P L D 1971 Lahore 567 (PLP)

(a) . . . . . . . . . . . . (b) the widow of the tenant until she dies, or remarries, or loses their rights under the provisions of this Act; (c) . . . . . . . . . . . . (d) . . . . . . . . . . . . (e) . . . . . . . . . . . . She acquired proprietary rights on the 24th of March 1959, after section 30‑A had been added by Act VI of 1944. Acquisition of proprietary rights under the Colonization of Government Lands Act is dealt with in section 30 ibid which reads asunder: ‑ "

30. Acquisition of proprietary right. ‑ Notwithstanding anything entered in any statement of conditions issued under Government Tenants (Punjab) Act, 1893, a tenant who, either in pursuance of any such condition or otherwise by agreements with, or under rules issued by Government, has acquired proprietary right in any land included in his tenancy shall in res pect of such land cease to be subject to any statement of condi tions issued under the above‑mentioned Act: provided always that he shall in respect of such land be bound by the conditions set out in Schedule II of this Act and be bound by the other provisions of this Act applicable to proprietors of land." Section 30 has been interpreted in several authorities wherein the consequences following therefrom have been examined in detail. There seems to be a consensus of opinion that before restrictions on alienations were placed by section 30‑A, a widow A on acquisition of proprietary rights in the tenancy became an absolute owner as held in Mst. Malap Kaur v. Hakim Singh and another (8 P R 1915), Jagat Singh v. Mst. Raj Devi (A I R 1938 Lah. 554), Faiz Ali v. Rafia Jan (P L D 1956 Lah. 94) and Ibrahim v. Rajji (P L D 1956 Lah. 60). With the acquisition of proprietary rights, sections 20 and 21, which governed succession to tenants, were no longer applicable and the tenancy ceased to exist as such. Section 30‑A(a), which imposed restrictions on the rights of alienations by females acquiring proprietary rights in the tenancy read as follows :‑ "30‑A. Rights of alienation in respect of and rule of succession to certain proprietary rights acquired by a female Notwithstanding any custom and the provisions of any law to the contrary, when after the commencement of the Colonization of Government Lands (Punjab Amendment) Act, 1944, proprietary rights in any land are acquired by a female tenant, her rights of alienation of any such land shall be the same: (a) If she succeeded to the tenancy directly or indirectly from a male tenant, as if the proprietary rights had been acquired by the last male tenant, and she had succeeded to such rights as his heir ;". Since on the acquisition of proprietary rights by female tenants the land had become their self‑acquired property of which they had complete powers of disposal, alienations by them were to the detriment of the reversioners of the previous male tenants. It was to safeguard the interest of the reversioners that restrictions mere imposed on the females rights of alienation by adding section 30‑A. The precise question to be determined, however: is as to whether these restrictions completely bring them at par with widows or other life estate‑holders under custom or this would be merely one of the points of similarity, which would not per se be good enough to bring them within the purview of section 3 of Act V of 1962. The answer to the proposition is quite clear. With the acquisition of proprietary rights sections 20 and 21 of the Act remain no longer applicable and as such the question of loss of their rights in the event of remarriage of a widow or marriage of a daughter, which is one of the essential characteristics of a limited estate under custom would no longer be relevant. This is one of the important distinctions between the two categories. The next point of distinction, which is equally important is that on acquisition of proprietary rights under section 30, unlike a limited estate‑holder under custom, a widow becomes an owner in her own rights subject of course to the restrictions on her rights of alienation as envisaged by section 30‑A. It would be pertinent to observe that the relevant restrictive provision contained in section 30‑A(a) is couched merely in an analogical and parallelistic form significantly avoiding any reference to the Customary Law which cannot be imported into it. It is a well‑settled rule of interpretation that a provision, which is restrictive in nature, has to be strictly construed. Last but no the least is the unequivocal phraseology employed by section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 which has specifically confined the termination of life estates to those held under Customary Law. Notwithstanding the analogy between a life estate holder under custom and a female governed by sections 30 and 30‑A of the Act on the point of restrictions on alienations by no means can the scope of the relevant provisions of Act V of 1962 be enlarged so as to analogically cover what is not specifically mentioned therein. If an authority is needed Fareed and others v. Mst. Sughran Bibi may be cited in point. It would not be out of place to mention in this context that a female tenant who had herself acquired the tenancy before the acquisition of proprietary rights therein was immune from these restrictions.

