1. HAMOODUR RAHMAN, C. J.--All these appeals by special leave, which arise from separate judgments and orders of the erstwhile High Court of West Pakistan, have been heard together as they raise a common question of law, namely, as to whether an evacuee property finally allotted to a female in lieu of a limited estate left by her in India would, on her death, devolve on her own heirs or on the heirs of the last male owner of the property in India.
2. In all these cases, except one, Writ Petitions were filed in the High Court of West Pakistan, which following its own Full Bench decision in the case of Sher Muhammad v. The Additional Settlement and Rehabilitation Commissioner decided that on the death of a widow right-holder, her heirs and not the heirs of the last male owner were entitled to succeed.
3. Civil Appeal No, 44 of 1970 arises from a judgment in a regular first appeal in the High Court which too proceeds on the same basis.
4. No appeal was filed in this Court from the decision of the Full Bench but in all these cases which have been disposed of on the basis of the above-mentioned Full Bench decision, the main question will be the correctness of the aforementioned Full Bench decision.
5. Before we take up for examination the Full Bench decision it is necessary to state briefly the facts giving rise to these appeals, which are not the same. CIVIL APPEALS Nos, 199, 2001 AND 201 OF 1969 AND CIVIL APPEALS Nos, 37, 38 AND 39 OF 1971 In these Civil Appeals the parties are the same and the dispute appertains to the estate of one Mst.
6. Jan Bibi. She was the mother of one Ghulam Rasool, who died issueless before partition possessed of certain agricultural lands in the district of Gurdaspur in India. The mother Jan Bibi, who was recorded in the special Jamabandi as a limited owner under custom, migrated to Pakistan and filed a claim under the Punjab Refugees (Registration of Land Claims) Act No, V of 1949. Her claim was verified on the basis of the special Jamabandi wherein she was recorded as a limited owner and lands were allotted to her in lieu of her verified claim in the Districts of Sheikhupura and Lahore.
7. On the 8th of July 1962, she made a will with respect to 1/3 of her estate in favour of the first three respondents herein, who were 3 out of 10 collaterals of her late husband Umar Din. She died a few days later on the 13th July 1962. After her death, the respondent No, 4 claiming to be her brother and one Kaniz Bibi claiming to be a daughter of Sakina Bibi, a daughter of Jan Bibi, applied to be mutated as her heirs. The Assistant Collector, on the 17th September 1962, recorded mutations as follows :-- (i)1/3 to respondent Muhammad Shafi, Abdul Majid and Muhammad Yousaf as legatees under the will of Jan Bibi.
8. (ii)2/3 to the 10 collaterals of her husband, Umar Din, including the three collaterals above- named.
9. Mst. Kaniz Bibi's claim, to be the daughter of Mst. Sakina, was not accepted as her own father gave evidence to the effect that she was the daughter of his second wife Mst. Khurshid Begum. The claim of Muhammad Ismail, to be a brother of Jan Bibi, was accepted but he was held to be not entitled to inherit the properties obtained by Jan Bibi in lieu of her claim as a limited owner.
10. Against this order both Muhammad Ismail and Kaniz Bibi went up in appeal but the Collector/Deputy Settlement Commissioner dismissed their appeals on the 2nd April 1963. They both again went up in revision and the Additional Settlement Commissioner (Lands) by his order dated the 17th August 1963, decided as follows :-- (i)2/3 to collaterals.
11. (ii)2/9 to Muhammad Ismail (brother).
(iii) 1/9 to the 3 legatees under the will.
12. From this order three Writ Petitions were filed in the High Court of West Pakistan : Writ Petitions Nos, 2997-R and 2998-R of 1963 by Muhammad Ismail and Kaniz Begum Writ Petition No, 1434-R of 1966 by Muhammad Shafi, Abdul Majid and Muhammad Yousaf, the legatees under the will of Mst. Jan Bibi.
13. Muhammad Ismail and Kaniz Begum filed two Writ Petitions to challenge two mutation orders, one in respect of the lands allotted in village Chamaer and the other for the lands in village Isherke.
