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Petitioner: Hakeem MAHBOOB ALI KHAN AND ANOTHER VS Respondent: DEPUTY COMMISSIONER, GUJRANWAL A AND 70 OTHERS
Court Name: Lahore High Court Judge(s): Aftab Hussain Title:Hakeem MAHBOOB ALI KHAN AND ANOTHER vs DEPUTY COMMISSIONER,
GUJRANWAL A AND 70 OTHERS Case No.: Writ Petition No, 542 of 1976, Date of Judgment:1977-08-12 Reported As: PLD 1977 Lahore 1354 Result: Appeal allowed Judgment JUD G ME NT ' The dispute in this case relates to the inheritance of Hakim Mehmood All Khan. Petitioner No, 1 is his full brother while petitioner No, 2 is his mother. Gut of the non-official respondents, respondent No, 2 is the widow of Hakim Mehmood Ali Klan. Respondents Nos. 3 and 4 are her son and daughter from another husband, namely Major Ghulam Rashid, They have been impleaded in their capacity as transferees by gift from respondent No, 2, of some of the property obtained by her in Pakistan in lieu of the property of Hakim Mahboob All Khan left in India. Respondents Nos. 5 to 71 have also been impleaded as transferees of a portion of the same property. 2. Hakim Mehmood Ali Khan died in Patiala (East Punjab) in the year 1942. He was owner of considerable agricultural land which was mutated in the name of respondent No, 2 as his widow. On the partition of the sub-continent she migrated to Pakistan. She filed two claim forms bearing Nos. 6231 and 6232 under the Punjab Refugee (Registration of Land Claims) Act V of 1949 for the property of her ex-husband which were verified in her name. She was allotted land in lieu of the land of her ex-husband in villages Sambla, Authwal, Sanopar and Uppalsansi of Tehsil and District Gujranwala. In 1953 she remarried Major Ghulam Rashid in Pakistan and respondents Nos. 3 and 4 are her son and daughter from this marriage. The life interest of Inter alia the widows was terminated by the West Pakistan (Shariat Application) Act, 1962 with effect from 31st of December of that year. Respondent No, 2 transferred several years after this termination of her limited interest, lands in village Sambla, Sanopar and Authwal to her son and daughter from the second husband (i,e, respondents Nos. 3 and 4) in the ratio of 2/3rd and 1/3rd by mutations Nos. 723 and 33 and 55 respectively. The gift in Authwal was mutated on 23-7-1967, while the mutations of gift in the two
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other villages were sanctioned on 19-5-1969. By a registered deed dated 17th of January, 1970 she alienated the area in village Uppal Sand in the name of respondents Nos. 5 to 71. Its mutation No, 123 was sanctioned on 14-2-1970. In this manner she alienated a total area of 4372 kanals, although as will be seen later, her interest in the area alienated did not mood 1/4th share which amounted to 1093 kanals only. 3. A dispute was raised by one Peer Muhammad Shah of Lahore in the year 1960 that respondent No, 2 having remarried had lost her widow's interest in the property of her ex-husband and remained entitled to retain out of the allotted area only a quarter share. He claimed that the balance three quarters should be allotted to others. On the 7th of June, 1970 the Extra Assistant Commissioner (R), Gujranwsla submitted a report to Mr. M. Y. Khand, Settlement & Rehabilitation Commissioner about this plea of Peer Muhammad. He stated that the plea of Peer Muhammad was that petitioner No, 1, brother of deceased Mehmood All Kban being in India allotment of property for his benefit could not be sustained. Respondent No, 2, however, represented that she was full owner of this property from 1942. It was reported that since the land was accorded in her name in the special Jamabandl, it would not be advisable to reopen this case unless an objection is raised by a reversioner. As such the land may be continued to be recorded in her name, Mr. M. Y. Khand ordered Peer Muhammad's application to be filed on the ground that respondent No, 2 had inherited the property much before partition as a full owner. This order was passed on 3-7-1960. 4. The same question was again raised consolidation proceedings of the above villages. The Consolidation Officer held on 29-12-1961 that respondent No, 2 was entitled to only 1/4th share of the property standing in her name and the balance 3/4th share was liable to forfeiture in favour of the Government. He sought permission of the Collector to review the mutation. The respondent No, 2 filed an appeal against this order. By the time the appellate order was passed, the permission to review had already been granted. The Collector dismissed the appeal as infructuous on the 28th of June, 1962. Respondent No, 2, went up in revision before Ch. All Ahmed, Additional Commissioner (Cons.), Lahore who by his order dated 29-9-1962 (Annexure P. 1) reversed the order of the Assistant Consolidation Officer on the strength of the order passed by Mr. M. Y. Khand. During the course of the proceedings before the Additional Commissioner (Consolidation), Mahboob All Khan, petitioner No, I was impleaded as a party. He filed a revision petition before the Board of Revenue. The same was dismissed on the 7th of May, 1963 (Annexure P. 3) on the ground that this question could not be re-opened under the Consolidation of Holdings Ordinance. 