MUHAMMAD AFZAL ZULLAH, J.-This appeal through special leave is directed against the judgment of the Lahore High Court dated 10-9-1970 ; whereby Mst. Began's (appellant-defendant) regular second appeal, arising out of a suit of inheritance filed by Mst. Bai (respondent-plaintiff), was dismissed.
Sadoo, husband of Mst. Bar' was granted tenancy rights under section 10 of the Colonization of Government Lands Act, 1912, in 1922. He died issueless on 15-10-1946. Mst. Bar' his widow succeeded to the tenancy under section 20(b) of the Act. She deposited the required dues for obtaining proprietary rights in 1959 and accordingly acquired the same.
2. After the enforcement of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the estate held by Mst. Bar' was terminated under purported mandate of section 3 thereof and Mutation No. 73 dated 24-12-1963 was sanctioned 1/4th share in the estate was given to Mst. Bar' respondent while 3/4th share was given to Mst. Began appellant, who is sister of Sadoo the last male holder.
3. Mst. Bar' challenged the mutation order through a suit on 27-3-1964. She sought declaration to the effect that she was the full owner of the entire estate left by Sadoo of which she obtained proprietary rights and that muta--petition No. 73 was null and void. Her case was that the proprietary rights having been obtained by her, she was no more a limited estate-holder under Customary Law and that she was not hit by the termination of life estates as provided under Shariat Act of 1962.
4. The learned trial Court decreed the suit on the finding that a Muslim female acquiring proprietary rights under section 30-A of the Colonization of Government Lands Act was not governed by the said Shariat Act and her estate would not be hit by its provisions. The first appeal filed by Mst.
Began, defendant, was dismissed. She then filed a regular second appeal in the High Court which having been dismissed on 10-9-1970, leave to appeal was granted by this Court on 8-4-1971 fur the examination of the following contentions then risd from the appellant's side, that:-- "According to section 30-A of the Colonization of Government Lands Act in the case of a widow acquiring proprietary rights, in the matter of alienation by her and succession to her, it is to be assumed as if her, husband had acquired the proprietary rights and she has succeeded to him. In other words, if a widow who had earlier succeeded under' section 20 of the said Act to her deceased husband who was a tenant acquires proprietary rights then she is to be treated as widow holding under custom because if the said husband is to be treated the full proprietor then the widow succeeded only under custom. That being so, the question requires examination whether the "estates" held by Muslim females under sections 30. And 30-A of the Colonization Act were hit by section 3 of the Act V (Shariat) of 1962."
5. The ratio decidendi of the judgment under appeal is contained in the last part of para. 3 thereof which is reproduced below :-- "Since on the acquisition of proprietary rights by female tenants the land had become their self- acquired property of which they had complete prowlers of disposal, alienations by them were to the detriment of the reversioners of the previous male tenants. It was to safeguard the interest of the reversioner that restrictions were imposed on the females rights of alienation by adding section 30-A. The precise question to be determined, however, is as to whether these restrictions completely bring them at par with widows or other life estate-holders under custom or this would be merely one of the points of similarity, which 01 would not per se be good enough to bring them within the purview of section 3 of Act V of 1962. The answer to the proposition is quite clear. With the acquisition of proprietary rights sections 20 and 21 of the Act remain no longer applicable and as such the question of loss of their rights in the event of re-marriage of a widow or marriage of a daughter, which is one of the essential characteristics of a limited estate under custom would no longer be relevant. This is one of the important distinctions between the two categories. The next point of distinction, which is equally, important is that on acquisition of pro--prietary rights under section 30, unlike a limited estate-holder under custom, a widow becomes an owner in her own rights subject of course to the restrictions on her rights of alienation as envisaged by sec--petition 30 A. It would be pertinent to observe that the relevant restric--tive provision contained in section 30-A (a) is couched merely in an analogical and parallelistic form significantly avoiding any reference to the Custody Law which cannot be imported into it. It is a well-settled rule of interpretation that a provision, which is restrictive in nature, has to be strictly construed, Last but not the least in the unequivocal phraseology employed by section 3 of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, which has specifically confined the termination of life estates to those held under Customary Law. Notwithstanding the analogy between a life estate- holder under custom and a female governed by sections 30 and 30-A of the Act on the point of restrictions on alienation by no means can the scope of the relevant provisions of Act V of 1962, be enlarged so as to analogically cover what is not specifically mentioned therein."