14. They also challenged the validity of the will in favour of the first three respondents herein.
15. The respondents Nos, 1 to 3 by their Writ Petition challenged the order of the Additional Settlement Commissioner (Lands) allowing respondent Muhammad Ismail a 2/9 share in the properties left by Mst. Jan Bibi.
16. These three Writ Petitions were disposed of by three separate orders, relying on the decision of the Full Bench in the case of Sher Muhammad v. The Additimal Settlement and Rehabilitation Commissioner, whereby the impugned order of the Additional Settlement Commissioner passed on the 17th August 1963 was set aside and the mutation cases were remanded back to him for decision afresh in terms of the decision of the Full Bench in Sher Muhamnad's case.
17. Hence three separate appeals (Nos, 199, 200 and 201 of 1969) have been tiled in this Court by the Additional Settlement Commissioner (Lands), Sargodtia against the decision of the High Court and the legatees under the will of ,Mst. Jan Bibi have also filed three appeals (Nos, 37, 38 and 39 of 1971) against the order of the High Court deciaring that the properties received by Mst. Jan Bibi in Pakistan were her absolute properties and would devolve on her death to her own heirs and not the heirs of the last maleowner. CIVIL APPEAL No, 266 OF 1969 The facts leading to this case ace that one Ghulam Muhammad alias Guila died in East Punjab before Partition leaving a daughter and a widow. The lands left by him were at that time mutated according to castor in favour or his widow, Mst. Majidan, as a limited owner.
18. She migrated to Pakistan and tiled a claim which was verified in her name "Majidan widow of Ghulam Muhammad", on the basis of the entries in the special famabaldi and the Sha/ra Nasab received from India. She was allotted 120 kaoals and 13 marlas of land in Okara in lieu of her verified claim. She is still alive but the collaterals of her husband after the coming into force of the West Pakistan Muslim Personal Law (Shariat) Application Act, V of 1967, obtained a mutation in their names on the 12th July 1963, alleging that the life estate had beea terminated by the aforementioned Act. This mutation was sanctioned on the 27th Anril 1965 and the widow was given 1/8, daughter Mist. Rafiqan 1/2 and collaterais Hashmat Ali, Rahmat Ali and Yousaf Ali the rest as brother's sons.
19. The widow, Mst. Majidan, appealed against this order and the Collector, Montgomery (now Sahiwal), on the 23rd September 1965, accepted her appeal and held that since she had not been recorded as a limited owner in the revenue records she could not be treated as such. The collaterals who are the appellants in this appeal sought unsuccessfully to challenge this order before the Commissioner, Multan Division and the Board of Revenue. A review before the Board of Revenue also failed. Then they invoked the Writ jurisdiction of the High Court of West Pakistan by Writ Petition No, 574 of 1968 but this too was dismissed in limine, on the 27th May 1968, relying on another Full Bench decision of the same High Court in the case of Babu All Muhammad v.
20. Mahmoodul Hassan which was decided by the same Bench on the same day and took the same view as in the case of Sher Muhammad. The collaterals have now come up in appeal to this Court from this order of the High Court. CIVIL APPEAL No, 303 of 1969 In this case Mst. Sabi, the widow of one Noor Muhammad who died in India 30 or 40 years before Partition, came over to Pakistan and filed a claim in respect of the lands left by her late husband in village Karyal, District Jullundur, where the lands were recorded in the special Jamabandi in her name as a limited owner according to custom. She was allotted lands measuring 105 kanals and 15 marlas in Tehsil Jaranwala, District Lyallpur, and this allotment was confirmed in her favour on the 13th of December 1962.
21. On the 8th October 1964 when the West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act, 1964, came into force the appellant claiming to be a son of one Fattu, a real brother of the said Noor Muhammad, filed an application with the Patwari for mutation of his name on the ground that under the above-mentioned Act the limited estate of Mst. Sabi had automatically terminated.
22. This application was, however, rejected by the Assistant Collector on the 20th May 1965. But on appeal the Collector of Lyallpur reversed this decision. On Second Appeal the Additional Commissioner restored the order of the Assistant Collector. On a further revision to the Board of Revenue the order of the Additional Commissioner was set aside and that of the Collector restored.
