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‑‑ Ss. 59 & 114 [as amended by Acts IV of 1951 and VII of 19521‑Interpretation of S. 114‑ Widow holding a life estate in occupancy under S. 59 does not become its full owner under S. 114 even if she had paid compensation to landlord within time.‑[Interpretation of statutes.)

Under the unamended Punjab Tenancy Act the widow was given a limited estate in the occupancy tenancy rights which was to terminate on inter alia remarriage or death. The Punjab Tenancy (Amendment) Act, 1951, did not enlarge this right but provided that after the termination of the limited estate the occupancy tenancy would devolve upon Shariat Law heirs of the last full owner. The property held by the widow, therefore, remains a limited estate notwithstanding the enforcement of section 59 as amended by the Act, 1951. Section 114 only 'says that an occupancy tenant becomes the owner of the property held by that occupancy tenant subject to certain conditions. It does not terminate distinction between a full owner and a limited estate holder, but only says that the person holding the occupancy tenancy would become owner. It is established proposition of law that a person holding a limited estate is as much owner of the property as a full owner although the ownership of the limited estate holder is subject to certain qualifications. The correct interpreta tion of section 114 would, therefore, be that a limited owner of occupancy tenancy right would become a limited owner of occupancy tenancy right and will become a full proprietor of the property under the tenancy. There is no provision in section 114 enlarging the rights of the widow except to the extent that her right of occupancy tenancy would be deemed to mature into ownership right. It does not extend or enlarge scope of the interest held by her which was only a limited estate under section 59.

Mst. Sian v. Jehana R. S. A. No. 179 of 1959 rel.

Sh. Ataullah Qureshi for Appellants.

Maulvi Ihsanul Hag for Respondents.

Dates of hearing : 5th, 9th, 10th and 11th October, 1972.

The only question that arises in this appeal is whether a widow hold ing a life estate in occupancy under section 59 of the Punjab Tenancy Act becomes its full owner under section 114 of that Act if she had paid the compensation to the landlord within time.

2. This question has arisen in the following circumstances; Nizam Din was occupancy tenant of land in dispute. After his death his right devolved upon Mst. Rajan his widow as a limited owner under section 59, Punjab Tenancy Act before the enforcement of the Punjab Tenancy (Amend ment) Act, 1951. This section was as follows before the amendment Act of 1951 :‑

"59.‑(1) When a tenant having right of occupancy in any land dies, the right shall devolve:-

(a) on his male lineal descendants, if any,. in the male line of descen dants, and

(b) failing such descendants, on his widow if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom, and

(c) failing such descendants and widow, on his widowed mother, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom, and

(d) failing such descendants and widow or widowed mother, or, if the deceased tenant left a widow or widowed mother, then when her interest terminates under clause (b) of this subsection, on his male callateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives

Provided, with respect to clause (d) of this section, that the common ancestor occupied the land.

(Explanation.‑For the purpose of clause (d) land obtained in ex change by the deceased tenant or any of his predecessors‑in -interest of subsection (1) of section 58 (A) shall be deemed to have been occupied by the common ancestor if the land given for it in exchange was occupied by him).

(2) As among descendants and collateral relatives claiming under sub. section (1), the right shall, subject to the provisions of that sub section devolve as it were land left by the deceased in the village in which the land subject to the right is situate.

(3) When the widow of a deceased tenant succeeds to a right of occupancy, she shall not transfer the right by sale, gift or mortgage or by sublease for a term exceeding one year

(4) If the deceased tenant has left no such persons as are mentioned in subsection (1) on whom his right of occupancy may devolve under the subsection, the right shall be extinguished."

