1. MUHAMMAD GUL, J.-This appeal by special leave raises an important question of law, namely, whether a widow of a Muslim occupancy tenant succeeding to the occupancy holding of her husband under unamended section 59 of the Punjab Tenancy Act, 1887 (Act XVI of 1887), became full owner in the entire holding on acquiring proprietary rights in the holding under section 114 of the Act ?
2. The facts giving rise to the above question are these: One Fazal son -of Jahana an Awan of Kot Sarang, Tehsil Talagang, District Campbellpur, ,was occupancy tenant in land measuring 266 kanals 9 marlas. He died issueless on 6-3-1950, leaving him surviving his widow, Mst. Sian. During his lifetime, Fazal made a gift of 248 kanals 2 marlas out of his occupancy holding in favour of his sister's son Rabnawaz, appellant herein. But on a suit by the landlords, the gift was set aside under section 60 of the Act. On a subsequent suit by Mst. Sian (her husband having died in the meantime), the land gifted by her husband reverted to her, as widow -of the last male occupancy tenant, under the unamended section 59 of the Act. The section was amended by the Punjab Tenancy (Amendment) Act, 1951 (Punjab Act IV of 1951), (hereinafter called the amending Act .Of 1951), to apply Muslim Personal Law (Shariat) for succession to a Muslim occupancy tenant. The amendment came into force on the 20th January 1951, but Fazal having died prior to the amendment, Mst. Sian .Continued to remain in possession of the entire occupancy holding.
3. Then came the Punjab Tenancy (Amendment) Act, 1952 (Punjab Act VII of 1952) (hereinafter called the amending Act of 1952) by which section 114 was inserted in the principal Act to abolish (with certain exceptions which are not material to this case) all occupancy tenancies in the Punjab. The new section provided inter alia that "an occupancy tenant", who, at the commencement of the amending Act of 1952, occupied any land "as such" shall become owner of the occupancy holding or as the case may be, a part thereof in direct proportion to the rent in kind paid by him to the landlord and in case the tenant paid cash rent -on payment of compensation to the landlord to be determined under the rules framed under the section.
4. After coming into force of the amending Act of 1952, Mst. Sian got proprietary rights in the entire occupancy holding of her husband. .Subsequently by means of a registered deed dated 30-7-1956, she treating ,herself to be full owner made a gift of the entire land in favour of Rabnawaz, appellant herein. The latter on the basis of the fresh gift in his favour. Obtained a decree for possession of the land in suit against the donor.
5. Thereupon, Jahana son of Shadi, a collateral of Fazal, respondent herein, sued in the Court of the learned Civil Judge, Campbellpur, for a declaration that the gift by Mst. Sian in favour of Rabnawaz appellant herein, would be ineffective as against his reversionary rights as collateral of Fazal on the death or remarriage of Mst. Sian. Jahana respondent also claimed that he had paid compensation to the landlords in respect of the land in suit under section 114 and, therefore, too, he had acquired proprietary rights in the land, and that even otherwise, Mst. Sian had no right whether under custom or otherwise to gift the land.
6. Mst. Sian and Rabnawaz both contested the suit. They admitted that Fazal was occupancy tenant in the land on whose death the land had devolved upon his widow, the donor, but denied that the parties were governed by custom or that Jahana respondent had paid compensation -to the landlords for the acquisition of proprietary rights in the suit land. 'Their plea was that compensation was paid by Mst. Sian.
7. Several issues were framed by the trial Court, but it is unnecessary to refer to them in this judgment, because the controversy between the parties is now reduced to a narrow compass. It is no more in dispute. That the parties were governed by custom and further that it was Jahana (and not Mst. Sian) who paid cash compensation to the landlords for the acquisition of proprietary rights in the land. But that would not affect. The merits f the appeal. Jahana being a co-sharer in the Khata was interested ii the payment of compensation and therefore, he must be deemed to have paid compensation on behalf of all the co-sharers in the occupancy holding and will be entitled to reimbursement by other --co-sharers under section 69 of the Contract Act, 1872.