23. Mst. Sabi, the widow, then challenged the validity of this order by a Writ Petition in the High Court, being W. P. No, 1528 of 1967, which was allowed by a Division Bench relying on the Full Bench decision in the case of Sher Muhammad and the order of the Board of Revenue was set aside. The appellant Irayat son of Fattu has, accordingly, come up in appeal to this Court. CIVIL APPEAL No, 44 of 1970 The respondent, Mst. Hajran, is the widow of Abdul Karim who was the son of one Ibrahim. Abdul Karim had died in the lifetime of his father, who died in 1945 leaving behind the widow of his predeceased son Abdul Karim and a daughter Mst. Fateh Bibi. Ibrahim was a resident of Nabha State and, according to the customary law prevailing there, the agricultural lands left v. by him were mutated in the name of Mst. Hajran as a limited owner till death or re-marriage.
24. In 1947 Mst. Hajran migrated to Pakistan and filed a claim Rahman, CJ for the allotment of lands in lieu of the lands abandoned by her in Nabha State. She was allotted lands in two villages in Toba Tek Singh, District Lyallpur. These lands were, in the usual course, confirmed in her name but on the 14th July 1964 the Assistant Collector, II Grade, Toba Tek Singh, terminated her limited interest purporting to act under the provisions of the Muslim Personal Law (Shariat) Application (Amendment) Act of 1964. He gave her only a 1/4 share and the remaining 3/4 share he gave to appellants Nos, 1 to 9, 15 and 16 who claimed to be the collaterals of Ibrahim, tracing their descent from the grandfather of Ibrahim. The heirs of Fateh Bibi, a daughter of Ibrahim, were not taken into consideration at all.
25. Against this order both Mst. Hajran widow of Abdul Karim and the heirs of Fateh Bibi went up in appeal before the Collector. The Collector wrongly treating Mst. Hajran as a daughter of Ibrahim gave her an equal share with Fateh Bibi in the inheritance. Hence, both again went up in revision before the Commissioner, who corrected the mistake of the Collector but dismissed the revisions and directed the parties to resort to the civil Court. Mutations were, however, recorded on the basis of the Collector's order as corrected by the Commissioner on the 5th May 1964, to the following effectt- (i)1/2 to heirs of Fateh Bibi, daughter, and (ii)1/2 to reversioners of Ibrahim.
26. Mst. Hajran on the 16th May 1964 filed a civil suit for a declaration that the mutation had been wrongly entered and that she was the sole owner of the properties. The suit was decreed by the Senior Civil Judge, Lyallpur, and on an appeal (R. F. A. No, 18 of 1965) a Division Bench of the High Court of West Pakistan has upheld this decision on the 11th July 1968 following the Full Bench decision in Sher Muhammad's case. The reversioners of Ibrahim and the heirs of the daughter Fateh Bibi have, therefore, come up in appeal to this Court.
27. The main question, which, as already indicated, arises for determination in these appeals, is as to the nature of the estate taken by a female, recorded in the special Jamabandi received from India as a limited owner under custom, in evacuee properties allotted to her on migration to Pakistan under the Rehabilitation Scheme in lieu of the properties abandoned by her in India.
28. The High Court has in the case of Sher Muhammad v. The Additional Settlement and Rehabilitation Commissioner taken the view that since a widow succeeding to a life estate under custom is in the position of an absolute owner of the property with only a restricted right of disposition and the reversioners or collaterals of the last male owner, so long as the life estate is not terminated, do not have any right or interest in praesenti in the property, she files a claim under the Punjab Refugees (Registration of Claims) Act, 1949 as an owner in her own right. As such on confirmation of the allotment in her name she becomes vested with a heritable and transferable interest over which the collaterals of the last male owner have no control or power at all. Hence, when the land is confirmed or permanently settled in her name or with her under section 15 of the Displaced Persons (Land Settlement) Act of 1958, the proprietary rights vest in her absolutely under section 16 of the said Act. On her death, therefore, she is to be succeeded by her own personal heirs and not the heirs of the last male Owner, In coming to this conclusion the High Court has no doubt made a fairly elaborate examination of the relevant law reliting to the nature of the widow's estate under custom, as to the category of persons entitled to lodge a claim under the Punjab Refugees (Registration of Land Claims) Act, 1949, and as to the nature of the rights acquired under the Rehabilitation and Settlement Laws; (a) on allotment, (b) on confirmation of allotment, and (c) on permanent settlement and/or vesting of absolute rights in lands so allotted, but it seems that it has arrived at its final conclusion mainly as an inference from the following two facts:- (/) That since the Rehabilitation and Settlement Laws and Schemes do not lay down any rule of succession to evacuee property confirmed or permanently settled on an evacuee claimant, the rule of succession must be governed by the general law.
