' CHAUDHRY RAHIM DAD KHAN, C. J.-These certificated appeals were filed before the Judicial Board which, by operation of law have come up before this Court on amendment of the Azad Jammu & Kashmir Interim Constitution Act, 1974.
2. The dispute relates to the property left by one Ahmed Khan whose only son Saifu Khan had died during his lifetime leaving behind three daughters, namely, Mst. Raj Begum-appellant, Mst. Sardar Begum and Mst. Buwa Begum-respondents Nos. 1 and 2. They were born from two wives Mst. Raj Begum from Mst. Baggi, widow of Saif Ali while Mst. Sardar Begum and Mst. Buwa Begum from Mst.
Shah Begum. Nevertheless the entire estate left by Ahmad Khan was mutated in the name of Mst.
Baggi, mother of Mst. Raj Begum and it is alleged that Mst. Shah Begum, the other widow, had gone back alongwith her daughters to the house of her parents in Tehsil Rajori. On death of Mst. Baggi the entire estate, including the tenancy, vide Mutation No, 45 was mutated in the name of her daughter Mst. Raj Begum to the exclusion of other daughters of Saif Ali deceased. But on appeal by Mst. Sardar Begum and Mst. Buwa Begum the aforesaid mutation in favour of Mst. Raj Begum was cancelled and it was directed that the land would devolve upon Muslim Law heirs or deceased including the respondent. Consequently, Mutation No, 524 was attested where by the disputed land was mutated in favour of all the heirs of Ahmed Khan deceased in accordance with their respective shares under Muslim Law of Inheritance. The following pedigree table will be helpful in understanding the facts of this case:- {{TABLE}} SATAROO KHAN Ii -I r- Burhan Ali Akbar Khan Abmad Khan I I I c I 1 Rahim Dad Allah Dad I Saif Ali _____-_____ _ 1 r 1 1 Sahab Dad Karim Dad I I I Nazir Ahmed Bashir Ahmed I 1 Mst. Shah Begum Mst. Baggi
(wife) (wife)
I Mst. Raj Begum Mst. Sardar Begum Mst. Buwa Begum {{TABLE}}
3. Two cross suits were filed, one by Mst. Raj Begum for declaration to the effect that the property in dispute was donated by Ahmed. Khan (her grandfather) in favour of her mother Mst. Baggi, who consequently became a Fresh 'stock of descent' so, the estate left by her, on her death, devolved upon the plaintiff as sole Muslim Law heir of Mst. Baggi, and the other suit has been filed by Mst.
Sardar Begum and Mst. Buwa Begum for joint possession to the extent of their shares in the land in dispute. Their suit is based on title derived by them from Ahmed Khan, their grandfather, under Muslim Law of Inheritance. The trial Court, on arriving at the conclusion that the claim of Mst. Raj Begum to the effect that the property was donated in favour of Mst. Baggi by Ahmed Khan, had not been satisfactorily proved either by documentary or oral evidence, dismissed the suit filed by her (Mst. Raj Begum), while the suit filed by Mst. Sardar Begum and Mst. Buwa Begum was decreed in their favour to the extent of their shares under Muslim Law of Inheritance. On appeal the District Judge, Mirpur, reversed the finding of the trial Court on the question of the gift and consequently the suit filed by Mst. Raj Begum was decreed in her favour while that of Mst. Sardar Begum and Mst.
Buwa Begum was dismissed. On second appeal the High Court, after reappraisal of the evidence and considering the effect of the entry in revenue record showing Mst. Baggi as a widow of Saif Ali, came to the conclusion that she succeeded the estate as widow of Saif Ali, predeceased son of Ahmed Khan deceased and not as a donee, reversed the judgment and decree of the first appellate Court and restored that of the Sub-Judge, Bhimber.
4. Two points were urged for consideration by the learned Advocate for the appellant:
(a) that Mst. Baggi, on account of gift of the land in dispute in her favour by Ahmad Khan---her father-in-law, became proprietor of the property without any limitation and like self-acquired property, on her death, it would devolve on hers as Muslim Law heirs and not on heirs of her deceased husband;
(b) that in any case the land in which she acquired proprietary rights, under Land Reforms Act, would devolve on her heirs alone and not on the heirs of her deceased husband.