8. The trial Court decreed the plaintiffs-respondents' suit on the finding, that on the death of her husband Mst. Sian inherited the widow's life estate under the unamended section 59, and therefore, was absolutely prohibited under subsection (3) ibid to transfer the occupancy holding, by sale, mortgage or even by lease for a term exceeding one year, that this prohibition remained inseparable incident of her tenure and finally that section 114 cannot be properly construed to constitute her an absolute owner of the land or otherwise to do away with the limiting incidents of subsection (3) of unamended section 59 on acquisition by her of the proprietary rights in the holding. On appeal by the donor and the donee-- the above findings were upheld b the learned District Judge and on further appeal, by a Division Bench of the High Court.
9. The learned Judges of the Division Bench, however, while dismissing the appeal observed that the impugned gift will hold good to the extent of the donor's Muslim-- Law share in the holding as widow.
10. Leave was granted to consider the following two questions, namely :-
(f) whether a life-estate-holder under the unamended provisions of section 59 of the Punjab Tenancy Act has, under the amendments (of 1951 and 1952), acquired the full right of ownership in an occupancy holding, to the exclusion of the other Muslim Law heirs of the last. Male owner ; and
(if) whether the holder of a limited life estate under unamended section 59 of the Punjab Tenancy Act can alienate this property, taken by her in such a limited right, without any restriction ?
11. It would be advantageous to set out at this stage, the relevant provisions. Of the statute which fall for interpretation in the appeal. The unamended section 59 of the Act under which the entire occupancy tenancy held by Fazal devolved upon his widow Mst. Sian read :- "59. (i) When a tenant having right of occupancy in any land dies, the--right shall devolve-
(a) on his male lineal descendants, if any, in the male line of descent,. And
(b) failing such descendants, on his widow if any, until she dies or re--marries or abandons the land or is under the provisions of this Act. Ejected therefrom, and
(c) failing such descendants and widow, on his widowed mother, if any,. Until she dies or re-marries or abandons the land or is under the! Provisions of this Act ejected therefrom, and
(d) failing such descendants and widow or widowed mother, or, if the deceased tenant left a widow or widowed mother, then her interest terminates under clause (b) of this subsection, or his male collateral; relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives Provided, with respect to clause (d) of this subsection, that the common ancestor occupied the land.
(2) -------------------------------------------------------------------------------------- -.
(3) When the widow of a deceased tenant succeeds to a right of occupancy,she shall not transfer the right by sale, gift or mortgage or by sub---lease for a term exceeding one year.
(4) if the deceased tenant has left no such persons as are mentioned in subsection (1) on whom his right of occupancy may devolve under --that subsection, the right shall be extinguished."
12. Subsequently by the amending Act of 1951 section 59 was amended to-- read "59 (1) When a Muslim tenant having a right of occupancy in any land. Dies, the right shall devolve on his heirs in accordance with the--provisions of the Muslim Personal Law (Shariat)
13. Provided that when the occupancy rights are held by a female as a limited owner under Customary Law, succession shall open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of 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 limited 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 had been governed by the Muslim Personal Law (Shariat) ;
(2) When a non-Muslim tenant having a right of occupancy dies, the: right shall devolve-
(a) .
(b) .
(c) .
(d) .
14. Section 114 as inserted by the amending Act of 1952 reads: "114. (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 the coming into force of the aforesaid Act, be extinguished, and the land comprised in a tenancy so extingui--shed 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 therefor 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, where he pays rent in the form of a share of the produce;
(C) of the entire land comprised in his tenancy on payment of compen--sation to the landlord in cash at such rates and within such periods as may be 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) .
(4) In a case falling under clause (b) of subsection (2) the landlord shall, without payment of any compensation, be 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 encumbrances 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 case may be.
(6) .
(7) .