5. At the time when Mr. M. Y. Khand passed the order, it was generally considered that a person inheriting property from her husband as a widow under custom, became full owner of the property allotted to her in Pakistan in lieu of the property abandoned by her in India. A Full Bench of the Lahore High Court of West Pakistan in Sher Muhammad v. Additional Rehabilitation Commissioner, Multan and others (1), held that such a widow becomes entitled to permanent settlement of the land under section 15 and becomes vested with he proprietary rights under section 16 of the Displaced Persons (Land Settlement) Act XLVII of 195F. As such she is competent to alienate it in her life-time and is entitled on her death to be succeeded by her own personal heirs and not the heirs of the last male owner. This remained the law till the decision of several appeals including Additional Settlement Commissioner (Land), Sargodha v. Muhammad Shaft and others (2) by the Supreme Court of Pakistan., The Supreme Court overruled the Lahore case and held that the property allotted in Pakistan to such a widow is also subject to the same restriction on her right as was the property of her husband to which she succeeded on his death under custom. She does not become full owner of property allotted in Pakistan, It was further held that on the termination of such limited interest in Pakistan, the reversioner of the last male owner will become the allottee of such land to the extent of his share and thus the property in Pakistan after the termination of life
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interest would devolve on the heirs of the last full owner in India. While declaring this law, their Lordships of the Supreme Court observed as follows-- "In so holding I would also make it clear that this would not entitle the Settlement Authorities to reopen the orders of mutation against which no appeal has been filed and which have become final," 6. As stated above, the West Pakistan Muslim Personal Law (Shariat Application) Act, 1962 terminated the existing limited estates w.e.f, 31.12-1962, This provision came up for interpretation in Sarwar Bibi v. Said Ahmad and others (3) It was held that existing life interests were not terminated by this Act and they would subsist tit death or remarriage of the holder., The correctness of this dictum was disputed before the Supreme Court in some cases, The Governor of West Pakistan, however, promulgated Ordinance IX of 1972 known as Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972 which was made effective from the 31st of December, 1962 Section 2 of this Ordinance reiterated the law that the limited estates in respect of immovable properties held by Muslim females under the Customary Laws shall be deemed to have been terminated w,e,f, 31st December, 1962. The relevant provision is reproduced below:- "2. Removal of doubts,-(1) Notwithstanding anything contained in the West Pakistan Muslim Personal. Law (Shariat) Application Act, 1962 (West Pakistan Act V of 1962), the West Pakistan Muslim Personal Law (Shariat) (Amendment) Ordinance, 1963 (West Pakistan Ordinance, XXXIX of 1963), the West Pakistan Muslim Personal Law, Shariat) Application (Amendment) Act, 1964 (West Pakistan Act XXVIII of 1964) or any other law, or any decree, judgment, or order of any Court or other authority, or any proceedings pending before any Court or other Authority, the limited estates in respect of immovable property held by Muslim females under the Customary Law shall be deemed to have been terminated with effect from 31st day of December, 1962. (2) All decrees, judgments or orders passed in any suit, appeal or other proceedings by any Court or other authority which are (1) PLD 1968 Lab, 234 (2) PLD 1971 SC 791 (3) D 1969 Lab, 412 inconsistent with the provisions of subsection (1) shall be of no legal effect and such suits, appeals or other proceedings shall be decided afresh on the application of any person affected by such decree, judgment or order." 7. The judgment of the Lahore High Court in Sarwar Bibi's case came up for consideration before the Supreme Court in Muhammad Yuqub v. Member, Board of Revenue (1). The case before their Lordships was that of an allotment in favour of the widow under the Rebabilitation Act, Their Lordships reproduced their finding in Sher Muhammad's caw and held Ordinance IX of 1972 as a valid piece of legislation. They further held that section 3 of Act V of 1962 had, without any reservation terminated all limited estates held by Muslim females in the Province of West Pakistan with immediate effect. Since this manifest intention of the Legislature was negated by the High Court in Sarwar Bibi's case, it was necessary to reaffirm the rule of law contained in section 3. In these circumstances the Ordinance, IX of 1972 was enforced to clarify the legal position. 