4. It appears that the Courts below did not consider it necessary to refer to the change brought about in the relevant law during the pendency of this case before them. Though not strictly relevant it appears appropriate to make not of the same. The case was decided by the learned trial Judge on the 21st of May 1965. whereas the learned Additional District Judge dismissed the appeal on the 19th of May 1966. So far we have been dealing with the interpretation of section 3 of Act V of 1962 in regard to the termination of life estate under Customary Law and its applicability or otherwise to the facts of the case before us, without reference to the provisions contained in section 7(2) ibid, which reads as follows :‑ "This Act shall not apply to cases where the tenant of the j last full owner or the termination of the life estate or the death of the legatee in enjoyment, as the case may be, has occurred before the commencement thereof, and all such cases shall be governed by Acts repealed in subsection (1) according to the territories in which they were operative." Since we have already found that the provision contained in section 3 was not applicable to the case of a female, who had acquired proprietary rights in the tenancy under the Colonization of Government Lands Act, the effect of the above provision, which is in the nature of a saving clause, would be wholly irrelevant for the purposes of this case. We would, however, like to observe that even otherwise it was held to be void on account of its repugnancy by a judgment of this Court in Sarwar Bibi v. Said Ahmad (P L D 1963 Lah. 412) delivered by our learned brother Mushtaq Hussain, J. Subsequently, however, the provision contained in section 3 was substituted by the West Pakistan Muslim Personal Law (Shariat) (Amendment) Ordinance, XXXIX of 1963, by the following with retrospective effect :‑ "The limited estates in respect of immovable property held by Muslim females under the Customary Law are hereby terminated: Provided that nothing herein contained shall apply to any such estate saved by any enactment, repealed by this Act. and the estates so excepted shall be continued to be governed by that enactment, notwithstanding its repeal by this Act." Section 7(2) was omitted by Ordinance XXXIX of 1963. Muslim Personal Law (Shariat) Application Act, 1948, which was one of the enactments, repealed by Act V of 1962, which made Shariat the rule of decision in cases regarding succession notwithstanding any custom or usage to the contrary where the parties were Muslims. Consequently, the life estates held by Muslim females under Customary Law were saved during their lifetime, but the amending Ordinance XXXIX of 1963, though retrospective in operation. was not approved by the Legislature and as such was deemed to have been repealed as envisaged by Article 79(4) of the Constitution. Of course the existing rights were saved by Article 250 of the Constitution, as held by their Lordships of the Supreme Court in Muhammad Akhtar Hussain v. Government of West Pakistan (P L D 1970 S C 146). As stated earlier, since from the very outset section was not found to be applicable by the Courts below which view has been upheld by us, it was not necessary for them to take note of the change effected in the law during the pendency of the case and the consequences flowing therefrom, which would be irrelevant for the purpose of this case.

5. Before concluding it appears necessary to say a few words about the Supreme Court authority in Ram Din v. Muhammad Din relied upon on behalf of the appellant. The case pertained to a grant on horse breeding conditions in which acquisition of proprietary rights was not allowed in the first instance, but was later made permissible in the year 1940, when the provisions of sections 20 and 23 of the Colonization of Government Lands Act 1912 were also made applicable to regulate succession to the grant. The widow of the original grantee, who died in 1930, sought permission to acquire proprietary rights on the 4th of October 1943 which having been accorded she deposited the amount on the same day. The sale‑deed could not be executed till the 2nd of January 1947 and was registered on the 24th of January 1947. She died the same year. The question was whether on her death succession was to be determined by her personal law or the rules of custom which depended on the answer to the question whether she could be deemed to have acquired proprietary rights on the 4th of October 1943 before section 30‑A was enacted or subsequently when the sale deed was executed and registered. Their Lordships of the Supreme Court held that section 30‑A was not applicable. The relevant observation, namely, that section 30‑A had the effect of enforcing succession under customs could not, in our view be so construed as to attract the provisions of section 3 of Act V of 1962, which was not before their Lordships, not being in the field. The position is, therefore, quite distinguishable.

6. The upshot of the discussion, therefore, is that the appeal fails and is hereby dismissed with costs. K. B. A. Appeal dismissed.