15. Mr. Peer Bakhsh Khan, learned counsel for the appellant argued that -while it may be true that under unamended section 59 of the Act, the occupancy rights devolved upon Mst. Sian until she died or remarried or abandon--. Ed her tenancy or was ejected therefrom, nevertheless, she remained "occu--pancy tenant" and had occupied the land "as such" within the meaning of - section 114 of the Act and therefore with the acquisition of proprietary rights under that section she became full owner of land with unrestricted power of .Disposition over it. Learned counsel further argued that section 59 after its .Amendment by the amending Act of 1951 did not apply to Mst. Sian, because the proviso to subsection (1) applied to a "limited owner under customary law", and that Mst. Sian having succeeded to her husband under unamended section 59\ was not such limited owner. It was submitted that section 59 prior to its amendment was a complete code to regulate succession to an :occupancy tenant in the Punjab, and excluded other systems of law including .-.Custom. But according to learned counsel, the position has materially .Changed since the amendment of section 59 by the 1951 Act. He argued that while subsection (1) of the amended section has made Muslim Law (Shariat) .a rule of succession to a Muslim occupancy tenant, proviso to the subsection will apply to a female-holder of occupancy rights "under Customary Law".
16. The implication was that Mst. Sian having succeeded her husband under the unamended section 59, her case will not fall to be governed under the proviso and that will preclude other Muslim Law heirs of her deceased husband, to succeed him on the termination of her life interest.
17. The further argument of the appellant's learned counsel was that on payment of compensation to the landlord, Mst. Sian, became "full owner" of the entire holding under subsection (2) of section 114.
18. In support of this link of argument reliance was placed on this Court's judgments in Mushtaq Ahmad v. Mst. Hakim Bibi (PLD1969SC338), Ilam Din v. Muhammad Din ()PLD1964SC842) and the judgments of the Lahore High Court in Mst. Bagan v. Mst. Bev! (PLD 1971 Lah. 567and Muhammad Hussain v. Mst. Bhagan (PLD 1971 Lah. 266). I will refer to these cases in greater detail later to see how far they avail to sustain the argument in support of Mst. Sian's full ownership after acquisition of proprietary rights in the land by her.
19. Mr. Karim Bakhsh, learned counsel for the respondent readily conceded and rightly so, that the unamended section 59 was a complete code which regulated succession to an occupancy holding which excluded other systems of law. He argued that the unamended section 59 inter alia, created a special estate in favour of the widow of a sonless occupancy tenant which was materially different from the usual widow's estate under custom, in respect of proprietary land.
20. According to learned counsel, although the occupancy bolding had devolved upon Mst. Sian under unamended section 59, on the termination of her limited estate, the devolution of the land will be regulated by the proviso to the amended subsection (1) ibid. It was submitted that the expression "under customary law" in the proviso is merely illustrative of the nature of a widow's life estate succeeding to a sonless occupancy tenant and had no significance beyond that. Finally, it was argued by learned counsel that the whole object of section 114 was to extinguish occupancy tenancies in the province by conferring rights of full ownership on the landlord or on the tenant in the occupancy holding or a part thereof, as the case may be, and not to enlarge limited estate of a widow or widowed mother to that of an absolute owner so as to make her a fresh stock of descent.
21. Fateh Khan v. Mst. Khannam Jan (PLD 1961 Pesh. 20), Miskeen v. Mst. Hassan (PLD 1962 Pesh. 94) were cited in support of this proposition.
22. It will help determine the efficacy of argument on either side to refer at this stage to the legislative history of the provisions relating to the special life estate of females created under section 59 of the Act. Prior to the Act of 1887, widow of an occupancy tenant had no right to succeed to his holding under any circumstances, whatever. The tenancy law in the Province of Punjab was codified for the first time in the Punjab Tenancy Act, 1868 (Act XXV lII of 1868). Under that Act widow was not in the line of heirs at all. According to section 36 of that Act, on the death of an occupancy tenant, his right devolved on-
(1) his male lineal descendants, if any ;
(2) failing such descendants on his male collaterals, provided their common ancestor with the deceased had occupied the land.