(Ii) That a confirmed allottee or an evacuee who is permanently settled on land allotted to him acquires a heritable and transferable estate which has been made to vest absolutely in him by section 16 of the Displaced Persons (Land Settlement) Act, But does it necessarily follow from these that the devolution on the death of such a female allottee must also be to her own heirs and not to the heirs of the last male owner?
29. The learned counsel appearing for the Additional Settlement Commissioner (Lands) and the other appellants contend that the High Court has gone wrong in taking the view that the intention of the law was to change the line of devolution altogether in such cases. If that had been the intention, there would have been no necessity at all of preserving the line of devolution up to the stage prior to confirmation of allotment as has admittedly been done by para. 46-A of the West Pakistan Rehabilitation Settlement Scheme. The decision of the High Court, it is said, has thus created an anamolous situation under which different persons will inherit at different stages from the same person. If a female limited owner dies before confirmation of the lands allotted to her, then the heirs of the last male owner will inherit under para. 46-A of the Rehabilitation Settlement Scheme, but if the lands are confirmed in her favour before her death then her own heirs will inherit and the heirs of the last male owner will be totally excluded. A confirmed altottee has, no doubt, the right under para. 14 of Part I of the same Scheme to transfer by sale, exchange, gift, will, mortgage or other private contract, his rights or interests in the land allotted to him subject to the conditions mentioned therein but the property still remains evacuee property even after alienation and may even be resumed in certain circum-stances. The character of the property, therefore, does not change and there appears to be no rational basis, it is suggested, for such an insidious differentiation.
30. The learned counsel for the appellants also contend that if the allotment was in the nature of a grant and the grantor was, as held by this Court in the case of Abdur Rashid v. Pakistan and others entitled to lay down the terms of the grant, then the instructions of the Chief Settlement and Rehabilitation Commissioner in his Memo. No, 4539-65/1964-R(L) dated 14-4.66 should have been treated as sufficient to indicate that the intention of the Department was not to change the line of devolution altogether or to open up a fresh stock of descent.
31. The widow, it is said, is allotted lands in Pakistan as a measure of compensation for the loss and damage suffered by the abandonment of the rights and interests held by her in lands in India as gathered from the special janmabandi. Therefore, an allotment made to her in Pakistan is subject to the condition that she will retain the land as a limited owner and on the same terms as her limited interest and subject to the same rule of devolution whereby the reversioner or reversioners of the last male owner' will, on the termination of her limited interest. become the allottee/s or the owner/s of such land, as the case may be.
32. This Court, it is further submitted, has not laid down any different rule of succession. In the case of Abdur Rashid v. Pakistan this question did not arise. The precise question that fall for decision there2 was as to who were the persons entitled to succeed to a claimant displaced person, Yakub Khan, who had died in 1951, after the lands allotted to him had been confirmed in his favour. The Department had in that ease included the children of a predeceased daughter amongst the heirs.
33. This was objected to by the son of the deceased. The deceased was a full owner in every sense of the term and examining the provisions of the Rehabilitation Re-settlement Scheme, Punjab along with the provisions of the other Rehabilitation and Settlement Laws this Court observed that :- "Nevertheless, since the allotment is expressly stated to be a 'grant' and such grants can be made by the grantor upon such terms and conditions as may be specified by a person duly authorised in that behalf, namely, the Rehabilitation Commissioner, it would have been open to the Rehabilitation Commissioner to lay down, if he so thought fit. as a condition of the grant that if the property is not transferred by sale, exchange, gift or will, it should devolve in a particular manner which may well be inconsistent with the personal law of the allottee or even the Muslim Law of succession, but if the Scheme itself has not laid down any such special rule of succession, when a confirmed allottee under the Scheme dies he dies vested with 'real property' which is capable of being inherited and will be inherited by persons who would, according to the general law of the land governing inheritance from such a person be entitled to inherit from him."
