1. MUHAMMAD YUSUF SARAF, J.--These two appeals arise out of the following circumstances:-- One Muhammad Sharif, an occupancy tenant, having died issueless, the tenancy was mutated in favour of his widow Mst. Baggi. By the time the land was acquired in connection with the construction of Mangla Dam, the widow had acquired proprietary rights under the Land Reforms Act. Compensation was, therefore, awarded to her. Sardar Begum the sister of Mohammad Sharif filed a reference claiming a share of the property. The District Judge dismissed the reference because he was of the opinion that proprietary rights having been purchased by her, it had become her self-acquired property. It is against this judgment and decree that the appellants have come in appeal to this Court.
2. The only point for determination therefore is as to whether a widow who has succeeded an occupancy tenant in her capacity as his wldow, can, by acquiring proprietary rights, so change the character of her possession that she can transform herself from a life-tenant to that of a full owner.
3. In 1988-89 Bk the Jammu and Kashmir State witnessed a gigantic political movement unprecedented in the history of princely States. Hundreds of Muslim were killed and thousands put behind bars. A Commission had, there ore, to be appointed by the Government to enquire into Muslim grievances. It is known as the Glancy Commission as it was headed by Sir Bertrand Glancy who later became Governor of Punjab. Among the main demands placed before the Commission was the demand for the grant of proprietary rights in lands of which the Government was the landlord. As a result of the Commission's recommendation, these rights were conferred on the occupancy tenants of Mirpur Te'sil without any payment because it was a political settlement. This is known as the proclamation of Kartik 1990 Bk. Obviously many a widows also held occupancy rights at the time. The Jammu and Kashmir High Court held that they had become full owners in their own right and consequently suits by collaterals to set aside or avoid alienations made by such widows were dismissed.
4. The matter again came up for consideration before a Division Bench of this Court in PLD 1961 Azad J & K 26. Here also the suit of the versioner was dismissed and the widow was declared to have acquired proprietary rights in her own right under the said proclamation. A perusal of the judgment however shows that in coming to this decision, the Court was influenced by the following subsection in section 67, Tenancy Act, which is reproduced below :- "When a widow succeeds to a right of occupancy, and such right is not held directly from the State as landlord in the Jammu Province, she shall not transfer the right by sale, gift, or mortgage, or by sub-lease for a term exceeding two years."
5. It meant that widows who held occupancy rights before the said proclamation with the Government as their landlord were in a much better position than even male-holders of proprietary rights under the customary law because while the latter had to prove legal necessity for alienations effected by them, the widows holding such occupancy rights had an unfettered right of alienation. Referring to the section and relying upon the same it was ;held in this case: - "It is clear that in the Jammu Province where occupancy rights are held by a widow directly under the State her rights of alienation of such occupancy rights are unrestricted. Therefore, it would be wrong to say that Mst. Azeem Bibi was a limited owner. She held the occupancy rights in the Jammu Province directly under the State. Consequently, she was a full-fledged owner of such rights and when the Ailan of 1990 conferred the proprietary rights on the occupancy tenants without the payment of Nazrana, she became the proprietor in her own right."
6. Therefore, this ruling or those that preceded it in similar circumstances have no application to the present case because here Mst. Baggi held the occupancy tenancy not under the Government but under an evacuee, Shrimati Vidya Vanti.
7. Then there are some rulings of the Lahore High Court under the Colonization of Government Lands Act, 1912 which, are also of no help to the respondents. These rulings can be divided into 3 categories, namely:--
(1) Cases where occupancy rights were acquired by the widows themselves. The original allottees were their husbands who died before the acquisition of occupancy rights. Under this Act occupancy rights could not be acquired before the completion of 5 years from the original allotment. As the husbands died before completing the statutory period, the rights were acquired by their widows. Cases under this category are AIR 1930 Lah. 574, AIR 1931 Lah. 271 (2) and AIR 1936 Lah. 349.
8. (ii)Cases where occupancy rights had been acquired by the husbands but the proprietary rights were acquired by the widows after they succeeded their husbands as occupancy tenants. The cases under this category are AIR 1921 Lah. 315 and AIR 1938 Lah. 554.
9. (iii)Where the widow first acquired occupancy rights and then the proprietary rights. It is covered by AIR 1937 Lah. 78.