23. The Act of 1868 was replaced by Act XVI of 1887, which made material changes, one of which was to alter the order of succession with a view to allowing the widow of the deceased occupancy tenant in the absence of male lineal descendants to succeed until her death, life or remarriage etc., with the further limiting conditions in subsection (3) absolutely prohibiting any transfer whatever, by her, for a term exceeding one year. On the termination of her interest, the tenancy devolved upon the male collateral, if his common ancestor with the deceased occupancy tenant had occupied the land. It is also noteworthy that under subsection (1) as originally enacted, widowed mother of the deceased occupancy tenant was not in the line of succession. Clause (c) of the unamended subsection (1) of section 59 was inserted for the first time by the Punjab Tenancy (Amendment)
24. Act, 1939 (Act IX of 1939), to, interpose her after the widow of the deceased tenant and before his male collaterals, though it seems that by fortuitous omission, no consequential amendment was carried out in subsection (3) ibid to place her under the same limitations as the widow, in the matter of transfer of any interest in the occu--pancy by her. It is also noteworthy that only the "widowed" mother was included in the line of succession, and she had no place in line of inheritance if her husband was alive. Another noteworthy feature is that the tenant's daughter does not figure in the line of succession at all.
25. From this legislative history of the unamended section 59, coupled with.; the mandatory prohibition contained in subsection (3) against any transfer, whatsoever, for a period exceeding one year, it would be reasonable to infer that under the unamended section 59, the widow and the widowed mother z were given what in essence appeared to be an extension of their right for maintenance. In other words a special estate was interposed for a limited purpose between her husband (in the absence of his male lineal descendants) and his male collaterals.
26. If that be the true nature of the right of a widow or a widowed mother succeeding to a deceased occupancy tenant under unamended section 59 the next question to consider is, whether on a proper interpretation of section 114, on the acquisition of the proprietary rights, she would become a fresh stock of descent in her own right in respect of the entire holding of the deceased occupancy tenant and shall exclude Muslim Law heirs of the last male-, holder and thereby reduce the proviso to subsection (1) of the amended section 59 almost to a redundancy?
27. It would indeed be very bold to answer this question in the affirmative, for that would entail a cataclysmic change in the old jural relations of a widow or as the case may be, a widowed mother with the occupancy holding 1 which has devolved upon her under the unamended section 59. Such a far---reaching legislative intent, in the absence of a clear provision in section 114 cannot appropriately be read into the statutes. The learned Senior Civil Judge was right in relying upon the principle laid down as far back as 1584 in Heydon's case (3 Co-Rep. 7a at p. 7b) (reproduced by Maxwell on Inter--pretation of Statutes, 12th Edn. At page 40) as follows: "that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: (1st) What was the common law before the making of the Act?
28. (2nd) What was the mischief and defects for which the common law did not provide?
29. (3rd) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, and (4th) The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mis--chief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commode, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico."
30. At page I10 of the same treatise, it is also observed: "Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presum--ed that the Legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, unusual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended."
31. This statement is based upon a number of ancient cases of high authority noted at the foot of that page.
32. Khair Din v. Muhammad Husain (PLD 1961 SC 468In that precedent case the question under examina--petition was whether a father governed by custom, who prior to the coming into force of the Punjab Muslim Personal Law (Shariat) Application Act, 1948 (Punjab Act IX of 1948), had inherited property, which was admittedly ances--tral in his bands, could, after these Acts, make a valid gift of such property an favour of one of his sons to the exclusion of his other three sons. The validity of the impugned gift was sought to be maintained by the argument that the above two Acts, having abolished customary law and introduced Muslim Law of Inheritance among Muslims, the plaintiffs had no locus standi to maintain the suit under custom. The argument was repelled and it was ,observed as follows: "Prima facie, unless the conclusion follows inevitably from the language of the new enactment, there would be no reason why a person who inherited certain property under one system of law should not remain bound by the rules of that law. The Muslim Personal Law (Shariat) Application Act, 1948, as amended in 1951, does not effect a catacly--smic change in the law . . . . . It seems consistent with the principles of justice, equity and good conscience that in this transitional period, a person who came into possession by depriving other Muslim Law heirs of the penultimate male proprietor, should continue to be subject to restrictions imposed by custom, unless the new law, either by express words or by necessary implications changes the situation. No express words to that effect are to be found in the Muslim Personal Law (Shariat) Application Act, 1948, as amended in 1951. The new law has pot, by necessary implications, clothed the male-holder under custom with all the powers of a Muslim Law owner and removed the .Disabilities that were incidental to the law which was the source of his rights. Such a result, if intended, could have been more easily achieved by a simple declaration to that effect."
