' CHAUDHURY RAHIM DAD KHAN, C. J.-This was a letters patent appeal against the judgment and decree of the learned Single Judge of the High Court dated 8-2-1972 passed in exercise of the appellate jurisdiction of the High Court, dismissing the plaintiffs-appellants' appeal and maintaining the judgment and decree of the District Judge, Mirpur, dated 15-5-1971, whereby the decree passed in favour of the appellants (plaintiffs) by the Sub-Judge, Kotli, was set aside. On passing of the Judicial Board Act, the appeal pending before the Division Bench of High Court, under provisions of sections 13-A and 13-B of Courts and Laws Code Act, stood transferred to Judicial Board which subsequently came up before this Court under the provisions of Interim Constitution Act.
2. The facts of the present case are very simple. The appeal arises out of a suit for declaration of title with a prayer for a joint possession to the extent of 3/8 share of the property left by Saida deceased, as consequential relief. The plaintiffs claim the property in suit as residuaries of Saida deceased who was an occupancy tenant. Saida died leaving behind a widow Mst. Hashim Bibi defendant No, 1 and a daughter who is defendant No,
2. Saida was a tenant under a non-Muslim.
On his death tenancy left by him was mutated in favour of his heirs under Muslim Law, who admittedly are a widow, a daughter and plaintiffs (the residuaries). Widow got 1/8 share, daughter 1/2 and the residue 3/8 went to the plaintiffs-appellants. Subsequently ; the widow executed two sale deeds-one for land situate in village Kotli Sohlan and the other for the land situate in village Chahwala by which she alienated the property to the extent of her share in the land that devolved on her as widow of Saida deceased. The Sub-Judge, Kotli, decreed the suit of the plaintiffs- appellants but, on appeal the District Judge, Mirpur, reversed the finding and dismissed the suit for the reason that the plaintiffs failed to prove that they were residuaries of the deceased husband of Mst. Hashim Bibi. A Single Judge of the High Court, Mr. Justice M. Y. Saraf, heard the said appeal in exercise of the appellate jurisdiction of the High Court and maintained the judgment and decree of the District Judge.
3. The first point that requires determination in this case which would settle the difference between the parties relates to the date of the death of Saida deceased. According to the entry in the revenue papers and a note made thereon, a mutation was attested on his death in favour of the heirs of Saida deceased under the Azad Kashmir Muslim Personal Law (Shariat Application Act). It can, therefore, be safely presumed that Saida died after the promulgation of the Azad Kashmir Muslim Personal Law (Shariat Application Act) governing the tenants. Otherwise widow would have inherited only a limited interest under section 67 of the Tenancy Act, and no share would have devolved either on daughter or on residuaries of Saida deceased under the provisions of section 67 subsection (4) of the Tenancy Act of Dogra Regime that reads as follows :- "When a widow succeeds to a right of occupancy and such right is not held perfectly from the estate 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."
' The parallel provisions of Punjab Tenancy Act are contained in section 59 (which law was subsequently adopted in Azad Jammu & Kashmir). There is no difference in the phraseology used in the two enactments except that an alienation by a widow of an occupancy tenant under that law could hold good for a period of two years while under Punjab Tenancy Act her right of transfer by sale, gift or mortgage, etc. Cannot exceed one year.
4. Whether an alienation by a widow could be challenged only by the landlord under the provisions of section 66 of Jammu & Kashmi Tenancy Act (60 of Pun jab Tenancy Act) and that a collateral could not challenge alienation made by a widow ? After decision of Labh Singh v. Flassu and others
(I) it became a settled law that the restriction on
(1) AIR 1940 Lah. 364 ' widow's power of alienation, contained in section 59 (3) of Tenancy Act, is an incident of her tenure as an occupancy tenant and that they are, in fact, in the interest of reversionary and not of the landlord'. The distinction between the power of alienation by widow who succeeds to her husband's occupancy tenancy under section 59 (3) and that of a widow who succeeds to a life interest to proprietary estate of her husband and that of a widow who succeeds under Personal Law, was clearly brought out in this judgment. It was observed :- "The position of the widow who has succeeded to her husband's occupancy tenancy under S. 59 is not the same as that of a widow who succeeds, under the personal law, to a life interest to his proprietary estate and whose alienation held good for her life time whether they have been effected for necessity or not. An alienation by sale or mortgage of an occupancy tenancy by a widow is absolutely forbidden and hence such an alienation is void, whether it is made in favour of the landlord or a stranger. The reversioners of the widow have therefore a right to get such an alienation declared to be void and not binding on them, independently of the question of valid necessity and consideration for the alienation, on which the reversioners can usually challenge an alienation under custom. The mere fact that according to the provisions of S. 60 of the Act, a transfer of occupancy rights by a widow falling within the ambit of S. 59 (3) would be voidable, at the instance of the landlord, would not show that the transaction would remain valid until it is so avoided."
