P L D 1960 (W (PLP)

B. Z. KAIKAUS, J.‑

The following pedigree‑table will help in understanding the facts of the case: | ______________________________|______________________________ | | | | Karam Ahmad Ali Bahawal Bakhsh Husain=Mir Elahi (Died | Bibi Ahmad (Died issueless) | | | Hayat issueless) | Muhammad | (Died | issueless) | ______________________________|__________________ | | Abdul Muhammad Aziz Husain (Plaintiff No. 1) | Kalsum Akhtar (Plaintiff No. 2) The dispute in this case relates to half a share out of occupancy rights which were held jointly by Bahawal Bakhsh and Mir Ahmad. On the death of Mir Ahmad, who died about forty five years ago, his share devolved on Hayat Muhammad. Hayat Muhammad too died some time before 1912 and his share devolved on his mother Mst. Husain Bibi. On the 12th of December 1952 Mst. Husain Bibi mortgaged her share of land which amounted to 44 kanals and 6 marlas of land in favour of Muhammad Khan respondent for, a sum of Rs. 2,

000. At this Abdul Aziz and Mst. Kalsum Akhtar, the son and grand‑daughter of Bahawal Bakhsh, filed the suit out of which this appeal arises to challenge the mortgage. They contended that the rights of Mst. Husain Bibi were governed by section 59 (3) of the Punjab Tenancy Act and that she, had no right to create a mortgage at all. They claimed at the same time that the parties were governed by custom and that, in any case, Mst. Husain Bibi could alienate only for consideration and necessity and the mortgage was not for consideration and necessity. The defendants denied that the plaintiffs had locus standi to sue. They did not accept that Mst. Husain Bibi was a life tenant. They did not accept too that the parties were governed by custom and pleaded, in the alternative, consideration and necessity if tae parties were in fact so governed. There were some other pleas to which it is not necessary to refer. The first Court found that the parties were not governed by custom, but, holding that the rights of Mst. Husain Bibi who had inherited as a mother were the same. as that of a widow under section 59 (3), which prohibited a mortgage, decreed the suit. On appeal the only point argued before the learned District Judge was that the plaintiffs has no locus standi to sue. This question was sub‑divided into two other questions ; the first, as to whether the plaintiffs had proved their relationship, and the second as to whether the common ancestor occupied the land. The District Judge found on both the points in favour of the plaintiffs and dismissed the appeal. Against . this judgment a second appeal was filed in the High Court by Muhammad Khan respondent, i.e. the alienee. Mst. Husair Bibi had been impicaded as a respon dent, during the pendency of tie appeal, Mst. Husain Bibi died and objection was taken on behalf of the plaintiff‑respondents that the appeal had abated in toto. The learned Single Judge held that Mst. Husain Bibi was only a pro forma party and that her death did not affect the appeal by the alience. The conclusion of the learned Judge has not been attacked before us. The learned Single Judge held, however, that on account of the amendment of section 59 of the Tenancy Act in the year 1951 the power of Mst. Hussain Bibi to alienate was.no longer governed by section 59 (3) as it existed in the original Tenancy Act but was governed by section 59 as amended, the alienation having taken place after the amendment. Finding that in the amended section there was no provision corresponding to section 59 (3) with respect to Muslim widows, the learned Judge held that there was no obstacle in the way of Mst. Husain Bibi alienating the property. He, therefore accepted the appeal and dismissed the suit.

