P L D 1954 Lahore 253 (PLP)

SHABIR AHMAD. J.‑One Sahta was granted tenancy rights in 109 kanals and 11 marlas of Government land under the Colonization of Government Lands (Punjab) Act (V of 1912) in Chak loo 238‑R,~B., Tehsil and District Lyallpur. Sahta died on the 28th of August 1913 leaving no male issue and the land mentioned above was mutated in the name of his widow, Mst. Sattan, on the 29th of June 1914, because of clause (b) of section 20 of the Colonization of Government Lands (Punjab) Act (V of 1912) which applied as Sahta was the original tenant of the tenancy left by him. On the 28th of December 1945, Mst. Sattan, the widow of Sahta, executed a deed by which she relinquished her tenancy rights, in the land in favour of her daughter, Mst. Sahbi, without obtaining the sanction enjoined by section 19 of Act V of 1912. Mst. Sattan died on the 23rd of July 1949 and on the 1st of December 1950, Mr. Ahmad Khan. Collector, Lyallpur, purporting to exercise the powers mentioned in section 19 of Act V of 1912, sanctioned the transfer by Mst. Sattan in favour of her daughter which had been evidenced by the deed dated the 28th of December, 1945, a copy ‑of which, is on the record as Exh. P.

1. One the 31st of January 1951, Jiwana, the son of a brother of Sahta, the original tenant, brought a suit against Mt. Sahbi for possession of 3/8ths of the land which Sahta had left claiming to be entitled to that part of the land under the Muslim Law which he asserted was applicable because of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948. The defendant, while not denying that her father was the original tenant and her mother had come into possession of the land after the death of her father pleaded that the deed of relinquish ment executed by her mother made her the full owner of the property and, therefore, the plaintiff had no right to get any part of the property, On the pleadings of the parties, the trial judge framed the following issues :‑

1. Was Mst. Sattan competent to relinquish her rights in the property in favour of MO.. Sahbi defendant ? O. D.

2. Is the plaintiff an heir to the land in dispute according to the Shariat Act of 1948 and to what extent ? O. P. The trial judge deciding issue No. 1 against the defendant and issue No. 2 in favour of the plaintiff, decreed the suit. Against the decree of the trial judge, Mst. Sahbi filed an appeal which was accepted by the District Judge, Lyallpur, on the finding that the deed of relinquishment was valid and the sanction given by the Collector cured any defect that there might originally have existed in the act of relinquishment. Against the decision of the District Judge, Jiwana, the plaintiff, has presented a second appeal. The learned District judge has held that because of section 36 of the Colonization of Government Lands (Punjab) Act (V of 1912), the Civil Courts could not question the validity of the sanction given by the Collector. While dealing with the effect of section 36 the learned judge remarked that as the validity of the sanction of the Collector was not questioned in the plaint, the plaintiff could not question it later on. With regard to the competency of the plaintiff to question the validity of the sanction of the Collector, even if that question was not raised in the plaint. I may mention that it does not appear to have been within the knowledge of the plaintiff that the Collector had passed any order sanctioning the relinquishment of her rights by Mst. Sattan in favour of Mst. Sahbi. In the arguments before the learned District judge the counsel for the defendant appears to have relied upon the sanction of the Collector in order to non‑suit the plaintiff and I cannot see why it was not open to the plaintiff' without having raised a plea to that effect in the plaint to say that the sanction relied upon by the defendant had no validity. The validity of the sanction was a question of law and the objection of the plaintiff to its validity could not be ignored on the ground that it had not been taken in the plaint. I hold, therefore, that his not having attacked the sanction in the plaint could not prevent the plaintiff from questioning the validity of the order of the Collector if the validity of such an order is otherwise open to question in a Civil Court: The question to consider now is if the learned District judge was right in his view that because the order of the Collector allowing the transfer by Mst. Sattan was passed under section 19 of the Colonization of Government Lands (Punjab) Act (V of 1912), it was not open to question by any Civil Court because of section 36 of that Act. Section 36' is in the following terms:

