1983 PLP 590 (CLC)

The facts of the case are that Mehar Din, deceased, was the original tenant of the land in dispute, measuring 401 Kanals 8 Marlas, under the Government. He was also occupying two residential Ihatas, situated in Chak No. 29/P, Tehsil Khanpur District Rahimyarkhan in the same capacity. He died in the year 1940 and Ust. Nawab Bibi, respondent No. 13, succeeded to the estate of tenancy left by her husband as widow of the deceased in accordance with the order of the Assistant Commis sioner, Rahimyarkhan, dated 30th October, 1941. It is admitted on record that she acquired proprietary rights of the property in question in 1953, after paying the Government dues. Thereafter she sold the agricultural land as well as `Ihatas' in favour of Muhammad Sharif and Muhammad Saleem, respondents 6 and 12, respectively. The other respondents are the subsequent transferees of the property in question.

2. Hukum Din, father of Mehar Din, deceased, and predecessor-in- interest of the appellants, who has since died, filed a suit for declaration in 1955 against the respondents to the effect that Mst. Nawab Bibi was holding the aforesaid property as a limited owner for her lifetime and the alienation made by her in favour of the respondents would not affect his reversionary rights in the property. According to him she was entitled to 1/4th share under the Shariat Law in the estate left by her husband and alienation made by her beyond that extent would be ineffective against the rights in the property.

3. The suit was resisted not only by 61st. Nawab Bibi but by the transferees as well as subsequent transferees. It was, however, decreed on 21st July, 1959 by the learned Senior Civil Judge, Rahimyarkhan holding that in view of the provisions as contained in section 30-A of Colonization of Government Lands (Punjab) Act, 1912, Mst. Nawab Bibi as widow of %4ehar Din was not the absolute owner of the property in question and under the law it would be Mehar Din deceased who would be deemed to have acquired proprietary rights in the land. She was held to be entitled to 1/4th share in the property after the succes sion opened. It was further held that the alienation made by Mst. Nawab Bibi in excess of her share would not affect the rights of Hukum Din, the plaintiff in that case. The appeal filed against the judgment and decree passed against the respondents was upheld by a Division Bench of this Court on 4th October, 1968. Special Leave to Appeal against the said judgment of the High Court was refused by the Supreme Court on 13th December, 1968. The order passed by the Supreme Court is reported as Mansha and others v. Barkat Ali and others (1969 S C M R 181 ) holding that section 30-A of Colonization of Government Lands Act applied to the facts of the case and the document for grant of proprietary rights in land in 1953 in favour of Ust. Nawab Bibi, widow though an out and out sale did not affect the position of the reversioners of Mehar Din deceased viz-a-viz the widow, as they were not parties to the deed. According to the Supreme Court the widow had entered into possession, as admitted by her, in, 1941 'and since the proprietary rights were granted to her after 1944, when section 30-A was incorporated. She could not escape its operation.

4. Meanwhile, Hukam Din, father of Mehar Din deceased, filed a suit for possession of his 3/4th share in the property left by his son. The pleadings of the parties gave rise to as many as five issues :- (1) Whether the suit was premature ? (2) Whether the suit was barred by res judicata ? (3) Whether the suit was barred by O. 2, rule 2, C. P. C. (4) Whether the plaint did not disclose cause of action ? and (5) Whether the plaintiffs were entitled to the decree of possession regarding the suit land ? The learned trial Court found all the issues in favour of the plaintiffs and decreed the suit. However, the appeal filed against the judgment and decree passed by the learned trial court wag accepted by the learned District, Judge Rahimyar Khan by his impugned judgment dated 5th July, 1972 holding that appellants, successor-in-interest of Rukam Din. deceased, were not entitled at present, to possession of 3/4th share in the estate left by Mehar Din, deceased, and held by .Vst. Nawab Bibi as limited owner under section 30-A of Colonization of Government Lands Act.

5. It has been held by the learned District Judge while relying upon 31st. Began v. ~Vst- Bal (P L D 1971 Lah. 567) which has since not been approved by the Supreme Court vide its judgment reported in Rabnawaz v. Jahana (PLD1974SC210) that -section 3 of Shariat Act (V) of 1962 would not be applicable to the facts of the present case. The property is held by Kist. Nawab Bibi under section 30-A of Colonization of Government lands Act as limited owner during her lifetime and her limited interest would extinguish on her death or remarriage. Since she is still alive, therefore, the said interest has not extinguished.

6. As the above discussion would show, the only question to be determined in this case is as to whether section 3 of West Pakistan Muslim Personal (Shariat) Application Act (N' of 1962) would be applicable in the present case, terminating the limited estates in respect of immovable ` property held by a Muslim female under the Customary law ? Section 2 of Act V of 1962 provides that notwithstanding any custom or usage in all questions regarding successions, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority legitimacy bastardy, family relations, wills, legacies, gifts, etc. subject so the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) Application Act, 1963 in cases where the parties are Muslims. It has been argued on the basis of the language as used in the relevant provisions of Act V of 1962 that any limited interest held by a Muslim female under the Customary law will stand terminated under the Act and not otherwise. According to the learned counsel for the respondents since limited interest in the property devolved upon Mst. Nawab Bibi under section 30-A of Colonization of Government Lands Act being an enact ment somewhat different from Custom, the limited estate held by Mst. Nawab Bibi would not be hit by Shariat Act of 1962. I am afraid, this contention has no force in law as well as circumstances of the case. Th mode of a succession as prescribed by section 30-A of Colonization Act is customary in nature as the very language used therein shows. A female succeeding to the last male holder has been described to be succeeding to his estate as his heir and in the event of such female proprietor dying while in possession of the proprietary rights, they shall devolve upon the persons who would be entitled to succeed, if such rights had been acquired by the last male tenant or the male person on whose account the tenant was first allotted, .as the case may be. The provision as contained in section 30-A of Colonization Act had actually enforced succession a prescribed therein under custom and not otherwise. This view gain] strength from Ilam Din v. Muhammad Din (P L D 1964 S C 842).