2. Learned counsel for the respondents did not take long in accepting that the view that the learned Single Judge had taken was not correct. Before proceeding further it will be proper to reproduce the original section 59 and section 59 as amended in 1951 : Old section 59 before 1951 Section 59 as substituted by Act IV of 1951 (1) When a Muslim tenant having a right of occupancy in any land dies, the rights shall devolve on his heirs in accordance with the provisions of the Muslim Per sonal law (Shariat) Provided that when the occupancy rights are held by a female as a limited owner under customary law, 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 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 termination of the limited interest of the female as if the aforesaid such person had died at the termination of the 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 heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of her death. (1) When a tenant having right of occupancy in any land dies, the right shall devolve‑ (2) When a non‑Muslim tenant having a right of occupancy dies, the right shall devolve‑ (a) on his male lineal des‑ cendants, if any, in the male line of descent, and, (b) failing such descendant on his widow, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom and, (a) on his male lineal des cendants, if any, in the male line of descent, and, (b) failing such descendants, on his widow, if any, until she dies or remarries or abandons the land or is under the pro visions of this Act ejected there from ; and (c) failing such descendants and widow, or, if the deceased ‑ tenant left a widow, then when her interest terminates under clause (b) of this sub‑ section on his male col‑ lateral relatives in the male line of descent from common ancestor of the deceased tenant and those relatives : Provided, with respect to clause (c) of this sub‑ section, that the common ancestor occupied the land. (c) failing such descendants and widow on his widowed mother, if any, until she dies or remar ries or abandons the land or is under the provisions of this Act ejected therefrom ; and (d) failing such descendants and widow, or widowed mother or if the deceased tenant left a widow or widowed mother then when her interest‑ terminates under clause (b) or (c) of this subsection, on his male col lateral relatives in the male line of descent from the common ancestor, of the deceased tenant and those relatives Explanation.‑For the pur‑ pose of clause (c) land obtained in exchange by the deceased tenant or any of his predecessors‑in‑interest in pursuance of the pro‑ visions of subsection (1) of section 58‑A shall be deemed to have been occupied by the common ancestor if the land given for it in exchange was occupied by him: Provided with respect to clause (d) of this subsection, that the common ancestor occupied the land. Explanation.‑For the purpose of clause (d), land obtained in exchange by the deceased tenant or any of his predecessors‑in interest in pursuance of the provisions of subsection (1) of section 58‑A shall be deemed to have been occupied by the common ancestor if the land given for it in exchange was occupied by him. (2) As among descendants and collateral relatives claiming under sub‑ section (1), the right shall subject to the provisions of that subsection devolve as it were land left by the deceased in the village in which the land subject to the right is situate. (3) As among descendants and collateral relatives claiming under subsection (2) the right shall; subject to the provisions of that subsection, devolve as if it were land left by the deceased in the village in which the land subject to the right is situate. (3) When the widow of a deceased tenant succeeds to a right of occupancy, she shall not transfer the right by sale, gift or mort‑ gage or by sublease for a term exceeding one year. (4) If the deceased tenant has left no such persons as are mentioned in sub‑ section (1) on whom his right of occupancy may devolve under that sub‑ section, the right shall be extinguished. (4) when the widow of a deceased . tenant succeeds to a right of occupancy under subsection (2), she shall not transfer the right by sale, gift or mortgage or by sub‑lease for a term exceeding one year. (5) If a deceased tenant has left no person on whom his right of occupancy may devolve under subsection (1) or sub section (2), as the case may be, the right shall be extinguished. Under the unamended section if there were no lineal descendants and no collaterals whose common ancestor had occupied the land the tenancy right was to devolve on the widow. Section 59 (3) provided that the widow would not be entitled to transfer the right by sale, gift or mortgage or by lease for a term exceeding one year. By the amendment of 1951 different rules for devolu tion of the property were provided for Muslims and non‑Muslims. Subsection (1) provided the rule for succession to a tenancy when a Muslim tenant died and subsection (2) the rule of its devolution in case of a non‑Muslim tenant. For subsection (3) was substituted subsection (4), which is in the same words as original sub section (3) or section 59, but refers only to the case of a devolu tion under subsection (2), i.e., the devolution in the case of a non‑Muslim. The result is that there is no provision in section 59 as it stands after the amendment governing the power of a Muslim female, who had inherited an occupancy right before the amendment, to transfer the occupancy right. It was on account of the absence of any such provision that the learned Single Judge held in favour of the absence of any restriction on the power of alienation of the widow. It seems to us clear, (and has been conceded by learned counsel for the respondents), that although in section 59, as it now stands, there is no reference to the powers of alienation of a widow who succeeded before the amendment her powers of alienation are necessarily to be governed by the law under which she succeeded.. If she succeeded to an estate under the unamended section 59, which said that she will occupy the land till death or remarriage and will not alienate it except as a lease for a year or less, then unless the amendment had the effect of improving her powers of alienation such powers will have to be governed by section 59 (3). No reason exists for holding that the amendment has improved her power of alienation. The amended section refers only to the widow who succeeds after the amendment.