' On point No, 1 the learned Advocate for the appellant was unable to show that there was either misreading of the evidence or miss-appreciation of the evidence produced by the parties.
However, he contends that since Mst. Baggi has been recorded as proprietor in the revenue record, the entry being presumed to be true, it is for the respondents to show that they are erroneous. The existing entry in column 4 in the record-of-rights does not lay down any restriction of the kind on the female proprietor showing that she had only a life interest in the land in dispute. So, according to him, it was not justified to support the view that she had only a life interest in the property. There would have been such weight in the argument submitted by the learned Advocate for the appellant if the entry in Column No, 4 is taken all alone and reading it without placing it in juxtaposition with the entry in Column Nos. 13 and 14 of the record-of-rights; the copies of which are at pages 47 and 48 of file No, 96 of 1968-the original suit filed by Mst. Raj Begum appellant. These documents are the copies of record of rights prepared during the summary settlement conducted in year 1986-87 Bikrmi 1930-31 A. D. Column Nos. 13 and 14 which are meant for reference to the mutation show that Mst. Baggi, under Mutations Nos. 347 and 355, got the property by inheritance.
At page 48 also the entry shows that she succeeded by inheritance vide Mutation No, 386. The presumption as to the correctness A of the Revenue record extends over all the entries contained in various columns of the record-of-rights prepared during the summary settlement or annual record and they must be read together for arriving at correct conclusion. When these entries in columns Nos. 13 and 14 are read together they leave no doubt as regards to the origin of the right of Mst.
Baggi over the land in dispute and makes it quite clear that she entered over the land not in consequence of any alienation by gift or sale but under a right of succession as evidenced from the entry in Columns Nos. 13 and 14.
5. Moreover, in the State, under Jammu & Kashmir Laws (Consolidation Act) of 1977 Bikrimi, in question regarding 'succession, inheritance, special property of female, betrothal, marriage, divorce, dower, etc the rule of decision was the Muhammadan Law in cases where the parties were Muhammadan except insofar as such laws were altered, abolished or modified by any enactment or custom applicable to the parties concerned. Under Muslim Law a widow of pre-deceased son is not entitled to any succession. Obviously; she could succeed to the entire estate of Ahmed Khan as widow of a pre-deceased son only under the custom that was prevalent at the time in the area. It follows that a widow of pre-deceased son succeeding under custom had only a life estate and it further follows that on her death the property would have reverted to the reversions but for the promulgation of Shariat Act under which it would devolve upon Muslim Law heir of the father of her deceased husband.
6. Besides, the Chibs of Bhimber Tehsil were governed by a custom under which a childless Chib could not alienate ancestral landed property without consideration and without necessity. This is laid down in Wall Dad Khan v. Muhammad Khan (1). That was a case from village Panjari Tehsil Bhimber where the parties were Chib by caste. The parties in the present case are also Chib and the land in dispute is situate in Bhimber Tehsil, Though it is not a general rule but when sonless proprietor, being governed by custom, donates his land normally it is not allowed by collaterals to go unchallenged. This omission may not contribute at all to the proof of origin of succession but when adjudged in the context of the entries in Columns 13 and 14 read with column 4, it does help in drawing the inference about the origin of the legal right to the possession of the land in dispute. For the foregoing reasons it is quite evident that Mst. Baggi succeeded Ahmed Khan, the father of her deceased husband, under custom, and there being no evidence in support of the claim that the property was donated to Mst. Baggi by Ahmed Khan, we, therefore, do not feel inclined to interfere with the conclusion arrived at by the High Court on this count.
