PLJ 2013 SC 620
Present: Nasir-Ul-Mulk & Amir Hani Muslim, JJ.
SAEED-UD-DIN and others--Appellants
HAFEEZ BEGUM and others--Respondents
Civil Appeal No. 1143 of 2011, decided on 21.2.2013.
(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, dated 10.10.2011 passed in C. R. No. 407 of 2004)
Colonization of Government Lands (
Punjab) Act, 1912--
----Ss. 19-A & 20--Male lineal descendants--Death of original tenant--Share in legacy of father on basis of S. 19-A of Act--Failure of original tenant to be survived by male lineal descendants--Substantial departure regarding succession to tenancy--Validity--Where muslim tenant dies after coming into force of S. 19-A of Act, tenancy shall devolve upon heirs in accordance with Muslim Personal Law--Provisions of S. 20 had been excluded from application of S. 19-A, of Act--Additional provision had been made applicable to tenancies where muslim tenant dies after coming into force of amendment in Act, 1951--High Court had erred in holding that crucial time for application of S. 19-A would be acquisition of ownership by sons of deceased--Where mMuslim tenant had died before year 1951, his daughters could neither claim benefit of S. 19-A nor Section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act--Appeal was allowed. [Pp. 624 & 626] A & B
Mian Allah Nawaz, Sr. ASC and Mr. M. S. Khattak, AOR for Appellants.
Mr. S. Najam-ul-Hassan Kazmi, Sr. ASC for Respondent Nos. 1-6, 9(i-iv, vi).
Ex-parte for other Respondents.
Date of hearing: 21.2.2013
Nasir-ul-Mulk, J.--Lal Din, predecessor-in-interest of the petitioners and the respondents, purchased on 07.01.1941, from the
, in open auction, agricultural land measuring 1800 kanals in Tehsil Khan Pur, District Rahim Yar Khan. The property was a colony land and auctioned under Section 10 of the Colonization of Government Lands ( Province of Punjab Punjab) Act, 1912 (hereinafter referred to as "the Colonization Act"). Out of the price of Rs.12162/-, Lal Din paid Rs.1945/- as first installment. He died in the year 1945 survived by a widow, five sons and five daughters. His eldest son, Saeed-ud-Din, made a statement to the Patwari informing him about the death of his father, giving details of the legal heirs with a request that the necessary mutation may be recorded in favour of the sons. The Patwari prepared a report, which was made note of by the Revenue Officer on 27.11.1946. Malkiaty pata was sanctioned on 19.01.1952. The mutation was eventually attested in favour of the sons of Lal Din on 17.05.1956, after they paid the entire amount of the installments. The afore-stated facts are not disputed.
2. After more than forty years on 05.12.1998 Mst. Hafeez Begum, one of the daughters of Lal Din, filed a suit claiming her shar'i share in the said agricultural property. Defendants No. 2-8, the sons of Lal Din and children of his deceased son contested the suit. After recording evidence the trial Court on 14.02.2004 set aside Mutation No. 32 dated 17.05.1956 and held that the plaintiff and other legal heirs of Lal Din were entitled to their respective shar'i shares in the suit land of 1800 kanals. The contesting defendants assailed the judgment and decree of the trial Court in appeal which was dismissed by the Additional District Judge, Rahim Yar Khan on 29.05.2004 with the modification that since out of the said land 25 acres in favour of Jalal Din and 210 kanals in favour of Nizam-ud-Din had already been alienated separately, and that lineal male descendants of Lal Din had acquired proprietary rights only to the extent 173 acres 6 kanals equal to 1390 kanals the successor-in-interest of Lal Din shall be entitled to their shari shares out of this area. The contesting defendants approached the High Court in its revisional jurisdiction pleading that the tenancy rights in the property were purchased by their father, Lal Din, and under Section 20 of the Colonization of Government Lands (
Punjab) Act the same devolved upon his lineal male descendants; and that such rights were not heritable. Further, that the suit filed after 40 years was barred by time. These contentions did not prevail with the High Court, the Court held inter-alia that though Lal Din died in the year 1945, the mutation in favour of the sons was attested in the year 1956, after Section 19(A) was incorporated in the Colonization Act whereby the rights acquired under the Act were made heritable notwithstanding the provisions of Section 20. Further that Section 15 of the Act regulated the relationship between the purchaser of the tenancy rights and the Government and had no bearing on the rights which the legal heirs of the original purchaser acquired in the property after his death. The revision petition was accordingly dismissed which was impugned before this Court. Leave to appeal was granted on 16.12.2011 in the following terms:--
"Learned counsel inter alia contends that in view of the facts and circumstances of this case that the female lineal descendants of Lal Din on his death have not acquired tenancy rights in the property, which was transferred in the name of male lineal descendants, who thereafter made payment of said property and got converted the same into ownership (conveyance/patta lease) in the year 1952, and in view of the judgment reported as Imam Bibi v. Allah Ditta (PLD 1989 Supreme Court 384) they, being the lineal female descendants of Lal Din, cannot claim their share.