10. In all these rulings it was held that where a widow acquired occupancy rights she was to be treated as an original allottee and not as one who had done so in her capacity as a representative of her husband. In case of proprietary rights it was held that whenever a widow purchased proprietary rights she ceased to be governed by the Colonization Act and became consequently a proprietor in her own right or in other words that it became her self-acquired property.
11. The argument of the learned counsel for the respondent was that just as widows acquiring occupancy or proprietary rights or both as categorised above were held not to have done so in their capacity as representatives of their husbands, similarly a widow on whom occupancy rights devolved from her husband under the Tenancy Act, became, after acquiring proprietary rights under the Land Reforms Act, full owner of the property in her own right i. e. the property ceased to be available to Muslim Law heirs of her husband. This argument has no force and must be rejected for the following reasons :-
(1) The Punjab Legislative Assembly amended the Colonization of Government Lands Act in 1944 and inserted section 30-A, subsection (1) of which is reproduced below :- "Notwithstanding any custom and the provisions of any law to the contrary, when after the commencement of the Colonization of Government Lands Act (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 a 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 persons 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."
12. It means that where she had succeeded to occupancy rights and then herself acquired proprietary rights it shall be deemed that the subsequent rights too had been acquired by the last male- holder whom she succeeded. And in cases where even the original allotment was made in the name of the woman and she acquired first occupancy and then proprietary rights, it should be deemed that the male in consideration of whose services this allotment had been made, had acquired such rights. The amendment was no doubt made applicable to cases where such rights were to be acquired subsequent to its enforcement but it must have been due to the Legislature's understandable anxiety not to reopen cases already decided but what is important for purposes of this case is that the Legislature did not accept the judicial view that by acquiring proprietary rights, the land became her self-acquired property and that she became free from all limitations.
13. (2)Under section 6 of the Act of 1912 the Punjab Tenancy Act has been expressly made inapplicable to tenancies held under the former Act. It has also made a departure both from the personal law of the parties as well as from the agricultural custom governing them by providing a special mode of devolution of the tenancy.
14. (3)There is no restriction at all in the Colonization Act on the powers of alienation of a widow holding the property under this Act. This is very important because under section 59 of the Tenancy Act the widow has no right of alienation at all. She cannot even lease out the occupancy for more than a year. In this important respect the Act is at par with the Jammu and Kashmir Tenancy Act and has to be distinguished from the instant case.
15. (4)There are even contrary rulings from Lahore reported as AIR 1932 Lah. 627 and 412. Both are D.
16. B. cases and have been decided by different learned Judges. In the ruling at page 627, land was allotted to one Ganga Singh in the lower Chenab Colony in 1898. He died before acquisition of occupancy rights and the same were, therefore, acquired by his widow. In a suit brought to seek a declaration that the acquisition of occupancy rights by the widow was not as a representative of her husoand but in her own right, the High Court rejected the contention and held that she acquired these rights in her capacity as a representative of her husband. Authorities to the contrary namely 129 P R 1916, A 1 R 1925 Lah. 305, AIR 1930 Lah. 474 and AIR 1931 Lah. 271 (2) which were cited at the bar were not followed.
17. In the second ruling AIR 1931 Lah. 271 (2) was expressly dissented from. In this case also the occupancy rights had been acquired by the widow whose illegitimate children sought a declaration from the Court that they were entitled to succeed to it as it was their mother who held the rights. The suit was dismissed and it was held that succession was governed by section 21 (b) whereunder collaterals of her husband were the heirs entitled to succeed.
18. Apart from the rulings given in cases arising out of this Act, two rulings independent of this Act may also be referred to. They are AIR 1927 Lah. 536 1) and PLD 1964 Lah 421. In the first ruling one Jassa Singh was an occupancy tenant. Ran Singh one of his descendants purchased its proprietary rights. One Maya Singh, an heir of Ran Singh, sold this land to one [slier Singh and others who, it appears, perhaps sued for possession. The defendants' contention was that the property being ancestral, the sale should not affect their reversionery rights after the death of the vendor. The D. B. held that the occupancy rights had merged with the proprietary rights and the property did not therefore remain ancestral. In the next case one Sher Mohammad was an occupancy tenant who acquired proprietary rights on payment of compensation under the Punjab Tenancy Amendment Act of 1952 and sold the same. One Ibrahim claiming to be a collateral of the alienor of the 5th degree brought a suit for declaration that the sale being without consideration and legal necessity would not affect his reversionary rights. Relying upon the first quoted ruling the learned Judge held :- "Thus in fact occupancy rights were extinguished by operation of law and were substituted by proprietary rights but for the acquisition of proprietary rights, the occupancy tenant had to pay compensation. In so far as compensation was paid by which new rights were acquired, the land is self-acquired property of the new owner. In such a case occupancy rights merge in the proprietary rights."
