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Petitioner: UMAR DIN and anothers VS Respondent: Mst. SHARIFAN and another
Court Name: Supreme Court of Pakistan Judge(s): Fazal Ilahi Khan, Saeeduzzaman Siddiqui, Mukhtar Ahmed Junejo Title: UMAR DIN and anothers vs Mst. SHARIFAN and another Case No.: Civil Appeal No,453 of 1993 Date of Judgment:1995-07-19 Reported As: PLD 1995 Supreme Court 686 Result: Appeal dismissed
JUDGMENT
JUDGMENT SAIDUZZAMAN SIDDIQUII, J.--Leave was granted in the above appeal to consider the following legal questions:-- "In view of our decision in Imam Bibi v. Allah Ditta (PLD 1989 SC 384) the following two questions in particular require examination: (i) Whether sections 20 to 22 the Colonization of Government Lands Act stricto senso governed the succession or on their strength section 21(b) General Law of Succession to agricultural property governed the succession (ii) If General Law governed succession what that General Law was in Bahawalpur at the relevant time. ' Leave to appeal is therefore granted ." ' The admitted facts of the case are that Muhammad Ibrahim, the predecessor-in-interest of the parties was granted tenancy rights in respect of land measuring 400 Kanals in Chak No,116/DB, Tehsil Yazman, District Bahawalpur. The said Ibrahim died before the year 1948 and inheritance mutation was sanctioned in favour of his 3 sons namely, Muhammad Ismail., Ali Muhammad and Umar Din. Subsequently Muhammad Ismail also died leaving behind Mst. Sughra daughter and Mst. Sharifan widow. The tenancy rights of Muhammad Ismail were accordingly, mutated in favour of Mst. Sharifan widow as the limited owner. Mst. Sharifan remarried after the death of Muhammad Ismail and in consequence thereof, mutation in her favour was cancelled and the land was entered in favour of the legal heirs of Muhammad Ismail namely, daughter Sughra and her two uncles Ali Muhammad and Umar Din in equal shares. Ali Muhammad and Umar Din feeling aggrieved with the mutation filed a declaratory suit against Sughra and Mst. Sharifan claiming that the suit land
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being ancestoral in nature, the inheritance was governed by the custom under which daughters were excluded from inheritance. The trial Court dismissed the suit but on appeal the District Judge, Bahawalpur, reversed the judgment of the trial Court holding that under the general custom daughters were excluded from inheritance and accordingly the suit was decreed in favour of Ali Muhammad and Umar Din. From the judgment of the first Appellate Court, R.SA. No,66 of 1968 was filed by Mst. Sharifan and her daughter Sughra which was accepted with the result the judgment and decree passed by the District Judge in appeal was set aside and the judgment and decree of the Trial Court dated 12-11-1966 was restored. Against the order passed by the learned Judge in Chambers leave to appeal was granted as aforesaid. ' In support of the appeal, the learned counsel for the appellants contended that Muhammad Ismail having inherited the tenancy rights from the original tenant Muhammad Ibrahim, on his death, under section 20 of the Colonization of Government Lands Act, 1912 (hereinafter to be referred as `the act' only), the tenancy rights of Muhammad Ismail on his death devolved on his heirs in accordance with the provisions of section 21(b) of the Act. According to learned counsel for the appellants, in terms of section 21(b) ibid, the tenancy rights of Muhammad Ismail, in the absence of his male heir, on his death reverted to the surviving male heirs of the original tenant Muhammad Ibrahim, namely, the appellants as provided in section 20 ibid. In support of his contention, the learned counsel for the appellants has relied on the case Imam Bibi v. Allah Ditta PLD 1989 SC 384. The learned counsel for the respondents on the other hand contended that after the death of Muhammad Ismail the succession to the tenancy rights was governed under the Muslim Personal Law which was applicable to Bahawalpur, before the death of Muhammad Ismail and as such the mutation effected by the revenue auhorities on the remarriage of Mst. Sharifan in equal share in favour of Mst. Sughra daughter of the deceased and his 2 brothers, Muhammad Ali and Umar Din was in accordance with the law. The learned counsel in support of his contention referred the cases of Jiwana v. Mst. Shabi PLD 1954 Lahore 253 and Ata Muhammad and others v. Mst. Kharshid Begum PLD 1964 (W.P.) Lahore 224. ' We have heard, the learned counsel for the parties at length and our conclusions are as follows. Since the contentions of the learned counsel for the appellants are based mainly on the decision of this Court in the case of Imam Bibi v. Allah Ditta, supra, it would be appropriate to examine in some detail the facts of Imam Bibi's case. In the Imam Bibi v. Allah Ditta, supra, one Nizam Din had purchased land from the Government of Bahawalpur, and before he could pay the full price of the land and acquire proprietary rights therein he died. Under the terms and conditions of sale, until such time Nizam Din paid the full price of the land, he was to be considered a tenant of the Government on the purchased land. At the time of his death Nizam Din left behind a widow, two daughters and a son. In the mutation of inheritance which was attested on 7-11-1954 on the death of Nizam Din, the tenancy rights in the land were entered in favour of Allhh Ditta respondent No,1 in that case. On 25-10-1968, Imam Bibi the appellant in that case, who was