2. We have pointed out to the learned counsel that if for the sake of arguments, his contention is accepted, we have to dilate upon this fact as well that the lineal descendents of Lal Din have acquired rights in the property by means of conveyance in the year 1952 on the basis of tenancy rights of their predecessor and no sooner on the strength of the same, such rights are acquired, all the legal heirs including the female lineal descendents shall be entitled to claim the right in the property? Therefore, to inter alia examine these propositions of law, leave to appeal is granted."
3. The learned counsel for the appellants submitted that but for the first installment paid by Lal Din, the remaining sale price was deposited by his sons and no contribution to the same was made by their sisters; that the suit, having being filed forty years after the property was entered in the names of the appellants or their predecessor-in-interest, was barred by time and no plausible explanation has been furnished to explain the delay. It was further pointed out that Lal Din's sons did not conceal his other legal heirs and on the first opportunity disclosed to the Patwari the names of all of them. He submitted that under Section 20 of the Colonization Act the property left behind by the original tenant upon his death was to devolve upon his male lineal descendants and it was done accordingly in the present case. He contended that the High Court had misinterpreted Section 19-A which came into force in the year 1951 whereas Lal Din died in the year 1945, and as a matter of law, the said provision was applicable in the case of tenants dying after coming into force of the said amendment. In support of his contentions on the legal proposition, the learned counsel relied upon the judgment of this Court in Mst. Imam Bibi v. Allah Ditta (PLD 1989 SC 384), Mst. Ghulam Bano v. Mst. Noor Jehan (2005 SCMR 658). Further support was sought from Umar Din v. Mst, Sharifan (PLD 1995 SC 686) & Mst. Fateh Bibi v. Mst. Fatima Bibi (2010 SCMR 760).
4. Responding to the above arguments, the learned counsel appearing for the respondents submitted that the question on limitation is not relevant in the case of inheritance; that the widow and daughters of Lal Din became entitled to the shar'i share in his legacy upon his death even if the remaining installments were paid by the sons. That the widow and daughters of Lal Din were entitled at least to a share in the property to the extent related to the installments paid by Lal Din. He sought support from the minority view in the recent case handed down by a five Member Bench in Ghulam Haider v. Murad.
5. The crucial question in the present case is the application of Section 19-A of the Colonization Act read with Section 20 thereof. For the sake of facility the same are reproduced:--
"19-A. Succession of the tenancy.--When after the coming; into force the Colonization of Government Lands (Punjab) (Amendment) Act, 1951, any Muslim tenant dies, succession to the tenancy shall devolve on his heirs in accordance with the Muslim Personal Law (Shariat), and nothing contained in Section 20 to this Act shall be applicable to this case."
20. 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--
(a) the male lineal descendants of the tenant in the male line of descent. (The terms, lineal descendant, 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, 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 pre-deceased grand-son'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 (b) of this section."