8. After the 31st of December, 1962 and before the date of application of Ordinance IX of 1972 the widow allottees had dealt with the properties allotted to them in lieu of their widow's interest as full owners. In numerous cases they had alienated these properties in order to remove this difficulty and to give effect to the Act of 1962, Ordinance of 1972 and the law declared by the Supreme Court, an Ordinance known as the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Ordinance V of 1975, was promulgated on the 28th of January, 1975. This Ordinance was later on replaced by the Punjab Muslim Personal Law (Shariat) Application (Removal of Difficulties) Act XXV of 1975. This act was made effective retrospectively from 15th of March, 1948. Its p-eamble and sections 2, 3 and 4 are reproduced here:-
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"Preamble.-Whereas refugee females who were limited owners under custom were allotted evacuee property in the Punjab and such allottees were erroneously treated as full owners of the property allotted to them; ' And whereas, the Supreme Court of Pakistan has held that allottees are limited owners under custom. ' And whereas it is expedient to extend the benefit of the said decision of the Supreme Court of Pakistan to the persons aggrieved by the said erroneous view; It is hereby enacted as follows:-- (2) Removal of difficulties.-Notwitbstanding anything to the contrary contained in any other law for the time being in force, all decrees, judgments or orders passed in any suit, appeal or other proceedings by any Court or other authority treating a refugee female allottee as full owner of the property allotted to her in lieu of the property abandoned by her in India or to which she was otherwise entitled; as a limited owner, shall be of no legal effect and such suit, appeal or other proceedings shall, on an application made by an affected person within one year of the commencement of this Act, be decided afresh. (1) PLD 1973 SC 304 (3) Permission to file fresh suits, etc.-Any person aggrieved by an alienation or an order of succession with regard to any property allotted to a refugee female in lieu of the property abandoned by her in India or to which she was otherwise entitled as a limited owner under custom, and who could not challenge such alienation or succession, may call it in question in a Court or before any other authority within one year of the commencement of this Act. (4) Bar to claim adverse possession.-Any person who claims to have acquired any right or interest in property whether by alienation, succession or otherwise, originally allotted to a refugee female limited owner, shall have no right to plead adverse possession against any lawful heir of the last male holder." 9. The Supreme Court in Additional Settlement Commissioner v. Muhammad Shafi (1) had found it difficult to apply the principles of its decision to matters already decided. It had therefore added a clarification that its judgment would not entitle the Settlement Authorities to reopen the orders of mutations against which no appeal had been filed. This difficulty was removed by the Act by its section 2 and all orders passed contrary to the law as declared by the Supreme Court, whether by Court decrees or judgments or by other authorities were declared as being without lawful authority. It was further provided that proceedings, suits or appeals in which order, judgment or decree so declared, was made, could be treated as pending liable to be decided afresh if application by an affected person was made within one year of the commencement of the Act. Section 3 provided for filing suits or proceedings by an aggrieved person within the same period of limitation to challenge an alienation or an order of succession with regard to such property where he could not challenge such alienation or succession. Section 4 barred any claim of adverse possession against any lawful owner by a transferee of such property or by a person who succeeded to it in a manner contrary to the law declared and clarified by the Act of 1975. 10. The petitioners after the enforcement of Ordinance IX of 1972 submitted four petitions before the Revenue Officer 1st Grade for review of mutations made in the four villages by which respondent No, 2 was allotted land in lieu of her widow's interest. Since only the Collector was competent to allow review, the Revenue Officer referred the case to him with a report dated 234-1974. These applications purported to have been made in view of subsection (1,,) of section 2 of Ordinance IX of 1972 which after declaring the orders passed inter alia in any proceedings by any Court or authority as being without legal effect provided that such proceedings shall be decided afresh on the application of any person affected by such order.
