MUNIB AKHT AR, J. These reasons are to be read in continuation of the order dated 18.10.2018 whereby this appeal was partly allowed. The order just referred to was in the following terms: "Learned counsel for the contesting parties have been heard.
2. The tenancy in issue was granted to two brothers, Mustali and Wali. Muhammad, by the State of Bahalwapur in 1937. The said State (being a Princely State) had adopted (subject to certain adaptations not presently relevant) the Colonization of Government Lands (Punjab) Act, 1912 ("the Colonization Act") in or about 1924. Both Mustali and Wali Muhammad, successively , died in 1940. Mustali was succeeded by two sons and three daughters. In terms of section 20 of the Colonization Act, it was only the sons (being the male lineal descendants of the original tenant) who succeeded to Mustali's tenancy rights; the three daughters stood excluded from any share therein.
When, however , the two sons died, then under the provisions of section 21(b) the succession was to be determined as though the original tenant had died, the succession being treated as having opened up at that time.
Furthermore, at that time the relevant rules of the Islamic law of inheritance had to be applied. In those terms, all of Mustali's heirs (including in particular the three daughters) then became entitled to a share. This is the result that obtains in terms of the rule laid down by this Court in Umar Din and another v. Mst. Sharifan and another PLD 1995 SC 686, a case that involved, as here, a tenancy granted by the erstwhile State of Bahawa lpur. It is also clear from this judgment that the relevant time for determining whether Mustali's daughters had any entitlement was the date on which the suit in this regard was filed. In the present case, one of the daughters, the respondent Mst.
Fatima Bibi (now represented by her legal heirs) filed a suit on 28.02.1999. On that date (as specifically confirmed by learned counsel for the appellants on a query from the Court) both of Mustali's sons, by name Noor Muhammad and Muhammad Bukhsh, had died. Consequently , section 21(b), as applied by this Court in the aforementioned judgment, entitled Fatima Bibi to her share in the tenancy .
3. Learned counsel for the appellants seeks to argue that Mustali's daughters in any case stood disentitled on another basis, this time relying on the insertion of section 19-A in the Colonization Act in the year 1951. It is submitted that when the State of Bahawalpur merged in the Province of West Pakistan (which happened in 1955), section 19-A became applicable to tenancies granted by the erstwhile State. Under section 19-A the persons that succeed upon the death of a Muslim tenant are his successors under Islamic Law. On that basis, learned counsel submits that Mustali's daughters, i.e., the sisters of Noor Muhammad and Muhammad Bukhsh (both of whom admittedly died after 1955), could not succeed because they stood excluded by the heirs of the two men.
4. The effect of the argument advanced by learned counsel is that whereas the Colonization Act in its original form granted the rights to all of Mustali's heirs as per the rules of Islamic law, on account of the application of those same rules to tenancies by virtue of the subsequently added section 19-A, his female heirs stood excluded. This would, to say the least, amount to a very harsh interpretation of the amendment. A right which was conferred under the un-amended law cannot be defeated by such a reading of section 19-A. In the circumstances, we consider that the plaintif f Fatima Bibi, being one of the female heirs of Mustali, succeeded to her share in her father's tenancy by operation of the rule enunciated by this Court in Umar Din's case (supra).
5. Insofar as Mustali's brother Wali Muhammad is concerned, he was married but died issueless. His widow survived him, but she passed away in 1951. In such circumstances, the operation of sections 20 and 21(b) in terms of Umar Din's case (supra), meant that in terms of the relevant rule of inheritance under Islamic law it was the only Wali Muhammad's nephews (i.e., Mustali's sons) who succeeded to his tenancy , to the exclusion entirely of his nieces including, of course, Mst. Fatima Bibi.
6. For the foregoing, and such further reasons as may be explicated, this .appeal is partly allowed, all in terms as may be stated in the detailed judgment."
2. The facts have been set out in sufficient detail in the aforementioned order of 18.10.2018 and do not require any repetition here. Questions relating to or arising out of tenancy rights granted by the erstwhile State of Bahawalpur under the Colonization of Government Lands (Punjab) Act, 1912 (as adopted by that State), especially in the context of inheritance, have come befor e this Court and the Lahore High Court from time to time. For present purposes, two decisions of this Court, reported as Mst. Imam Bibi v. Allah Ditta and othe rs PLD 1989 SC 384 ("Imam Bibi") and Umar Din and another v. Mst. Sharifan and another PLD 1995 SC 686 ("Umar Din") require attention. The first was primarily relied upon by learned counsel for the appellant, whereas the second was relied upon by learned counsel for the contesting respondents.