one of the sisters of Allah Ditta, filed a suit claiming that Nizam Din died in 1952 leaving behind a widow, 2 daughters and a son. According to her, the question of inheritance of Nizam Din had to be decided under section 19- A of the Act. The trial Court after recording evidence of the parties held that Nizam Din had died on 28-2-1951 while section 19-A of the Act, which was introduced in Punjab Act No,III of 1951, was not made applicable to Bahawalpur on the date of the death of Nizam Din, therefore, inheritance could not be governed under that section. It was further found by the trial Court in that case that sections 20 to 23 of the Act which were made applicable to the Bahawalpur, governed the inheritance of Nizam Din. On these findings, the suit filed by Imam Bibi was dismissed. On appeal the Additional District Judge held that Nizam Din died on 28-3-1951 and as the Shariat Act was enforced in Bahawalpur on 5-3-1951, the plaintiff/appellant was entitled to inheritance as an heir of the deceased tenant under Islamic Law. The decree of the trial Court was, accordingly, reversed. On
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second appeal, the High Court affirmed the findings as to the date of death of Nizam Din recorded by the 1st Appellate Court but taking into consideration the provisions of the Government Grants Act and the Act concluded that the special law on the subject of Government Tenancy and Grants, was applicable to the exclusion of the Shariat Act in Bahawalpur which was enforced on 4-3-1951. On these findings the judgment and decree of the trial Court was restored. This Court after granting leave to the appeal with these observations:-- "It follows, therefore, that the promulgation of the Shariat Law in Bahawalpur on 4th of March, 1951 and the repealing of section 5 of the Punjab Laws Act had not the effect of derogating from the terms of the Act under which the grant was made. 12. Section 15 of the Act provides in express word 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 condition 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 1985 was considered in the case of Province of the Punjab through Collector, Sheikhupura v. Anjuman Talim-ul-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 with law governing the inheritance as provided in section 20 of the Act." ' It is quite clear from the above-quoted passage that the main question for determination before this Court in Imam Bibi's case, supra, was whether the provisions of newly added section 19-A of the Act were applicable to Bahawalpur on the date Nizam Din died. This Court held that section 19-A ibid, was not applicable to Bahawalpur. It was also found by this Court that on the death of Nizam Din, inheritance to his tenancy was governed under section 20 of the Act as the proprietary rights in the land had not yet passed to Nizam Din. From the facts, as stated in the report of Imam Bibi's case, supra, it is apparent that Nizam Din was the original tenant of the land and, therefore, on his death, his tenancy rights devolved on his heir in accordance with the provisions of section 20 of the Act which reads as follows:-- "Section 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 term lineal descendant' shall include an adopted son whose adoption has been rectified 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 wife, his predeceased grandson'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." ' Section 20 of the Act governs the succession to the tenancy rights of the original tenant on his death. Section 21 of the Act on the other hand contains the rule of succession to the rights of
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tenancy of the deceased tenant who inherited the same from the original tenant. Sections 20 and 21 of the Act, therefore, embody two different rules of succession to the tenancy of the deceased tenant, applicable in different situations. There is nothing in the language of section 21 ibid to support the contention of appellants that succession to tenancy in cases falling within the scope of section 21(b) of the Act, will be governed under section 20 ibid. If the intention of the legislature was that on the death of a tenant, the succession would continue to be regulated in accordance with section 20 ibid, it could have been so provided under clause (b) of section 21 of the Act. The fact that under section 21 (b) ibid, the tenancy rights were to be treated as agricultural land acquired by the original tenant would show that after the death of the person who inherited from the original tenant, the tenancy was to be governed as acquired agricultural land of the original tenant. Imam Bibi's case relied by the learned counsel for the appellants is therefore, distinguishable and does not apply to the facts of the present case. ' In the case before us we are concerned with the succession of the tenancy of Muhammad Ismail, who was not the original tenant of the land but had inherited the tenancy rights from the original tenant under section 20 of the Act. On the death of Muhammad Ismail his tenancy rights were first entered in favour of his widow and when the widow remarried, mutation was effected in favour of his daughter Mst. Sughra and his two brothers All Muhammad and Umar Din. It is common ground between the parties that the inheritance in respect of share of Muhammad Ismail (deceased) in the tenancy governed under section 21 of the Act which reads as follows:-- "Section 21. Successsion 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." (The