ZAHUR AzAR (MEMBER).-This is a reference under rule 6 of the West Pakistan Board of Revenue (Conduct of Appeals and Revisions) Rules, 1959, made by our learned brother M. S. Chaudhry, Formerly, Member (Revenue).
2. The facts of the case in brief are that one Miran Bakhsh son of /Ammo was granted agricultural land in Squares Nos. 23,24,30,45 and 46 of Chak No, 651/GB, Tehsil Toba Tek Singh, District Lyallpur, in the year 1930 under section 10 of the Colonization of Government Lands Act, 1912, as a "reward grant". He died issueless in 1932 and the land was mutated in favour of his widow Mst. Karim Bibi petitioner under section 20(b) of the said Act. After the promulgation of Muslim Personal Law (Shariat) Application Act, 1962, her interests were terminated under section 3 of this Act and the property was mutated on 13-10-1964 by order of the Assistant Collector (Grade 1) as under :
(i) Mst. Karim Bibi widow 1/8 share
(ii) Mst. Nawab Bibi, Ahmad Bibi and Mst. Anwari daughters. 2/3 share
(iii) Abdul Ghafoor Khan, Ali Ahmad. Ghulam Nabi (Residuaries).
Aggrieved by the above order, the petitioner appealed to the Collector but the appeal was dismissed by his order dated 3.11-1965. She then filed a revision before the Commissioner, Sargodha division, who rejected it by his order dated 25-1-1967. Against this order Mst. Karim Bibi has filed the present revision petition to the Board of Revenue.
3. The petitioner's main contention is that the provisions of the Muslim Personal Law (Shariat)
Application Act, 1962, do not apply to her case because she herself is to be treated as the grantee ; that this is a statutory grant governed by section 20(b) of the Colonization of Government Lands Act, 1912. Under which she is entitled to keep the grant till her death or remarriage ; that under the Muslim Personal Law (Shariat) Application Act, 1962, only the life interests of widows held under the Customary law have been terminated that as her interests are held under a statute and not under Customary Law. These have not been affected by the Shariat Act and she is therefore, entitled to retain the grant until her death or remarriage.
4. Our learned brother Mr. M. S. Chaudhry has referred the case to the Full Board for opinion mainly on the following points "Whether the Muslim Personal Law. (Shariat) Application Act, 1962, has abolished all the life interests held by a widow under section 20(b) of the Colonization of Government Lands Act, 1912; or whether the interest held by the petitioner would be outside the scope of this Act (Act V of 1962).
5. We have heard the learned counsel for the parties and studied ke relevant provisions of Colonization of Government Lands Act, 1912, rea with those of the Muslim Personal Law (Shariat)
Application Act, 1962.
6. The learned counsel for the petitioner has referred us to a number of judicial decisions in suport of his contention that the provisions of Muslim Personal Law (Shariat) Application Act of 1962 are not applicable to the petitioner's case, The first decision referred to is the one cited in Revenue Rulings, Volume I, page 29 in case of Mst. Hanamon and others v. Sohan Singh". In that case it was held that section 20 of the Colonization of Government Lands Act 1912, provided for a self- contained law of succession to the tenancies of the original grantees, which was complete in itself and would override the rules of Customary Law. The second decision referred to I the one quoted in Revenue Decisions, Volume I of 1941; page 518, as also in PLD 1971 Lab. 567, and is to the effect that a tenancy held by a widow under sections 30 and 30(a) of the Colonization of Government Lands Act is not hit by section 3 of the Shariat Act, 1962. The learned counsel for the petitioner argued that section 30.A was related to section 20(b) of the Act and laid down the rule of first succession to a tenancy held under this Act. Another decision referred to is that quoted in PLD 1970 SC 580, wherein it was observed that where a tenancy had been held under section 20 of the Colonization of Government Lands Act, 1912, the customary law did not apply to the estates governed by sections 19, 20 and 21 of that Act.