3. In this view of the matter the only point which we will have to decide would be whether Mst. Husain Bibi inherited an estate under the unamended section 59 of the Tenancy Act. Mst. e Husain Bibi was not the widow of the last male owner. She had succeeded to the tenancy on the death of her son Hayat Muhammad. Under section 59 she had no right to the land at all and she was in fact a trespasser. Section 59 (3) applies only to the case of "the widow of a deceased tenant who succeeds to a right of occupancy." The words "deceased tenant" refer only to the person on whose death the succession takes place. Section 59. therefore, will not apply to the present case and the powers of Mst. Husain Bibi to alienate, if they are to be restricted, are obviously not to be restricted on account of section 59 (3).

4. We would point out before we proceed further that its would have been proper if there were some provision in the amended section as to the powers of alienation of the widows who had inherited before the amendment so that the present controversy may have been avoided. There are other defects too that exist in the drafting of the section as amended. According to subsection (1) succession is to open to the last male holder in a case where "occupancy rights are held by a female as a limited owner under Customary Law". This subsection presumes that occupancy rights at the time when the amendment was introduced were being held under customary law. It does not appear to have been appreciated) that occupancy rights were not being held by any female under customary law. Section 59 was applicable whether the parties were governed by customary law or by personal law and a special estate would devolve upon the widow under that section. The proviso to subsection (1) cannot, therefore, apply to any case with the result that when a widow holding an estate under an amended section 59 died there would be no provision which is in terms applicable and there would be a lacuna. Assuming that by a straining of language one were to apply the proviso to a case where the parties were otherwise governed by custom, there is no provision whatsover with respect to those widows who belonged to tribes not governed by custom but who held estates under section 59.