19. There is no doubt that with the purchase of proprietary rights the occupancy rights stand extinguished and get merged in the proprietary rights but all the same I do not think how it can be said that such a process also changes the character of the limited owner so as to make it her self- acquired property. The two Lahore rulings cited above however can also be distinguished from the present case in that the occupancy tenants there were males who had no restrictions at all on their power of alienation under the Tenancy Act viz-a-viz their collaterals. Under the Tenancy Act the only limitation imposed upon occupancy tenants is that he shall not alienate without the permission of the landlord which only means that a landlord in view of his special relationship with the occupancy, had been given the preferential right of purchasing the tenancy rather than allowing it to go into the hands of men, not of his chosing but so far as the collaterals are concerned they come into picture only when the tenant dies and that too when they can prove that the ancestor who was common between them and the deceased had occupied the land. So, therefore, before Ran Singh or Sher Mohammad acquired proprietary rights, they had no limitation on their powers of alienation.
20. Then there are two reported cases where a contrary view has been taken. One of them is PLD 1961 Pesh. 20 and the next one is PLD 1968 Pesh.
94. In the first case, before 1939 a widow succeeding to the occupancy of her husband in the N.-W. F. P. did so along with the usual statutory limitations. In 1939 Muslim Personal Law was applied to occupancy tenancies in the Frontier but the Legislature did not expressly define the position that would now obtain with regard to widow's holding occupancy rights. The question was whether the new section had so improved her status as to have freed her from her earlier disabilities. It was held by Abdul Hamid, J. that It did not. Inamullah, J. held it did. On account of the opinion being thus equally divided, it was referred to a third Judge, Habibullah, J. who agreed with Justice Abdul Hamid.
21. In PLD 1968 Pehs. 94 one Amirullah was an occupancy tenant in Mansehra who died in 1932 and the property was mutated in the name of his widow Mst. Noori under section 59, Tenancy Act.
22. Subsequently Noon acquired proprietary rights in the land and sold it away. A declaratory suit with a claim of preemption in the alternative was brought by the collaterals of her husband. It was held by Attaullah Sajjad, J. :-- "A person inheriting property under custom is bound by the Rules of the custom and cannot be supposed to have full power of disposition over such property.
23. The widow having acquired the property as a limited owner could not arrogate to herself the status of a full-fledged proprietor free from the trammels of the rules of customary law. The right of proprietorship acquired by her was in my view accretion to the limited estate inherited by her and enured for the benefit of all persons who under the law claimed the heritage left by Amirullah. I, therefore, find force in the contention of the learned counsel that the nature of the estate did not change with the acquisition of the rights of proprietorship."
24. When a woman succeeds to an occupancy as a widow she has obviously only a limited interest in the said landed property. In olden times when women had no individuality of their own and were treated like chattel, remarriage of a widow was considered incompatible with the norms of society as it then constituted and therefore such a widow was naturally held entitled to maintenance from the estate of her deceased husband. As society progressed, the entire estate of a man came to be given to the widow in the absence of lineal descendants for purposes of her maintenance and this is how the widows' limited estate came into being. It is true that with the passage of time her right to alienate the said property for legal necessity was also recognised but all the same the estate continued to remain a limited estate over which she had not only a limited and highly restricted power of utilization but which she actually held as a representative of her husband because on her death or remarriage the estate was heritable by all those persons who were entitled to inherit her husband. Section 59 of the Tenancy Act has only given statutory recognition to this custom which prevailed in the agricultural community. Thus the widow, under customary law, had, broadly speaking, no individuality of her own.