"A Civil Court shall not have jurisdiction in any matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the manner in which the Provincial Government or Collector or any other Revenue Officer exercises any power vested in it or in him by or under this Act. As I read this section, it bars the jurisdiction of the Civil Courts only in matters which are, under the Act, to be dealt with by the Collector and to decide if the powers vested in the Collector, the Provincial Government or other Revenue Officers had been exercised by them in a proper manner. For example, section 19 of the Act says, inter alia, that if the rights and interests vested in a tenant have been transferred without the permission of the officer mentioned in that section the transferee may be ejected by the orders of the Collector if he has obtained possession. In such a case the jurisdiction of the Civil Courts to pass a decree for ejectment of the transferee would probably not exist nor would it exist for holding whether or not the Collector and the Provincial Government or other Revenue Officers had justly and properly exercised the powers vested in them under the Act. The question that arises in the present case is whether or not the sanction given on the 1st of December 1950 validated the relinquishment deed executed on the 28th of December 1945. It is clear that the Civil Courts would ordinarily have jurisdiction to decide whether or not the act purporting to have been done in the exercise of powers conferred by Act V of 1912 could be validly done under the Act and on the language of section 36 of the Act it cannot be held that that jurisdiction bad been taken away from the Civil Courts by that section. Nor does section 36 of Act V of 1912 divest the Civil Courts of jurisdiction to adjudicate what legal effect the order of a Revenue Officer validly passed under Act V of 1912 will have on the rights of the parties before it. I now proceed to consider if the sanction by the Collector given on the 1st of December 1950 validated the relinquishment deed dated the 28th December 1945. Section 19 of Act V of 1912 reads as follows :‑ "Except as provided in section 17, none of the rights or interests vested in a tenant by or under the Government Tenants (Punjab) Act, 1893, or thi3 Act, shall, without the consent in writing of the Commissioner, or of such officer as he may by written order empower in this behalf, be transferred or charged by any sale, exchange, gift, will, mortgage or other private contract, other than a sub‑lease for not more than one year in the case of a tenant who has not acquired a right of occupancy, and seven years in the case of a tenant who has acquired a right of occupancy. Any such transfer or charge made without such consent in writing shall be void, and if (after the commencement of this Act) the transferee has obtained possession, he shall be ejected under the orders of the Collector: Provided that the right of sub‑letting conferred by this section shall not release any tenant from a condition requiring him to reside in the estate in which his tenancy is situated." In my opinion, the sanction required by section 19 is a previous sanction and a subsequent sanction cannot validate the transfer from the date on which it was effected. The transfer can be valid only if a sanction exists and till the sanction is given there is in the eye of law no transfer at all. The learned counsel for the respondent urged that as it was not mentioned in section 19 that to validate the transfer, sanction of the appropriate authority must precede the transfer, sanction given at a subsequent date can have retrospective effect and validate the transfer which, at the time it was entered into, was, because of the absence of the sanction, of no validity. In this connection he pointed to the language of section 29 of the Guardians and Wards Act which enacts, inter alia, that a guardian appointed by Court cannot without the previous sanction of the Court alienate the property belonging to a ward and argued that where the law enjoined that a sanction required to validate a transfer must precede it, it was so stated in the relevant provision of law. This argument overlooks the fact that the Guardians and Wards Act was enacted by the Governor‑General of India in Council in the year 1890 while the Colonization of Government Lands (Punjab) Act was enacted by the Lieutenant. Governor of the Punjab in Council in 1912 and it is almost certain that they were drafted by different persons. In these circumstances the language employed to express a certain intention cannot be reasonably expected to be identical. If the intention of section 19 is clear with regard to making it incumbent that the sanction of the competent authority must precede a transfer of the rights of a tenant it is entirely without significance that that intention could have been made clearer by the insertion of the word "previous" before "sanction". If reference to the language of other Acts were to be a safe guide for judging the intention of the Legislature while enacting section 19 of Act V of 1912, section 3 of the Punjab Alienation of Land Act, 1900 which enacts, inter alia, that the sale of agricultural land by a person who is a member of an agricultural tribe under that act is not to have effect if the Deputy Commissioner does not give his sanction to the sale, but provides further that the .sanction may be given even after the sale has otherwise been completed, would lead to the conclusion that because section 19 of Act V of 1912 does not say that sanction may be given after the transfer was otherwise complete, the Legislature intended that the sanction mentioned in section 19 of Act V of 1912 must