JUDGMENT'
KARAM ELAHEE CHAUHAN, J.-The dispute in this case is about 36 kanals and 6 marlas of land situated in village Sheikhan Labi-Darya, Tebsil and District Jhelum, which ways described more fully in the relevant plaint and was held by Nizam Din as an occupancy tenant under, section5/6 of the Punjab Tenancy Act XVI of 1887 (hereinafter referred to as the Act of 1887). Nizam Din died long ago and after his death the aforesaid land was mutated in the name of his widow- Mst. Rajan as a limited estate under custom/ under section 59 of the Act hereinbefore mentioned.
2. Mst. Rajan gifted away the aforesaid land by Mutation No. 761 dated 25-8-1962 to her son-in-law Muhammad Sadiq (petitioner No. 1 herein) (as a khanadamad), who it may be mentioned, was married to her daughter Mst. Gliulam Fatinta (petitioner No. 2 herein).
3. Mst. GhuJam Sakina another daughter of Nizam Din (from the same mother Mst. Rajan) and Muhammad Sharif (a. Collateral) of Nizam Din and husband of Mst. Ghulam Sakina on 19/22-I1- 1962, filed a suit for a declaration, that the aforesaid transfer was illegal under custom and under the Act and would not effect their reversionary rights. During the pendency of that suit, as the; life estates of widows were abolished by law, the suit was, therefore, converted into a suit for a joint possession of 7/16 share in the land, as according to them, the donor Mst. Rajan was a limited owner under custom/under section 59 of the Act, and had no power of alienating the property as aforesaid and that the same was not binding upon them. It was further pleaded that after the promulgation of the West Pakistan Muslim Personal Law (Shariat) Application Act V of 1962, the limited estate of Mst. Rajan had statutorily come to an end and, thereafter, the succession opened and the property devolved on heirs of the last full owner viz. Nizam Din, therefore, the plaintiffs were eligible to have their share therein as such.
4. The suit was dismissed by the learned Civil Judge on 18-4-1964.
5. However, on appeal the learned Additional District Judge vide his judgment and order dated 4- 5-1965, held that the donor widow was only holding a life/limited/estate which was not enlarged on acquisition -of proprietary rights by her under section 114 of the Punjab Tenancy Act, 1:887. After giving this finding he set aside the judgment and decree of the learned trial Judge and remanded the case to him for fresh decision regarding other allied matters and issues.
6. The defendants/petitioners filed a second appeal against the aforesaid order of remand being S. A. O. No. 298/65 but without arty success as the same was, dismissed by the High Court on 11-10- 1972.
7. The defendants/petitioners have come up in appeal to this Court by special leave which was granted on 2-40-1973. Paras. 3 and 4 of the leave granting older are relevant. They read as follows ;- "(3) In the leave petition, learned counsel for the petitioners submitted before us that the learned Additional District Judge and the learned Single Judge were wrong to assume that Mst. Rajan and her husband Nizam Din was governed by custom in matters of succession and alienation. It was urged that Nizam Din was a Lohar by caste who earned his livelihood as blacksmith, and, therefore, there is an initial presumption that in matters of succession and alienations he was governed by Muslim Law and not by customary law. It was also urged that proviso to subsection t1) of section 59 of the Act was confined to the holding of a female 'as limited owner under custom' and, therefore, had no application to Mst. Rajan.
(4) The point made by the learned counsel needs examination. Leave is, therefore, granted to consider whether the instant case is governed by proviso to subsection (1) of section 59 of the Punjab Tenancy Act, 1887 ?"
8. The first point argued by the learned counsel was the same as stated above viz. That Nizam Din was a Lohar by caste of Jhelurn District (Punjab) and the finding of the two Courts below that he was governed in the matters of succession and alienation by custom is not correct. The contention has no merit. A perusal of the Settlement (Bandobust) 1880 record shows that the land in dispute was in cultivating possession of Pir Bakhsh son of Jivan as occupancy tenant under the Punjab Tenancy Act XVI of 1887. Jivan it may be stated was father of Nizam Din the propositus herein.