underlining is by us). ' It is not disputed that clause (a) to section 21 ibid was not applicable in the present case and that the question of inheritance was to be governed in accordance with section 21(b) of the Act. Section 21(b) of the Act clearly provides that while considering the question of succession to the tenancy of the deceased tenant, the tenancy is to be considered as the agricultural land acquired by the original tenant. It is true that under section 15 of the Act a tenant does not acquire the proprietary rights in the land until he pays the full amount of purchase money but it is equally clear from reading of section 12(b) of the Act that while determining the question of succession to the tenancy right of the deceased tenant under this provision of law, the tenancy of the deceased tenant, by fiction of law, is treated as the agricultural land acquired by the original tenant. We are, therefore, of the view that the rule of inheritance contained in section 20 of the Act, which deals with the succession of the tenancy rights of the original tenant, would not be applicable to the case governed by section 21(b) ibid. The expression "agricultural land acquired by the original tenant" used in section 21(b) is very significant. By using this expression in section 21(b) ibid, the legislature made it clear that the rule of succession relating to tenancy would no more be applicable. In the case Jiwana v. Mst. Shabi, supra, one Sahta was granted tenancy rights in respect of 109 Kanals and 11 Marlas of Government land under the Act in Chak No,238-R.B., Tehsil and District Lyallpur. Sahta died on 28-8-1913 leaving no male issue and the land was mutated in the name of his widow Mst. Sattan on 29-6-1914. On 28-12-1945 Mst. Sattan, the widow of Sahta, executed a deed by which she relinquished her tenancy rights in the land in favour of her daughter Mst. Shabi without obtaining the sanction required under section 19 of the Act. Mst. Sattan died on 23-7-1949 and on 1- 12-1950 Collector, Lyallpur, in exercise of his power under section 19 of the Act sanctioned transfer
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by Mst. Sattan in favour of her daughter which had been evidenced by the deed dated 28-12-1945. On 31-1-1951, Jiwana, the son of a brother of Sahta, the original tenant, brought a suit against Mst. Sahbi for possession of 3/8th of the land which Sahta had left claiming to be entitled to that part of the land under the Muslim Law which he asserted was applicable because of the West Punjab Muslim Personal law (Shariat) Application Act, 1948. The defendant in the suit while not denying that her father was the original tenant and her mother had come into possession of the land after the death of her father pleaded that the deed of relinquishment executed by her mother made her the full owner of the property and therefore, the plaintiff had no right to get any part of the property. The trial Court decreed the suit but on appeal the District Judge, Lyallpur reversed the findings on issue No,1 in the suit. From the order of District Judge, an appeal was filed before the then High Court of West Pakistan which was accepted. The learned Judges in the course of discussion at page 261 of the report of that case held after the death of the original tenant, the right of inheritance of the person who inherited from original owner would be governed by Muslim Personal Law as is evident from section 21(b) of the Act. These were the observations of the learned Judges:- "The language of the section makes it clear that, in order to decide whether the personal law or custom was to apply to succession falling under clause (b), one had to assume, as was held in Allah Dad v. Mst. Noor Bibi 1950 Pak. LR 735 = PLD 1950 Lah. 356 by a Division Bench of which I was a member, that the tenancy was agricultural land acquired by the original tenant. As the tenancy was to be treated as the property of the original tenant, it is clear that for the purpose of deciding who was to succeed it had to be assumed that the original tenant had died on the date on which succession opened out under clause (b) of the section. Before the passing of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, succession to agricultural land was governed by section 5 of the Punjab Laws Act, 1872, and if it could be proved that the original tenant was governed by custom, the succession had to be according to custom. Section 2 of Punjab Act IX of 1948, however, made the Muslim Personal Law applicable even to agricultural land. Now if Sahta, who was the original tenant, had died on the 23rd of July 1949, which is the date of the death of his widow as he is to be assumed to have done and had left any agricultural land, succession would, because of section 2 of Punjab Act IX of 1948, be governed by Muslim Personal Law and it is, therefore, manifest that succession to the tenancy left by Mst. Sattan must be governed by that law and not by custom." ' In Jiwana's case, supra, the learned Judges of the Division Bench finally concluded as follows:-- "No doubt, the newly inserted section 19-A of Act V of 1912 purports to apply the Muslim Personal Law to all cases formerly governed by sections 20 to 23 of the Act, but that is no ground for inferring that the Muslim Personal Law was not applicable before that to any of the cases falling under those sections. Before the insertion of section 19-A succession under section 20 and clause (a) of section 21 could not be according to the Muslim Personal Law, nor