7. The dispute in the above cited case related to some land situated in Sargodha District of which the last owner was Mst. Zenab Bibi widow of one Wadhawa. In 1906 two squares of canal land with an appurtenant residential compound were granted to Wadhawa on Horse Breeding terms. Along the special conditions relating to such grants were ; firstly, that the grantees were not entitled to acquire proprietary rights in the land, and secondly, that the succession to the tenancy was to be by primogeniture. However, in the year 1940 the Government abrogated these special condi tions and permission was given to such grantees to acquire proprietary rights on making certain special payments. As regards succession to the grants it was provided that for the future this would be regulated as in the case of ordinary grants under sections 20 to 23 of the Colonization of Government Lands Act, 1.912. Mst. Zenab Bibi moved the relevant Revenue authorities for acquiring proprietary rights in the year 1943, her husband having died before 1930. She deposited the requisite amount of money on 4th October, 1943, the very day, on which an order was made permitting her to acquire the proprietary rights. There was, _ however, delay in the execution of the sale-deed and this was done only on 22nd January, 1947 and the deed was registered on 24th January, 1947.

8. The question before the Supreme Court in that case was as to whether section 30-A of the Colonization Act, which was enforced in 1944, would regulate succession in regard to the property or not. Since M.ri. 2enab Bibi paid the price of the land in 1943, before the enactment of section 30-A, though sale-deed was executed and registered in 1947, she was held to be the absolute owner of the land it was held that succession hereto would be controlled by Personal Law of the widow and not by Custom as enacted in section 30-A. While dealing with this aspect of the case their Lordships of the Supreme Court observed as follows "There was however an incident which intervened between the pay ment of the price in 1943 and the execution of the sale deed i0 1947 whose effect falls for consideration in the present case. That was eventually the Legislature of the Punjab passed a law determining the succession to female proprietors of several categories including that in which Mst. Zainab Bibi was and at the same time placing a restraint upon their power of alienation. This was section 30-A of the Colonization of Government Lands Act, which was enacted in 1944, and had the effect of enforcing succession under custom. In other words, rights of alienation of the land were to be the same as if the proprietary rights had been acquired by the last male tenant and she had succeeded to such rights as his heir, and the case would be the same where the tenancy was allotted to her or to another female on account of the services of some male person, in which case her rights would be the same as if she had succeeded to the said male person as his heir. Succession was to follow the same principle, namely, that upon the death of the female proprietor, the heirs of the last wale tenant or of the male person on whose account the tenancy was first granted would succeed." 9: The interpretation of section 30-A of the Colonization Act, as put on by' the Supreme Court, clearly shows that the regulation of succes sion under the said provision of law was under the custom. It has been clearly observed that under section 30-A a female succeeds to the property of the last male tenant as his heir and the succession as such would'open to their heirs of the last male tenant upon the death of re-marriage of the female proprietor. Since succession under section 30-A has been regulated under custom, therefore, it cannot be said that the devolution of the property left by the last male tenant upon his widow is not under the custom. The observation made by their Lordships of the Supreme Court in the case referred to above are binding upon this Court. In this view of the matter the learned District Judge has failed to appreciate the point involved in its real perspective.

10. The declaration as made in section 3 of the Shariat Act of 1962 bas further been affirmed by the promulgation of Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance (IX of 1972) by the Governor of the Punjab. It has been provided that the life estates held by Muslim females 'were terminated with effect from 31st December, 1962, section 2 of the said Ordinance, with regard to removal of doubts, lays down that notwithstanding anything contained in West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, West Pakistan Muslim Personal Law.(Shariat) Application (Amendment) Ordinance, 1962, West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act, 1964, or any other law or any decree, judgment or order of any Court or other authority, or any proceeding pending before any Court or other authority, the limited estates in respect of immovable property held by Muslim females under the Customary Law shall be deemed to have been terminated with effect from 31st day of December, 1962. It has also been provided that 'all decrees judgments or order passed in any suit, appeal or other proceedings before any Court or other authority, which are inconsistent with the provision of subsection (1) of the Ordinance, shall be of no legal effect and such suits, appeals or other proceeding shall be decided afresh on the application of any person affected by such decree, judgment or order."

11. It means that the Legislature for the purpose of enforcing Shariat Law has gone to the extent of even abolishing the effect of any, decision or judgment already passed contrary to that. the words as used is subsection (1) of section 2 of the Ordinance of 1972 that "Notwith- standing anything contained or any other law clearly mean, that limited interest created by any law in relation to a property in favour of a Muslim female would stand terminated with effect from 3lstl December, 1962.

12. The above discussion would show that the limited interest held by Msl. Nawab Bibi in the estate left by her deceased husband stood terminated with effect from 31st December, 1962. In the circumstances the judgment and decree passed by the learned District Judge against the appellants cannot be maintained and the same is hereby set aside. The judgment and decree passed by the learned trial Court in favour of the appellants is hereby restored. M. Y. H. Appeal allowed.