6. The relevant provisions of the laws which would require examination read as follows :- The Colonization of Government Lands (Punjab) Act, 1912: "S. 19-A. Succession of the tenancy.-When after the coming into force of the Colonization of Government Lands (Punjab) Amendment Act, 1951, any Muslim tenant dies, succession to the tenancy shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat), and nothing contained in sections 20 to 23 of this Act shall be apple--cable to his case Provided that when the tenancy rights are held by a female as a limited owner under this Act, succession shall open out on the termination of her limited interest to all persons who would have been entitled tp 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 limit 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 bad 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 apple--cable at the time of the death of the last full owner shall devolve on her if she loses 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 her limited interest terminates because of her death." (Added by Punjab Act III of 1951).
"S. 20. Succession to tenants acquiring otherwise than by succession.- Subject to the proviso to section 14, when after the commencement of this Act, any original tenant dies the succession to the tenancy shall devolve in the following order upon:--
(a) the male lineal descendants of the tenant in the male line of descent. (The term lineal descendants' shall include an adopted son whose adoption. Has been ratified by a registered deed) ;
(b) the widow of the tenant until she dies, or re-marries, or loses her rights under the provisions of this Act ;
(c) the unmarried daughters of that tenant until they die or marry, or lose their rights under the provisions of this Act ;
(d) the successor or successors nominated by the tenant by registered deed from among the following persons, that is to say, his mother his pre-deceased sons' widow, his pre-deceased grandson's widow his married daughter, his daughter's son, his sister, his sisters son, and that male agnate members of his family ;
(e) the successor or successors nominated by the Collector `from among the person enumerated in clause (d) of this section."
"S. 21. Succession to tenants acquiring by succession.-When after the commencement of this Act any male tenant, who is not an original tenant, dies, or any female tenant dies, marries, or re- marries, the succession to the tenancy shall devolve- (a)in the case of a female, to whom the tenancy has been first allotted, on the successor nominated by the Collector from the issue of such female tenant, or from the male agnates of the person, on account of whose services the tenancy was allotted to her.
(b)in all other cases, on the person or persons, who would succeed if the tenancy were agricultural land acquired by the original tenant.
"S.30. Acquisition of proprietary rights.-Notwithstanding anything entered in any statement of conditions under the Government Tenants (Punjab) Act, 1893, a tenant who, either in pursuance of any such condition or otherwise by agreements with, or under rules issued by the Provincial Government, has acquired proprietary rights in any land included in his tenancy shall in respect of such land cease to be subject to any statement of conditions issued under the above-mentioned Act provided always that he shall in respect .Of such land bound byconditions set out in Schedule II of this Act and be bound by the other provisions of this Act applicable to proprietors of land."
"S. 30-A. Right of alienation in respect of, and rule of succession to, certain proprietary rights acquired by a female.-(1) Notwithstanding any custom and the provisions of any law to the contrary, when after the commencement of the Colonization of Government Lands (Punjab)
(Amendment) Act, 1944, proprietary rights in any land are acquired by a female tenant, her rights of alienation of any such land shall be the same-
(a) If-she succeeded to the tenancy directly or indirectly from a male tenant, as if the proprietary rights had been acquired by the last male tenant, and she had succeeded to such rights as his heir; and
(b) If the tenancy was first allotted on account of some male person, either to her, or to another female to whom she succeeded either directly or in continuous line of female succession, as if the proprietary rights had been acquired by such male person and she had succeeded to such rights as his heir. and in cases falling under clause (a) or clause (b) in the event of such female proprietor dying while in possession of the proprietary rights in question, the said rights shall devolve upon the person who would be entitled to succeed, if such rights had been acquired by the last male tenant, or the male person on whose account the tenancy was first allotted as the case may be.
