MUHAMMAD AFZAL CHEEMA, J.--The facts giving rise to this R. S. A. are that one Sardara was Occupancy Tenant of the suit land situate in village Haranpur, Tehsil Pind Dadan Khan of Jhelum District. On his death his widow, Mst. Bhagan respondent, succeeded to the tenancy as a life estate holder. On the enforcement of the Punjab Act VII of 1952 whereby new section 114 relating to the extinction of occupancy tenancies was enacted Mst. Bhagan acquired proprietary rights in accordance with the provision contained therein. Subsequently, however, on the 5th of December 1916, she sold the suit land by means of a registered sale-deed in favour of Fateh Muhammad, who already held most of it as mortgagee. The sale was successfully pre-empted by Feroze Khan defendant-respondent, who obtained a decree for possession. Muhammad Hussain minor, a daughter's son of Sardara, and Mst. Bhagan challenged the sale by bringing a usual declaratory suit under custom, the principal ground being that in view of the customary restrictions on her power of alienation Mst. Bhagan was not competent to dispose of the land, notwithstanding the acquisition of proprietary rights by her under section 114 of the Tenancy Act. Although Mst. Bhagan, the vendor, and Fateh Muhammad, the original vendee, were also impleaded as defendants Nos, 1 and 2 respectively, the suit was contested by Feroze Khan defendant No, 3 alone who had pre- empted the sale. He maintained that Mst. Bhagan, after the acquisition of proprietary rights by her, had become the absolute owner of the suit land and, as such, had unrestricted powers of alienation. Exception was also taken to the plaintiff's locus standi to challenge the alienation on the grounds, firstly, that he was not an heir of Sardara deceased and, secondly, that the latter was not governed by custom. It was asserted that the sale was for valid consideration and legal necessity.
It was alleged that the suit was collusive. The parties went to trial on the following issues :-
(1) Whether Sardara deceased followed agricultural custom ? O. P. P.
(2)Whether defendant No, 1 (Mst. Bhagan) got the suit land under custom as a limited owner ? O.
P. P.
(3)Whether defendant No, 1 (Mst. Bhagan) acquired the proprietary rights in the land and is she governed by custom ? O. P. P.
(4)Whether the plaintiff is the daughter's son of defendant No, 1 and has locus standi to bring this suit ? O. P. P.
(5)Whether the sale in dispute has been effected for legal necessity and is binding on the plaintiff ? O. P. P.
(6)Whether the plaintiff's suit is collusive and what is its effect ? O. P. D.
2. The first issue was decided in favour of the plaintiff on the basis of an admission made by Feroze Din, the contesting defendant, and Muhammad Bakbstsh D. W. 4, who frankly admitted that Mughal Phaphras, the caste to which the parties belonged, were governed by custom. As an inevitable consequence of this, issue No, 2 was also decided in favour of the plaintiff. Since the fact of the acquisition of proprietary rights by Mst. Bhagan had been admitted in the plaint, as also shown by a recital in the sale-deed Exh. D. 1, the first part of the issue was, therefore, proved as uncontested.
The second part of the issue purporting to relate to Mst. Bhagan's governance by custom, in effect, pertained to the determination of her rights of alienation and their subjection or otherwise to customary restrictions imposed in that regard. On the analogy of acquisition of proprietary rights by a widow under section 30 of the Colonization of Government Lands Act, before the insertion of section 30-A by the amending Act of 1944, whereby the learned trial Judge held that a widow on acquisition of proprietary rights under section 114 of the Punjab Tenancy Act as amended became absolute owner of the land with unrestricted powers of alienation. It was observed that since there was no provision in the Tenancy Act corresponding to the one contained in section 30-A of the Colonization of Government Lands Act as amended whereby the widow was made subject to all those restrictions on her powers of alienation, which were applicable to a life estate holder under custom, the suit land was treated as the self-acquired property of Mst. Bhagan and even though governed by Custom she was found to have unrestricted powers of its disposal and accordingly this issue was found against the plaintiff. Muhammad Hussain plaintiff, being admittedly the son of Mst. Sajjadan, a daughter of Sardara deceased from Mst. Bhagan, who was alive at the time of her father's death, was found to have a locus staidi to impeach the alienation made by his maternal grand-mother and as such issue No, 4 was decided in his favour. Since before the impugned sale the entire suit land, except one Khasra No, 3364, measuring three kanals and 6 marlas, had already been mortgaged with Fateh Muhammad vendee, the sale was held to be for legal necessity, Mst.
