' SHAFIUR RAHMAN, J.--Leave to appeal was granted to the plaintiff/appellant, to examine the following questions of law and fact, arising in the case:- "(a) what is the date of death of Nizam Din?;
(b) what is the date and effect of the extension of the Colonization of Government Lands (Punjab)
Act (No, V of 1912) to Bahawalpur State?--Whether and when section 19-A of the said Act would be deemed to have been made applicable to the tenancy in dispute?; (c)' What is the effect of the enforcement of and application of the Shariat Law by Notification No,20-LD dated 4th of March, 1951 Gazetted on 5th of March, 1951 and whether any difference in this behalf was made by a subsequent Notification No,40-LD of exemption issued on 26th of May, 1951?; and
(d) other related questions."
2. Nizam Din had purchased the disputed land from the Government of Bahawalpur and had yet to pay its instalments in order to acquire 'proprietary rights when he died. He left behind a widow, two daughters and a son. The mutation of his inheritance was attested on 7-11-1954 under the Colonization of Government Lands Act (hereinafter referred to as the Act) and only Allah Ditta, the respondent No,1 was shown to have inherited the tenancy. On 25-10-1968, Imam Bibi appellant, one of the sisters of Allah Ditta, filed the suit claiming that Nizam Din had died in 1952 leaving behind a widow, two daughters and a son. According to her, the question of inheritance of Nizam Din had to be decided under section 19-A of the,Act. The plaintiff-appellant, according to the averment in the plaint, had been jointly in possession of property with Allah Ditta, but on his refusal to recognize her interest, she had to institute a suit. Other heirs were impleaded because even her sister and widow of deceased were denying her title and interest in the property. She attacked the mutation attested on 7-11-1954. The suit was contested jointly by the three respondents and they objected to the suit on numerous grounds which are incorporated in the issues framed by the trial Court as under:- ( 1) Whether the suit is maintainable in the present form? OP.
(2) Whether the plaint has been correctly valued for purposes of court-fees and jurisdiction? OP.
(3) Whether at the time of death of Nizam Din, Shariat Act was applicble to his inheritance? OP.
(4) Whether the suit is within time? OP.
(5) Whether this Court has no jurisdiction to try this suit?
(6) Whether the defendants are entitled to special costs and of what value? OPD.
(7) Relief."
3. The trial Court after recording evidence held that the suit was maintainable in the form in which it was filed, that it was correctly valued and that no case for special costs was made out. On merits, the trial Court held that the death of Nizam Din had taken place on 28-2-1951, but section 19-A of the Act which was introduced in Punjab by Act No,Ill of 1951,- had not been extended to Bahawalpur, till then and was not available for ascertaining the heirs of Nizam Din. Instead sections 20 to 23 of the Act which had been made applicable to Bahawalpur, were to govern the inheritance of Nizam Din. On these findings, the Court held that the suit was not within time, the Civil Court had no jurisdiction and the entitlement of the plaintiff had not been made out. The suit was dismissed with costs.
4. On appeal, the Additional District Judge fixed the date of death of Nizam Din, as made out from the evidence as 28-3-1951 and proceeded to hold that the Shariat Act which had been enforced in Bahawalpur on 5-3-1951 had its application and neither the Colonization of Government Lands Act nor any other law in derogation of Shariat Law could govern the inheritance of Nizam Din. The plaintiff-appellant was found to be an heir under Islamic Law. Reversing the finding on merits, the appellate Court held that the suit was within time and the Civil Court had the jurisdiction. The judgment of the trial Court was set aside and the suit was decreed.
5. On second appeal the High Court affirmed the finding as to the date of death of Nizam Din as recorded by trial Court that is 28-2-1951. By recourse to the provisions of the Government Grants Act and the introduction of section 19-A in the Punjab Colonization of Government Lands Act alone and not in the Act which was enforced by reference in Bahawalpur State, the COurt concluded that the special law on the subject of Government Tenancy and Grants, was-applicable to the exclusion of the Shariat Act in Bahawalpur enforced on 4th of March, 1951. On these findings, the judgment and decree of the trial Court was restored.