34. There was no question thereof changing the line of descent. The only question was as to whether paragraphs 46 and 46-A of the Scheme applied to such a case or was the rule of succession to be determined by the general law in the absence of any provision in the Scheme in that behalf.
35. It is contended that the High Court has not attached any significance to the concluding words of the above quotation, for, all that this Court there said was that in such circumstances the evacuee property would be inherited by persons who would, according to the general law, be entitled to inherit. The question, therefore, was as to who would, under the general law, be entitled to inherit from a female limited owner on the termination of her limitedinterest. Even under the West Pakistan Muslim Personal Law (Shariat) Application Act, 1942, the devolution on the termination of the limited estate had to be in favour of the person/s who would have been entitled to succeed upon the death of the last full owner as if he had died immediately after the termination of the life estate. Thus even under the general law there was no justification for holding that the line of devolution had changed.
36. The decision of this Court in Mst. Basso v. Rehabilitation Commissioner or in the case of Karim Bakhsh and others v. The Additional Rehabilitation Commissioner and others Civil Appeal No, K-20 of 1964, decided on 7-41967 laid down no different rule. The High Court, it is, therefore, submitted, was in error in thinking that its conclusions were supported by these decisions.
37. If, the general law, it is urged, applied then the rule of decision should have been as laid down in section 5 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, and if, on the other hand the general law was not applicable then the rule laid down by the Chief Settlement and Rehabilitation Commissioner in his Memo. 4539-65/1964-R(L), dated 14-4-66 (See page 485) should have been applied as a rule of succession laid down by a competent authority.
38. As against this the learned counsel appearing on behalf of the respondents have contended that a widow holding a limited estate under custom sheds her character as a limited owner once she abandons the properties in India and migrates to Pakistan. Whatever is given to her in Pakistan is given in her personal and individual capacity as a statutory owner and not by way of inheritance to which the characteristics of her husband's estate cannot be atttached. Allotments received in Pakistan are, it is said, in the nature of self-acquired properties and, therefore, once the custom is done away with then the line of descent must also inevitably change.
39. It appears to me that in order to ascertain the true nature of the capacity under which a widow holds the lands of the last male owner under custom and receives lands in Pakistan on migration one has first to get a clear picture of the concept of a female's estate under custom. Merely saying3 that she is the present owner of the estate having absolute power of enjoyment over it, that she is not accountable to anyone as long as she is alive or her estate is not terminated and that no one else has any vested interest in it till then is not enough. One must first try to appreciate as to why this is so. It is now well settled that a female's estate under custom is analogous in nature to a widow's estate under the Hindu Law (vide Rattigan's Digest of Customary Law, 13th Edition, page 787). If so then under Hindu Law the true concept of a widow's estate is that she notionally represents her husband, as if, her deceased husband is, for the purposes of the management and user of his properties, kept alive in her, and it is for this reason that it is said that during the time the widow is alive or does not re-marry, the whole estate of her husband vests in her absolutely as if the husband is for all intents and purposes ally a in her. "Hindu Law", according to J. D. Mayne, "Knows nothing of estates for life, or in tail or in fee. it measures estates not by duration but by use The restrictions upon the use of an estate inherited by a woman are similar in kind to those which limit the powers of a male-holder, but different in degree. The distinctive feature of the estate is that, at her death, it reverts to the heirs of the last B male owner. She never becomes a fresh stock of descent." (Vide Mayne's Hindu Law and Usage, 1922 Edn., p. 886).
40. As early as 1880 in the case of Moniram Kolita v. Kerry Kolitany , the Judicial Committee pointed out that :- "Her estate is an anomalous one, and has been compared to that of a tenant in tail. It would perhaps be more correct to say that she holds an estate of inheritance to herself and the heirs of her husband. But whatever her estate is, it is clear that until the termination of it, it is impossible to say who are the persons who will be entitled to succeed as heirs to her husband. The succession does not open to the heirs of the husband until the termination of the widow's estate. Upon the termination of that estate the property descends to those who would have been the heirs of the husband if he had lived up to and died at the moment of her death."