Bhagan having no other sources of income. This issue was, accordingly, decided in favour of the defendant. Issue No, 6, regarding the collusive nature of the suit, was found against the defendant.
The findings given on the important issues Nos, 3 and 5, which had a determining effect, led to the dismissal of the suit with costs by recovery from the next friend of the minor-plaintiff.
3. In appeal before the District Judge, the finding given on issue No, 5, relating to legal necessity, was not questioned, but the validity of the sale was independently challenged on the basis of the provisions contained under section 59(3) of the Punjab Tenancy Act. The argument did not, however, find favour with the learned District Judge. Likewise the finding given by the trial Court on issue No, 3 was upheld on the analogy of acquisition of proprietary rights under section 30 of the Punjab Acquisition of Government Lands Act. It was observed that occupancy rights having been extinguished, the subsequent acquisition of proprietary rights by Mst. Bhagan made her absolute owner thereof free from all customary shackles restricting her powers of alienation. Having failed in appeal, the plaintiff preferred the present Regular Second Appeal.
4. Before us, learned counsel for the appellant was at pains in contending, firstly, that Mst. Bhagan was a limited owner in so far as her occupancy rights in the suit land were concerned which she had inherited on the death of her husband, and that this characteristic of restricted ownership being her personal disability not running with the land which on her death was to revert to the heirs, the last male-holder, namely, her husband, she could not alienate the property as the estate interposed for a limited purpose between her husband and the next heir. Reliance was placed in this regard on Bashir Ahmad and .five others v. Muhammad and 8 others. Secondly, that the rights of a widow under custom were very much akin to a widow under Hindu Law. An analogy could be aptly drawn between them and, as such, the authorities under Hindu Law would be equally applicable to and justifiably invoked in this case. Reliance was placed in this regard on Bashir Ahmad and 5 others v. Muhammad and 8 others ; Imam Din v. Khamandi and others ; Labh Singh v. Hassu and others ; and Sher Muhammad and others v. Phula and others. Thirdly, that the acquisition of proprietary rights by Mst. Bhagan could be treated no better than a mere accretion to the estate of which she was not the full owner and, accordingly, the accretion will also carry with it the characteristic disability of a limited estate. Reliance was placed in this regard on Lajwanti and others v. Safa Chand and others. Fourthly, that the acquisition of proprietary rights by Mst. Bhagan under section 114 of the Tenancy Act, in effect, amounted to an exchange which, notwith-standing the improvement of the status of the occupancy tenant, still retained its ancestral character.
Reliance was placed on Miskin and another v. Mst. Hassan and others.
5. On the contrary, it was contended on behalf of the respondents that section 114, which came into force w. e. f. the 29th of January 1952, completely extinguished occupancy rights with object it had been enacted and as such the analogy of an accretion in regard to the creation of proprietary rights by operation of law would not hold good. It was argued that the question of acquisition of proprietary rights became relevant after the occupancy rights had been extinguished in the first instance, and once extinction had taken place, there would be nothing for the reversioners to challenge. It was contended that it was just a coincidence that the Law Giver in his wisdom after having extinguished the tenancy rights in the first instance thought fit to make an offer for the conferment of proprietary rights which the tenant may or may not elect to avail of, and as such the claim of the appellant would, in effect, amount to saying, firstly, that create tenancy rights for me and them grant me a decree contrary to the statutory prohibition. It was asserted that even in a case of self-acquired property and accretion could not be challenged. Reliance was placed in this regard on Narain Singh and others v. Mst. Sada Kaur and others ; Jagat Singh and others v. Mt. Raj Devi and others and Nikka v. Mst. Gurdai and others. It was next contended that although the acquisition of proprietary rights as envisaged by section 114 of the Tenancy Act was not analogous to a case of merger which stood on much a lower footing yet even in the latter event, the tenancy having lost its independent existence, the alienation could not be challenged by the reversionary.