6. Mr. Sajjad Hussain, Advocate the learned counsel for the plaintiff-appellknt has urged before us that according to the oral evidence led at the trial the date of death of Nizam Din was made out to be after 4th of March, 1951 when the Shariat Law was enforced in Bahawalpur State in the matter of succession etc. It was also contended that the Shariat Law governed cases of inheritance of Muhammadans to the exclusion of any other law. The notification of the Bahawalpur Government dated 26th May, 1951, was of no avail being subordinate legislation to control, explain or reverse what was contained- in Shariat Law earlier made applicable. The plaintiff-appellant, according to the learned counsel was admittedly an heir of deceased Nizam Din and entitled to 7/32 share as was claimed in plaint and there has been an error of law in determining her claim and denying her the due share.
7. The learned counsel for the contesting defendant/respondent on the other hand contended that the generality of the Shariat Law could not in any manner control or modify the Special provisions of the Colonization of Government Lands Act. It was for this reason that in the Punjab for giving effect to the Shariat Law, section 19-A had to be added. As this was not done in the law as applicable to Bahawalpur, the benefit of section 19-A in terms could not be obtained by the plaintiff-appellant.
8. The trial Court, and the High Court have corrected an apparent clerical mistake in Ex.D.1 copy of death register by reading the date of death as 28-2-1951 instead of 28-2-1958 as recorded. This was done because the register itself was of the period 1950 to 1953 and further because the death had been reported to the Police and recorded in the Register on 28-3-1951. This record of death being contemporaneous and officially maintained will have greater probative A value than the oral evidence which is neither consistent nor exact. The date of death of Nizam Din therefore, has been correctly taken by the two Courts as 28-2-1951.
9. The case originally set out by the plaintiff-appellant was that section 19-A of the Act introduced in the Punjab by Act III of 1951 on 20-1-1951 was available in Bahawalpur for determining the question of inheritance of Nizam Din.
10. We find from the record of Civil Appeal No,73 of 1965 titled Sher Muhammad and others v. Abdul Khaliq and others (1968 SCM R 320) that the Act was extended to Bahawalpur on the 2nd of May, 1926 with a number of amendments. Instead of Punjab, 'Bahawalpur' Bwas to be read. Instead of 'Local Government', 'Bahawalpur Government', was to be read. For the word 'Government'
Bahawalpur' was to be substituted. The exceptions to these general adaptations were that wherever 'Punjab Land Revenue Act, and 'Punjab Tenancy Act' was mentioned then no such modification was required to be made. Sections 13-, 14, 27 and 31 of the Act were made inapplicable to 'Bahawalpur' so also all references to Punjab Tenancy Act, 1893 and the whole of Schedule No,1. Reference to Financial Commissioner and Commissioner in the Crown Grants Act, 1895 was to be read as 'Revenue Minister'. Such incorporation, adaptation and application of the Act in Bahawalpur did not permit the subsequent amendments made in the Act in the nature of ,section 19-A to be made automatically applicable to Bahawalpur Region. Special legislation extending the amendments had to be made which was not forthcoming when Nizam Din died, be it before the Shariat Act or after. Section 19-A, therefore, was not available at all for governing the inheritance of Nizam Din. The effect of such an incorporation and the position enjoyed by subsequent amendments in the incorporated Act finds mention in the decision given in The State of Madhya Pradesh v. M.V. Narasimhan (AIR 1975 SC 1835 at page 1841) which affords some guidance in the following words:- "Where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases:
(a) where the subsequent Act and the previous Act are supplemental to each other;
(b) where the two Acts are in pari materia; (c where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and
(d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act.
' Unless, therefore, section 19-A as introduced by Punjab Act No,III of 1951 was expressly extended to Bahawalpur on the wordings of the Adaptation Law of 1926, by which the Act with certain modifications was applied to Bahawalpur or otherwise, it could not have the effect of incorporating the subsequent amendments as well.