25. The question that presents itself for determination therefore is as to whether such a widow who is holding the estate as a limited owner, can, by acquiring proprietary rights, legally or justly stage a complete voile face and repudiate the interests of the collaterals in the said property? It was contended by the learned counsel for the respondent that she could as well destroy these rights of the collaterals by abandoning cultivation of the land and getting the occupancy rights extinguished in favour of the landlord. This argument is actually without force because the moment she abandons cultivation, the collaterals have a right of entry into possession and if they do not do so purposely, they have then to thank themselves rather than the widow. In Rugha v. Mughli the widow abandoned the land and the collaterals did not at once enter into possession of the same probably because they thought that they had no such right during the life time of the widow. When the question came up for determination, it was held that the principle of abandonment embodied in this section could not operate against them as they never entered into actual possession and therefore did not have opportunity of cultivating the land; it was further held that if a widow fails for more than one year without sufficient cause to cultivate the land, she abandons the right of occupancy under this section but the right is not extinguished : it devolves at once on the collaterals entitled to it under section 59 (1) (b) and (c) of this Act.
26. It was next contended that the income that a widow derives from the land she holds under section 59 is entirely here's and if this income is used by her in the purchase of some other property, such subsequent property cannot be treated as having been purchased by her as a representative of her husband so as to be made available to his heirs rather than her own, whether property purchased by a widow from the income she has raised from her husband's property would be treated as her self-acquired property or not has to be distinguished from the present case because here the property she purchased is not independent of that which she holds as a limited1 owner but the same except that the incidents of ownership therein are no longer fettered and the rights enjoyed by the landlord have been terminated. So it is not a question merely of property having been purchased with The personal savings of a widow but actually of setting up an adverse interest against the collaterals. If such proposition were to be accepted it would amount to treating the acquisition of proprietary rights by the widow as a wicked act because according to the proposition it destroys the rights of others and I wonder how in such a case the widow can be allowed to plead such wickedness to her own advantage and to the deteriment of others. There is a Latin maxim : allegans suam turpitu-denem non est audiendus, meaning : that a person who advances his own wickedness as a foundation of a right or a claim shall not be heard in the Court.
27. The Land Reforms Act certainly did not intend to convert by acquisition of proprietary rights, limited estate-holders like a widow under section 59 as full owners of the property to the -exclusion of the whole world. Its only intention and purpose was to free the society from the shackles of feudalism and make the tenant the sole master of the soil that he laboriously tills. Law does not injure any one and in the absence of any express provision to the contrary, it is difficult to presume that it intended to injure the rights of the collaterals.
28. In the Trusts Act under Chapter 9 are detailed certain sections which according to the heading of the chapter deal with "certain obligations in the nature of trust." Section 90 of the .said Act is reproduced below:-- "Where a tenant for life, co-owner, mortgagee, or other qualified owner of any property, by availing himself of his position as such gains an advantage in derogation of the rights of the other persons interested in the property or where any such owner as representing all persons interested in such property gains any advantage, he must hold, for the benefit of all persons so interested, the advantages so gained but subject to repayment by such persons of the due share of the expenses properly incurred and pay indemnity by th same persons against liabilities properly contracted in gaining such advantages."
29. This section carries three illustrations which are as follows :- (a)A, the tenant for life of lease-hold property renews the lease in his own name and for his own benefit. A, holds the renewed lease for the benefit of all those interested in the old lease.
30. (b)A village belongs to a Hindu family. A, one of its members pays nazrana to Government and thereby procures his name to be entered as the inamdar of the village. A holds the village for the benefit of himself and the other members.
31. (c)A, mortgages land to B, who enters into possession. B, allows the Government revenue to fall into arrear with a view to the land being put up for sale and his becoming himself the purchaser of it. The land is accordingly sold to B. Subject to the repayment of the liable due on the mortgage and of his expenses properly incurred as mortgagee, B holds the land for the benefit of A. the even if the widow can be said to have acquired these rights in derogation of the rights of the other persons interested in the property, such advantage, under this section, shall be deemed to have been acquired by her for the benefit of all interested persons 1. e. as a representative of her husband.
32. In AIR 1921 All. 11 a Hindu widow acquired some pro-perty through a pre-emption suit on account of being a co-sharer which itselt was founded on the property inherited by her from her husband. The pre-emption money was raised by her independent of her husband's estate nor did the acquisition of this new property have any adverse affect on the property inherited by her from her husband. In a suit by reversioners the Court held that the case was not governed by section 90 of the Trusts Act.
33. The Court gave the following two reasons for the same:--
(1) That a widow under Hindu Law is not a 'tenant for life' but an owner of the property except that she has limitations on her power of disposition.
(ii) That the reversioners are not 'persons interested in the property' because they have no vested right in such property during her lifetime.
