The relevant facts forming the background to the present litigation are, in the main, not disputed Shamshad Khan son of Ghulam Muhammad died in India leaving behind Mst. Tajan, an issueless widow; three brothers namely, Buland Khan, Kamal Khan and Muhammad Iqbal Khan and two sisters namely, Mst. Akbari and Mst. Bismillah. At the time of his death Shamshad Khan was the absolute owner of 29 Kanals of land and was also mortgagee of certain land. In the circumstances Mst. Tajan as an issueless widow, became the limited owner of Shamshad Khan estate, according to customary law.
2. After Partition in the year 1947 Mst. Tajan and the above-named brothers and sisters of Shamshad Khan deceased migrated to Pakistan. Land measuring 29 Kanals equivalent to 112 Produce Index Units "P.I. Units" was allotted to Mst. Tajan against the land owned by the estate in India. In respect of the mortgagee rights forming part of Shamshad Khan's estate, 881 P.I. Units were determined and allotted to Mst. Tajan. Here it may be noted that under the Rehabilitation Settlement Scheme a maximum of 1000 P.I. Units in all could be allotted in lieu of claims including mortgagee rights. As such, although 1622 P.I. Units were verified favouring Mst. Tajan only 993 units (being less than 1000 units) were allotted because of the provisions contained in para.7 of Rehabilitation Settlement Scheme.
3. By virtue of section 3 of West Pakistan Muslim Personal Law (Shariat) Act V of 1962 limited estates stood terminated. Subsequent legislation i.e. The West Pakistan Personal Law (Shariat) Application (Amendment) Act (Act XXXIX of 1963) and the Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972 (Order No.IX of 1972) and the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act, 1975 (Act XXV of 1975) was enacted with the object of either bringing about changes in Act V of 1962 or for the purpose of removing doubts in the matter of the interpretation and application of the said legislation, inter alia, to limited estates vesting in Muslim females under customary law. For ease of reference and brevity the laws mentioned in this paragraph hereinafter referred to as the "Shariat Legislation".
4. There is no dispute between the parties in respect of 112 P.I. Units in lieu of which 29 Kanals of land were allotted to Mst. Tajan. The said land, upon termination of the life estate pursuant to section 3 of Act V of 1962, devolved on Mst. Tajan to the extent of 1/4th and on the brothers and sisters of Shamshad Khan to the extent of the remaining 3/4th. The aforesaid devolution was in accordance with the Shariat Legislation and both parties have accepted their respective entitlements in accordance with the said legislation.
5. The dispute between the parties, however, has arisen in respect of 240 Kanals of land (the "suit land") situated in Mauza Vedad, Tehsil Alipur, District Muzaffargarh, which initially was allotted to Mst. Tajan in lieu of 881 P.I. Units representing the mortgagee rights forming part of the life estate and ryas subsequently purchased by her as discussed below. It is the contention of the appellants that the suit land should also be treated in the same manner as the 29 Kanals of land which was wholly owned by the estate. In this respect learned counsel for the appellants argued that the mortgagee rights were also part of the estate of Shamshad Khan (deceased) and were, therefore, to be dealt with in accordance with the provisions contained in section 3 of Act V of 1962. As a result, they argued that the appellants alongwith Buland Khan (who had conceded the claim of Mst Tajan), were entitled to 3/4th share in the suit-land.
6. Learned counsel representing Mst. Tajan, however, argued that there was an essential distinction between mortgagee rights forming part of the estate and the land which was exclusively owned by Shamshad Khan. He contended that all rights or interest claimed by evacuees, in land situated in Pakistan, was a creation of the evacuee laws. According to learned counsel, but for such laws, evacuee claimants such as the parties to this petition, would have no rights or interest in the suit- land. This contention cannot be seriously disputed. It is self-evident that the parties hereto had no connection with the suit-land situated as it was, in Tehsil Alipur, except for the rights and interest created by the evacuee laws and any schemes framed thereunder. With this background in mind, it would be easier to appreciate the contentions of learned counsel for Mst. Tajan. He. Argued that initially, under the settlement laws a mortgagee was not entitled to the allotment of any land in Pakistan in lieu of mortgagee rights. This contention was based on the provisions of para. 7 of the Rehabilitation Settlement Scheme which provided that a Muslim mortgagee from both Muslim and non-Muslim mortgagors of land would not be eligible for an allotment of land under the aforesaid scheme. The said para.7, however, went on to prescribe that a Muslim mortgagee may be al4otted land on such terms and conditions as the Rehabilitation Commissioner may prescribe. The terms and conditions under clause (7), Part I of the Rehabilitation Settlement Scheme, referred to above, define a "mortgagee" to mean a mortgagee claimant who is eligible for or holds an allotment of land in lieu of mortgagee rights under the provisions of clause (7), Chapter II, Part I, of the above noted Rehabilitation Scheme. Learned counsel then made reference to a memorandum dated 18- 5-1962. This memorandum was issued by the Office of the Chief Settlement and Rehabilitation Commissioner, West Pakistan, in partial supersession of the terms and conditions of the above referred Rehabilitation Scheme. This memorandum for the first time provided an option to a mortgagee to purchase the land held by such mortgagee under paragraph 7, Chapter II of the Rehabilitation Settlement Scheme. The option was to be exercised by eligible mortgagees and communicated in writing to the concerned Deputy Commissioner/Deputy, Settlement Commissioner (Lands) of the District concerned by 31-8-162. It is not disputed that Mst. Tajan exercised this option to purchase the land which was held by her on the basis of mortgagee rights.