By the Punjab Tenancy Act, 1951, section 59 was amended to bring it in line with Muslim Personal Law (Sbariat) Application Act of 1962 and the relevant portion of the amended section is also reproduced :‑‑

"59.‑(1) When a Muslim tenant having a right of occupancy in any land dies, the right shall devolve on his heirs in accordance with the provisions of the Muslim Personal Law (Shariat) Act

Provided that when the occupancy rights are held by a female as a limited owner‑ under Customary Law, succession shall open out on the termination of her limited interest to all persons who would have been entitled to inherit the property at the time of death of the last full owner had the Muslim Personal Law (Shariat) Act been applicable as the time of such death, and in the event of the death of any of such persons before the termination of the limited interest mentioned above, succession shall devolve on his heirs and succes sors existing at the time of the termination of the limited interest of the female as if the aforsaid such person bad died at the termina tion of the limited interest of the female and had been governed by' the Muslim Personal Law (Shariat) Act."

The effect of this provision was that Mst. Rajan was to remain as a limited owner subject to the disabilities enumerated in subsections (1) (b) and (3) of section 59. Her life interest was to continue till her death, remarriage. abandonment or ejectment and she had no right to transfer the occupancy tenancy right by sale, gift or mortgage or by sublease for a term exceeding one year. After the termination of her life interest the occupancy tenancy right held by her was to devolve on persons who would have been 'entitled to inherit the property of Nizam Din at the time of his death bad the Muslim Personal Law (Shariat) Act been applicable at the time of his death and the childless widow's interest under Shariat would have devolved upon Mst. Rajan or her heirs.

3. On 4th February, 1952 Punjab Tenancy (Amendment) Act 1952 (Act VII of 1952) was enforced. This Act added inter alia section 114 to the Punjab Tenancy Act providing for extinction of occupancy tenancy. Subsection (1) provided that. no person after coming into force of the Punjab Tenancy (Amendment) Act, 1952, shall acquire and have occupancy rights in any land under any enactment or contract or any decree or order of any Court or .other authority. and the existing occupancy rights in respect of all lands other than lands owned by Government or evacuee lands shall be extinguished and the lands comprised in a tenancy so extinguished shall vest as hereinafter provided. Relevant portion of subsection (2) which is material for the ‑ present case was as follows :‑

"14 (2) An occupancy tenant, who at the time of the coming into force of the aforesaid amendment Act occupies any land as such shall become owner as under :‑

(a)........................

(d) of the whole or a portion of the land c6inprised in his tenancy on payment of such compensation in such form and within such time to the landlord as may be determined by Government by rules framed, under this Act, where he pays rent partly in such and partly in the form of a share of the produce."

On 25th August, 1962 by mutation No. 761 Mst. Rajan alienated the entire property in the name of Muhammad Sadiq applicant No. 2 by way of gift.. The respondents filed a suit for joint possession of 7/16 share of the land in dispute on the ground that by the Muslim Personal Law (Shariat) Application Act of 1962 limited interest vested in Mst. Rajan stood terminated and being a limited estate holder she could transfer the property held by her under section 5 of the Punjab Tenancy Act This suit was resisted by the appellants inter alia on the ground that after the enforcement of Punjab Tenancy (Amendment) Act, 1952 Mst. Rajan had become full and complete owner of the property in suit and was compe tent to alienate it. The learned trial Court dismissed this suit by order and decree dated 18th April, 1968 on the ground that after paying Malkana (compensation as required by section 114 (1) (d) of the Tenancy Act) occupancy rights were merged with proprietary rights and Mst. Rajan had become full and complete owner of the property in suit. The respon dents filed an appeal which was allowed by Mr. Mahmood Khan, Addi tional District Judge, Jhelum, by his order dated 4th May, 1965. He set aside the decree of the learned trial Court after holding that Mst. Rajan continued to be a life estate holder in spite of section 114 of the Punjab Tenancy Act. He found that the payment made by her (reference is to the payment of compensation under section 114 (1) (d) would remain a charge on the land comprised in the khata payable by heirs pro rata in accordance with the share inherited by them. The case was reman ded under Order XL1, rule 23, C. P. C. for adjudication on the other issues, .