exist before the transfer can have any validity. It appears to me that it was because a subsequent sanction under section 3 of the Punjab Alienation of Land Act, 1900, validated a sale, that in the present case the officer who granted the sanction did so in spite of the fact that the report on which he acted and which he must be presumed to have read, mentioned that Mat. Sattan bad died before' the papers were placed before him for orders. Having carefully considered the words of section 19 of Act V of 1912 if I have arrived at the conclusion that the previous sanction by the officer mentioned in the section is necessary for a valid transfer of tenancy rights granted under Act V of 1912. If transfer is made before the sanction is granted, tae transfer will become valid only from the date of the sanction and the subsequent sanction cannot make they transfer effective from its inception. Before I pass on to the other aspects of the case, I might dispose of a contention of the learned counsel for the respondent that even if the sanction relied upon by him could not validate the transfer from the date of the relinquishment deed, it could still non‑suit the appellant, as the sanction could be, and was possibly meant to be, treated as the appointment of the successor of Mat. Sattan by the Collector. Apart from the consideration that the order of the Collector dated the 1st of December 1950 granting sanction says in clear terms that it was being passed under section 19 of the Colonization of Government Lands (Punjab) Act (V of 1912) there is the fact that the Collector had no authority to appoint a successor to Mat. Sattan. The only provisions of the Act which authorised the Collector to nominate a successor of a tenant were clause (e) of section 20 and clause (a) of section

21. Clause (e) of section 20, which was applicable to Muslims also on the date on which the order of the Collector under consideration was passed, applied only to cases of succession to original tenants. The expression "original tenant" has been defined in section 3 of the Act as any male to whom a tenancy is first allotted by the Collector including a male transferee of such a tenant and any male nominated by the Collector in accordance with the provisions of section 21 to succeed a female to whom a tenancy was first allotted. As Mst. Sattan was not an original tenant, clause (e) of section 20 had no application to the case, nor did clause (a) of section 21 have any application because that clause applied only where the land was first allotted to a female and the question of successor arose on her interest in the property coming to a termination on her death, marriage or remarriage. If the Collector intended that the order passed by him was to be treated as the appointment of a successor to Mat. Sattan the order was beyond the powers of the Collector and for that reason could not oust the jurisdiction of Civil Court to grant the plaintiff appropriate relief. In view of what I have said above, the relinquishment deed executed by Mst. Sattan on the 29th of December 1945 could not have attained validity before the 1st December 1950 when the Collector sanctioned the transfer under section 19 of Act V of 1912. However, long before the transfer could attain validity, Mst. Sattan, the transferor, died on the 23rd of July 1949. As soon as Mst. Sattan died, succession to the property left by her opened and could on no ground be postponed till the 1st of December 1950. The tenancy rights left by Mst. Sattan, therefore, were subject to the rules applicable to them under the law and the relinquishment deed executed by Mat. Sattan on the 28th of December 1945 had no effect on them. It was urged by the learned counsel for the respondent that the appellant must be non‑suited because the suit was instituted by him on the 1st of February 1951 while the document which was attacked was executed on the 28th of December 1945. The contention was that the suit was, in substance, one to have the instrument executed on the 28th of December 1945 by Mst. Sattan cancelled, for which suit the Limitation Act by its 91st Article prescribed a period of three years from the date when the facts entitling the plaintiff to have the instrument cancelled or set aside became known to him. It was urged that as the document was registered, the plaintiff must be deemed to have knowledge of it from the date of its registration and, at any rate, it was for the plaintiff' to show that he came by the knowledge of the document within three years of the suit which be had neither, pleaded nor proved. The plaintiff‑appellant was not a party to the deed and he was, therefore, not bound to have it declared that the document did not affect his rights. Moreover, if the document was void, as because of section 19 of Act 5 of 1912 it was, it was open to the plaintiff to ignore it altogether. Article 91 of the Limitation Act does not apply to suits relating to instruments which are bad ab initio and such instruments may be treated as non‑existent by a party without running any risk. The contention of the respondent's counsel on the question of limitation is entirely with out substance and cannot but be