(2) Nothing herein contained shall be construed to alter the law of succession applicable to any female tenant, in respect of proprietary rights in land acquired by her, if the tenancy in such land was acquired by or accrued to her in circumstances other than those specified in subsection (1).
(3) For the purposes of this section the expression "any such land" shall be deemed to include any land obtained in exchange for part or all of the land in which proprietary rights have been acquired", (added by Punjab Act VI of 1944 on 12-6-1944).
West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)
"2. Application of the Muslim Personal Law.-Notwithstanding any custom or usage, in all questions regarding succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religions usages or institutions, including Waqfs, trusts and trust properties, the rule of decision, subject to the, provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Sbariat) in cases where the parties. Are Muslims.
3. Termination of life estate under Customary Law.-The limited estates in respect of immovable property held by a Muslim female under the customary law, are hereby terminated.
5. Devolution of property on the termination of life estate and certain wills.-The life estate terminated under section 3 or the property in respect of which the further operation of a will has ceased under section 4 shall devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last owner of the testator as though he had died intestate ; and if any such heir has died in the meantime, his share shall devolve in accordance with Shariat on such persons as would have succeed him if be had died immediately after the termination of the life estate or the death of the said legatee Provided that the share to which a Muslim female holding a limited estate under Customary law would have been entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her."
The Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972.
1. Short title, extent and commencement.- (1)---------
(2) ............
(3) It shall come into force at once and shall be deemed to have taken effect from the 31st day of December, 1962.
2. Removal of doubts.-(1) Notwithstanding anything contained in the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 (Shariat) (Amendment) Ordinance, 1963 (West Pakistan Ordinance XXXIX of 1963), the West Pakistan Muslim Personal Law (Shariat) Application (Amendment) Act of 1964 (West Pakistan. Act XXVIII of 1964) or any other law or any decree, judgment or order of any Court or other authority or any proceeding before any Court or other authority the limited estates in respect of immovable property held by Muslim female under the Customary Law shall be deemed to have been terminated with effect from 31st day of December, 1962.
(2) All decrees, judgments, or orders passed in any suit, appeal or other proceedings by any Court or other authority which are inconsist with the provision of subsection (1) shall be of no legal effect and such suits, appeals or other proceedings shall be decided afresh on the application of any person affected by such decree, judgment or order.
The learned counsel for the appellant has re-iterated the arguments advanced at the leave stage and has relied upon interpretation of section 30-A of the Colonization Act by this Court in Rabnawaz v. Jahana (PLD1974SC210). He has also sought support from the reasoning in the said case as also the case of Muhammad Sadiq and another v. Mst. Ghulam Sakina and another (PLD1982SC1). The learned counsel for the respondent has, on the other hand, adopted the reasoning in the impugned judgment and relied upon Fareed and others v. Mst. Sughran Bib! (P L .D 1961 B J 52) and Ram Din v. Muhammad Din (PLD 1964 SC 842). Several other cases decided by this Court which have somewhat indirect bearing in the matter have also been noticed. They are : Mushtaq Ahmad alias Mushtaq Hussain and 8 others v. Mst. Hakim Bibi and 5 others (PLD-1969 SC 338). Munshi and others v. Barkat A.I and others (1969 SCMR 181). Muhammad alias Muhammad A.I v. Raja and 7 others (1970 SCMR 246), Mst. Zardar Begum v. Sultan Mahmood (PLD 1971 SC 580). Zil Muhammad and 4 others v. Mst. Hayat Bibi and 2 others (1971 SC M. R 514), Barkat A.I v. Mst.
Sughran Bib! And another (NLR 1982 Rev. (SC) 110). The trend of decision in the Punjab Board of Revenue including Mst. Sarwar Jan v. Sabar Sultan etc. (PLD 1968 Rev. 18) and Karim Bibi v. Abid A.I (PLD 1977 Rev. 54) has also been noted.
