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Civil Revision No. 227 of 1948, decided on 25th January 1949.

‑Alienation of occupancy rights by widow Reversioner can challenge alienation‑Punjab Tenancy Act (XVI of 188'7), Ss. 59 (3), 60.

A reversioner had under the Customary law power to challenge the alienations of a widow, holding occupancy rights under the Punjab Tenancy Act.

A. I. R. 1940 Lah. 364 followed; 1936 Pesh. L. J. 167 distinguished.

Sh. Muhammad Shafi, for Petitioner.

Sh., Allah Bakhsh, for Respondent No. 1

Respondent No. 2 in, person.

---‑This was a suit instituted by Mir Dad plaintiff against Mst. Lado and Raja Manochehr Khan, seeking a declaration that the sale effected by Mst. Lado in favour of Raja Manochehr Khan in respect of the property in dispute was void, and had no effect against his reversionary rights. The contention was that the suit property (meaning the occupancy rights in the property) originally belonged to one Sheikh Ahmad, who was an uncle of the plaintiff, and had died childless some where in the year 1918‑19. On his death Mst. Lado entered into the possession of the property in dispute as a life‑tenant in accordance with the provisions of section 59 of the Punjab Tenancy Act 1887. Her sale, continued the plaintiff, in favour of Raja Manochehr Khan the landlord, was against, the provisions of law, and as such not binding upon him (the plaintiff), who was a reversioner.

On behalf of the defendants it was pleaded that Sheikh Ahmad had himself transferred half of the disputed land in favour of Mat. Lado in lieu of her dower, and the remaining half she got in gift from him. It was also asserted that during the lifetime of Mst. Lado the suit as brought by the plaintiff was not competent.

The two Courts below have concurrently found all the points in favour of the plaintiff, with the result that he has got a decree in his favour as prayed for by him.

Raja Manochehr Khan has come up to this Court on revision, and the sole question, which has been agitated before me on his behalf is that even if the plaintiff‑respondent was admitted to be a reversioner, he was not competent to come to Court to challenge the sale by Mst. Lado, who was s n possession in accordance with the provisions of the Punjab Tenancy Act, 1887. It has been argued that the Punjab Tenancy Act did not at all give the plaintiff‑respondent a right to come to court during the lifetime of widow to challenge her alienation. It was further urged that the General Customary Law could not come into play in such cases, because they were governed by a Statute. Reliance is placed on a Bench Ruling of this Court, reported as 1936 Peshawar Law journal page 167, wherein it was held that a sale of occupancy rights by a widow was not void ab initio but only voidable at the instance of the landlord. The learned counsel for the defendant‑petitioner built up an argument on the basis of this ruling, saying that it was only the landlord, who could come to Court to have the sale declared void, and none else had a right to take an exception to such an alienation. Reference was also made in this behalf to section 60 of the Punjab Tenancy Act, which specifically vested the power of contesting the alienations of a widow in the landlord.

On going through the authority cited, in the light of sections 59 and 60 of the Punjab Tenancy Act, I find that the learned Judges of this Court had a special type of vase, which related to the power of a co‑tenant to contest the alienation of another co‑tenant, who happened to be a widow. The General Customary law does not invest any right in a co‑tenant to challenge the alienation of another co‑tenant, and it is only the Punjab Tenancy Act, from which he could derive a right. Now, the Act does not vest such a right in him, and consequently he viz., the co‑tenant could not fall back upon the General Customary Law. The case of a reversioner quite distinguishable, and has not been dealt with specifically in the ruling of this court. The matter has been before the Punjab Chief Court, and later on the Lahore High Court more than once since the year 1889, and it has been generally held that a reversioner had under the Customary law power to challenge the alienations of a widow, holding occupancy‑ rights under the Punjab Tenancy Act. The latest authority on the subject is the one reported as A. I. R. 1940 Lah. 364 wherein the whole case‑law was reviewed by a Full Bench, which came to the conclusion that the reversioner of a widow had a right to get an alienation made by her declared to be void, and not binding on them, independent of the question of valid necessity and consideration for the alienation, and this right was derived by them from Custom. It was further held that the mere fact that according to the provisions of section 60 of the Punjab Tenancy Act a: transfer of occupancy rights by a widow would be voidable at the instance of the landlord would not show that the transaction would remain valid until it was avoided by the landlord himself. This knocks the bottom out of the position taken up by the learned counsel for the defendant petitioner, that it was only the landlord and none else, who could seek to avoid the transaction. The learned judges, who constituted the Full Bench overruled all the cases, in which a contrary view had been taken.

The full Bench ruling summarized above clinches the matter, and in view of it I have no option but to uphold the judgments and decrees of the learned Courts Below.

In the result I dismiss the petition with costs.

A. H. Revision dismissed.

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