court on issue No.4 alone and did not touch the above stated plea. He made effort to distinguish Rabnawaz v. Jahana PLD 1974 SC 210 and submitted that cases Ilam Din v. Muhammad Din PLD 1964 SC 842 and Additional Settlement Commissioner, (Land) v. Muhammad Shaft PLD 1971 SC 791 applied to the instant case. He distinguished PLD 1974 SC 210 on the ground that the prepositus in the case in which the authority arose, had died in the year 1950 i.e. after the enforcement of the Shariat Act, 1948, whereas in the present case Mehra had died in 1925. We are not impressed by the argument of the learned counsel for the reason that this point had been made clear in PLD 1974 SC 210 relevant part of which has been reproduced in paragraph 3 above. The facts relevant in that case are that after coming into force of the Act, 1952 Mst. Stan widow of Fazal, the last male‑holder, who died in 1950, got proprietary rights in the entire occupancy holding of her husband Fazal. Subsequently, by means of a registered deed dated 30‑7‑1956 she, treating herself to be full owner, made a gift of the entire land in favour of Rabnawaz, sister's son of her husband Fazal. Thereupon Jahana, a collateral of Fazal, filed a suit for a declaration that the gift by Mst. Stan in favour of Rabnawaz was ineffective as against his reversionary rights as collateral of Fazal. He also claimed that he had paid the compensation to the landlord in respect of the land in suit under section 114 of the Act, and, therefore, for that reason too he had acquired proprietary rights in the land and that even otherwise Mst. Sian had no right whether under the custom or otherwise to gift the land. In this sequence the observation made in PLD 1974 SC 210 is as under:‑‑ "For the foregoing reasons I am in no manner of doubt that it was not the intention of the Legislature to constitute a widow succeeding to her husband under the un‑amended section 59, an absolute owner of the entire holding of her husband on acquisition by her of proprietary rights in the holding under section 114 of the Act, so as to become a fresh stock of descent excluding the Muslim Law heirs of her husband. Nor any such conclusion can otherwise be sustained on a proper interpretation of section 114." In the same judgment the learned Judges also discussed the Lahore authority Muhammad Hussain v. Mst. Bhagan PLD 1971 Lah. 266 which had proceeded on the interpretation of section 114 of the Act and the learned Judges did not approve of it for the detailed reasons recorded in the judgment. In Muhammad Sadiq and another v. Mst. Ghulam Sakina and another PLD 1982 SC 1 it was held: "Here we may add and clarify that as far as the invalidity of the transfer in land under the Act is concerned, it was not taken exception to before us. However, so far as its validity under custom is concerned the learned counsel did not refer us to any evidence or any law whereunder a widow like Mst. Rajan could have alienated the whole of the land comprised in her limited or life estate to her son‑in‑law. In these circumstances, we have no option but to hold the impugned gift as invalid both under the statute viz The Tenancy Act as well as under the relevant custom under which Mst. Rajan had obtained a life estate in the land involved herein." In the same authority the contention raised by the learned counsel regarding locus standi of the respondents Mst. Jatti and Mst. Amiran Khatoon, the answer is provided in the following words: "Secondly, this right even otherwise inheres in the potential heirs (or reversioners) of a would‑be prepositus irrespective of the fact as to under which law they are to become heirs. It is this potentiality of those would‑be heirs to succeed which gives them a right under section 42 of the Specific Relief Act I of 1877 read with Articles 125 and 141 of the Limitation Act IX of 1908, to get declarations from Courts regarding invalid transfers‑‑invalid from any such point of view which may be available to them under the law relevant to the facts and circumstances of each case. This was so clarified by this Court in Abdullah and others v. Mst. Bakhto Mai and another PLD 1956 SC (Pak.) 321; Said and others v. Fazal Hussain and others PLD 1959 SC Pak. 356 and Bashir Ahmad and others v. Muhammad and others PLD 1956 Lah.

934. From that point of view the present plaintiffs being heirs under Muslim Personal Law (Shariat) to the estate released from a limited widow, they had every right to file a declaratory suit for getting the impugned alienation declared as invalid or a suit for possession of their share in case the succession has opened out in their favour. This is a concept different from theory of merger or extinction of occupancy rights or extinction of landlords rights and should not be mixed up with the same. The defect in the argument of the learned counsel with respect lies in not keeping this distinction in view." To conclude, we hold that the findings of the Courts below are unexceptionable in view of the various authorities of this Court cited in the foregoing paragraphs. Consequently, the appeal is dismissed with no order as to costs. M.B.A./G‑21/S. Appeal dismissed