33. The crucial question still remains namely as to how far and to what extent the above principle would apply to the instant case? While not disputing the correctness of the principle, learned counsel for the appellant canvassed the view that Mst. Sian having acquired the proprietary rights in the occupancy holding, upon plain reading of subsection (2) of section 114 of the 1887 Act, became vested with right of full ownership in the entire holding in her own right free from all limitations on her power of alienation to which she was hitherto subject as life-estate-holder.
34. According to learned counsel, Mst. Sian was "an occupancy tenant" occupying the land "as such" within the meaning of section 114 and, therefore, with the acquisition of proprietary rights in the land, she became its full owner by operation of law. But the argument overlooks the legislative history concerning the origin and. Nature of the life estate of an occupancy tenant's widow which, as pointed out earlier, was a mere extension of her right of maintenance out of the estate of her deceased husband. Because of absulote prohibitions in sub--section (3) of unamended section 59 against any alienation whatever, including that of lease or mortgage for a time exceeding one year any transfer by a widow or violation of that prohibition has been held as void. See Lablr Singh v.
35. Hassu (AIR 1940 Lah. 364), Isher Singh v. La! Singh ((1898) 39 P R 1898). This is independent of the question of any valid necessity and consideration which are necessary to maintain the validity of the transfer, by a widow under custom. This clearly indicates that a widow inheriting a life estate under unamended section 59 stood at a much lower footing than a widow under general custom in respect of Malkayat land. Then daughters did not figure in the line of succession at all, regardless of the fact whether the occupancy tenancy was ancestral or non-ancestral in the hands of the last male-holder. Again under the un--amended section 59, sons alone inherited the occupancy and excluded the widow of a predeceased son in spite of the general custom. See Chanan Singh v.
36. Sant Kaur (I R 1929 Lah. 778(1)).
37. The plain object of the amending Act of 1952 (by which section 114 was inserted) was to prohibit the creation of occupancy tenancies in the province and to abolish all existing occupancy tenancies in all lands other than the lands owned by Government or the evacuee land. On no canon of interpretation of the statutes the section can be interpreted to free a widow from the limiting conditions under which the occupancy tenancy had initially devolved upon her and which remained an inseparable incident of her tenure until succession opens for the last male-holder of the occupancy tenancy under proviso to subsection (1) of the amended. Section 59.
38. As respects a widow's estate under Customary Law, it was observed in Sher Muhammad v. Phula (9 P R 1899), as follows "There are strong analogies between the estate of a widow under Customary Law and her estate under Hindu Law. Under both laws. She holds for life for the purpose of maintenance with certain.
39. Powers of disposition necessarily to her position. She is at least in Customary Law, in no sense a co- sharer, and on her death the succession is not to her but to her husband. In fact her estate: is one interposed for a limited purpose between that of her husband= and the next heir."
40. There is ample authority for the view that where under Hindu Law ash. Also under Customary Law, a husband dies issueless, his estate notionally continues in his widow who acts as a sort of conduit pipe between her, deceased husband and his next heir. The proposition canvassed by the appellant's learned counsel cannot be sustained either under the unamended --section or independent of it under any other legal system. And the= provisions of section 114 of- the 1887 Act do not go far enough to show unmistakably that Legislature besides abolishing the occupancy holdings --also intended to abolish the widow's estate so very well known to the legal system practised in the province. Nor would that be consistent with.. The amended provisions of section 59 which introduced the Shariat so far--as Muslim occupancy tenants were concerned. The language may not be altogether free from doubt. But after due consideration of the---incidents of the widow's life estate, which has not been expressly abolished except to the extent expressly provided in the amended section 59 of the 1887 Act, the expression "An occupancy tenant" in section 114, in the-- relevant circumstances, in my opinion refers to the last male occupancy tenant, whose estate by virtue of the legal fiction continues in the person of his widow, and who under the altered situation does not become a. Fresh stock of descent to pass on her estate to her own personal heirs except to the extent expressly provided in the provision to subsection (1) of amended section 59 of the 1887 Act.