41. Furthermore, one must not, in judging this question as observed by the Judicial Committee in the case of Rangasami Gounden v. Nachiappa Gounden , "become entangled in western notions", because, "the rights of a Hindu widow in her late husband's estate are not aptly represented by any of the terms of English law applicable to what might seem analogous circumstances". A Hindu widow's estate is, therefore, neither an estate for life nor an estate tail nor an estate in fee simple.
42. This difference arises from the anomalous character of her estate in her husband's properties. It is because of this fact that the peculiarities emanate and it is for C this reason that it is said that she is neither a trustee for the reversioners nor do the reversioners have any present interest in the properties until the widow's estate terminates. Their position is at best that of a person having a spes successions or an expectancy of succession.
43. Even under the Hindu concepts, therefore, the whole estate of the last male owner for the time being vests in the female heir like a widow or a mother and she represents the estate completely.
44. She may institute suits in respect of the properties inherited by her and she may be sued in respect thereof as representing the estate and decree passed against her are binding even on the reversioners who were not parties to the suit. It is in this sense that the Privy Council in the case of Janaki Amonal v. Narayanasami Aiyer said :- "The rule of Hindu law with regard to the nature of the widow's estate may have been subject to various forms of expression, but in substance it is not doubtful. Her right is of the nature of a right of property ; her position is that of owner; her powers in that character are, however, limited, but, to use the familiar language of Mayne's Hindu Law, paragraph 625, p. 870, 'so long as she is alive no one has any vested interest in the succession'. These propositions are not disputed."
45. If this be the true position then let us now examine as to what is the capacity in which she files her claim under the Punjab Refugees (Registration of Land Claims) Act, 1949, and what is the estate she gets?--A claim has been defined in section 2, clause (a) of the said Act as meaning :-4 5 6 "A statement of loss or damage suffered by a refugee since the first day of March 1947, in respect of his land within the territories now comprised in the provinces of East Punjab, etc."
46. The claim that is filed by a widow, therefore, under this Act is a claim for the loss or damage suffered by her in respect of the proper-ties left behind by her in India. Now she leaves behind no property of her own but only the properties which she has inherited from her husband as a limited owner. Therefore, if her claim is in lieu of what she has left behind then it is in lieu of her estate in her husband's properties, which, according to the concepts of Hindu law, she holds as a representative of her husband. The claim filed by her, therefore, is also in her capacity as representative of her husband or, in other words, as if the husband who is alive through her is notionally filing a claim in respect of his properties left behind in India, for, no one else has the right to file any claim in respect of the said properties. It is important to remember that the loss or damage which she has suffered is the loss or damage arising by reason of the fact that she has been deprived of the user of the inheritance which she received from Addl. her late husband and held as an owner not in her own right but rather as a representative of her husband.
47. This appears also to find confirmation from the provisions of paragraph 29 of the West Pakistan Rehabilitation Settlement Scheme itself which postulates that rights under this scheme should be given to a claimant only in accordance with the entries in the special Jamabandis received from the prescribed areas of India. The Jamabandis received from India describe her as holding only a widow's estate and nothing more and are accompanied by a Shajra Nasab of her late husband and not in respect of her own family. It is in respect of this estate, therefore, that she is first given a temporary allotment and if she dies while still holding such a temporary allotment succession under paragraph 46-A of the scheme is to be "deemed to 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 Shariat Law been applicable at the time of such death". The question, therefore, that arises is as to whether this rule is changed merely by reason of the fact that the temporary allotment is in the meantime confirmed or permanently settled on the claimant? I can find nothing in the Rehabilitation Scheme itself to lead to such an inference. It is contended that since the Rehabilitation Scheme did away with customary law altogether and claimants were given allotments in their individual rights, it follows, that they took an absolute heritable and transferable estate in their own right. If this was really so then there would have been no necessity for making special provisions for occupancy tenants, mortgagors, mortgagees, tenants-at-will, landlords, Aala Maliks and Adna Maliks (Vide paragraphs 4, 7 and 8 of Part I of the Scheme and paragraphs 31, 37, 38 and 39 of Part II of the Scheme). It seems to me that where the intention of the Settlement and Rehabilitation laws was to exclude a particular claim or to give a reduced or scaled down benefit then special provisions were made in that behalf. Some were given no rights at all, others were given a higher right but at a lower scale and still others a right only to receive something less. If the intention had been to exclude reversioners altogether from the right of succession then one would have expected some express provision in that behalf in the scheme.