' It was further observed at page 366 :- "I am unable to see how the language of S. 60 can be said to be conclusive on the question whether a transfer by a widow falling within the scope of S. 59 (3) is void or voidable. S. 60 merely says "any transfer made in contravention of the preceding sections shall be voidable at the instance of the landlord". In other words, it only gives the right to the landlord to intervene, and avoid transactions which are effected in contravention of the preceding sections. The question whether a transaction falling within the purview of subsection (3) of section 59 is void or voidable, must, I think be decided on the language used in that subsection."
' We have reproduced that subsection in extenso. There can be no manner of doubt, in our opinion, that the language used there is mandatory and prohibition absolute. There is, therefore, no question of the alienation being voidable at the instance of anybody 'a transaction must be held to be void ab initio'. It is quite clear on the perusal of the rule quoted above. The confusion that arose because of intermingling of the provisions of section 66 of Azad Jammu and Kashmir Tenancy Act which governs the cases of alienation with all matters of succession in which the prohibition is included. In this view of the matter the alienation made by Mst. Hashim Bibi in favour of Atta Mohammad would have been null and void ab initio, she succeeded as widow of a tenant. Perhaps the learned Advocate for the respondents-defendants being conscious of the legal position of the sale by a widow of an occupancy tenant admitted before the Court that the parties were governed by Shariat Law when Saida died and that the plaintiffs appellants are the residuaries of Saida deceased and were entitled to inherit to the extent of 3/8 share of the tenancy left by Saida deceased. Therefore, there remains no dispute whatsoever except the question of the partition. The sale being by a widow who had inherited under Shariat Law is valid only to the extent of her share and, in fact, the perusal of both the sale-deeds shows that the sale had been made only to the extent of her share in the entire property. She being a co-sharer, by virtue of inheritance, and in exclusive possession of a specific survey numbers of the land under family arrangement was perfectly within her rights to sell the land to the extent of her share, of course, subject to adjustment at the time of partition. The appellants-plaintiffs who were the residuaries of Saida deceased are entitled to 3/8 share while his daughter to 1/2 and widow to 1/8.
5. In spite of the fact that the law on the point is well settled and there was not much difference regarding the claim of the parties yet we find that they had to undergo a long and unnecessary exercise of litigation that could be avoided had the trial Court followed the wholesome procedure prescribed in that behalf by Civil Procedure Code and rules made thereunder.
' In the present case the plaintiffs-appellants claimed 3/8 share of the property as residuary of Saida deceased under Muslim Law. This claim was not specifically denied by the respondents but only ignorance about their claim was expressed. In these circumstances it was incumbent upon the trial Court to examine the parties as required by the procedural safeguard contained in rule 1 of Order X, Civil Procedure Code which reads: "At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite-party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials."
' By such examination the real points in controversy between the parties do not escape consideration. It was for that reason that the High Court of Azad Jammu and Kashmir long ago issued a circular to the trial Courts directing them to follow invariably the procedure laid down in Order X, rule 1 so that the matters in dispute are clearly explained and the difference narrowed down. But it seems that those instructions are being ignored by the trial Courts with impunity. It may be impressed upon all the concerned that it is always desirable that at the first hearing of a suit the Court should look closely at the plaint and written statement, filed by the parties, and ascertain whether the material allegations of fact made by the plaintiff are admitted or denied by the defendant and if the allegations made in general terms are not clear and Court requires further elucidation the Court should carefully ascertain with precision what the parties are at issue upon, by examining the parties or their pleaders. In the instant case as the allegations in the plaint were not clearly denied in the written statement, it was all the more necessary to examine the parties to elucidate the real point in controversy between the parties.
' The claim of the appellants that they were residuaries was supported by a note on the copy of the 'Jamabandi' Exh. P. C. And Exh. P. D., made by the Patwari. It finds further support from Exh. P. A. And Exh. P. B. Copies of the Khasra Girdawaries. Of course, no presumption of truth is attached to Khasra Girdawari but it is a most valuable evidence because it is prepared by a public servant in discharge of his official duties and which record is relevant under section 35 of Evidence Act. This claim is also impliedly admitted by Mst. Hashim Bibi, widow of respondent-defendant No, I while she executed sale-deed in favour of Atta Mohammad on 1-2-1964 regarding her share in the land left by her husband in village Kotli Sohlan and village Chawala wherein she inherited as widow 1/8 share of the property left by heir deceased husband. She could inherit 1/8 share only under Shariat Law of Inheritance.