Reliance was placed on Thakur Madho Singh and another v. Lt. James R. R. Skinner and another. It was next argued that proprietary rights having been acquired by the widow, the land would not be ancestral qua the reversioners and, therefore, the appellant would have no locus standi, not being the male lineal descendant of the last occupancy holder, and as such not an heir under section 59 of the Tenancy Act. It was argued that the appellant must prove that the common ancestor held the land till the time of his death. Reliance was placed on Mt. Toll and another v. Malku and Faiz All and 10 others v. Ahmad Din and 8 others. Lastly, it was argued that even if it were assumed that Mst. Bhagan had restricted rights of alienation, the sale having been concurrently found to be one for consideration and for legal necessity, was permissible even under custom and as such could not be challenged. Reliance was placed on Faiz Bakhsh and others v. Ditta and others.
6. Although as would be apparent from the foregoing discussion, learned counsel for the parties referred us to copious citations and case-law in support of their respective contentions, yet we do not consider it necessary to examine each and every point raised before us, as the matter can1 2 3 4 5 6 7 8 9 10 11 12 13 otherwise be disposed of on a short ground. It is not clear under what particular clause of section 114 acquisition of proprietary rights had taken place in the instant case, yet the factum of such acquisition has not been disputed. The fate of the case hinges on the interpretation of section 114 wherein the word "extinction" has been used in respect of the occupancy tenancies. Section 114 reads as follows :- "S. 114. Extinction of occupancy tenancies.--(1) Notwithstanding anything contained in any law for the time being in force, including this Act, no person shall, after the coming into force of the Punjab Tenancy (Amendment) Act, 1952, acquire or have occupancy rights in any land under any enactment or contract or any decree or order of any Court or other authority, and the existing occupancy rights in respect of all lands other than lands owned by Government or by any person who under the law for the time being in force is an evacuee, shall on coming into force of the aforesaid Act, be extinguished, and the land comprised in a tenancy so extinguished shall vest as hereinafter provided.
(2) An occupancy tenant, who at the time of the coming into force of the aforesaid Amendment Act occupies any land as such shall become owner as under :- (a)of the entire land comprised in his tenancy without payment of any compensation where he pays no rent there-for beyond the amount of the land revenue, and rates and cesses for the time being chargeable therefor ; (b)of such portion of the land comprised in his tenancy without payment of any compensation as corresponds to his share of the produce ; (c)of the entire land comprised in his tenancy without payment of any compensation to the landlord in cash at such rates and within such periods as may he prescribed by the Government by rules framed for the purpose, where he pays rent only in cash ; (d)of the whole or a portion of the land comprised in his tenancy on payment of such compensation in such form and within such time to the landlord as may be determined by Government by rules framed under this Act, where he pays rent partly in cash and partly in the form of a share of the produce.
(3) So long as Government does not frame rules for purposes of clauses (c) and (d) of subsection (2), an occupancy tenancy falling under any of those clauses shall, notwithstanding the provision made in subsection (1); continue to subsist, and the landlord and the occupancy tenant shall continue to enjoy the same rights, and be subject to the same liabilities, as before.
(4) In a case falling under clause (b) of subsection (2) the landlord shall, without payment of any compensation entitled to the possession of the rest of the land comprised in the tenancy.
(5)An occupancy tenant acquiring land in accordance with the provisions of subsection (2) shall acquire it free from all encumbrance created in respect of that land by the landlord and if any encumbrance be created by the tenant, the share of the land received by the landlord shall be free from it and notwithstanding any provision of any law for the time being in force to the contrary each such encumbrance shall become the exclusive liability of the landlord or the occupancy tenant, as the ease may be.
(6)Where compensation is to be paid by a tenant in cash under clause (c) of subsection (2)
Government may, with a view to enabling an occupancy tenant to acquire land is accordance with the provisions of this section, advance a loan which shall be recoverable as arrears of land revenue with interest at such rates and in such instalments as the Government may fix generally or in particular cases.