7. The learned counsel for the respondent. On the other hand, argued that the tenancy which devolved on Mst. Karim Bibi being under section 20 of the Colonization of Government Lands Act, stood automatically terminated under section 3 of the Muslim Personal Law (Shariat) Application Act. 1962 ; that the language of section 20(b) of the said Act concerning succession to the estates granted under the Act was borrowed from the customary law and this identity of wording was intended to make the grant itself to be a tenancy held under custom and thus subject to the operation of the Customary Law and that this position stood further strengthened by the change brought about by virtue of the introduction of a new section 19-A in the Act. The learned counsel further argued that since the language employed in the new section 19-A had been taken from section 3 of the Muslim Personal Law (Shariat) Application Act, 1948, which had been repealed and replaced by the Shariat Act of 1962. The intention of the Legislature evidently was to make the Shariat Law applicable to all life interests held by females under the Colonization of Government Lands Act, 1912. As regards the authorities quoted by the learned counsel for the petitioner, it was argued in rebuttal by the learned counsel for the respondents that those decisions related to the period prior to the coming into force of the Shariat Act and were net relevant to the issues raised in the present case.
8. Our attention was also drawn to a precedent cast of the Full Board Mo. Sarwar Jan v. Shabbir Sultan reported as wherein the Full Board had interpreted section 21(b) of the Colonization of Government Lands Act, 1912, and the rule of succession laid down thereunder. In that case the reference made to the Full Board was answered as follows :1 "The widow succeeded to the tenancy held by her under section 21(b) of the Colonization of Government Lands Act, 1912, which devolved on her in accordance with the Customary Law. Section 21(b) Ibid does not lay down any specific rule of succession but it is clear from the import thereof that the Customary Law or other law of succession applicable to the parties, would be the unction behind it. Tenancy was, therefore held by the widow as a limited owner under the Customary Law.
Such rights have been terminated by section 3 of the West Pakistan Muslim Personal Law (Shariat)
Application Act, 1962." The learned counsel for the petitioner has, however, argued that the abovequoted precedent relates to the interpretation of section 21(b) and not of section 20(b) of the Colonization of Government Lands Act 1912, and that the purpose and scope of the two sections are quite different and distinguishable.
9. For a proper appreciation of the legal issues raised in this reference, it is necessary to quote section 20 of the Colonization of Government lands Act 1912. The section reads as follows "Succession to tenants acquiring otherwise than by succession.-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 t
(a) the male lineal descendants of the tenants in the male line of descent. (The term' Lienal descendants' shall include an adopted son whose adoption has been ratified by a registered deed).
(b) The widow of tenant until she dies, or remarries, or loses her rights under the provisions of this Act ; (c)the unmarried daughters of the 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 sons' widow, his predeceased grandsons, widow, married daughter, his daughter's eon, his sister's son, and the male agnate members of the family ;
(e) the successors nominated by the Collector from the persons enumerated in (d) of this section."
10. It is fairly clear from a plain reading of the above quoted section 20 of the Colonization of Government Lands Act, 1912, that a clear cut rule of succession has been laid down in the event of the death of the original tenant. According to this rule of succession the tenancy is to devolve in order of precedence first on the male line of descendents of the tenant, then on the widow of the tenant until she dies or remarries, and subsequently on the other heirs. Unless it can be shown that the provisions of section 20, quoted above, have been superseded or extinguished by any subsequent legislation, this rule of succession must prevail against any alleged rights put forward by other claimants.
11. The only question to be considered then is whether or not the provisions of section 20 of the Colonization of Government Lands Act, 1912, have been affected in any way by the Muslim Personal Law (Shariat) Application Act, 1962. The relevant provisions of the Shariat Act are given in section 3 thereof, which is reproduced below "The limited estates in respect of immovable property held by a Muslim female under the customary law are hereby terminated."
Section 5 of the same Act further provides that after termination of the life estate of a Muslim female under the Customary law, the tenancy would devolve upon such persons as would have succeeded the deceased grantee of land in the normal course.
