1. S. USMAN ALI SHAH, J.-The facts giving rise to this Letters Patent Appeal may be summarized as under :- Rahmatullah and Muhammad Umar respondent No. 1 were uncle and nephew Inter se and the two plaintiffs-appellants were the daughters of Rahmatullah. Rahmatullah and Muhammad Umar were occupancy tenants in equal share of the suit land meausring 115 kanals and 9 marlas, Rahmat-- ullah died in 1936. Muhammad Umer being the nearest male collateral of Rahmatullah succeeded, under the provision of section 59 of the Punjab Tenancy Act, 1887, to the aforesaid half share of land, vlda. Mutation No. 767 attested on 27-5-1936. Thereafter and Mutation No. 3252 was attested on 31-8-1955, Muhammad Umar sold 8 kanals in the suit land to Shamsuz Zaman and Fazal Rahman respondents 2 and 5. Subsequent to this transaction, the plaintiffs-appellants filed a suit, against Muhammad Umar, Shamsua Zaman and Fazal Rahman, for declaration that under the Shariat Law they are owners of 19/24th share out of the half share in the suit land possessed by their late father Rahmatullah and that the sale of the above said 8 kanals in the suit land by Muhammad Umar in favour of Shamsuz Zaman and Fazal Rahman is void and ineffective against their rights. In the plaint, it wag averred that Rahmatullah deceased also left behind his widow Mst.
2. Malko, the mother of the plaintiffs and thus upon her death, they became entitled under the Shariat Law to the above-mentioned 19/24th share in the property of their late father. The record shows that during the pendency of the suit, respondents Abdul Hakeem and Haji Muhammad upon their application, were also impleaded as defendants, as they claimed to be interested In the suit land on the ground that they were subsequent transferees.
3. The defendants resisted the suit and upon the pleadings of the parties, the learned trial Judge framed 14 issues in the suit. Consequently, in view of the evidence produced before him, the learned trial Judge, ride, his judgment dated 24-2-1958, granted the plaintiffs decree for joint possession of 3 kanals and 14 marlas out of the suit land which was not subject to mortgage and also a decree for possession of the equity of redemption in respect of 15 kanals of the land in dispute which was subject to the mortgage against the defen--dants. Feeling aggrieved, Muhammad Umar respondent went up in appeal before the learned Additional District Judge who, vide his judgment dated-- 6-6-1959 allowed the appeal and dismissed the plaintiff's suit. Against this judgment, the plaintiffs preferred a further appeal before this Court which was dismissed by a learned Single Judge, wide his judgment dated 3-11-1967. His Lordship however, considered the case to be tit for filing Letters Patent Appeal against his judgment. Hence, this Letters Patent Appeal.
4. We do not feel called upon to go into the merits of the case, as we have come to the conclusion that this appeal is liable to be dismissed on the legal ground that this case is governed by section 59 of the Punjab Tenancy Act, 1887, and the North West Frontier Province Muslim Personal Law (Shriat) Application Act, 1935, has no application in this case. We now proceed to furnish our reasons in support of our conclusion We do not agree with the learned counsel for the plaintiff's-appellants that the amendment of section 59 of the Punjab Tenancy Act, 1887, by section 3 of Act XX of 1939 (Punjab Tenancy) (North- West Frontier Province Amendment Act, 1939), the N.-W. F. P. Muslim Personal Law Shariat Act, 1935, became applicable with retrospective effect and therefore the question of succession in regard to tenancy rights in question was to be resolved under the Muslim law. A more look at Act XX of 1939 will show that the contention urged on behalf of the appellant is plainly untenable. Section 2 of the said Act says that it shall come into force at once and section 4 hereof by which section 59 (ibid) was amended says that :- When a tenant having a right of occupancy in any land dies, the right shall devolve on his heirs in accordance with the personal law of the deceased tenant."
5. Haring discussed the legal position in the case, we now advert to the decision of this appeal.
6. As stated earlier Rahmatullah died in 1936 when the Punjab Tenancy Act, 1887, was in force. Section 59 of the said Act has not countenanced the daughters of a deceased person to succeed to his occupancy tenancy, what this section says is that when a tenant having a right of occupancy in any land dies, the right shall devolve on his male lineal descendants, if any, in the male line of descent and, failing such descendants on his widow, if any. In their absence the right shall devolve on the male collateral relatives of the occupancy tenant in the male line of descent from the common ancestor of the deceased. In view of this provision, the plaintiffs-appellants being the daughters of Rahmatullah deceased could not succeed to his occupancy tenancy. Respondent Muhammad Umar was the nephew of Rahmatullah and upon the death of the latter, the former being his only male collateral, his occupancy tenancy devolved upon him according to the provisions of section 59 of the Punjab Tenancy Act, 1887, and the amendment by Act XX of 1939 could not divest him of that he got under the repealed law.
7. We, therefore, uphold the impugned judgment of a learned Single Judge of this Court and dismiss the appeal. As a question of law was involved in the case, we would make no order as to costs.