(7)Government shall frame rules to give effect to the provisions of this section, and while framing rules it may classify lands into different categories and prescribe different principles for assessm ent of compensation."
The expression extinction has not been used for the first time in this new provision but also occurs in sections 38, 53(6) and 59(5) of the Act. Under section 38, abandonment of the tenancy will take place if the tenant (i) fails to cultivate it without sufficient cause for more than one year personally or though some other person (ii) or fails to arrange for the payment of rent. The incidence of abandonment implies the absence of animus revertendi resulting in the extinction of the rights of occupancy as would be clear from the phraseology employed therein. Section 38 reads as follows : -- "S. 38.--(1) If a tenant having a right of occupancy fails for more than one year without sufficient cause to cultivate his tenancy, either by himself or through some other person, and to arrange for payment of the rent thereof as it falls due, the right of occupancy shall be extinguished from the end of that year."
Section 53 deals with the private transfer of the right of occupancy by the tenant under section 5 of the Act. Under subsection (6), on payment of the value by the landlord the right of occupancy becomes extinct. Relevant provision reads as follows :- "S. 53(6).--On the value being so paid, the right of occupancy shall be extinct, and the Revenue Officer shall, on the application of the landlord, put the landlord in possession of the tenancy."
Section 59 deals with the succession of the right of occupancy. According to subsection (5) of section 59, as amended by the Punjab Tenancy (Amendment) Act, 1951, it' a deceased tenant has left no person on whom his right of occupancy may devolve under subsection (1) or subsection (2), as the case may be, the right shall be extinguished. It may be mentioned in this context that this amendment does not appear to have been noticed by the learned District Judge as while dealing with the contention relating to the restrictions on the widow's powers of transfer of the right of occupancy he referred to the unamended section 59(3) in the penultimate paragraph of his judgment, which has been replaced by a different provision. This latter provision was examined by the late M. R. Kayani, C. J. and B. Z. Kaikaus, J., (as they then were), in Abdul Aziz and another v.
Muhammad Khan and others and their Lordships pointed out the Lacuna in the provision. It was observed as follows :- "Section 59 was applicable whether the parties were governed by customary law or by personal law and a special estate would devolve upon the widow under that section. The proviso to subsection (1) cannot, therefore, apply to any case with the result that when a widow holding an estate under an amended section 59 died there would be no provision which is in terms applicable and there would be a lacuna."
We are in respectful agreement with the above observation of their Lordships.
7. According to the Oxford English Dictionary "extinction and extinguishment" mean putting an end to, making void a legal right or claim, cancellation of the claim of the creditor, abolition, wiping out, annihilation, effacement, blotting out of existence. According to Iyre's Law Lexicon "extinction or extinguishment" has been defined as follows :- "Wherever a right, title or interest is destroyed or taken away by the act of God, operation of law or act of the party, it is called extinguishment."
According to Stout's Judicial Dictionary "extinct" means to destroy or put out and has been distinguished from merger as "denoting the annihilation of a collateral subject, right or interest in the estate out of which it is derived" whereas "merger" has been defined by the Stout as follows :- "Whenever a great estate and a less coincide and meet in one and the same person, without any intermediate estate, the less is immediately annihilated ; or in the law phrase, is said to be merged, that is, sunk or drowned in the greater."
From the above, it is clear that with their extinction, the tenancy rights are completely wiped out and whatever transpires subsequently by way of acquisition of proprietary rights cannot have the effect of raising from the grave the dead rights of occupancy. "Extinction" would, therefore, put an end to the tenancy rights once for all and as such all authorities based on the analogy of accretion14 to a widow's estate carrying with them the inherent disability of restrictions on alienation would be wholly irrelevant in this case which would be worse than that of flogging a dead horse as even the carcass has disappeared.