34. So far as the first point is concerned, a reference to the section itself would show that the title given to it by the Legislature is as follows : "Advantage gained by qualified owners." In the section also such person besides being described as a `tenant for life' has also been described as a 'qualified owner'. According to the ruling itself a Hindu widow was a qualified owner though not a 'tenant for life' but as the section itself shows, the section expressly mentions 'a qualified owner' and a widow's estate in the light of the definition given in the ruling is, in my humble opinion, clearly covered by the term 'qualified owners'.. As regards the second point, in my humble view the word `interested' has received a very strict interpretation from the learned Judges who decided the case. It seems to me that the word carries a much wider meaning than that of a vested right. After all why to give the word 'interested' an artistic or highly technical meaning? It must receive a meaning that it carries in ordinary parlance. To say for instance that the sister of the last male-holder of occupancy rights in the instant case, whose succession to one-balf of the estate was guaranteed by the application of the Muslim Personal Law to the tenancy since December 1952, long before the enforcement of the Land Reforms Act, was not a 'person interested in the property', is something that appears to me as being odd.
35. There is a case from Oudh reported as AIR 1926 Oudh 277. In this case the estate in question was granted by the Maharaja of Ajudhia to one H ilbal Singh in consideration of the death of his father.
36. His widow Mst. Baijnath Kuer succeeded him. The State sued for resumption of the land but as such grants had been treated as being heritable, a compromise was arrived at between the parties who also included two other persons on the allegation that their father had been adopted by Halbal Singh, as a result of which a decree was passed by the Court declaring the title of the widow and of these two persons to hold the land as under proprietors on a stated rent. Sometime later the decree-holders executed a usufructuary mortgage of the property in favour of a real b-other of the widow. Sometime later a dispute arose and the Court was called upon to decide as to whether the widow and the two defendants had acquired a new and independent title to the property through the decree of the Court or whether it was an accretion to the original estate of Halbal Singh. Both the learned Judges held that it was an accretion to the widow's estate. Ashworth, J. held :- "It was only by reason of her title to the property as Hindu widow that she obtained the fuller estate of an under-proprietor under the compromise decree of the 28th August 1913. This fuller title was clearly an accretion to her estate as widow and cannot be regarded as her stridhan. We may note that even if it were her stridhan, the plaintiffs might have claimed that it devolved on her hushand's heirs, but they have not claimed on this ground. It is established by law that accretions made by a Hindu widow to her husband's estate partake of the nature of that estate. It is of little moment whether this rule of law is one of Hindu Law; see para. 267 of Gour's Hindu Code, 2nd Edition: or is based on section 90 of the Indian Trusts Act. The rule has been ascribed to the doctrine of grant as enunciated in the leading English case of Keech v. Sandfor and in the case of Kashi Prasad v. Inda Kunwar. I hold, therefore, that the lower Courts were wrong in their decision of this question which must be answered in the negative."
37. Misra, J. also held as follows:-- "If, therefore, Mst. Baijnath Kuer succeeded to the grant by right of inheritance. and if by virtue of her being in possession of that grant as a Hindu widow she acquired by compromise with the Ajudhia estate complete under-proprietary rights, those rights must be deemed to have been acquired by her for the benefit of the reversioners of her husband.
38. This is founded on the principle enunciated in the English cases, Keech v. Sandord ana Yem v.
39. Edwards. A; art from the decision of the Allahabad High Court reported as Kashi Prasad v. Inda Kunwar quoted in the judgment of my learned brother, there are a number of decisions of the Madras High Court on this point in which the same view of law has been taken. I would only mention a few of them: Narasinmha Charlu v. Srinivasa Charlu Gunnaiyan v. Kamakchi Ayyar, Vangala Dikshatulu v. Vangala Gavaramma and Subbaraya Chetty v. Aiyaswami Aiyar."
40. Under these circumstances I set aside the judgment and decre passed by the Reference Court and holding that Mst. Baggi had acquired the proprietary rights of the land in question as a representative of her husband, the same shall be conuinued to be treated as a limited estate so far as Mst. Baggi is concerned. She, of course, or her personal heirs as the case may be shall be entitled to a refund of the amount spent by her in connection with the acquisition of these rights proportionate to the share of collaterals The compensation that she has paid for the acquisition of these rights comes to Rs, 897 only. The case is, therefore, remanded back to the learned District Judge for proceeding further in the light of this decision.
41. MUHAMMAD SHARIF, C. J.-1 agree. 2 P R 1914 (Rev.)-25 I C 854