7. As for the occupancy tenancy over which the widow of the predeceased son acquired proprietary rights, under Land Reform Act, it was submitted that she became proprietor over the holding in her own right and thus became a 'fresh stock of descent'. In support of this contention reliance was placed by the learned Advocate for appellant on a case entitled Nizam Din and others v. Azeem Bibi and others (2). In that case it was held that a widow of a tenant, who obtains proprietary rights under Allan No, 1990 Bikrimi (Royal Decree by Maharaja of Kashmir) conferring proprietary rights on occupancy tenants, becomes proprietor in her own right. Consequently, the property, on her (Baggi) death, would devolve on her heirs and not on the heirs of her deceased husband. However, the learned Advocate for appellant omitted to refer to recent authorities. When his attention was directed to a subsequent authority of Azad Jammu & Kashmir High Court reported as PLD 1971 Azad J& K 6 wherein after examining PLD 1961 Azad J& K 26 it was held that the proprietary right over the land in question was acquired by a widow of the tenant as representative of her husband and that the same shall be continued to be treated as a limited estate so far the widow is concerned. He was unable to controvert the same; rather he felt depressing. It may be noted here that in that judgment a widow was held entitled to (1)40PLKJ&K 47 (2) P D 1961 Azad J & K 26 ' refund of the amount spent by her in acquiring the proprietary rights under Land Reforms Act.
There is a more recent authority of the Supreme Court of Pakistan, entitled Rab Nawaz v. Jahana (I).
8. Before examining in some detail the aforementioned authority of Pakistan it would be useful for the purpose of proper appreciation of the point decided therein and its impact on the instant case to recount the history of Legislation in Azad Jammu & Kashmir and its comparison with the prevailing law in Punjab and the Interpretation placed on it by the highest Court of that country.
During the Dogra Regime, before the liberation of this territory, Tenancy Act of Samvat 1980 (Bikrimi) was in force. Section 67 of that Act which lays down the order of succession to the right of occupancy reads as under:- "67.-(1) When a tenant having a right of occupancy in any land dies, the right shall devolve-
(a) on his male lineal descendants, if any, in the male line of descent
(b) failing such male lineal descendants on-
(1) his widow, or (ii)father's widow, or
(iii) the widow of a male lineal descendant in the male line of descent, who predeceased the late tenant;
(c) failing which descendants and widows, or, if a female succeeds to the tenancy under clause (b), then when her interest terminates, on his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives: ' Provided, with respect to clause (c) of this subsection, in the case of a right of occupancy not held directly from the State, that the common ancestor occupied the land.
(2) As among descendants and collateral relatives claiming under subsection (1), 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) If there be more than one widow entitled to succeed under any one sub-division of clause (b) of subsection (1), the right of occupancy as among such widows shall be shared by all of them equally, with benefit of 'survivorshi', unless an established custom to the contrary be proved to exist.
(4) When a widow succeeds to a right of occupancy and such right is not held directly from the state as landlord in the Jammu province she shall not transfer the right by sale, gift or mortgage, or by sub-lease for a term exceeding two years.
(5) If the deceased tenant has left no such heirs as are mentioned in subsection (1), or in section 68 of this Act, on whom his right or occupancy may devolve, the right shall be extinguished.
' After liberation of this part of the country the Azad Kashmir Government, vide Resolution No, 279 of 1948, was pleased to adapt the Tenancy Act as in (1)P D 1974 SC 210 force in West Punjab. The parallel provisions of section 67 of Jammu & Kashmir Tenancy Act of Samvat 1980 (Bikrimi) are contained in section 59 of the Punjab Tenancy Act. The provisions are identical with section 67 of Old Tenancy Act except that the right of succession does not extend under section 59 to widow of male lineal descendant as contained in clause (b) (iii) and that a widow of a tenant, in the State, succeeding the tenancy of her husband could alienate the holding by sale gift etc. Only for a period of two years as contained in subsection (1) but under Punjab Tenancy Act she could do so only for a period of one year as contained in sub section (3).
' The widow of predeceased son, in the instant case, succeeded to the tenancy left by father of her deceased husband long before the War of Liberation under the Dogra Regime Tenancy and she continued over the tenancy in that capacity when tenancy, as in force in West Punjab, was adapted and subsequently section 59 was amended as under: "59.-(1) When a Muslim tenant having a right of occupancy in any land dies the right shall devolve on his heirs in accordance with the provisions of the Muslim Personal 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 the 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 leases her limited interest in the property on account of her marriage or re- marriage and on her heirs under the Muslim Personal Law (Shariat) if the limited interest terminates because of her death.