Similarly in the Settlement (Bandobust) of 1900 the land was in cultivation of Nizam Din. Thereafter, in later revenue records, comes the name of Mst. Rajan widow of Nizam Din. Sardar Khan (P. W. 2) deposed that "in our village the kamins of the village like us were governed by custom, and a widow would get life estate as a customary widow". To the same strain was evidence of Amir All (P.
Vv. 3) and Mst. Ghulam Sakina (P. W. 4) plaintiff, As against this the defendants produced no rebuttal. They produced onlv Muhammad Sadiq (D_ W. 1) (defendant No. 2) (donee) and all he stated was that he was not governed by custom. He conceded that he had neither any land nor any house.
9. Another intrinsic evidence in the present case is the devolution of land on Mst. Rajan as a widow of Nizam Din, which also points out that she got it by custom or under section 59 of the Act and not under Muslim Personal Law whereunder the whole of land could not have gone to her. In the 'written statement of the defendants they inter alia relied for validity of gift on custom. In Kaka and others v. Ranjit Singh and others 51 P R 1901 Lohars of Jamsher, Tehsil Jullundur, District Jullundur, who and whose fathers have been actually cultivating land, for a considerable period extending over generations were held to have become agriculturists, and governed by custom prevailing among agricultural tribes, which limits the alienation of ancestral agricultural land and were entitled to question the alienation by their father. A similar view was taken in Ram Mal and others v. Mst. Miran and others30 P R 1896 regarding Telis of Lahore, who it was held were members of a labouring class and (also) quasi-agricultural class. In Bhola and others v. Razzaq Shah and others (1) the madaries in similar circumstances were held to be governed -by custom in matters of alienation.
In the face of all the l,4 aforesaid factual and legal position, we have no hesitation in holding that on the peculiar facts - and circumstances of this case Nizam Din was governed., in matters of alienation by custom, It may here or pointed out that if the succession of Mst. Rajan herself is confined to be under the Act - alone, then it is well-settled that under section 59(3) she had absolutely no power to alienate the property by gift. 'As a matter of fact that is quite clear from the apparent tenor of the section. Here we may add and clarify that so far as the invalidity of the transfer in hand under the Act is concerned it was not taken exception to before us. However, so far as its validity under custom is concerned the learned counsel did not refer us to any evidence or any law whereunder a widow like Mst. Rajan could have alienated the whole of the land comprised in her limited or life estate to her son-in-law. B In these circumstances, we have no option but to hold the impugned gift as invalid both under the statute. Viz. The Tenancy Act as well as under the relevant custom under which Mst. Rajan had obtained a life estate in the land involved herein.
10. The next point argued by the learned counsel was that according to "proviso" to subsection (1) of section 114, when Mst. Rajan obtained the proprietary rights, the estate in her hands matured, ripened, turned or was converted into, a full ownership and proprietorship with unlimited powers of alienation therein, with the result, that the earlier fetters on her under custom or in section 59 in that respect ended and no longer existed in any manner. The point raised has no force and here we may state that though leave in this case was granted on 2-10-1973, to consider the aforesaid plea, but on 26-4-1974 i.e. During the pendency of this case, the point aforesaid was resolved by this Court )n Rabnawaz v. Jahana (1) wherein the law was examined in detail and it was held that the widow remained a limited owner as before and her estate in that respect was not enlarged also regards her powers of alienation and nor could, she form a fresh stock of descent. The relevant passage on the subject is at page 218 of the report and) reads as follows :- "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 an 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 male 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 deceased 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 cast may be, a widowed mother with the occupancy
(1) 7 P R 1911(2)PLD 1974 SC 210 holding which has devolved upon her under the unaniended section 59. Such a far-reaching legislative intent, in the absence of a clear provision in section 114 cannot appropriately be read into the statutes."