It is also not disputed that the petitioners were neither holding any land in lieu of mortgagee rights nor did they make any application asserting an option to purchase the suit-land.
7. It appears that as a result of the Shariat Legislation, a mutation bearing Nn.2531, dated 30-12-1972 was sanctioned by the Revenue Authorities in respect of the entire estate of Shamshad Khan (deceased) without distinguishing the suit-land from the 29 Kanals of land in which Shamshad Khan as last male owner, had a full proprietary interest. As such, according to the said mutation, Mst. Tajan was shown to be entitled to 1/4th share in the suit-land while the brothers and sisters of Shamshad Khan were shown as being entitled to the remaining 3/4th share. It is this mutation which has triggered the controversy between the parties and in turn has led to the present contentious litigation between them.
8. Mst. Tajan filed a suit for declaration on 8-1-1973 claiming exclusive ownership of the suit-land and further claiming that Mutation No.2531 was illegal. Mst. Taian did not dispute the mutation in respect of 29 Kanals of land referred to above. Mst. Tajan's suit was decreed by the trial Court vide judgment and decree, dated 22-1-1976. Ail appeal, filed by the appellants, was dismissed by the learned District Judge. Muzaffargarh, on 19-4-1977.
9. Certain legal issues have been argued in the present proceedings which appear not to have been addressed by the two Courts below. The relevant facts being undisputed the legal issues require to be decided in this second appeal. The controversy between the parties, as noted above, is as to whether or not the suit-land was required to be treated in the same manlier as the proprietary land measuring 29 Kanals forming part of the estate question.
10. Learned counsel for the appellants argued that even though they had not been allotted any land in lieu of the mortgagee rights forming part of the limited estate, the option of purchase exercised by Mst. Tajan, was in a representative capacity and enured to the benefit of Mst. Tajan and the brothers and sisters of Shatrishad Khan. According to them, Mst. Tajan as the holder of a limited estate, was to be treated as a representative of her deceased husband and all benefits, which she derived by virtue of being a limited owner of the mortgagee rights, would also be for the benefit of the estate and would, as a consequence, devolve on all legal heirs of Shamshad Khan by virtue of the provisions of section 3 of Act V of 1962 and the other provisions of the Shariat Legislation. In support of their argument the learned counsel representing the appellants referred to the case titled Sher Muhammad v. The Additional Rehabilitation Commissioner PLD 1968 Lah.
329, the case titled The Additional Settlement Commissioner (Lands), Sargodha v. Muhammad Shaft and others PLD 1971 SC 791 and the case titled Muhammad Yaqub v Member, Board of Revenue PLD 1973 SC 304. Before considering the cited precedents I would like to note that none of the three cases relate to mortgagee rights. The case of Sher Muhammad v. The Additional Rehabilitation Commissioner, was only referred to by learned counsel for the appellants to show that a view had initially been formed by this Court that a limited owner acquiring proprietary rights on the basis of her limited ownership, would be treated as a full owner to the exclusion of .The reversioners. The cited precedent was, however, overruled in the case titled "The Additional Commissioner (Lands), Sargodha v. Muhammad Shaft and others" referred to above. This case is authority for the proposition that a female holding. a life estate, would not become exclusive owner of any land which may be allotted to her under the settlement laws and that the allotment so made would be treated as part of the estate to which all reversioners would be entitled upon the termination of her limited estate.