repelled. The question that now requires consideration is if the tenancy rights left by Mst. Sattan were to be divided according to Muslim Law or custom and if according to the former whether the plaintiff‑appellant was entitled to the share claimed by him. With regard to what share the plaintiff‑appellant would be entitled to, it was conceded that if the Muslim Law as applicable, the plaintiff‑appellant would be entitled to get 3/8ths of the property. The only question for consideration, consequently, is if the Muslim law was applicable to the tenancy rights at the time when Mst. Sattan died in July 1949. In this connection it is necessary first of all to find bar which provision of the Colonization of Government Lands (Punjab) Act, 1912, the succession to the tenancy rights was governed. Section 20 of the Act, which, on the relevant date was applicable even to Muslims, applied to succession to an "original tenant" as defined by section 3 of the Act. In this case the original tenant was Sahta and, therefore, section 20 bad no application when the succession opened on the death of Mst. Sattan. Section 21 of the Act which applied to Muslims on the relevant date was applicable when succession opened on the death of a male tenant who was not an original tenant or on the death, marriage or remarriage of a female tenant. Under clause (a) of that section if the tenancy had been first allotted to a female tenant, the tenancy was to go to 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 had been allotted to the female, and it is obvious that the clause bad no application to the succession to Mst. Sattan Clause (b) of section 21, however, did apply. Clause (b) of section 21 was to apply to Muslims in cases not covered by clause (a) and the tenancy was to go to the person or persons who would succeed if the tenancy were agricultural land acquired by the original tenant. The learned counsel for the appellant urged that because of section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act (IIX of 1948), the Muslim Personal Law was applicable to the succession to the tenancy rights left by Me. Sattan and, therefore, the plaintiff appellant was entitled to get 3/8ths of the property. The section relied upon by the learned counsel for the appellant is in the following terms :‑ " Notwithstanding any custom or usage to the contrary in all questions regarding succession (including succession to agricultural land) and in all questions * * * * * * the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." The learned counsel for the respondent urged that this section, which did away with custom and usage could have no application to succession, governed by the Colonization of Government Lands (Punjab) Act, 1912, because succession in such a case was governed by a statute and not by usage or custom. This argument of the learned counsel for the respondent would have bad force if the succession to Mst. Sattan were governed by section 20 of Act V of 1912, because that section laid down the rule of succession to the tenancy, but has no force if the case was governed by clause (b) of section 21 as I have already held that it was. Section 21 of the Colonization of Government Lands (Punjab) Act, 1912, is in the following terms :‑ '' When, after the commencement of the Act, any male tenant, who is not an original tenant, dies, or any female tenant dies, marries or remarries, 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" The language of the section makes it clear that, in order to decide whether the personal law or custom was to apply to succession falling under clause (b), one had to assume, as was held in Allah Dad v. Mst. Noor Bibi (1950 Pak, L R 735=P L D 1950 Lah. 356.) by a Division Bench of which I was a member, that the tenancy was agricultural land acquired by the original tenant. As the tenancy was to be treated as the property of the original tenant, it is clear that for the purpose of deciding who was to succeed it had to be assumed that the original tenant bad died on the date on which succession opened out under clause (b) of the section. Before the passing of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, succession to agricultural land was governed by section 5 of the Punjab Laws Act, 1872, and if it could be proved that the original tenant was governed by custom, the succession had to be according to custom. Section 2 of Punjab Act IX of 1948, however, made the Muslim Personal Law applicable even to agricultural land. Now if Sahta, who was the original tenant, had died on the 23rd of July 1949, which is the date of the death of his widow‑as he is to be assumed to have done and bad left any agricultural land succession would, because of section 2 of Punjab Act IX of 1948, be governed by Muslim Personal Law and it is, therefore, manifest that succession to the tenancy left by Mst. Sattan must be governed by that law and not by custom. , The learned counsel for the respondent urged that the intention of the Legislature could not have been to apply section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948) to cases arising under the Colonization of Government Lands (Punjab) Act, 1912, because if that had