6. According to Section 20 of the Colonization Act, reproduced above, upon the death of the original tenant the tenancy was to devolve upon the persons mentioned therein. The first in line is the male lineal descendants. The categories mentioned in the clauses "(b) to (e)" can only be considered upon failure of the original tenant to be survived by the male lineal descendants. There is no dispute that under Section 20(a) the tenancy granted to Lal Din was to devolve upon his five sons and this was accordingly done when the Patwari prepared his report in the year 1946. Section 19-A was added by the Punjab Act III of 1951, making a substantial departure from the provisions of Section 20, regarding succession to the tenancy under the Act. By this addition where the muslim tenant dies after the coming into force of Section 19-A the tenancy shall devolve upon the heirs in accordance with the Muslim Personal Law; the provisions of Section 20 has been excluded from the application of Section 19-A. This additional provision has been made applicable to those tenancies where the muslim tenant dies after the coming into force of the amendment in the Act, 1951. Lal Din had died in the year 1945--before the coming into force of Section 19-A. His tenancy rights were thus to be regulated by Section 20 and not Section 19-A of the Act. The High Court had erred in holding that the crucial time for the application of Section 19-A would be the acquisition of ownership by sons of Lal Din in the year 1956. Section 19-A read with Section 20 does not admit of such construction. The same question came up before a three member bench of this Court in the case of Mst. Imam Bibi v. Allah Ditta (ibid), in circumstances similar to that of the present case. There too the matter related to the Bahawalpur Region and the original tenant who held the tenancy under the Colonization Act died on 28.02.1951 when Section 19-A was still not made applicable to the Region. The mutation of inheritance was entered in the name of Allah Ditta son of the original tenant in the year 1954. The contention on behalf of Mst. Imam Bibi the daughter of the original tenant that the inheritance of her father Nizam Din be decided in accordance with Section 19-A of the Act was rejected and in paragraph 12 of the judgment it was held:--
"12. Section 15 of the Act provides in express words that "A purchaser from Government of land who has been placed in possession of the land by order of the Collector shall be deemed to be a tenant of such land until the full amount of the purchase money with any interest due thereon has been paid and the other conditions set forth in the statement of the conditions of sale issued by the Collector have been fulfilled". On the strength of this statutory provision Nizam Din was a tenant of the Government land and admittedly price had yet to be paid by him. The compulsive effect of such a condition in view of the provisions of Government Grants Act of 1895 was considered in the case of Province of the Punjab through Collector, Sheikhupura v. Anjuman Talim-il-Islam and others PLD 1987 SC 123. The effect of the statutory provision referred to would clearly be that Section 19-A of the Act would not be available for determining the heirs of Nizam Din who died on 28.2.1951 and that the mutation of inheritance challenged by the plaintiff-appellant was in accordance of inheritance challenged by the plaintiff-appellant was in accordance with law governing the inheritance as provided in Section 20 of the Act."
7. The High Court has further held that even the succession to the tenancy of Lal Din would be regulated by the Muslim Personal Law. This interpretation again is contrary to the plain language of the above statutory provisions. Lal Din was granted the tenancy under the Colonization Act and thus was to be regulated by its provisions and not the general law of inheritance. At the time of his death, Lal Din was still a tenant, having paid only one installment and obviously the succession to the tenancy was to devolve in accordance with the provision of the Act, namely Section 20. By such provision only the sons could succeed to the tenancy. Having acquired the tenancy the sons became tenants in their own right. They paid the remaining installments. Section 15 of the Colonization Act provides that a purchase from the Government under the Act shall be deemed to be tenant until full payment of the purchase money. Upon payment of the entire installments the sons who till then were tenants became full owners in the year 1956. They had thus become owners in their own right under the provision of the Act and not as legal heirs of Lal Din. The High Court has therefore erred in holding that the tenancy, or for that matter the ownership of the property, was subject to distribution under the Islamic Law of Inheritance. In Mst. Ghulam Bano v. Mst. Noor Jehan (ibid) the daughters of the original tenant under the Colonization Act. claimed share in the legacy of their father on the basis of Section 19-A of the Act as well as Section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. The contention on their behalf was repelled and it was held that where the muslim tenant had died before the year 1951, his daughters could neither claim the benefit of Section 19-A nor Section 2-A of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. The Court placed reliance upon the principle laid down in the case of Mst. Imam Bibi v. Allah Ditta (ibid).
8. In the light of the afore-stated legal proposition, the arguments of the learned counsel for the respondents that they shall at least be entitled to their shar'i share to the extent of the first installment paid by Lal Din is also not tenable. This argument may have been valid had Lal Din's sons inherited the tenancy under the general law. The property devolved upon them under the statutory provision of Section 20 of the Colonization Act and not by way of inheritance.
9. For the foregoing reasons the impugned judgment and decree passed in favour of the respondents cannot be sustained. Consequently, we allow this appeal, set aside the impugned judgment of the High Court and the decree of the trial Court. Consequently, the suit filed by the respondents is dismissed with no order as to cost.
(R.A.) Appeal allowed