5. Realising that section 59 (3) would not apply, learned counsel for the appellants argues that by remaining in adverse possession for more than twelve years, Mst. Husain Bibi had acquired only the estate of a widow under custom and not an absolute estate so that she could alienate only for necessity. A number of authorities were produced in support of the proposition that the mother when she inherits under custom succeeds as a widow. That proposition is well settled but is not really of any great relevance in the present case, because when the mother succeeds under custom she too take, only a life estate. The real point for determination is whether Mst. Husain Bibi when holding adversely would be prescribing for the same estate to which she would be entitled as a customary heir, a matter which depends on the title she asserts. Abundant authority could be cited in favour C of the proposition that in a case where the parties are generally governed by custom, a widow who succeeds without right pre scribes only for a life estate vide Ram Sarup v. Jai Devi (A I R 1946 Lah. 272) Lajwanti v. Safa Chand (A I R 1924 P C 121), Mohammad Yusuf v. Sarju Singh (A I R 1942 All. 42), Paredappa v. Shivalingappa (A I R 1946 Bom. 193), and Parbati v. Ram Prasad (A I R 1933 Oudh. 92), Ram Sarup v. Jai Devi is a case of succession to occupancy rights. The widow of a predeceased son had been allowed to succeed to occupancy rights and it was held that she acquired only a life estate. Lajwanti v. Safa Chand was a case governed by Hindu Law where the mother who was only entitled to maintenance had taken possession of the property and it was held that she had acquired a title by adverse possession but that the title was not a personal one and would only result in an accretion to the estate of her husband. It may be argued that these are cases where the party was governed generally by custom or Hindu Law and therefore, it was reasonably presumed that the widow was asserting only the same title as she would have had if she had right to succeed and in the present case parties have been held not to be governed by custom. True, there is a finding against the appellant on the question of custom, but that too will not establish that Mst. Husain Bibi was not prescribing for a limited title. She could only have been allowed to succeed on the assumption than' parties were governed by custom like their agriculturist neighbours. Her succession could not possibly have been under Muhammadan Law because in that case she could not succeed to the whole of the; land which was left by her son. The revenue records 'too show that she was in possession as the mother of the last male owner for they describe her as the mother of Hayat Muhammad. Ordinarily, a woman, if unmarried, would be described with reference to her father and, if married, would be described with) reference to her living or deceased husband. Whenever in the revenue records a woman is shown as the mother of a particular person the inference is that she holds in her capacity as the mother of that person. In the circumstances of this case it will not be wrong to presume that Mst. Hussain Bibi was claiming the same estate as she would have had if she had in fact the right to succeed‑ under custom. However, a lengthy discussion on this point is really not necessary because of the position that emerged some time after the argument had proceeded. As already stated, Mst. Husain Bibi died during the pendency of the appeal. Learned counsel for the respondents was arguing that Mst. Husain Bib' had a full estate, when we pointed it out to him that if she had a full estate, then on her death this tenancy would lapse and the rights of the respondent as a mortgagee would come to an end. The tenancy was as yet joint and although the share held by Mst. Husain Bibi will become extinct the tenant of the remaining half share will become the tenant of the whole qua the landlord. When learned counsel appreciated this position, he gave up the conten tion that Mst. Husain Bibi had acquired full estate and himself contended that she had acquired only a life estate. The result was that before us learned counsel for the plaintiff‑appellants was arguing that Mst. Husain Bibi had acquired only a life estate and learned counsel for the respondent was conceding that she held such an estate. Our finding apart from the concession too is that Mst. Husain Bibi had acquired only a life estate under custom.

6. If she held a life estate under custom she could not ali enate the land except for consideration and necessity. There was no finding as to consideration and necessity by the trial Court but the evidence is not voluminous and instead of remanding the case we are recording our own finding. Out of the sum of Rs. 2,000 Rs. 900 were due to the previous mortgagee who was Muhammad Husain, the brother of Abdul Aziz plaintiff and the father of Mst. Kalsum Akhtar plaintiff. Out of the remaining sum of Rs. 1,100, Rs. 250 were said to have been paid at different times for mainte nance and Rs. 850 before the Registrar. We are not accepting the payment of the sum of Rs. 250 but there is no reason why the payment of the sum of Rs. 850 should not be held to have been proved. We also. find necessity. for the alienation. The only means of livelihood of Mst. Husain Bibi was the land in dispute. This land she bad mortgaged in favour of Muhammad Husain, the predecessor‑in‑interest of the plaintiffs themselves, a long time ago with possession for a sum of Rs.

900. It was accepted on behalf of the plaintiffs that after she mortgaged the land they had themselves been providing her with maintenance. As the first mortgage had taken place a long time ago, Mst. Husain Bibi was quite within her rights in further mortgaging the land in order to get money for her maintenance. We may record here that when we were going to pronounce judgment the parties agreed that the mort gage should be held to be for consideration and necessity for a sum of Rs, 1750. The plaintiffs would thus be entitled to possession of the land on payment of Rs. 1750 but it has been conceded before us that Muhammad Khan respondent had subsequently withdrawn the sum of Rs. 900 which he had deposited for payment to the previous mortgagee in proceedings under the Redemption of Mortgages Act. The result is that the plaintiffs will be bound to pay him a sum of Rs. 850 only in order to secure possession of land. We grant a declaration to the plaintiffs that they are entitled to possession of the land in dispute on payment of a sum of Rs. 850 only. The parties will bear own costs throughout. KAYANI, C. J.‑

As the defects pointed out by my brother in the amended section 59 did not concern us in the present case, they were not argued before us, and I have, therefore, not devoted sufficient attention to them. With the rest of the judgment I agree. A.H. Order accordingly.