11. After the plaint had been filed and the issues framed, the plaintiff did not so much place reliance on section 19-A of the Act as on the Bahawalpur Shariat Act which repealed section 5 of the Punjab Laws Act, 1872 and made the Mohammadan Law of Succession applicable to all cases of inheritance of Muhammadans. It was published in the Gazette on 5th of March, 1951 but had received assent on 4th of March, 1951. By all standards this was a general statute as compared to the Act which dealt with Government Grants and tenancies thereof. The question as to what extent a general law affects a special statute was considered extensively in a recent judgment of this Court in Inspector-General of Police, Punjab, Lahore and others v. Mushtaq Ahmad Warraich and others PLD 1985 SC 159 at 173, in the following words:- "The principle of interpretation stems from the legal maxim generalia specialibus non derogant.
Maxwell in his book on the interpretation of Statutes, Eleventh Edition, at page 168, says: "It is but a particular application of the general presumption against an intention to alter the law beyond the immediate scope of the statute (Supra, p.78) to say that the general Act is to be construed as not repealing a particular one, that is, one directed towards a special object or a special class of objects. A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words, 'where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so'. In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act."
' Similarly Crawford in his treatise on Statutory Construction, 1940 Ed. At page 429, observes: "It is not uncommon to find one statute treating a subject in general terms and another treating only a part of the same subject-matter in a more minute manner. Where this situation exists, the two statutes should be read together and harmonized. This is especially true where the two statutes are in pari materia. In the event of repugnancy, the special statute should prevail, in the absence of a contrary legislative intent, since the specific statute more clearly evidences the legislative intent than the general statute does. And this rule-- that a statute relating to a specific subject controls a general statute which includes the specific subject-- is not necessarily dependent on the time of the enactment of such statutes, although it may be a vital and important consideration."
' Craies also in his book "On Statute Law", Sixth Ed., p. 376, states thus:- "The general rule, that prior statutes are held to be repealed by implication by subsequent statutes if the two are repugnant, is said not to apply if the prior enactment is a special and the subsequent enactment is general law, the rule of law being, as stated by Lord Salborne in Seward v. Wera Cruz, 'that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so'. 'There is a well- known rule which has application to this case, which is that a subsequent general Act does not affect a prior special Act by implication. That this is the law cannot be doubted and the cases, on the subject will be found collected in the third edition of Maxwell on the Interpretation of Statutes.'
The general maxim is, generalia specialibus non derogant-- i.e, general provisions will not abrogate special provisions. 'When the legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms.'
' In this view of the matter, the principle laid down in these treatises as to the application of the special law is in no doubt, that is, as all of them are unanimous to state that there is no implied repeal of the earlier special Act by the later general Act without particular intention of implied repeal merely by the use of general words."
' It follows, therefore, that the promulgation of the Shariat Law in Bahawalpur on 4th of March, 1951 and the repealing of section 5 of the Punjab Laws Act had not the effect of derogating from the terms of the Act under which the grant was made.
12. Section 15 of the Act provides in express words that "A purchaser from Government of land who has been placed in possession of the land by order of the Collector shall be deemed to be a tenant of such land until the full amount of the purchase money with any interest due thereon has been paid and the other conditions set forth, in the statement of the conditions of sale issued by the Collector have been fulfilled". On the strength of this statutory provision Nizam Din was a tenant of the Government land and admittedly price had yet to be paid by him. The compulsive effect of such a condition in view of the provisions of Government Grants Act of 1895 was considered in the case of Province of the Punjab through Collector, Sheikhupura v. Anjuman Talim-ul-Islam and others PLD 1987 SC 123. The effect of the statutory provision referred to would clearly be that section 19-A of the Act would not be available for determining the heirs of Nizam Din who died on 28-2-1951 and that the mutation of inheritance challenged by the plaintiff-appellant was in accordance with law governing the inheritance as provided in Section 20 of the Act.
13. The Notification of the Bahawalpur Government dated 26th May, 1951 Exh D.1 is not a piece of subordinate legislation. It is expressed to be a clarification, a declaration or statement of law as departmentally construed after the enforcement of Bahawalpur Shariat Act. It neither creates nor curtails any right. As regards the concluding portion of the notification creating two categories of cases, one where all the instalments and dues had been fully paid and the other where they had not been paid, the departmental statement of law follows the law laid down by Privy Council in Muhammad Din v. Imam Din PLD 1947 Privy Council 317.
14. The appea is, therefore, without merit and is dismissed with no order as to cost