' As a widow of a tenant under Tenancy Act, if Shariat Law was not applicable at the time, she would have inherited only a limited interest in the tenancy till her death or remarriage and that too with further restriction on her right of transfer by sale, gift etc. For a period exceeding two years.
The plaintiffs apart from the fact whether they were agnate of the deceased tenant, or not, were holding the tenancy jointly. In case of succession to an occupancy holding as against others, a joint tenant of a holding, even though it was not held by their common ancestor, are to be regarded as a single tenant and as long anyone of the joint tenants or his descendant survives the tenancy to the extent of the share of the deceased tenant would not be extinguished but would pass by survivorship to other tenants.
' Moreover, there was no evidence at all in rebuttal of evidence adduced by the plaintiffs. It was not a criminal case, rather a civil case in which preponderance of probability would form sufficient basis for decision. The preponderance in this case was in favour of the plaintiffs.
6. Another interesting feature of the case appears to be the want of proper appreciation of the rule of return (Radd). At page 4 of its judgment, the learned Single Judge observed : "The next question stands itself answered in the light of the discussion held above because as Saida's property is 113 kanals, 10 marlas and the only two heirs at present before me and the only thus proved to exist, are his widow and daughter and no other heir being in existence on the file I see no reason why the doctrine of return does not come into play in favour of Mst. Hashim Bibi, the vendor."
With due deference for the learned Judge it may be pointed out that Mst, Hashim Bibi being widow under Muslim Law is not entitled to any return so long there is a daughter of the deceased, or the doctrine of return would not operate for the benefit of the widow so long daughter is in existence in this case. Obviously, the aforementioned observation of the learned single Judge is wrong and contrary to the basic principles of the rule of return under the Muslim Personal Law. The correct principle of the doctrine of return is stated at page 153 of the Muslim Law of Inheritance complied from the original Arabic authorities and containing the Arabic text and English translation by Mohammad Ullah {{ARABIC TEXT}} "The doctrine of return, radd, is the opposite of the doctrine of increase. If some residue is left over and above the shares of the sharers entitled, and there is no claimant to it, the surplus is returned to the sharers except to the husband and wife, (Ibn Abbas takes the view that the husband, wife and true grandmothers are not entitled to the return, but the Hanafi jurists speak about the husband and wife only, so if there are no other sharers, or residuaries, or distant kindred then the husband or wife take the residue by return. There are eight sharers entitled to the return, one male and seven females. Namely uterine brother, and uterine sister, daughter, son's daughter, full sister, consanguine sister, mother and the grand mother.
' The father and true grandfather are sharers as well as residuaries so when they co-exist with sharers there is no return at all.) in proportion, to their share of the inheritance. And this is the view of our jurists in conformity with the opinion of the general companions of the Prophet. (sir William Jone says "Ali and his followers," but these words do not occur in the Arabic text, and he also mentions Urwah and Alzuhuri as supporters of the view adopted by Zaid, again these names do not occur in the text of the Sirajyyah but the statements are correct.) However, Zaid is of the opinion that the residue is to be given to the Bait-ul-Mal. Public Treasury, and his opinion is adopted by Imam Malik and Imam Shafi'i."
' Al Sirajiyyah with notes and appendix by Almaric Rumsey, page 37 deals with the question of return as follows :- "The return is the converse of the increase ; and it takes place in what remains above the shares of those entitled to them, when there is no legal claimant of it : this surplus is returned to the sharers according to their rights, except the husband or the wife ; and this is the opinion of all the Prophet's companions, as Ali and his followers, may God be gracious to them !"
' This point is also settled in Fatawa-e-Alamgiri which is based on the authority of Muhit Sarkhasy and according to which wife and husband are entitled to return so long there is anyone of the other sharers living.
When there was a daughter as remarked by the learned Judge himself the widow was not entitled to return (Radd). The view expressed by the High Court on the question of return, therefore, being erroneous and clearly against the basic principles of the Islamic Shari Law, cannot be maintained and should not be followed by the Courts in Azad Kashmir.
7. The judgment and decree passed by both the appellate Courts in view of the admission of the Advocates of the parties made at the bar in presence of the respondent (defendant) that they were governed by their personal law at the time of death is set aside and the judgment and decree passed by the Sub-Judge is restored with the following modification, i. e. The defendants who are sharers under personal law are entitled to 72 kanals and 15 marlas, while the remaining land would go to the residuaries (the plaintiffs). The impugned sale-deed made by Mst. Hashim Bibi in favour of Atta Mohammad of specific Khasra Numbers is subject to the adjustment and right of co-sharer at the time of partition.