Again at page 220 it was held that :--- "The plain object of the amending Act of 19.52 (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 cannon 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 inseparable incident of her tenure until succession opens for the last male-holder of the occupancy tenancy under proviso to subsection (1) and section 59."
As respects a widow's estate under Customary Law, it was observed in Slier Muhammad v. Pliufa (1) as follows :- "There are strong analogies between the estate of a widow under Customary Law and her estate wide: Hindu, Law. Under both laws she holds for life for the purpose of maintenance with certain powers of disposition necessarily to her position. She is at least in Customary Law, in no sense a co- sharer, and on her death the succession is not 'to her but to her husband. In fact her estate is one interposed for a limited purpose between that of her husband and the next heir.
There is ample authority for the view that where under Hindu Law as also under Customary Law, a husband dies issue-less, his estate notionally continues in his widow who' acts as a sort of conduit pipe between her deceased husband and -his next heir. The proposition canvassed by the appellant's learned counsel cannot be sustained either under the unamended section or independent of it under any other legal system. And the provisions of section 114 of the 1887 Act do not go far enough to show unmistakably that Legislature besides abolishing the occupancy holdings also intended to abolish the widow's estate so very weld known to the legal system practised in the province. Nor would that be consistent with the amended provisions of section 59 which introduced the Shariat so far as Muslim occupancy tenants were concerned. The language may not be altogether free from doubt. But after due consideration of the incidents of the widow's life estate, which has not been expressly abolished except to the extent expressly provided in the amended section 59 of the 1887 Act, the expression `An occupancy tenant' in section 114; in the relevant circumstances, in my opinion refers to the last male occupancy tenant, whose estate by virtue of the legal fiction continues in the person of his widow; and who under the altered situation does not become a fresh stock of descent to pass on her estate to her own personal heirs except to the extent expressly provided in the provision to subsection 9 P R 1899 of amended section 59 of the 1887 Act."
11. The passages reproduced above sufficiently answer the point or points raised -by the learned counsel in para. 10 ibid and he could point out nothing to us to take exception to the view above reproduced.. The conten--tions raised are, therefore, repelled.
12. Learned counsel then argues that the Tenancy Act lays down and regulates the tenancies between the landlords and the occupancy tenants, and as such, reversioners or collaterals of occupancy tenancy find no place therein. Therefore, whenever an occupancy tenant makes an alienation the only class to challenge the same is that of the landlords, and the question of any right of reversioners of occupancy tenancy to. Object to the alienation of occupancy rights on such grounds as it was effected without necessity or like does not fall within the scope of that Act. He further submitted that the Act makes the transferee in contravention of the rule laid down in section 59 voidable at the option of the landlords but no similar option sees to be bestowed by the Act itself on the reversionere. Projecting it further, he submitted, that one of the vital differences between a proprietary holding and an occupancy tenancy holding is that the estate in a proprietary holding (generally speaking) always subsists and cannot be destroyed while the estate in an occupancy tenancy holding may be destroyed and may not subsist for all times, with the result, that the reversionary rights in an occupancy holding are enforceable only so long as the occupancy rights subsist, but if they have been extinguished no reversionary rights remain to be effected. In this way it was submitted that when under section 114 of the Punjab Tenancy Act as amended by the Punjab Tenancy Act (Amendment) VII of 1952 (commonly known as Daultana Reforms) the occupancy rights were extinguished and the occupancy holding was converted into proprietary land, the institution of landlords qua such land was abolished in the manner mentioned therein, and as such, now there was no class of landlords to challenge the alienation of an erstwhile occupancy tenant (who had now become a proprietor). Similarly he submitted the question of a suit by a reversioners of any occupancy tenancy did not arise under the Act.