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11. After the enforcement of Act of 1975 the petitioners applied to the Collector on the 15th of June, 1975 by four applications (copy of one of which is Annexure P. 7) to treat their above-mentioned applications as applications under the Punjab Act XXV of 1975 and to direct the Tebsildar (Assistant Collector, Gujranwala) to decide them under that Act. 12. The Collector dismissed these applications by a consolidated order Annexure P. 8 dated 27-1- 1976 for the following reasons:- (1) In view of the order dated 3-7-1960 passed by the Settlement (1) PLD 1972 SC 791 Commissioner the proper forum for the dispute about termination of life interest was either the Settlement and Rehabilitation Authority or a civil Court. (2) In a case relating to cancellation of mutation No, 94 in consolidation proceedings Mahboob Ali Khan had gone up in appeal before the Board of Revenue without any success. The Board of Revenue was, therefore, the proper forum under the Act of 1975 for setting aside the orders. (3) Under section 3 of the Act of 1975 fresh application can be filed by a person to challenge any alienation or succession. But since the petitioners had gone to the Board of Revenue in Mutation No, 94, this provision does not help them. (4) The question of title about the parties as being legal heirs could be deckled only by the civil Court. (5) Punjab Act of 1975 does not permit pending applications to be treated as applications under that law. 13. The basic question in this case is whether M.o. Selma Begun], respondent, No, 2 was a limited owner of the property to which she succeeded on the death of her husband in the year 1942. The argument of Sheikh Abdul Haque, learned counsel for respondents Nos. 2 to 4 is that respondent No, 2 was recorded as full owner. The petitioners have filed the Mutation of succession decided in 1942 (Annexure P. 4). The order of sanction of mutation notices that Hakim Mahtnood All had died chile less. It was also noticed that he had two brothers. The mutation of succession was, however, attested in favour of respondent No, 2 as a widow. Annexure P. 5 is the Copy of Register Riwaj-e- Aam. It has been produced to prove that a Rajput's widow succeeds to his estate till remarriage. From this Riwaj-e-Aam it can be deduced that if she not does remarly, her life interest must terminate on her death. Annexure P. 6 is a copy of the pedigree-table which proves Mahbub Ali Khan, petitioner No, 1 to be a full brother of Mahmood Ali Khan and respondent No, 2 to be his widow. 14. These documents establish beyond any shadow of doubt that the petitioners' family was governed by custom and the widows succeeded only till remarriage or at the most till death and that the mutation of succession of Mahmood All Khan was attested in favour of the widow A despite his having left a real brother. The relationship between the deceased and the petitioners does not appear to 'have been challenged in any earlier proceedings. This is clear from Annexures P. 1, P. 3 and P. 8. In the written statement respondents Nos. 2 to 4 have admitted this relationship. The other respondent have not denied it specifically in their written statement. They have denied the contents of para. 2 of the writ petition (dealing with relationship) for want of knowledge. It is, therefore, evident that notwithstanding the fact that Mahmood Ali Khan had a brother and mother in addition to his widow, the first two were excluded from succession to the property. This exclusion was not possible if the mutation Annexure P. 4 had been attested under Shariat. In that case respondent No, 2 would have been given only 1/4th out of the estate of her deceased husband. The mutation Annexure P. 4 must, therefore, be held to have been attested under custom. 15. This was not seriously disputed by either of the learned counsel. The only argument in this connection was that custom differs from place to place. In these circumstances it is not possible
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without evidence of what that custom was, to give a finding in favour of respondent No, 2 being a limited owner. Sh. Abdul Haq argued that there might be a custom which gives to the widow full ownership in the property. I do not agree with this argument. The general custom in the Punjab is in favour of the widow succeeding to an interest till death or remarriage. I have not come across a single instance where the widow may have succeeded to the property of her husband as a full owner. Nor was any reference made to any customary law to justify this assertion. The Rijaj-i-Aam (Aonexure P. 5) is sufficient to prove its hollowness. Even if this document had not been on record, there would be no difficulty in arriving at the same conclusion in view of the general custom about widow's estate being uniform and explicit. The estate held by respondent No, 2 was only a widow's estate terminable on her death or remarriage. The property allotted to her in Pakistan was subject to the same restriction and did not confer upon her any right of full ownership. 