12. The wording of section 3 of the Muslim Personal Law (Shariat Application Act, 1962, makes it quite clear that it applies only to the life estates held by widows under the Customary law and not under a statute In the present case the original grantee Miran Bakhsh died issueless; consequently, no male descendant was available to succeed him under sub-section (a) of section 20 of the Colonization of Government Lands Act. The succession therefore devolved on the petitioner under section 20(b) of the said Act. Her tenancy, is, therefore, not affected by the provisions of section 3 of the Shariat Act quoted above. The main arguments put forward against this interpretation by the learned counsel for the respondents are ; firstly, that the law of section 20(b) of the Colonization of Government Lands Act, 1912, is borrowed from the Customary Law and the tenancy devolving on the petitioner therefore comes within the purview of section 3 of the Shariat Act ; and secondly, that the new section 19(a) of the Colonization of Government Lands Act, 1912 (which was introduced by the Punjab Act (IV of 1951) had provided that after the coming into force of the latter Act, when any Muslim tenant died the succession to the tenancy shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat)- Application Act, 1962, and nothing contained in sections 20 to 23 of this Act shall be applicable to this case". We have already dealt with the first argument and do not agree that the language used in section 20(b) of the Colonization of Government Lands Act, 1912, lends itself to any such interpretation. In fact the language used in this section clearly lays down an altogether different rule of succession. As regards section 19-A of this Act, we observe that its proviso lays down that when the tenancy rights are held by the female as a limited owner under this Act the "Succession shall open on the termination of the limited interest etc. In fact this is the main point distinguishing the present case from the precedent case of the Full Board reported as Mst. Samar Jan v. Shabbir Sultan referred to in para. 8 above. The precedent full Board case relates to the interpretation of an altogether different section of the Colonisation of Government Lands Act, namely section 21, which reads as follows "Succession to tenants acquiring by succession.-When, after the commencement of this Act, any male tenant, who is not an original tenant, dies, or any female tenant dies, marries or remarries, the succession to the tenancy shall devolve :
(a) In the case of a female, to whom the tenancy has been first allotted, on the successor nominated by the Collector from the issue of such female tenant, or from the male agnates of the person on account of whose services the tenancy was allotted to her
(b) in all other cases, on the person or persons, who would succeed if the tenancy were agricultural land acquired by the original tenant.
A careful reading of the above-quoted section 21 would show that it lays down the rule of second succession to a tenancy, namely, the succession to a successor on whom the tenancy had already devolved under the preceding section 20 of the Act. If the second succession does not take place according to subsection (a) of section 21, it would then be governed by subsection (b) which leaves the succession to "persons who would succeed if the tenancy were agricultural land acquired by the original tenant". Thus section 21(b) of the Act, unlike section 20(b) thereof, does not lay down any clear rule of succession and its language indicates that cases under section 21(b) were to be governed by Customary law. The position of succession to a tenancy under section 20(b) of the Act, is, however entirely different because here the rule of first succession has been clearly laid down and no recourse to Customary law is necessary. The Succession to the tenancy in such cases therefore has a statutory basis and will not be governed by the Customary law.
13. We, therefore, answer the reference made to us as follows: According to our opinion the Muslim Personal Law Shariat) Application Act, 1962, has not abolished the life interests held by females as limited owners under section 20(b) of the Colonization of Government Lands Act, 1912. The succession to a tenancy under section 20(b) is to be distinguished from the succession to a tenancy under section 21(b) of the same Act. In the first case, the rule of succession has a statutory basis and hence not affected by the provisions of the Muslim Personal Law (Shariat) Application Act, 1962, and in the latter case, the rule of succession will be based on Customary law and the Shariat Act.
14. With the foregoing observations, the case is returned to the Single Member for final disposal. The opinion in this case was reserved and has been recorded to day. PLD 1968 Rev. 18