(2) When a non-Muslim tenant having a right of occupancy dies the right shall devolve- (a)on his male lineal descendants, if any, in the male line of descent, and (b)failing such descendants, on his widow, if any, until she dies or re-marries or abandons the land or is under the provisions of this Act ejected therefrom, and
(c) failing such descendants, and widow on his widowed mother, if any, until she dies or re-marries 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 collateral relatives in the male line or descent from the common ancestor of the deceased tenant and these relatives: ' 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 59-A, shall be deemed to have been occupied by the common ancestor if the land given for it in exchange was occupied by him.
(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.
(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 sublease for a term exceeding.
(5) If a deceased tenant has left no person on whom his right of occupancy may devolve under subsection (1) or subsection (2) as the case may be, the right shall be extinguished."
' The provisions of amended section 59 of Punjab Tenancy Act are identical to the above provisions.
In fact the phraseology has been borrowed by Azad Kashmir from Punjab. Section 114 in West Punjab was inserted by the amending Act of 1952 which reads: "114.-(1) Notwithstanding anything contained in any law for the time being in force, including this Act, no person shall, after the coming into force of the Punjab Tenancy (Amendment) Act, 1952 acquire or have occupancy rights in any land under any enactment or contract or any decree or order of any Court or other authority and the existing occupancy rights in respect of all lands other than lands owned by Government or by any person who under the law for the time being in force is an evacuee, shall on the coming into force of the aforesaid Act, be extinguished, and the land comprised in a tenancy so extinguished, shall vest as hereinafter provided.
(2) An occupancy tenant, who at the time of the coming into force of the aforesaid Amendment Act occupies any land as such shall become owner as under:-
(a) of the entire land comprised in his tenancy without payment of any compensation where he pays no rent therefor, beyond the amount of the land revenue and rates and ceases for the time being chargeable therefor;
(b) of such portion of the land comprised in his tenancy without payment of any compensation as corresponds to his share of the produce, where he pays rent in the form of a share of the produce;
(c) of the entire land comprised in his tenancy on payment of compensation to the landlord in cash at such rates within such periods as may be prescribed by the Government by rules framed for the purpose, where he pays rent only in cash;
(d) of the whole or a portion of the land comprised in his tenancy on payment of such compensation in such form and within such time to the landlord as may be determined by Government by rules framed under this Act, where he pays rent partly in cash and partly in the form of a share of the produce.
(3) .........................................
(4) In a case falling under clause (b) of subsection (2) the landlord shall, without payment of any compensation, be entitled to the possession of the rent of the land comprised in the tenancy.
(5) An occupancy tenant acquiring land in accordance with the provisions of subsection (2) shall acquire it free from all encumbrances created in respect of that land by the landlord and if any encumbrance be created by the tenant, the share of the land received by the landlord shall be free from it and notwithstanding any provision of any law for the time being in force to the contrary each such encumbrance shall become the exclusive liability of the landlord or the occupancy tenant, as the case may be.
(6) ........................
(7) ..............................
' The parallel provisions, in Azad Kashmir, are contained in section 25 of the Azad J & K Land Reforms Act of 1960 which provisions are coached in exactly the same words and need not be reproduced here. The comparative study of the parallel provisions would reveal that basic incidents of the tenure of the female holding are identical, both in Azad Jammu & Kashmir and Punjab. It follows that, under general rule, the interpretation or construction, placed upon such provisions of law by the highest authority of the country from where the laws have been adopted, are entitled to due weight while interpreting these provisions of law.
9. The questions being now raised in the instant case are exactly the same on which leave was granted by Supreme Court of Pakistan in Mst. Sain and another v. Jahana to consider: "(i) Whether a life estate holder under the unamended provisions of section 59 of the Punjab Tenancy Act has, under the amendments. Acquired the full right of ownership in an occupancy holding to the exclusion of the other Muslim Law heirs of the last male owner; and
(ii) Whether the holder of a limited life estate under unamended section 59 of the Punjab Tenancy Act can alienate this property, taken by her in such a limited right, without any restriction."