11. The case of Muhammad Yaqub (supra), was then referred to by the learned counsel representing the appellants. The ratio in this case logically follows from the case of Additional Settlement Commissioner v. Muhammad Shaft cited above. It was held in Muhammad Yaqub's case that upon termination of life estates any land allotted to the limited owner under the evacuee laws, would be treated as vesting in the estate and would, therefore, devolve on the legal heirs of the last male owner. It was emphasized by the learned counsel for the appellants that the limited female owner would not create a fresh stock of descent and as a consequence the property acquired by her during the currency of the limited estate, would not devolve on her heirs but would devolve on the legal heirs of the last male owner.
12. Learned counsel for the appellants did not address the argument advanced by the other side (as noted in paragraphs 6 and 7 above) that the appellants had, first of all, to establish that they had any right or interest in the suit-land under the evacuee laws, before they could invoke the Shariat Legislation in their aid. The record does not show, and nor is it the contention of the appellants, that they were mortgagee-claimants or that they were holding any allotment of land in lieu of mortgagee rights It. Therefore, necessarily follows, from the plain wording of the Rehabilitation Settlement Scheme, that the option to purchase mentioned in the memorandum, dated 18-5-1:962 was not available to the appellants. Learned counsel for the appellants, however, advanced the argument noted above, that Mst. Tajan's exercise of the option to purchase the suit- land was in a representative capacity because it was a benefit arising from an estate of which she was a limited owner and the appellants were reversioners. On the reasoning of the judgment in Muhammad Yaqub's case cited above, learned counsel for the appellants argued that the purchase of the suit-land by Mst. Tajan vested the said land in the limited estate and upon termination of the limited estate the suit-land stood vested in the appellants and Mst. Tajan in the manner reflected in impugned Mutation No. 2531.
13. The argument of the learned counsel for the appellant is fallacious at least on two counts. Firstly it does not take into account the provisions of the evacuee law and the settlement Rehabilitation Scheme framed thereunder. The said laws envisaged the allotment of land in Pakistan to those evacuees who were full owners of land left behind by them in the areas now forming part of India.
As a consequence, such evacuee owners became entitled to the allotment of land in Pakistan. On the other hand evacuee owners of mortgagee rights had no statutory right to an allotment of land in Pakistan. The mere fact that some such owners were allowed to hold evacuee land in lieu of mortgagee rights, would by itself not create any statutory right in the land so held by any evacuee mortgagee. This obvious distinction between full proprietary rights and mortgagee rights renders Muhammad Yaqub's case distinguishable.
14. Secondly, it is to be noted that Mst. Tajan alone exercised the option to purchase the suit-land and it was she alone who made the written communication required to be made before 31-8-1962 by the memorandum, dated 18-5-1962. It is not disputed by the appellants that the entire payment for the purchase of the suit-land pursuant to the aforesaid option, was made by Mst. Tajan without any contribution by the appellants. Learned counsel, however, did argue that the said payment was made from the income received by Mst. Tajan from the suit-land and the proprietary land measuring 29 Kanals forming part of her limited estate. On this basis, they attempted to argue that the suit-land became part of the estate and. Therefore, rightly devolved on the appellants in the manner reflected in the impugned Mutation No.2531. In this regard it is not established on the record that the payment made by Mst. Tajan was indeed made from the income of her limited estate and secondly, even if such payment was made from the income of the limited estate, it does not follow, as will be discussed shortly, that the suit-land vested in the limited estate rather than in Mst. Tajan in her own right.
15. As noted above, the Rehabilitation Settlement Scheme had initially stipulated that the mortgagees would have no right or entitlement to the allotment/purchase of land in lieu of mortgagee rights. This provision in the Scheme clearly recognized and set out the essential distinction between mortgagee rights and exclusive proprietary rights. The recognition of this distinction has throughout been maintained in the Rehabilitation Settlement Scheme. The only difference being that pursuant to a modification brought about on 18-5-1962, the settlement authorities made a special provision to sell land to mortgagees subject to the terms of the modified Rehabilitation Settlement Scheme. Since I have already held that Mst. Tajan alone fell within the definition' of the term "mortgagee", it necessarily follows that she alone, to the exclusion of the reversioners, was entitled in her own right to purchase the suit land.
16. In addition to the above, learned counsel for the respondents further argued that even apart from the provisions of the evacuee laws discussed above, the general law recognized the fundamental distinction between land forming part of a limited estate which was exclusively owned by the last male owner and mortgagee rights which were vested in him at the time of his death. He contended that the female limited owner was even under customary law, fully entitled to the mortgage money and she was also entitled to alienate the mortgagee rights without associating the reversioners or accounting to them for the mortgage money or for the proceeds of the sale of the mortgagee rights. In support of his argument learned counsel placed reliance on the case titled Dal Singh v. Bukhsheesh Singh and another (19 IC 8). In this case it was held that the reconveyance of mortgaged property by the limited owner did not constitute a voluntary alienation. It was also held in the cited case that the reversioners could not claim any interest in the mortgage money received by the limited female owner upon redemption of the mortgaged property.
