1969 PLP 181 (SCMR)

HAMOODUR RAHMAN, C. J.‑This is a petition for special leave to appeal from the judgment of a Division Bench of the High Court of West Pakistan in an original appeal from a decree of a Senior Civil Judge, Rahimyar Khan. The said decree was passed in a suit filed by the father of one Mehar Din for a declaration that certain alienations made by his widow on the 8th August 1953, will not affect his reversionary rights. Alternatively he claimed that since the widow was entitled to only a 1/4 share in the estate of Mehar Din her alienations would not affect the reversionary interests in the remaining 3/4. This suit was contested on the ground that although the widow was mutated as an heir of Mehar Din on 30‑10‑1941 she was granted full proprietory rights in 1953 by a sale deed executed in her favour by the then Nawab of Bahawalpur on payment of the price of the land on 21‑7‑1953. This is not a case, therefore, of her inheriting a limited female's estate. The suit was also allege to be non‑maintainable in its present form and the Civil Court was incompetent to entertain it. The trial Court found the suit to be competent and fully maintainable. It also held that by reason of section 30‑A of the Colonization of Government Lands (Punjab) Act, 1912 the widow could not become an absolute owner. She was, therefore, entitled to only a 1/4 share and the alienation by her was invalid to the extent of the remaining 3/4. The High Court agreed with this and dismissed the appeal. The petitioners now seek to contend that section 30 of the Colonization of Government Lands (Punjab) Act had no application, because, (i) the proprietary rights were given to her personally by the Nawab in 1953, and (il) the said section 30‑A had been impliedly repealed by section 3 of the West Pakistan Muslim Personal Law Shariat (Application) Act, 1962. There is no substance in either of these contentions. Section 30‑A of the Act of 1912 applied "notwithstanding any custom and the provisions of any law to the contrary". The document of grant of 1953 though worded as an out and out deed of sale did not affect the position of the reversioners of Mehar Din vis‑a‑vis the widow as they were not parties to the deed. The widow had entered into possession as a female heir in 1941 and Since the proprietary rights ware granted to her after 1944 when section 30‑A was incorporated she could not escape its operation. The present suit was filed before the Act of 1962 was enacted. At that time the widow got only a life estate by the Act of 1962. She had since acquired full ownership rights in 1/4 of the property. Her alienation was, therefore rightly held to be valid to that. extent. If section 30 has now been impliedly repealed that does not improve the position of the alienees from the widow. The High Court has merely armed the decree of the trial Court which as stated in the judgment of the High Court was to the effect that "the alienation made by her in excess of her share was defective and could not affect the rights of the plaintiff to succeed to his share in the land after her death". There is no question, therefore, of the High Court having passed a different decree or giving the plaintiffs any immediate right to possession. If the plaintiffs have since filed a separate suit for enforcing their rights under section 3 of the 1962 Act, that is a different matter which is not now before us. There is also no force in the contention that the suit was barred under section 36 of the Act of 1912. There are all the points urged and since we see no substance in any of them, this petition is dismissed. Leave refused.