4. The learned counsel for the appellant contended that in view of the unambiguous language used by section 114 Mst. Rajan had become full owner of the proprietary interest in the property in dispute after extinction of the occupancy tenancy rights. He argued that the position of Mst. Rajan was‑ analogous to the position of tenant (limited interest holder of occupancy tenancy) under the Colonization of Government Lands (Punjab) Act, 1912, before the enforcement of section 30‑A of that Act.

In this connection he relied upon Muhammad Hanif v. Crown (P L D 1956 Lab. 394) and Shakeela v. Muhammad Ramzan (P L D 1962 B J 42), where it was held that if a widow having a limited interest in the occupancy tenancy has deposited the price of the property under that tenancy before the enforcement of section 30‑A of the Colonisation Act she would be deemed to be a full owner of that property. Lal and others v. Gauhar and others (A I R 1918 Lab. 103), and Saughat Singh v. shar Singh (A I R 1927 Lab. 536), were also referred to for the proposition that if the occupancy tenancy is merged in the proprietary right the land so held cannot be deemed to be ancestral.

5. In my view none of these authorities have any relevance to the facts of the present case and the law applicable thereto. Under the un -amended Punjab Tenancy Act Mst. Rajan was given a limited estate in the occupancy tenancy rights which was to terminate on inter alia remarriage or death. The Punjab Tenancy (Amendment) Act, 1951, did ;got enlarge this right but provided that after the termination of the limited estate the occupancy would devolve upon Shariat Law heirs of the last full owner. The property held by Mst. Rajan, therefore, remain a limited estate not with tending the enforcement of section 59 as amended by the Act, 1951. Section 114 only says that an occupancy tenant become: the owner of the property held by that occupancy tenant subject to certain conditions. It does not terminate distinction between a full owner and a limited estate holder, but only says that the person holding the Occupancy would become owner. It is established proposition of law that a person holding a limited estate is as much owner of the property as a full owner although the ownership of the limited estate holder is subject to certain qualifications. The correct interpretation of section 114 would therefore, be that a limited owner of occupancy tenancy right would be come a limited owner of occupancy tenancy right and will become a full proprietor of the property under the tenancy. There is no provision in section 114 enlarging the rights of Mst. Rajan except to the extent that her right of occupancy tenancy would be deemed to mature into ownership right. It does not extend or enlarge scope of the interest held by her which was only a limited estate under section 59. A Division Bench of High Court of West Pakistan had also held in the case of Mst. Sian v. Jehana (R.S.A. No. 179 of 1959) that a limited owner of a occupancy tenancy does not become a full owner by virtue of section 114 of the Punjab Tenancy Act.

An analogous question under the Displaced Persons (Land Settle ment) Act of 1958 came up for consideration before their Lordships of the Supreme Court in Additional Settlement Commissioner Lands v. Muhammad Shafi and others (PLD1971SC791). Their Lordships had disposed of several appeals by this reported judgment. In all these cases land was allotted to widows in Pakistan in lieu of life interest held by their in India. The High Court of West Pakistan held that the widows were full owners of the land allotted to them under the Displaced Persons Land Settlement Act, 1958 in spite of the fact that the land in lieu of which this allotment was made was held by them as limited owners. This view did not find favour with their Lordship of the Supreme Court and it was held that if the intention had been to acquire full ownership rights and to exclude reversioners altogether from the right of succession, one would have expected some express provision in the Scheme in that behalf. Their Lordships parti cularly referred to the concept of female's estate under the Hindu law. That concept of widows estate is that she notionally represents her husband, as if, her deceased husband is for the purposes of the manage ment and use of his properties, kept alive and this analogy was applied custom also. It was observed that:-

"The claim filed by her, therefore, is also in her capacity as representative of her husband or, in other words, as if the husband who is alive through her in respect of her properties left behind in India, for no one else has the right to file any claim in respect of the said properties."

Section 59, Punjab Tenancy Act, when it provides that the widow will hold a limited a interest till re-marriage or death, introduces the provision of general custom in the Punjab and the above observation of their Lordships can aptly be applied to a case under that Act.

6. There is no merit in this appeal which is dismissed with costs.

M.Y.H. Appeal dismissed.

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