3. In Imam Bibi the tenancy rights were granted to one Nizam Din by the State of Bahawalpur . The grantee had not yet acquired proprietary rights in the tenancy when he passed away leaving behind a widow , a son (Allah Ditta) and two daughters, one of whom was Imam Bibi. In the mutation of Nizam Din's inheritance (attested in 1954) it was only the son, Allah Ditta, who was shown as having inherited the tenancy . In 1968 Imam Bibi, during Allah Ditta's lifetime, filed suit claiming her share in the tenancy as Nizam Din's daughter . To counter section 20 of the Colonization of Government Lands (Punjab) Act, 1912 ("1912 Act"), Imam Bibi claimed that her father had passed away in 1952, after the insertion of sectio n 19-A into the 1912 Act, and relied on the overriding effect that the latter provision had as regards the former . It was found as a matter of fact that Nizam Din had died on 28.02.1951, and before the Act of 1951 whereby section 19-A was inserted into the 1912 Act took effect in relation to the State of Bahawalpur (see at pp. 388-9, paras 9-10). Imam Bibi also placed reliance on another Act, referred to in the judgment as the "Bahawalpur Shariat Act". It was held that this Act took effect on 04.03.1951. Since Nizam Din had passed away prior to this statute, it could not affect the position that emerged by virtue of section 20 of the 1912 Act (see para 11 at pg. 391). Imam Bibi's suit had been dismissed by the trial Court, decreed in first appeal by the Additional District Judge but again dismissed in second appeal by the High Court. Her appeal before this Court failed and was dismissed.
4. In Umar Din, tenancy rights had been granted by the State of Bahawalpur to one Muhammad Ibrahim, who died sometime prior to 1948. The tenancy rights were mutated in the names of his three sons, Muhammad Ismail, Ali Muhammad and Umar Din. Subsequently , Muhammad Ismail also died, leaving behind a widow (Mst. Sharifan) and a daughter . The tenancy rights of Muhammad Ismail were mutated in favour of his widow as a limited owner . Mst.
Sharifan subsequently remarried, and the mutation in her favour was cancelled, the tenancy (i.e., in relation to Muhammad Ismail) being recorded in favour of his other legal heirs, being the daughter and his two brothers, Ali Muhammad and Umar Din, all in equal share. Umar Din and Ali Muhammad, claiming exclusive rights to the tenancy even in relation to Muhammad Ismail's share, filed suit against Mst. Sharifan and her daughter . The suit was dismissed but decreed in first appeal. In second appeal (filed of course by Mst. Sharifan and her daughter) the High Court reversed, restoring the decree of the trial court dismissing the suit. Against this decision, Umar Din and Ali Muhammad filed appeal before this Court (see the narration of facts at pp. 688-9). The appeal was dismissed.
5. The appellants in Umar Din relied principally on the earlier decision in Imam Bibi, and this was considered in great detail at pp. 689-92. It was noted that in Imam Bibi the dispute was in relation to the succession of Nizam Din's tenancy , the original grantee. The dispute was between his son and one of his daughters. It was section 20 that was therefore engaged. In Umar Din, the question involved the succession to the tenancy rights to the extent that had devolved on Muhammad Ismail, who was not the original grantee (that being his father) but himself a legal heir. The question arose after Muhammad Ismail's death, and therefore it was section 21 of the 1912 Act that was engaged. On an analysis of this section, and its interpretation and application (at pp. 692-696), it was held as follows (pg. 696; emphasis supplied): "From the above discussion it follows that the succession to the tenancy of the original tenant of agricultural land is governed in accordance with the provisions of section 20 of the Act on the death of the original tenant. However , when a tenant who had succeeded the tenancy from the original tenant dies, his tenancy is to be treated as the agricultural land acquired by the original tenant for the purpose of determining the rights of succession of his heirs .
It is, therefore, quite clear that the rule of succession to the 'tenancy' contained in the Act would not be applicable to the cases of succession falling under section 21(b) of the Act which governs the succession to the land acquired by a tenant under the provisions of the Act."
This conclusion led the Court to the next question (on which leave had been expressly granted) as to what had been the general rules of succession in the State of Bahawalpur? The relevant provisions were analyzed at pp. 697-99, and the question was answered by holding as follows (pg. 699): "We are, therefore, in no doubt that from 11-1-1881, when Punjab Laws Act, 1872 was applied to the territory of Bahawalpur until 3-3-1951, the date of promulgation of the Act of 1951 the predominant rule of decision in the cases of succession prevalent in the State of Bahawalpur , was the rule of Muslim Law if the parties were Muslims."
6. In the present case, as noted in the order of 18.10.2018, Mst. Fatima Bibi had brought her suit after both of her brothers, Noor Muhammad and Muhammad Bukhsh, had died. The facts of the case therefore had a greater affinity with the position to be found in Umar Din as opposed to the facts in Imam Bibi. It was for this reason that the propositions and law propounded in the former decision were held as applicable to the facts at hand. Thus, the question of Mst. Fatima Bibi's claim to a share in the tenancy rights that devolved from her father , Mustali, was to be governed by section 21 and not sectio n 20, and in terms of the general law of inheritance relating to Muslims.
That meant that she (and now, of course, her legal heirs) was entitled, as a daughter , to an appropriate share in the tenancy devolving from Mustali (in whatsoever form the tenancy might have taken) of course that also meant that she was not entitled to any share in the tenancy from her uncle, W ali Muhammad.
7. The Courts below had all decreed Mst. Fatima Bibi's suit in full. For the reasons set out in the order of 18.10.2018, and as further dilated upon above, that position was found not to be sustainable. Accordingly , the appeal was allowed in part. This means that the decree made in favour of Mst. Fatima Bibi (and through her, in favour of her legal heirs) stands modified to the extent that the suit in relation to the tenancy rights devolving from Wali Muhammad stands dismissed.