8. It cannot be denied that the rules of succession contained in clauses (a), (b) and (c) of section 20 although provided by the statute itself is mainly derived from the rule of Customary succession.
Particularly the conditions under which a widow inherited the tenancy under section 20(b) were refer--able to the then prevailing law of customary succession ; and, in essence by imposing the condition that she will hold the estate only till she re-marries or dies or otherwise loses her rights under the provisions of the Act, the estate being conferred on her was only limited. There was no such condition in the Muslim Law of Succession, therefore, it could legitimately be assumed that the widow tenant held the rights under section 20(b) as a customary limited owner. To say that the character of this limited estate was determined only by the statute and was really not based on the rule of customary law might not be in accord with the underlying intention.
9. This supposition is supported by (amongst others) two very impor--tant factors: A female tenant governed by clause (b) of section 21 was, on her death or re-marriage, not considered as full owner and the tenancy through succession was, on such eventuality, to devolve upon the heirs of the original tenant to whom the female had succeed-the rule of succession, having been co-related to agricultural land acquired by the original tenant, was at the relevant time, customary law. Thus, in clause (b) of section 21 the rule of succession was based not only on the assumption that the female tenant was holding a limited estate but also that succession, on her death or re--marriage, was to be determined under the customary law as generally the same applied to the original tenant regarding his other agricultural land acquired by him. This is not all. The Legislature by enacting section 19-A in 1951 assumed that female did hold limited estate (as tenants) under the Act and made provisions for application of the Muslim Law of Inheritance on the termination of such limited estate. As to whether, when specifying the limited estate (regarding tenancy) being held "under this Act," the Legislature intended to exclude the same as having also been held in reality and sub--stance under the customary rule of succession, is not relevant for the decision of this appeal. Therefore, no further comment is necessary in this behalf; except that it is in this background and nature of the limited estate held by a female tenant as successor to a male holder that the controversy in this appeal for interpretation of section 30-A, has been raised.
10. Mst. Bai, as widow of Sadoo, inherited the tenancy under sec--petition 2C(b) of the Act as a tenant before the acquisition of the proprietary rights she was undoubtedly, a limited owner and if she would have re-married or died without acquiring the proprietary right, the tenancy would have devolve& under section 21(b) upon the reversionaries of Sadoo under the customary law, on the assumption that Mst. Bai held a limited estate in the tenancy. This, of course, would have been the position before the enactment of sec--petition 19-A and if the marriage or death would have taken place after the enactment of section 19-A `prior to the obtaining of the proprietary rights) the succession would have been governed by proviso 1 to section 19 A, by application of Maslim Personal Law. It did not happen so in this case as Mst. Bai during her lifetime acquired proprietary rights. It needs to be examined as to what was the nature of her estate on acquisition of the proprietary rights.
11. There is plenty of authority that before the enactment of sec--petition 30-A the conditions relatable to acquisition of proprietary rights were governed by section 30 of the Act. They were different (regarding enjoy--ment of or succession to, such estate) from the conditions provided in sec--petition 30-A (1).
12. It can be safely presumed that the Legislature wanted to bring the law relating to the nature of the estate of a female, after the acquisition of proprietary rights, in line with the nature of the estate she held as tenant prior to such acquisition. As discussed earlier, the estate held by female in a tenancy under sections 20(b) and 21(b) was limited. Similar limitations were introduced in section 30-A with regard to the estate held by the- female, after she obtained the proprietary rights. The trend of authority in the decisions of the Courts, of course under section 30 of the Act (prior to the enactment of section 30-A) was that on acquisition of proprietary rights the female was treated as full owner with complete powers of disposal and also, on her death, she used to become fresh stock of descent in her own right. This was sought to be corrected by providing in clause (a) of subsection (1) of section 30-A that her rights of alienation even after acquisition of proprietary rights by her, would be restricted. The restriction was the same as on a female inheriting limited estate under custom. Not only this, a very important condition was imposed in cases governed by both the clauses (a) and (b), by providing that: "And in cases falling under clause (a) or clause (b) in the event of such female proprietor dying while in possession of the proprietary rights in question, the said rights shall devolve upon the person who would be entitled to succeed, if such rights had been acquired by the last male tenant, or the male person on whose account the tenancy was first allotted as the case may be. --- Obviously it was intended by this provision that the female shall not become a fresh stock of descent and her estate in this context was nothing but a limitedestate. This was also in line with the underlying intention insofar as sec--petition 21(b) is concerned. Thus, it would lead to the logical conclusion that the forequoted rider in section 30-A after clause (b) of subsection (1) recognized only a limited estate even if the female had become a proprietor under the relevant provisions.