48. It has been suggested also that when this scheme was framed the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, which put an end to limited estates of females, had not come into operation and, therefore, under the general law, a female inheriting under custom would have taken only a limited estate but the scheme made the Muslim Personal Law applicable in order to do away with custom. This may be so but does this also have the effect of changing the stock of descent? I think not for all that this change signifies is that whatever the stock of descent the rule of succession will be the Muslim Personal Law. The fallacy in my view lies in holding that this also changed the stock of descent. It has been overlooked that before the 31st December 1962, when the above-mentioned Act came into operation, even under the general law a widow would only have inherited a limited estate and on her death or the termination of the limited estate it is the heirs of her late husband, that is to say, the reversioners who would have been entitled to succeed to the husband's estate.
49. The argument, therefore, that since the Scheme did not lay down any special rule of succession the property allotted to a widow would descent according to the general law does not lead to the conclusion that the general law contemplated a change in the stock of descent. Even under the Act of 1962 the rule of devolution as laid down in section 5 thereof is that the property would devolve upon "such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner".
50. Next let me consider whether this Court has in the case of Abdur Rashid v. Pakistan, laid down any rule which can possibly be construed as leading to the inference drawn by the High Court. All that was said in that case was that since the Scheme had not laid down any rule of succession in respect of the estate of a confirmed allottee succession will be governed by the geneal law of the land. Applying this rule the result would have been that even according to the general law the heirs of the last male owner would have come in but taken their shares according to the Muslim Personal Law (Shariat) Application Act, 1962, and not the heirs of the widow as has been held by the High_Court in the Full Bench decision.
51. I am further confirmed in this view by reason of the fact that trustees or Mutwallis who were also entitled under paragraph 56 of the Rehabilitation Settlement Scheme to file claims and to obtain allotments with all their legal attributes and consequences under the Scheme do not take the allotted property as their personal estate but the allotted property remains subject to the ordinary incidents of a trust or a Wakf even though there is no special rule laid down in the scheme itself with regard to such properties. If the High Court's reasoning G be valid then such Mutwallis or Managers of trusts would be logically entitled to claim that they have received the allotment in their own personal right and, thus, deprive the beneficiaries of the trust or the waqf of their beneficial interests in the allotted property. This could not have been the intention of the framers of the Scheme, and I find it difficult to accept the view propounded by the High Court in the Full Bench decision in the case of Sher Muhammad v. Additional Rehabilitation Commissioner.
52. The fact that a confirmed allottee gets a transferable and heritable estate in the evacuee property confirmed in his favour, as pointed out in Abdur Rashid's case, does not in my view make any difference or have the effect of changing the stock of descent. Even under the Hindu law the widow has a right to transfer in certain circumstances and what passes to the heirs of the last male owner is what is left over after such transfer. The position, I venture to think, would be the same even now.
53. The transfer will be subject to the same restrictions as attach to a female's estate under custom and will not pass any greater right to the transferee than what he would have got under the general law. All that paragraph 14 of Part I of the Scheme says is that the allottees shall have the right to transfer by sale, exchange, gift, will or otherwise "their rights or interests in the land allotted".
54. This does not mean that the transfer can be made free from all encumbrances or in excess of the "rights or interests" held by such allottee in the land transferred.
55. So far as heritability is concerned the position is no better for the property will devolve according to the general law on those who are entitled to inherit in the event of the termination of the limited estate.
56. I can, therefore, find nothing in the Scheme which is in compatible with this legal position which seems to be in accord with the principles of equity and justice.