41. Of the four precedent cases relied upon by the appellant's learned counsel in support of the argument that upon acquisition of proprietary rights, Mst. Sian had become absolute owner of the land, with unrestricted powers of disposition over it, this Court's two judgments in Mushtaq Ahmad v. Mst. Hakim Bibi, and Ram Din v. Muhammad Din and the Lahore High Court's judgment in Ust.
42. Bagan v. Mst. Bevi, are under the Colpnization of Government Lands (Punjab Amendment) Act, 1912.
43. In each of these three cases, a widow of a tenant under that Act on acquiring. Proprietary rights in her husband's holding was held to have become absolute owner of the land. It is not controverted however, that the. Incidents of tenancy under that Act are radically different from those relating: to the occupancy tenancy under the Act XVI of 1887. Occupancy tenancy under the Colonization Act is essentially in the nature of "grant" and the provisions of the Act are mainly regulatory. By section 20 of that Act, succession to a tenancy created under the Act devolves upon the male lineal descendants of the tenant, his widow on the usual life estate, or his unmarried daughters until they die or marry; or any person nominated by him by a registered deed from among the persons specified in clause (d) ibid, in that order of precedence. In the absence of the above mentioned" relatives of the deceased tenants, and nominations by him as aforesaid, his successor is nominated by the Collector from among the persons specified in clause (d). Section 24 of the Act empowers the Collector to impose fine not exceeding Rs. 100 upon a tenant found in breach of any term of the tenancy or order its resumption.- These provisions bring into bold relief the basic differences in the incidents of tenancies under -the Colonization of Lands Act, and the 1887 Act. In essence each of the three was a case of fresh grant or outright sale in favour of the widow by the Government. Therefore, no argument can be built upon these cases and some other similar cases cited in support of the appeal. 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 30-A in the -Act which reads "30-A. 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 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.
(2) ------------------------.
44. 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 intervention to correct the - situation.
45. The Lahore High Court's judgment in the fourth case, namely, Muhammad Husain v. Mst. Began, however, proceeds on the interpretation .Of section 114 and is therefore, directly in point. In that case a widow succeeding to her husband on life estate under the unamended section 59 of the 1887 Act had acquired proprietary rights under section 114 of -the. Act. Subsequent to the acquisition of the proprietary rights, a sale of the land by her was challenged by a Muslim Law heir of her husband .On the plea that the sale by her was incompetent because of customary restrictions on her powers of alienation notwithstanding the acquisition of proprietary rights. But the plea was negatived. In their conclusion the learned Judges of the Division Bench were mainly influenced by the fact that on the acquisition of the proprietary rights by the widow the occupancy tenancy had become "extinct" with the result that the occupancy -rights in the land were completely wiped out and, therefore, there was no question of any accretion to the extinguished tenancy. The learned Judges went on to observe that by virtue of acquisition of proprietary rights under section 114 of the 1887 Act, the widow had become absolute .Owner and could treat the land as her self-acquired property immune from any customary restrictions with regard to its alienation.
46. In support of -that conclusion the learned Judges among others relied upon this Court's judgments noticed above and some earlier judgments of the Lahore High Court in Bashir Ahmad v. Muhammad (PLD 1956 Lah. 934), Imam Din v. Khamandi (AR 1927 Lab.
47. 366) and Labh Singh v. Hassu. The learned Judges of the Division Bench were also influenced by the absence in the Tenancy Act of 1887 of a provision similar to section 30-A of the Colonization of Government Lands Act, 1912. From this an inference was sought to be raised that if the Legislature had intended to place any restriction upon the rights of a widow of the last male occupancy tenant after she had acquired proprietary rights it should have inserted a similar provision in the 1887 Act as well.
