1. MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court is directed against the decision by the High Court in a case of inheritance coming under the Colonization of Government Lands Act, 1912. The leave grant order is as follows: "Leave to appeal has been sought by the defendants side; against the acceptance by the High Court, of respondents Civil Revision in a land inheritance case. Earlier the respondents/plaintiffs suit was dismissed and their appeal had failed.
2. "Learned counsel while giving the facts has stated that Ratta the original owner of the land was granted the same under the Colonization of Government Lands Act. He had not yet obtained the proprietary rights when he died. The inheritance was mutated in favour of the two sons of Ratta, the propositions, who were alive; as his third son had predeceased him. The two aforementioned sons felt that their predeceased brother should not be deprived of the benefit of inheritance.
3. Accordingly, in recognition thereof they transferred 1/3rd to Mst. Bakhtawar, the widow of their brother. The present petitioners are the daughters of Mst. Bakhtawar. Learned counsel has further stated that Mst. Bakhtawar paid the price of her share and also obtained proprietary rights and thus had become full owner. She made a gift of the suit land in 1979 which was challenged from the respondents side through the present suit as being void because they thought that Mst. Bakhtawar was not a full owner and had only a limited interest in the land given to her. This suit was dismissed with the finding by the trial Court that the land in question could not be treated as ancestral qua the respondents and that Mst. Bakhtawar had full proprietary rights in it. She was not a limited owner. This finding was affirmed by the appellate Court which further held that section 30-A of the Colonization of Government Lands Act was of no help to the respondents side. On further Revision by the respondents side, the High Court set aside the judgments and decrees passed by the two learned Courts below, decreed the respondents suit by relying on Ilam Din v. Muhammad Din PLD 1964 SCMR 80. It was also held that section 30-A(1) was attracted and Mst. Bakhtawar was a limited owner.
4. "After hearing the learned counsel we consider it a fit case for grant of leave to appeal so as to examine: the validity of the impugned judgment as also the questions raised in this petition. Order accordingly."
5. The pedigree-table (prepared with help of the learned counsel) relevant in this case is as follows:- Ratta--4.(died on 2-6-1934) (mutation on 14- 6-1934)
6. Sanatta Fazal (Predeceased Ratta) Muhammad (Roshnan)(Nooran)
7. Ratta had not yet paid the proprietary dues when his death took place. The first mutation sanctioned on 14-6-1934 of his inheritance was in favour of Muhammad and Sanatta, his two surviving sons. Fazal the third one had already died. About a year later Muhammad and Sanatta gave 1/3rd of the property of what they had inherited from Ratta to Mst. Bakhtawar through mutation dated 22-5-1935. Later on Mst. Bakhtawar gifted the said 1/3rd property in favour of her daughters in 1979. The case of the appellants who were not represented before us, is that their mother had been given the property in dispute by the brothers of her deceased husband in full ownership neither for life maintenance nor as life estate. The case of the respondentsside, namely, Muhammad and Sanatta was that she (Mst. Bakhtawar) was given only life estate on account of her being widow of Fazal, the third predeceased son of Ratta.
8. We having no assistance for the appellants/allottees, sought assistance from the learned counsel for the respondents. He fairly dealt with the matter and explained the case before us on two lines.
9. One, that Mst. Bakhtawar having paid the proprietary dues did obtain the proprietary rights in the land in dispute, therefore, her claim was that she was the full owner of the property and therefore she could gift it away to her daughters without any restriction. On the other hand the respondents case was covered by the judgment of this Court in Mst. Began v. Mst. Bai 1983 SCM R 80 wherein it was held that a widow like Mst. Bakhtawar, if the property is treated that of Fazal would have only a life estate. The second aspect of the case explained by the learned counsel is that according to Mst. Bakhtawar Muhammad and Sanatta had consciously, being her good brothers-in-law having lose and affection for their nieces, had alienated and gifted away their rights to the extent of 1/3rd in the property they inherited from their lather in favour of Mst. Bakhtawar so that she could pass it on to their nieces. As against this the respondents plea was that Muhammad and Sanatta had only favoured Mst. Bakhtawar by giving her life estate.
10. After hearing the learned counsel at some length regarding both the aspects of the case, very wisely explained by him, we feel satisfied that in both the situations this appeal has to be allowed.
11. Mst. Bakhtawar's case was not of an estate's devolution to a female from a male last holder under sub-para. (a) of subsection (1) of section 30-A of the Colonization of Government Lands Act, nor her position was covered by sub-clause (b) thereof. Her case was covered by subsection (2) of section 30-A which provided that nothing contained in the said section shall be construed to alter the law of Succession applicable to any female tenant, in respect of proprietary rights in land acquired by her, if the tenancy in such land was acquired by or accrued to her in circumstances other than those specified in subsection (1). Obviously because her case was not covered by subsection (1), she under subsection (2) on obtaining proprietary rights shall have to be treated as full owner of the property in dispute. Accordingly, this appeal has to be allowed on this ground alone.
12. This is not all. We have read the statement of aforementioned Muhammad the son of Ratta who gave the property to Mst. Bakhtawar in 1935. He categorically stated that the transfer to Mst.
13. Bakhtawar was not as a limited owner but as full owner. This is further supported by the fact that the proprietary dues were paid by Mst. Bakhtawar. The statement of Sanatta alone is, in the above explained very strong circumstantial elements, goes in favour of Mst. Bakhtawar. Nothing can dilute the fullness of her ownership rights in the property in dispute.
14. In the light of what has been stated above this appeal is allowed.The High Court judgment is set aside and the suit filed by the respondents side stands dismissed. There shall be no order as to costs.