SAAR SAOOD JAN, J: --This is an appeal by special leave from the judgment dated 30-3-1980 of the Lahore High Court affirming the judgment of the Additional District Judge; Faisalabad; whereby the judgment of the Senior Civil Judge; Faisalabad; dismissing the suit of the appellants was upheld.
2. One Khair Din was granted occupancy rights in State land situate in Chak No 451/G.B. In tehsil Samundri. He was governed by custom. In March 1928 he made a will which was later registered; bequeathing his rights in the land to his only issues, namely, Mst. Zainab Bibi, respondent No.1. He stated in the will that Mst.Zainab Bibi would not have the power to alienate the rights but that on her death the same were to be inherited by her issues. He died on 13-6-1940. In accordance with his will a mutation was attested in her favour. In 1956 she obtained proprietary rights, in the land. On 18-4-1956, after the acquisition of proprietary rights, she made a gift of the entire land to her husband, Syed Abdul Karim, respondent No.2. .
3. The appellants are the collaterals of Khair Din in the second/third degree. On 25-7-1956 they filed a suit for a declaration that the gift would be void and invalid after her death. The suit was dismissed by the trial Court with the finding that after the acquisition of proprietary rights Mst Zainab Bibi became a full owner of the land in dispute and as such she was competent to make a gift. The appellants filed an appeal before the Additional District Judge but it was dismissed. They then filed a second appeal in the High Court; which too failed.
4. It is contended that despite .The will made in her favour by her father Mst. Zainab Bibi continued to be a limited interest-holder and as such she was not competent to alienate the land by way of gift in favour, of her husband.
5. At the time when Khair Din died, succession to tenancies of land acquired in pursuance of a scheme framed under the Colonization of Government Lands Act governed by section 20 of the Act. This section read as follows:----- "Subject to the proviso to section 14, when, after the commencement of this Act, any original tenant dies the succession to the tenancy shall devolve in the following order upon.
(a) the male lineal descendants of the tenant in the male line of descent. (The term `lineal descendants' shall include an adopted son whose adoption has been ratified by a registered deed);
(b) the widow of the tenant until she dies, or remarries; or loses her rights under the provisions of this Act;
(c) the unmarried daughters of that tenant until they die or marry, or lose their rights under the provisions of this Act;
(d) the successor or successors nominated by the tenant by registered deed from among -the following persons, that is to say, his mother, his predeceased son's widow; his predeceased gandson's widow; his married daughter; his daughter's son; his sister; his sister's son and the male agnate members of his family;
(e) the successor or successors nominated by the Collector from among the persons enumerated in clause (d) of this section.
It is not in dispute that at the time of his death in 1940 Khair Din did not have any heir who could be covered by clauses (a); (b) and (c). The will made by him was in substance a nomination within the meaning of clause (d). This will so appear from the recital in the will that his daughter would not have any power of alienation.
6. In 1944, by Punjab Act VI of 1944, section 30-A was inserted in the Colonization of Government Lands Act. Subsection (1) of the new section reads as follows:--- "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."
As Mst. Zainab Bibi had acquired proprietary rights in 1956 her power of alienation of the land in dispute was governed by this subsection. That being the legal position, the finding of the Courts below that on acquisition of proprietary rights she had become the full owner is clearly untenable.
By operation of section 2-A as inserted by West Pakistan Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance (XIII of 1983) in the West Pakistan Muslim Personal Law (Shariat) Act, 1962, the succession to Khair Din will be governed by the Muslim Personal Law. Mst. Zainab Bibi the sole issue of Khair Din will thus be entitled to only one-half share in the land in dispute, the other half will go to the collaterals. In the circumstances the gift made by her in favour of her husband could not operate beyond her own share in the land in dispute. We would, therefore, partly accept this appeal and grant a declaration to the appellants that they are owners to the extent of one-half in the land in dispute There will be no order as to costs.