The facts giving rise to this regular second appeal are that one Fateh Muhammad was an occupancy tenant of the land in dispute. He died issueless whereupon his mother Mst. Mehr Bhari inherited the occupancy tenancy as a life estate. On the coming into force of the Punjab Tenancy (Amendment) Act, 1952, whereby section 114 was inserted in the Punjab Tenancy Act, 1887, Mst. Mehr Bhari deposited the amount of compensation and thus acquired proprietary rights in the said land.
Thereafter, she made a gift of that land in favour of Hayat Muhammad and Ghulam Muhammad.
This gift was challenged by Saudagar and others by means of a suit for possession of the land brought against Mst. Mehr Bhari and others. The plaintiffs contended that Mst. Mehr Bhari got the land as a life estate under customary law and, therefore, she could not make the gift in question.
The plaintiffs claimed that, being the reversioners of Fateh Muhammad, they were entitled to inherit the said land. .
2. The suit was resisted inter aria on the ground that by acquiring proprietary rights in the land, Msr.
Mehr Bhari became its full owner and therefore, she could make the gift. The Additional Civil Judge, Chakwal, District Jhelum, who tried the suit, accepted the defence plea and dismissed the suit. On this, the plaintiffs went in appeal before the District Judge, Jhelum, who held that Mst. Mehr Bhari could not make a gift of the land except to the extent of her own share. In view of this finding, the learned District Judge accepted the appeal and decreed the suit. Feeling aggrieved by the judgment and decree passed by the first appellate Court, the defendants have come up in second appeal to this Court.
3. Learned counsel for the appellants has contended that on payment of compensation' by Mst.
Mehr Bhari under section 114 , of the Punjab Tenancy Act, 1887, she became the exclusive owner of the land and, therefore, she was competent to make a gift of the whole of it and not of her own share only. He has relied on the case of Ibrahim v. Muhammad Bashir and others (PLD 1964 Lah.
421) to support his contention.
4. In reply, learned counsel for the plaintiffs-respondents submitted that on payment of compensation under section 114 of the Punjab Tenancy Act, Mst. Mehr Bhari did not become full owner of the land and, therefore, she did not have an unrestricted power of disposition over it. He relied on the case of Rab Nawaz v. Jahana (PLD 1974 SC 210) to support his plea.
5. In the precedent case of Ibrahim cited by the learned counsel for the appellants, one Sher Muhammad was an occupancy tenant of certain land and be acquired proprietary rights of the land on payment of compensation. He then disposed of the land by means of sale whereupon a suit was brought by one of his collaterals contending that as the land was ancestral qua him, its sale shall not affect his reversionary rights in the land. The High Court ruled that the proprietary rights acquired by Sher Muhammad were his self-acquired property and, therefore, the land could not be treated as ancestral property qua the plaintiff. This precedent case is distinguishable from the case in hand because before the acquisition of proprietary rights, the occupancy tenant in the reported case was enjoying unrestricted rights as an occupancy tenant while in the instant case the occupancy tenant held these rights as a life estate only. The facts of the case of Rab Nawab decided by the Supreme Court and relied upon by the learned counsel for the respondent are, however, almost on all fours with those of the present case. In the case of Rab Nawaz, the widow of a Muslim occupancy tenant who had inherited occupancy tenancy as a life estate had made a gift of the entire land relating to her tenancy after acquiring proprietary rights therein. The question raised before the Supreme Court was whether under unamended section 59 of the Punjab Tenancy Act the widow had become full owner in the entire holding of her husband on acquiring the proprietary rights in the holding under section 114 of the Act. This question was answered in the negative with the following observations : "For the foregoing reasons I am in no manner of doubt that it was not the intention of the Legislature to constitute a widow succeeding to her husband under the unamended section 59, an absolute owner of the entire holding of her husband on acquisition by her of proprietary rights in the holding under section 114 of the Act, so as to become a fresh stock of descent ,excluding the Muslim Law heirs of her husband. Nor any such conclusion can otherwise be sustained on a proper interpretation of section 114.
6. As for the gift made by the widow, the Supreme Court ruled that the gift of the entire land was- not valid but it will hold good to the extent of the share of the widow in the estate of her deceased husband.
7. In view of the aforesaid authoritative pronouncement of the Supreme Court, I agree with the learned District Judge that the gift made by Mehr Bhari in the present case is valid only to the extent of her share in the land in dispute.
8. While recording the aforesaid finding, the learned District Judge decreed the suit In toto. This he could do because of his own decision that the gift was valid to the extent of the share of Mst. Mehr Bhari. Learned counsel for the parties were unanimous that if the view taken was that hlst. Mehr Bhari could not make gift of the entire land, the suit will have to be remanded to the trial Court for determining the respective shares of the parties in the land in the dispute. Therefore, while upholding the finding of the learned District Judge that Mst. Mehr Bhari could not make the gift of the entire land in dispute but only in respect of her own share in that land. I set aside the decree passed by the learned District Judge and remand the case to the trial Court with the direction that it shall determine the aforesaid shares and then decide the suit afresh in accordance with law.
9. The appeal is disposed of accordingly, with no order as to costs.