48. As pointed out already cases under the Colonization of Lands Act proceeded entirely on different basis and, therefore, if I may say so with respect, any reliance on those cases in support of this appeal will be illusory. Similarly the learned Judges have also completely overlooked the origin and the incidents of a widow's tenure under the unamended section 59 of the 1887 Act, referred to earlier in this judgment on the basis of which it would indeed be a misnomer to treat her an heir of the deceased stricto sensu with his other heirs each of whom became a fresh stock of descent in his own right. Instead, the widow held her life estate for the sake of other heirs of her deceased husband, named in clauses (c) and (d) of subsection (1) of the unamended section 59. There is nothing whatever, in section 114 to set at naught this concept of the widow's estate. In my humble view, the recent enactment of section 30-A in the Colonization of Government Lands Act is rather a strong legislative indication to preserve the usual incidents of the widow's estate during the interregnum until succession to the (deceased) last male tenant opens under amended section 59 of the 1887 Act. This will also be consistent with the dictum in this Court's judgment in Khair Din v.
49. Muhammad Hussain referred to earlier, as also with justice, equity and good conscience which the Courts have always ac.Epted as guideline in comparable situations. Not only that: This will also effectuate the proviso to subsection (1) of the amended section 59, or else it would stand repealed pro tanto during the interregnum, a situation the Courts have always endeavoured to avoid. See Maxwell (12th Edn., p. 190). Thus, speaking with respect, the High Court's judgment in Muhammad Husain v. Mst. Bhagan, does not proceed on a correct interpretation of the statutory provisions bearing on the subject and the contrary view taken by the majority judgment in Fateh Khan v. Mst.
50. Khanum Jan which was later followed in Miskin v. Mst. Hassan relied on behalf of the respondent appears to be sound. Learned counsel for the appellant tried to distinguish the two precedent cases from Peshawar High Court on the plea that they proceeded on the interpretation of the provisions of section 59 of the 1887 Act, as amended by N.-W. F. P. Amendment Act, 1939, and N.-W.
51. F. P. Act XXV of 1950, which were materially different from the provisions fn force in the Punjab. He, however, did not elaborate his argument as to in what respect the provisions of the N.-W. F. P. Acts were different. Rather the relevant provisions of the 1887 Act as in force in the Punjab and the N.-W.
52. F. P. Amending Acts, are in pari materia and upon the consideration of the provisions of the latter statutes, the majority in Fateh Khan v. Mst. Khanum expressed its conclusions in the following terms as extracted in the headnotes of the report "That upon the death of a widow, after amendment of section 59, Punjab Tenancy Act (XVI of 1887) by Punjab Tenancy(N.-W. F. P. Amendment) Act, 1939, occupancy rights to which the widow had succeeded before such amendment, devolved upon the personal law heirs of her husband and not her own personal law heirs alone .
53. The widow succeeds as a limited owner and the amendment cannot convert her limited rights into full ownership so as to be inherited on her death by her heirs alone."
54. For the foregoing reasons I am in no manner of doubt that it was not the intention of the Legislature to constitute a widow succeeding to her husband under the unamended section 59, an absolute owner of the entire holding of her husband on acquisition by her of proprietary rights in the holding under section 114 of the Act, so as to become a fresh stock of descent excluding the Muslim Law heirs of her husband. Nor any such conclusion can otherwise be sustained on a proper interpretation of section 114. Accordingly, the High Court and the two Courts below rightly found the material issues in favour of the respondent.
55. However, the judgment and decree under appeal are defective in one respect. By the judgment and the decree the entire gift by Mst. Sian has been declared ineffective. But this is inconsistent with the observation in the concluding paragraphs of the judgment of the High Court that the gift will hold good to the extent of Mst. Sian's Muslim Law share in the estate of her deceased husband.
56. Therefore, the impugned gift in favour of the appellant to the extent of her 1/4th share as widow would be perfectly valid. On that view of the matter, I would partially accept the appeal and modify the judgment and decree of the High Court and declare that the impugned gift shall not affect the respondent's right of inheritance to the extent of the remainder 3/4th share in the suit land, as residuary of Fazal, deceased.
57. HAMOODUR RAHMAN, C. J.-I agree.
58. ANWARUL HAQ, J.-I agree. 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.