13. The argument is attractive but with due respect to the learned counsel is not sound and seems to be an attempt to put forward the same plea which has been negated above now in a different and indirect form. In the passage in our judgment in the case of Rabnawaz v. Jahana reproduced above, it has been laid down that the limiting conditions under which the occupancy tenancy was earlier being held by a reversionary occupancy tenant would remain an inseparable incident of that tenure; until succession opens out, despite the fact that the occupancy was now converted into proprietorship. This embargo on the powers of an occupancy tenant, for example, under custom which placed restrictions on his/her powers of alienation will last until he or she dies or until succession opens out otherwise--(as in this case)--earlier. It is after the land devolves under Muslim Personal Law (Shariat), on any heir that the status of the said heir may undergo a change, but so long as a devolution in that form does not take place mere conversion of occupancy rights into proprietorship will not take off the fetters already attached with that land. Again the right to file a suit for challenging such an alienation does not flow from the Act which is not exhaustive on this subject, and this right, as is well known, inter a!Ia may flow from the incidents of custom to which an occupancy tenant was otherwise subject side by side with and in addition to, his limitations and obligations under the Act.
14. Secondly this right even otherwise inheres in the potential heirs (or reversioners) of a would-be prepositus irrespective of the fact as to under which law they are to become heirs. It is this potentiality of those would-be heirs to succeed which gives them a right under section 42 of the Specific Relief Act I of 1877 read with Articles 125 and 141 of the Limitation Act IX of )918, to get declarations from Courts regarding invalid transfers-invalid from any such point of view which may be available to them under the law relevant to the facts and circumstances of ,each case.
This was so clarified by this Court in Abdullah and others v. Mst..Bakhto Mai and another (1), Said and others v. Fazal Htlssain and others (2) and Bashir Ahmad and others v. Muhammad and others (3). From that point of view the present plaintiffs being heirs under Muslim Personal Law (Shariat) to the estate released from a limited widow, they had every right to file, a declaratory suit for getting the impugned alienation declared as invalid or a suit for possession of their share in case the succession has opened out in their favour. This is a concept different from theory of merger-or extinction of occupancy rights or extinction of landlords rights. And should not be mixed up with the same. The defect in the argument of the learned counsel with respect lies in not keeping this distinction in view.
14-A. To conclude from the above discussion, it now stands established and as we have found that
(a) the plaintiffs-respondents are heirs of Nizam Din ; (b) who is according to law to be considered as a prepositus in this case ; (c) the succession to the estate of Nizam Din has already opened during the pendency of the present widow's estate ; (d) the plaintiffs have 7/16 share in the land in dispute for which they claimed a decree for joint possession (as a matter of fact the relationship and question of share of the plaintiffs was not disputed before us); (e) the alienation gift made by Mst. Rajan is void both under the Act as well as custom; (f ) and in this view of the matter the plaintiffs being Muslim Law heirs can succeed to the estate of Nizam Din by ignoring that alienation and getting it declared as void ; (g) inasmuch as, they have every locus stand! to do so.
15. Here it may be pointed out that the operative judgment as at present in the field is that of remand which was ordered by the learned Additional District Judge on 4-5-1965 and which was maintained by the High Court on 11-1C-1972, for examining the legal position regarding the alleged enlarge--ment of the widow's estate and the locus standi of the plaintiffs to take exception to the gift in dispute. Both these and all other allied questions stand answered in our judgment and in these circumstances, the order of remand on the above lines is no longer justified. Rather on the other hand, on the facts found and law declared and applied by us, the plaintiffs are clearly entitlement to the decree prayed for by them. In this context we are of the view that the remand of the case will be a sheer exercise in futility, and the proper; just and fair order, in order to do complete justice between the parties anti to save them from further litigation in this already prolonged lis, will be to pass an order consistent with and consequent to the findings recorded by us (on the points and pleas raised by the learned counsel for petitioners himself) namely of decreeing the suit of the plaintiffs and modifying the High Court and the learned Additional District Judges orders accordingly. We hold and order as such.
16. The result is that the appeal fails and the suit of the plaintiffs is decreed. However, in view of difficult points of law involved herein, the parties will bear their own costs.
(1) PLD 1956 SC (Pak.) 321 (2) PLD 1959 SC (Pak.) 356
(3) PLD 1956 Lah. 934