' The appeal, came up before the Supreme Court of Pakistan in 1974, and is reported as PLD 1974 SC 210. In that case a widow of sonless occupancy tenant succeeded to her husband under the unamended section 59 of the Punjab Tenancy Act; which provisions have been adapted in Azad Kashmir vide Resolution No, 279 of 1948. After examining the legislative history of the provisions relating to the special life estate of the female created under section 59 of the Act it was observed at page 218 that- "From this legislative history of the unamended section 59, coupled with the mandatory prohibition contained in subsection (3) against any transfer, whatsoever, for a period exceeding one year, it would be reasonable to infer that under the unamended section 59, the widow and the widowed mother were given what in essence appeared to be on extension of their right for maintenance. In other words a special estate was interposed for a limited purpose between her husband (in the absence of his male lineal descendants) and his melee collaterals.
' If that be the true nature of the right of a widow or a widowed mother succeeding to a deceased occupancy tenant under unamended section 59 the next question to consider is, whether on a proper interpretation of section 114, on the acquisition of the proprietary rights, she would become a fresh stock of descent in her own right in respect of the entire holding of the &ceased occupancy tenant and shall exclude Muslim Law heirs of the last male holder and thereby reduce the proviso to subsection (1) of the amended section 59 almost to a redundancy?
' It would indeed be very bold to answer this question in the affirmative, for that would entail a cataclysmic change in the old jural relations of a widow or as the case may be, a widowed mother with the occupancy holding which has devolved upon her under the unamended section 59. Such a far-reaching legislative intent, in the absence of a clear provision in section 114 (which are identical to section 25 of Land Reforms Act) cannot appreciate be read into the statutes."
' In deducing these conclusions reference to Heydon's case (1) was also made. This case is reproduced by Maxwell in Interpretation of Statute, 12th Edn., page 40, as follows:- "That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: (1st) what was the common law before the making of the Act?
(2nd) what was the mischief and defects for which the common law did not provide?
(3rd) what remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth; and (4th) The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and appropriate commode, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act pro bono; ' At page 116 of the same Treatise, it is also observed: `Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the Legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, unusual, natural or literal meaning would be to place on them a construction other than that which parliament must be supposed to have intended."
' After considering the question from all aspects the Supreme Court of Pakistan came to the conclusion that 'the plain object of the amending Act of 1952, (by which section 114 was inserted) was to prohibit the creation of occupancy tenancies in the province and to abolish all existing occupancy tenancies in all lands other than the lands owned by Government or the evacuee land.
On no canon of interpretation of the Statutes the section can be interpreted to free a widow from the limiting conditions under which the occupancy tenancy had initially devolved upon her and which remained an incident of her tenure until succession opens for the last male-holder of the occupancy tenancy under proviso to subsection (1) of the amended section 59'. Thus it would appear as to how the Supreme Court of Pakistan has approached {{URDU TEXT}} ' and solved the problem at hand. Respectfully we fully agree with the reasons on which these conclusions are based because the law regarding succession contained in unamended. Section 59 as well as amended section 59 of Punjab Tenancy Act and section 114 of Punjab Tenancy Act is identical to the one in Azad Kashmir and also because the interpretation placed by the highest authority of the country from which the laws have been borrowed is entitled to due weight as already stated somewhere else. After all the law presumes D that the Legislature intended that its enactment will operate justly and equitably. Any other interpretation that would make the widow quite independent of the incident of her tenure and deprive the collaterals of the son less tenant would result in grave injustice. In fact, under the tenancy law as observed by the Supreme Court of Pakistan the widow's right of maintenance was extended by deferring the right of inheritance. The case law on the point has been thoroughly examined by the Supreme Court of Pakistan in the above judgment and we need not read art to the same.
We, therefore, hold that a life estate holder, under unamended section 59, Tenancy Act, after passing of section 25, Land Reforms Act would acquire right of ownership in the occupancy holding for the benefit of the Muslim Law heir of the last occupancy tenant and would not in any case become a 'fresh stock of descent' so as to exclude Muslim Law heir of last male owner.
' We, therefore, dismiss the appeals and maintain the judgment of the High Court. No order as to costs,