57. The learned counsel has tried to draw a parallel between this case and the case where one of the original proprietors or a descendant of one of such proprietors returns to the village abandoned 25 or more years ago by the joint family and brings the lands under cultivation again. Under custom this is supposed to create a fresh acquisition but I can see no parallel in this situation for there is no voluntary abandonment in the strict sense of the term by the widow of the properties inherited by her from her husband. Indeed she claims in Pakistan in lieu thereof as a representative of her husband and the allotment notionally restores her husband's properties in Pakistan. The position here is that for reasons beyond her control she was forced to leave those properties behind in India, like many others placed in a similar situation and it was to compensate and rehabilitate as many as possible of such persons that the rehabilitation and settlement laws were framed. The intention of the framers of these laws and schemes was not to deprive any one who would otherwise have been lawfully entitled to inherit in the normal course nor to give any one any undue advantage which was not commensurate with the loss or damage suffered by him or her. It is difficult, therefore, to agree that the allotment in Pakistan becomes the self-acquired property of the female.
58. I do not also see any parallel between this case and the case of a widow purchasing proprietary rights after succeeding to a tenancy held by her deceased husband under the Colonization of Government Lands (Punjab) Act, 1912. Such purchase may have been constructed as an acquisition of property in her own right, because, of the payment by her out of her own funds of the governmental dues for such acquisition but even there the inequity of the rule was felt and corrected by the introduction of section 30-A in the said Act in 1944. This provided that even in such a case if she succeeds to the tenancy directly or indirectly from a male tenant the proprietary rights shall be deemed to have been acquired by the last male tenant and she would be deemed to have succeeded to such rights only as his heir. The Legislature, therefore, even in such a case felt the necessity of making a clarification to bring the rule in line with the general law of succession prevailing in the Punjab. I find it difficult, therefore, to impute to the Legislature any abrupt desire to bring about such a radical change or any intention to perpetrate an injustice. If the Legislature was really minded to open up a fresh stock of descent then it should have made express provision in that behalf. Such a result does not in my view follow from the mere absence of any provision in the scheme for preserving the stock of descent to a female holding a confirmed allotment or has since been permanently settled on evacuee lands in Pakistan in lieu of her claim in respect of properties inherited by her from the last male owner in India.
59. So far as the question of ascertaining the intention of the framers of the Scheme is concerned I fail to understand why the Memo. No, 4539-65/1964-R(L) issued by the Chief Settlement and Rehabilitation Commissioner on the 14th April 1966 could not be taken into consideration as a departmental construction of the provisions of the Rehabilitation Settlement Scheme, 1957. It was by no means less efficacious than any of the provisions of Part II of the Scheme and it clearly indicated that a limited owner in the land abandoned in India does not become a full owner of the land allotted in Pakistan in satisfaction of such a claim Further that on the termination of such a limited estate the reversioner of the last male owner will become the allottee of such land. This intention should have prevailed in the absence of anything to the contrary or inconsistent therewith in the Scheme or the Land Settlement Act, 1958.
60. The provisions of sections 15 and 16 of the latter Act on which much emphasis has been laid do not in my view disclose any contrary intention. All that they provide is that land which has been permanently settled on an allottee shall "vest absolutely" in such allottee. What does such vesting connote? Does it mean that an absolute estate vests or does it only mean that only those rights and interests which have been compensated vest in the allottee in the same manner and to the same extent as they would have done if the property had not been evacuee property. The fact that it is evacuee property makes no difference for what vests is the right or interest which was allotted and then permanently settled and this was according to the Shajra-e-Nasab incorporated in the special Jamabandi. How could this then enlarge the estate of the female or entirely change the stock of descent.
61. For the reasons given above I have come to the conclusion that these appeals must be allowed, the judgments and orders of the High Court set aside and all the cases remanded back to the Chief Settlement Commissioner to determine in accordance with the law hereby declared the persons entitled to inherit from the last male owner on the respective dates of termination of the limited interests of the female allottees in these cases according to the provisions of the Muslim Personal Law (Shariat) Application Act of 1962. In so holding I would also make it clear that this would not entitle the settlement authorities to re-open the orders of mutation against which no appeals have been filed and which have become final.
62. In view of the difficult question of law involved I would leave the parties to bear their own costs. PLD 1968 Lah. 234 PLD 1962 SC 42 PLD 1963 SC 347 7 I A 115 46 I A 72 43 I A 207