been the intention it was not necessary to insert section 19.A in the Act of 1912, which was done by Colonization of Government Lands (Punjab) (Amendment) (Punjab) Act, 1951. That section is in the following terms:‑ "19‑A. When, after the coming into force of the Coloniza tion of Government Lands (Punjab) (Amendment) Act, 1951, any Muslim tenant dies, succession to the tenancy shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat), and nothing contained in sections 20 to 23 of this Act shall be applicable to his case: Provided that when the tenancy rights are held by a female as a limited owner under this Act, succession shall open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of the death of the last full owner had the Muslim Personal Law (Shariat) been applicable at the time of such death, and in the event of the death of any of such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and successors existing at the time of the termina tion of the limited interest of the female as if the aforesaid such person bad died at the termination of limited interest of the female and had been governed by the Muslim Personal Law (Shariat). Provided further that the share, which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her hers under the Muslim Personal Law (Shariat) if her limited interests terminates because of her death." No doubt, the newly inserted section 19‑A of Act V of 1912 purports to apply the Muslim Personal Law to all cases formerly governed by sections 20 to 23 of the Act, but that is no ground for inferring that the Muslim Personal Law was not applicable before that to any of the cases falling under those sections. Before the insertion of section 19‑A succession under section 20 and clause (a) of section 21 could not be according to the Muslim Personal Law, nor could that law apply to cases governed by sections 22 and 23, the former of which enacts that if an original tenant had nominated heirs under clause (d) of section 20 to his tenancy rights in the land but subsequently acquired owner ship in that land the nomination held good unless it was expressly provided to the' contrary in the deed of nomination and the later enacts that a nomination of heir under clause (d) of section 20 could be revoked only by a registered deed. Such, however, was not the case with regard to tenancies governed by clause (b) of section

21. For the purposes of cases falling under clause (b) of section 21 of the Act, the tenancy was to be treated as 1 agricultural land acquired by the original tenant and Muslim Personal Law would have been applicable even before the West Punjab Muslim: Personal Law (Shariat) Application Act, 1948, to succession to some tenancies held by Muslims, because some such tenancies must have been allotted to persons who followed their personal law and not custom. The enactment of West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), section 2 of which abrogates usage and custom even with regard to cases of succession to agricultural land, brought about this change that all cases of succession to tenancies held by Muslims which fell under clause (b) of section 21 were to, be governed by the Muslim Personal Law: The newly inserted section 19‑A, the provisos to which are couched in practically the same language as section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, has also brought a few minor changes in the course of succession in cases formerly governed by clause (b) of section 21 of Act V of 1912. One of these changes is that whereas formerly if succession opened out on the termination of the interests of a female tenant, the tenancy rights were to be deemed to be agricultural land acquired by the original tenant, after the insertion of section 19‑A such tenancy rights are to be deemed to be the property of the last male owner who may or may not have been the original tenant. It is clear that the Provincial Legislative Assembly which enacted section 19‑A of Act V of 1912 cannot be said to have interpreted the law as it stood at the time of the enactment of section 19‑A to mean that no case of succession to a tenancy under the Act was governed by the Muslim Personal Law and it is, therefore, not necessary to decide whether or not the interpretation placed by a legislative body on the laws passed by its predecessors enjoys the same sanctity as its legislation within the limits of its legislative sphere. As the argument that it was only after the enactment of section 19‑A in Act V of 1912, that the Muslim Personal Law became applicable to cases of succession to tenancies under that Act cannot be accepted, the conclusion which was sought to be drawn from the enactment of that section is not deducible at all. I would consequently hold that the plaintiff‑appellant was entitled to inherit 3/8ths of the tenancy rights left by lust: Sattan and accepting his appeal, reverse the decree of the lower appellate Court and. restore that of the trial Court. As, however, the parties are closely related to each other and at, least some of the points involved are of some complexity, I would leave the parties to bear their own costs throughout. ABDUL AZIZ KHAN, J.‑I agree. A. H. Appeal accepted.