After nothing that in 1940 the Government attempted toremove the lacuna namely that widows full proprietorship .Could "defeat the purposes of the customary law as well as of the original grant," it was observed by this Court in flam Din's case as follows :- " ....Eventually the Legislature of the Punjab passed a law determining, the succession to, female proprietors of several categories including that in which Mst. Zainab Bibi was, and at the same - time placing a restraint upon their power of alienation. This was section 30-A of the Colonization of Government Lands Act, which was enacted in 1944, and had the effect of enforcing succession under custom. In other words, rights of alienation of the land were to be the same as if the proprietaryrights had been acquired by the last male tenant and she had succeeded to such rights as his heir, and the case would be the, same where the tenancy was allotted to her or to another female on account of the services of some male person, in which case her rights would be the same as if she had succeeded to the said male person as his heir. Succession was to follow the same principle, namely, that upon the death of the female proprietor, the heirs of the last male tenant or of the male person on whose account the tenancy was first granted would succeed."
It is significant that the full Court interpreted section .30-A as having "the effect of enforcing succession under custom." The ruling although cited by the learned counsel for the respondent, insofar as the interpretation of section 30-A is concerned, goes against him. The view quoted above was reiterated by this Court in the case of Rab Nawaz PLD 1974 SC 210. At page 121 of the report, it was observed as follows " ---...It must also be pointed out that all these cases have now become obsolete, because the Legislature by amendment of the Act, has inserted section 20-A in the Act which reads : (Section 30-A has already been reproduced in an earlier part of this judgment, therefore, the quotation thereof from the report of Rabnawaz case is being omitted here). This clearly demonstrates that the above trend in the decisions by the Superior Courts was not regarded by the Legislature to be consistent with the concept of widow's estate in the legal system generally prevailing in the province and, therefore, the legislative inter--vention to correct the situation."
It was also ruled in this case, with regard to similar questions arising under the Punjab Tenancy Act, 1887 that "it would be reasonable to infer from the legislative history (of the similar provisions as in this case), that under unamended section 59 of the said Act, the fem les were given what in essence appeared to be an extension of their rights for maintenance. In other words, a special estate was interposed for a limited purpose" between the last male-holder and his male collaterals. This view was reiterated in the very recent case of Muhammad Sadiq which also arose under the Punjab Tenancy Act, but the provisions and controversies are similar. It was held that the female had a limited life estate under "toe tenancy Act, as well as under the relevant custom". The observations in the case of Rabnawaz were quoted in extenso and were relied upon for coming to the following conclusion :- "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 exhaustiveon this subject, and this right, as is well known, inter alia may flow from the incidents of custom to which an occupancy tenant was otherwise subject side by side with and to addition to his limitations and obligations under the Act."
13. Keeping in view the trend of authority by this Court in the afore--quoted decisions and in the light of the aforegoing discussion, it has to held that the estate held under section 30-A(1) by a female is in reality limited estate held under custom. That being so, the provisions of section 3 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 would be attracted. The limited estate held by Mst. Bai, as found above, was governed by the said law. It having been terminated, she was entitled to hold only her share under Muslim Law of Inheritance. Sadoo having die issueless, she was given 1/4th share. Therefore, as she could not be given more than that, her suit merited dismissal. Accordingly, while setting aside the impugned judgment and decree, the suit of Mst. Bat is dismissed. There shall be, however, no order as to costs.