8. As would be clear from the distinction sought to be drawn out by Stout between "extinction" and the English doctrine of "merger", the former, stands on a higher footing. But even if on extinguishment by acquisition of proprietary rights, occupancy rights, are deemed to have been merged the estate would be equally immune from customary restrictions of alienation being the self-acquired property of the widow. Thakur Madho Singh and another v. Lt. James R. R. Skinner and another cited on behalf of the respondent deals with the purchase of occupancy rights by the landlord under section 53(6) resulting in extinction by merger and as such would not be directly in point. In Didaru and others v. Banna and others, another Full Bench authority, the view taken was that on purchase of occupancy rights by the landlord the reversioners of the occupancy tenant could not challenge the sale by a customary suit for declaration. In Lal and others v. Gauhar and others, a case of acquisition of proprietary rights by the occupancy tenants, it was held by their Lordships that the occupancy rights had merged in the proprietary rights and as such had absolutely determined with the result that it could not be said that any portion of the proprietary rights was ancestral qua the plaintiffs. This was a case of acquisition of proprietary rights by an occupancy tenant under the Government.
9. Having carefully considered the position, we are clearly of the view that the analogy between the acquisition of proprietary rights by a widow under section 30 of the Colonization of Government Lands Act and under section 114 of the Tenancy Act, as drawn by the Courts below, would be aptly applicable to the case before us. All authorities based on the interpretation of section 30 before the new section 30-A was added to the Colonization of Government Lands Act by the Amending Act of 1951, would be directly in point, there being no provision in the Tenancy Act corresponding to section 30-A of the Colonization of Government Lands Act. It has been consistently held in a chain of authorities that the acquisition of proprietary rights by a widow in a Government tenancy would make it her self acquired property which would be immune from the customary restrictions. In Hurji v. Chanan Mal and another a lessee of Government Land died without fulfilling the conditions." on his death, proprietary title was conferred by Government on his sons. It was held that the property was not ancestral in the hands of the sons. In Bisak ha Singh and others v. Ishar Singh and another it was ruled that a widow who inherited rights from her husband and subsequently acquired proprietary rights in the land it became her self-acquired property which she had the Full power to dispose of. In Mst. Budhan v. Karman and others a grantee of Government land died before acquiring proprietary rights whereupon mutation was effected in the names of his three sons and the widow of his fourth son who had pre-deceased him in equal shares. Subsequently, proprietary rights in the tenancy were conferred on the deceased and his heirs were entered as full owners in the revenue record. A dispute arose as to the nature of the widow's rights in her share of the property. It was held that she was the absolute owner of the same having full right to devise her share as she liked. The latest authority of our own Supreme Court Mushtaq Ahmad and others v.
Hakam Bibi and others may be mentioned as the last in the series. It was held by their Lordships that even if when the proprietary rights are acquired by a widow under the Punjab Colonization of Government Lands Act out of the income of the land which she inherited from her husband, she became full-fledged owner, as the occupancy rights merged into rights of ownership.
10. Since, however, before the learned District Judge the question of legal necessity was given up by the appellant, who pressed his claim solely on the basis of the statutory provision contained in section 59(3), which was no longer in the field at the relevant time as a result of its replacement by Act IV of 1951, there could be no restriction on Mst. Bhagan's power of alienation. Secondly on the analogy of acquisition of proprietary rights by a widow under the Colonization of Government15 16 17 18 19 20 Lands Act before the insertion of section 30-A therein, the widow on the principle of merger could be deemed to be the absolute owner of the property having unrestricted power of transfer.
Precisely the same question which has arisen before us was examined by a Division Bench in Ibrahim v. Muhammad Bashir and others. It was observed therein as follows :- "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, the occupancy rights merge in the proprietary rights."