could that law apply to cases governed by sections 22 and 23, the former of which enacts that if an original tenant had nominated heirs under clause (d) of section 20 to his tenancy rights in the land but subsequently acquired ownership in that land the nomination held good unless it was expressly provided to the contrary in the deed of nomination and the later enacts that a nomination of heir under clause (d) of section 20 could be revoked only by a registered deed. Such, however, was not the case with regard to tenancies governed by clause (b) of section 21. For the purposes of cases falling under clause (b) of section 21 of the Act, the tenancy was to be treated as agricultural land acquired by the original tenant and Muslim Personal Law would have been applicable even before the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, to succession to some tenancies held by Muslims, because some such tenancies must have been allotted to persons who followed their personal law and not custom. The enactment of West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), section 2 of which abrogates usage and custom even with regard to cases of succession
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to agricultural land, brought about this change that all cases of succession to tenancies held by Muslims which fell under clause (b) of section 21 were to be governed by the Muslim Personal Law. The newly inserted section 19-A, the provisos to which are couched in practically the same language as section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, has also brought a few minor changes in the course of succession in cases formerly governed by clause (b) of section 21 of Act V of 1912. One of these changes is that whereas formerly if succession opened out on the termination of the interests of a female tenant, the tenancy rights were to be deemed to be agricultural land acquired by the original tenant, after the insertion of section 19-A such tenancy rights are to be deemed to be the property of the last male owner who may or may not have been the original tenant. It is clear that the Provincial Legislative Assembly which enacted section 19-A of Act V of 1912 cannot be said to have interpreted the law as it stood at the time of the enactment of section 19-A to mean that no case of succession to a tenancy under the Act was governed by the Muslim Personal Law and it is, therefore, not necessary to decide whether or not the interpretation placed by a legislative body on the laws passed by its predecessors enjoys the same sanctity as its legislation within the limits of its legislative sphere. As the argument that it was only after the enactment of section 19-A in Act V of 1912, that the Muslim Personal Law became applicable to cases of succession to tenancies under that Act cannot be accepted, the conclusion which was sought to be drawn from the enactment of that section is not deducible at all." ' Similarly, in Ata Muhammad and others v. Mst. Khurshid Begum, supra, the question of inheritance was examined with reference to customary law of Gujrat but-it was clearly stated that while considering the question of inheritance of tenancy rights under section 21(b) of the Act, it is to be determined on the assumption that it was self-acquired property of the original tenant. The observations in Ata Muhammad's case, supra, were as follows:-- "8. We may now take up the third point raised by the learned counsel for the appellants, namely, that the relevant custom has been wrongly interpreted by the trial Court. It is conceded by Raja Said Akbar Khan that the case is governed by clause (b) of section 21 of the Colonization of Government Lands (Punjab) Act. For facility of reference, the whole section may be reproduced here: "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; been superseded. Section 5 of the Punjab Laws Act, 1872 which was applicable to the State of Bahawalpur until it was superseded by section 3 of the Act of 1951, reads as follows:-- "5. In question regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision shall be-- (a) any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished and has not been declared to be void by any competent authority; (b) the Muhammadan Law, in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to." It is quite clear from clause (b) ibid that the question regarding succession in the case where the parties were Muhammadans, is to be governed under Muhammadan Law except in so far Muhammadan Law has been altered or abolished by any legislative enactment or is opposed to
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the provisions of the Punjab Laws Act, 1872 or it has been modified by any such t) custom as referred in clause (a) of section 5 ibid. In the Gazetteer of Bahawalpur State 1904, while commenting on the customary law of inheritance prevalent in the State of Bahawalpur following observations have been made:-- "Customs and usages regarding matters of inheritance and enjoyment of landed property, and c., were recorded in the Settlement Wajib-ulArz according to the statements of the representatives of the various village communities in the Ubha and Lamma. The law in force in the State directs the Courts to follow local custom as given in the Wajibul-Arz and, failing that, the Muhammadan or Hindu Law, except in cases where these have been superseded by other laws adopted in the State. As a general rule all sons succeed equally, and succession is…
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