17. Respondents' learned counsel also referred to the case titled Durga Kunwar v. Matrumal and others (19 IC 138) which is a Full Bench decision rendered by the Allahabad High Court. In the precedent case, the limited female owner had conveyed mortgagee rights for valuable consideration. The transferee of the mortgagee rights had filed a suit to recover the debt secured by the mortgage. The mortgagor objected to the suit on the ground that the reversioners had not been associated with the conveyance of the mortgagee rights and, as such, the transferee did not have a valid and enforceable claim against the mortgagor for the mortgage debt. This contention was repelled by the Full Bench of the Allahabad High Court which held that the limited female owner was entitled to convey the mortgagee rights vesting in the estate without associating the reversioners and also that the reversioners did not have any interest in the mortgagee rights or in the sale proceeds thereof.
18. It was further contended by learned counsel for the respondents that a mortgage transaction in essence was meant to secure the mortgage debt and any mortgagee rights which became vested in a mortgagee, were merely for the purpose of enforcing a claim for the mortgage debt. The cited precedents support this contention and further emphasize the fundamental distinction between absolute rights and mere mortgagee rights in immovable property. From the aforecited precedents, it also follows that until the termination of the limited estate the female owner alone is entitled to deal with the mortgagee interest. This contention of learned counsel has relevance to the matter in dispute in the present proceedings because Mst. Tajan was admittedly, the owner of mortgagee rights forming part of the estate of Shamshad Khan (deceased). In view of the case- law cited by the learned counsel for the respondents, the distinction between mortgagee rights and exclusive proprietary rights, is clearly established. On this basis, Mst. Tajan's exercise of an option vesting in her as the limited female owner, would enure to her exclusive benefit and any rights acquired through exercise of such option, would not form part of the estate.
19. It was further argued by learned counsel for the respondents that the grant of an option of purchase to Mst. Tajan, under the modified terms and conditions of the Rehabilitation Settlement Scheme, constituted a grant exclusively to her and not to the estate. This argument also has merit and has the support of precedent. Learned counsel referred to the case titled Mushtaq Ahmed alias Mushtaq Hussain v. Mst. Hakim Bibi PLD 1969 SC 338 and the case titled Mst. Began v. Mst. Bai PLD 1971 Lah. 567. Both cited precedents relate to limited female owners who succeeded to a life estate in respect of tenancy rights in colony lands. As a result of such rights, the limited female owners applied for and were granted proprietary rights by the Colonization authorities. It was held in the said cases that the acquisition of proprietary rights by the limited female owners enure to their exclusive benefit and such rights would not form part of the estate and, as a consequence, the reversioners would not be entitled to any right or interest in such proprietary, rights.
20. Learned counsel for the respondents next referred to the case titled Jagat Singh and others v.
Mst. Raj Devi and others AIR 1938 Lah. 554. This precedent is authority for the legal proposition that property acquired by a limited owner, becomes her exclusive property even where such acquisition is made with the income of the estate. The cited case was relied upon by learned counsel for the respondents to contend that even if the amount of Rs.9,061, deposited by Mst. Tajan for the acquisition of the suit land, was derived from the income of her limited estate, she would not thereby become a trustee of quasi trustee for the reversioners and that she would acquire the suit- land as her own exclusive property not forming part of the estate. There is merit in the argument. I am in respectful agreement with the dictum laid down in Jagat Singh's case.
21. Learned counsel for the respondents finally, argued that Mst. Tajan had become entitled to purchase the suit-land on the basis of her application in this behalf pursuant to the memorandum dated,18-5-1962 and she had, as a result of the said entitlement, paid the entire consideration for the purchase, amounting to Rs.9,061. A Robekar showing her title and possession was also issued in her favour on 3-4-1965. He contended that the said Robekar and the entitlement of Mst. Tajan had not been challenged by the appellants at any stage. Learned counsel for the appellants argued that it was not necessary to challenge the same because Mutation No.2531 had been sanctioned in favour of the appellants with which they were satisfied. The argument of learned counsel for-the respondents was made on the basis of the provisions contained in Act XXV of 1975 which, inter alia, required aggrieved persons to agitate their grievances within one year of the date of enactment of Act XXV of 1975. In view of the findings above, it is not necessary in the present proceedings to decide whether it was necessary for the appellants to challenge the sale of the suit-land to Mst.
Tajan considering that they were satisfied with the Mutation No.2531.
22. In view of the foregoing discussion, this appeal is dismissed.