The facts of the case before their Lordships were that one Sher Muhammad, an occupancy tenant, acquired proprietary rights in the tenancy under section 114 (2) (c) of the Punjab Tenancy Act as amended by Act VII of 1952. He then sold the land to Muhammad Bashir and Muhammad Nazir by means of an oral transaction, Ibrahim plaintiff claiming to be a collateral of the alienor within fifth degree brought a suit for declaration to the effect that the sale being without consideration and legal necessity would not effect his reversionary right after the death of the alienor who was governed by custom, the land being ancestral qua the plaintiff. The plaintiff's suit was decreed with costs. On his appeal, the learned District Judge relying on Sangat Singh and another v. Ishar Singh and others came to the conclusion that the occupancy rights held by the alienor had merged in the proprietary rights acquired by him and as such the land could not be treated as ancestral having become the self-acquired property of alienor of which the collaterals had no right to challenge the alienation. As a result of the above finding, the suit was dismissed giving rise to the second appeal before the Division Bench. Arguments similar to those as urged before us were advanced before their Lordships. On behalf of the appellant, it was contended that since the proprietary rights were based on and flowed from occupancy rights, the land must be deemed to be ancestral. On the contrary, it was urged on behalf of the respondents that the occupancy rights which formed the basis of the plaintiff's claim having been extinguished by operation of law it was a case of acquisition of new rights by the alienor and as such the land in his hands was his self- acquired property. Having considered the language of the provision contained in section 114 their Lordships construed it as follows :- "The effect of this provision is to extinguish occupancy rights and to vest in the tenant proprietary rights in the land on payment of compensation to the landlord. The land vested in defendant No, 3 in accordance with the provisions of subsection (2) (c) of section 114 of the Punjab Alienation of Land Act. Thus, in effect, 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, the occupancy rights merge in the proprietary rights."
On behalf of the respondents an argument was also addressed before their Lordships on the analogy of acquisition of proprietary rights by a widow under section 30 of the Punjab Colonization of Government Lands Act and Ghulam Muhammad and another v. Allah Bakhsh and another ; Faiz Ali and another v. Mst. Rafia Jan and others and Jagat Singh and others v. Mt. Raj Devi and others were cited in support thereof. The argument found favour with their Lordships who upheld the contention. The above authority with which we are in respectful agreement completely shuts the door on the appellant and goes the whole hog in favour of the respondent. It appears that notwithstanding his research carried out by the learned counsel for the parties, this authority which alone is directly applicable to the facts before us, appears to have escaped the notice of both of them.
11. As against this, learned counsel for the appellant referred us to Miskin and another v. Mst. Hassan and others a judgment by our learned brother Ata Ullah Sajjad, J. In the case before his Lordship, a widow holding tenancy rights under the Punjab Tenancy (N.-W. F. P. Amendment) Act 1939 subsequently acquired proprietary rights under section 4(a) of the N.-W. F. P. Tenancy Act XXV of21 22 23 24 1950. Such an acquisition was deemed to be merely an accretion to her limited estate enuring for the benefit of the reversioners of the last male-holder. Having considered the language of section 4
(a) of the N.-W. F. P. Tenancy Act XXV of 1950, under which the acquisition of proprietary rights had taken place, we find nothing common in it with the provisions contained in section 114 of the Punjab Tenancy Act wherein, significantly enough, in contradistinction to the former, the expression "extinction" has been used which makes all the difference. It reads as follows :- "S. 4(a).--Any-occupancy tenant who at the commencement of this Act--
(a) occupies any land as such paying no rent thereof beyond the amount of the land revenue thereof and the rates and cesses for the time being chargeable thereon, shall become full owner of such land without payment of any compensation."
The difference in the language of the two provisions will clearly bring out the difference in the objects envisaged by the respective law-givers and the consequential implication thereof. This authority is, therefore, of no avail to the appellant.
12. The upshot of the discussion, therefore, is that the appeal fails and is hereby dismissed. The parties shall bear their own costs. PLD 1956 Lah. 934 AIR 1927 Lah. 366 AIR 1940 Lah. 364 (1899) 9 P R 41 at p. 51 5 Lah. 192 (P C) PLD 1968 Pesh. 94 AIR 1925 Lah. 305 AIR 1938 Lah. 554 9 I C 292 AIR 1941 Lah. 433 AIR 1921 Lah. 27 PLD 1953 Lah. 126 115 P R 1901 PLD 1960 Lah. 427 31 P R 1896 AIR 1918 Lah. 103 AIR 1921 Lab. 63 AIR 1921 Lah. 315 AIR 1931 Lab. 417 PLD 1969 SC 338 PLD 1964 Lah. 421 AIR 1927 Lah. 536(1) AIR 1937 Lab. 78 PLD 1959 Lab. 94 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.