16. In this view of the matter the order of Mr. M. Y. Khand which has been relied upon subsequently to the detriment of the petitioners was without lawful authority and was declared as such first by Ordinance IX of 1972 (section 2(2), and then by Act XXV of 1975 (section 3). 17. The learned Collector has held that the forum for the decision of this matter was the Settlement Authority who succeeded Mr. M. Y. Khand. The learned counsel for the respondents also argued on the same lines. This aspect of the case may now be considered. 18. The Evacuee Property and Displaced Persons (Laws Repeal) Act, 1975 repealed inter alia, the Displaced Persons (Land Settlement) Act, 1958 and the Pakistan Rehabilitation Act, 1956, with effect from Ist of July, 1974. It made provisions about the proceedings pending before the Settlement Authorities on the above date. Subsection (2) of section 2 of the Act provided that all such proceedings shall stand transferred for final disposal to such Officers as may be notified by the Provincial Government in the Official Gazette. The Provincial Government issued such a Notification No, 296 (Misc.) ADMN. 170/1974, by whirl it conferred the powers of the Settlement Commissioners on the Additional Commissioners of their respective Divisior s and the powers of Additional Settlement Commissioners on the Deputy Commissioners of their respective Districts. It was argued that since Mr. M. Y. Khand while passing the order of July, 1960, acted as a Settlement Commissioner after .The declaration of that order as having been passed without lawful, authority, only the Additional Commissioners would be competent to decide the matter of which Mr. M. Y. Khand was once seized. 19. This argument is attractive on the face of it but on a deeper consideration, I fail to find any force in it. It is clear that the proceedings before Mr. M. Y. Khand were started by Peer Muhammad who was only interested in the cancellation of 311th of the area allotted in the name of respondent No, 2 which according to him had on her remarriage devolved upon petitioner No, 1 who being an Indian National could not take advantage of it. Peer Muhammad had challenged in that application not only the right of respondent No, 2 but also of the petitioners, particularly petitioner No, 1. Peer Muhammad has now no interest left and cannot be expected to initiate or continue those proceedings. The petitioners who were never a party to these proceedings cannot continue the same. ' Moreover they cannot be expected to initiate proceedings of an application which cuts off their interest also. I am therefore of the view that these proceedings are neither capable of being continued nor can they be continued by the petitioners. In these circumstances the order of the Collector that the Settlement Authorities formed the proper forum is not justified by law. 20. I have already held that the proceedings before Mr. M. Y. Khand were incapable of being continued. Then how would the Acts of 1972 and 1975 benefit the petitioners. Both the Acts declare certain orders as having been passed without lawful authority. Such declaration might pend proceedings in which the order was passed. To meet this situation they add provisions for fresh decision of these proceedings on applications of affected person. But such provisions, where they
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are not applicable to particular cases, would not negate the effect of the legislative declaration about the order being void or without lawful authority. 21. It would not be a vindication of the provisions of (1) the declaration and (2) the measure for obtaining relief, if it is held that they should be interpreted as only capable of standing and tailing together. There may be a situation in which mere declaration may be effective without the necessity of the matter being pursued further by resorting to-the measure provided in the two Acts. These may be cases where the original proceedings, in which the order statutorily declared void was passed, have been rendered infructuous on the date of enforcement of the two Acts for other reasons. In such cases the proceedings would not become pending as a consequence of declaration. Nor would resort to the provision about application for fresh decision be in such cases possible. Similarly there might be another category of cases where though such order prior to its being declared ultra sires by the Acts of 1972 and 1975, be a permanent and insurmountable hurdle in the way of non-parties to the Proceedings, yet it may not be in the interest of such non-parties to apply for de novo decision of those proceedings. In such cases, in view of the impossibility or inadvisability of continuance of the proceedings for a fresh decision, the declaration of the order as being without lawful authority, should be taken to its logical conclusion. The two Acts make provisions for something in the nature of remand, but such provisions will be attracted here it is capable of being acted upon. Where the proceedings do not merit to be remitted, the declaration will be as effective as if the matter already stands…
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