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Regular Second Appeal No. 780 of 1947, decided on 13th June, 1950 from the order of District Judge, Sargodha, dated 13st January, 1947.

(a) Colonization of Government Lands (Punjab) Act (V of 1912) as amended by Punjab Act (III of 1920), Ss. 20 and 21 (b) Original tenant dead‑Succeeded by minor son‑Latter dying and succeeded by unmarried daughter of original tenant Succession, held, fell under S. 21 (b) and not under S. 20.

When an "original tenant", as defined in section 3 of the Act, dies, the succession devolves on the person most entitled 'to it under section 20, but when the succession opens on the termination of the interest of the person, who came into possession under section 20, it is governed by clause (b) of section 21 of the Act.

The fact‑that the property was to be treated as the property of the original tenant is a sufficient indication of the intention of the Legislature that the succession was to be treated as a succession to the original tenant.

The law does make a distinction between the rights of females according to the stage of the tenancy at which they come into possession of it.

I. L. R. (1939) 20 Lah. 385 F. B. at p. 397; A. I. R. 1929 Lah. 100 ref:

(b) Colonization of Government Lands (Punjab) Act (V of 1912) (as amended by Punjab Act (111 of 1920) S. 21 (b) Daughter of original tenant succeeding under S. 21 (b) Marrying Whether to be deprived of interest in tenancy on marriage.

Had the intention of the Legislature been that a female was to retain possession of the tenancy governed by the Colonization of Government Lands (Punjab) Act, 1912, only as long as she remained unmarried, one would have expected the Legislature to make that intention clear, and clauses (d) and (e) of section 20 under which even married females become entitled to the tenancy under certain circumstances would not have existed in the Act.

A. I. R. 1930 Lah. 107.

‑In 1927‑28 the land in suit was granted as a tenant under the Colonization of Government Lands (Punjab) Act, 1912, to Nur Dad, who died in 1930, leaving behind him a minor son, named Mehdi Khan, two daughters Mst. Nur Bibi and Mst. Sardar Bibi, and three brothers, Ahmad, Muhammad and Allah Dad. On the death of Nur Dad, the land was mutated on the 3rd of December 1930 in the name of his son Mehdi Khan. Mehdi Khan died while still unmarried in 1937 and the land was mutated on the 26th of June 1938 in favour of his unmarried sister Mst. Nur Bibi who in 1941 obtained occupancy rights in the land on payment of the requisite amount. Subsequently, Mst. Nur Bibi married and the land was mutated on 18th of June 1945 in the name of Ahmad, Muhammad and Allah Dad, brothers of Nur Dad, the original grantee.

On the 8th of November 1945, Mst. Nur Bibi brought the suit out of which the present appeal has arisen against her paternal uncles, Ahmad, Muhammad and Allah Dad. In the plaint it was alleged that the plaintiff was an heir of her father and entitled to the land in suit, but her paternal uncles had somehow managed to have a mutation entered in their own favour. The plaint sought a declaration that. the plaintiff, was the occupancy tenant of the land in suit and her paternal uncles had no right in it. The paternal uncles of the plaintiff, while admitting that their brother Nur Dad was the original grantee of the land, pleaded that on the death of Mehdi Khan the land was mutated in the name of the plaintiff as a sister of Mehdi Khan and not as a daughter of Nur Dad and, therefore, she had no right to the land in suit after she contracted a marriage. They further pleaded that a suit for a declaration did not lie and that Mst. Sardar Bibi, the sister of the plaintiff, who was a married woman at the time when the land in suit was mutated in favour of the plaintiff, was a necessary ,party to the suit. A replication was put in by the plaintiff under orders of the Court, in which it was pleader that Mst. Sardar Bibi had relinquished her, rights in the property in favour of the plaintiff, but she was impleaded as a defendant In a written statement put in by Mst. Sardar Bibi, it was averred that the male defendants were entitled to the land, but it Nvas added that, if it be held that Mst. Nur Bibi .had at the time of the death of Mehdi Khan succeeded as a daughter of Nur Dad,, then she (Mst. Sardar Bibi) was entitled to get half of the and as she had never relinquished her rights in the property iii favour of Mst. Nur Bibi.

The trial Court decreed the suit to the extent of one‑half of the and held that Mst. Sardar Bibi was entitled to the other half, An. appeal instituted by the three male defendants in the Court of the District Judge, Sargodha, having been dismissed, they have come to this Court in second appeal.

The first contention of the learned counsel for the appellants was that as soon as Mst. Nur Bibi contracted a marriage her rights in the property terminated irrespective of the fact whether she was in possession as the daughter of Nur Dad or the sister of Mehdi Khan, because, according to the learned counsel such termination was contemplated by the provisions of the Colonization of Government Lands (Punjab) Act, 1912. In support of this contention the learned counsel relied on some parts of sections 20 and 21 of the Act, which sections, as amended by the Punjab Act III of 1920, and the definition of the "original tenant" inserted in section 3 by the Punjab Act III of 1920 read as follows :‑

"Section 3.‑ Original tenant' means any male to whom a tenancy is first allotted by the Collector, and includes the male transferee of such a tenant and any male nominated by the Collector in accordance with the provisions of section 21 to succeed a female, to whom a tenancy was first allotted."

"Section 20‑Subject to the proviso to section 14, when, after the commencement of this Act, any original tenant dies succession to the tenancy shall devolve in the following order lineal descendants of the tenant in the male line (The term lineal descendants' shall include an hose adoption has been ratified by a 'registered.

(b) the widow of the tenant until she dies, or re‑marries, or loses her rights under the provisions of this Act ;

(c) the unmarried daughters of the tenant until they die or marry, or 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 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 (d) of this section."

"Section 21.‑When, after the commencement of this Act, any male tenant, who is not an original tenant, dies, or any female tenant dies, marries or re‑marries, 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

(b) in all other cases, on the person or persons, who would succeed if the ,tenancy were agricultural land acquired by the

The learned counsel for the appellants argued that as clauses (b) and (c) of section 20 and the opening words of section 21 lay down that a woman in possession of property governed by the Colonization of Government Lands (Punjab) Act, 1912, lost her rights in the property if she married after she had come in possession of the property, it should be presumed that the intention of the Legislature was that a woman could retain possession of the property only till the time she married or remarried, It is, no doubt, true that clauses (b) and (c) of section 20 and the opening words of section 21 say that the marriage of females mentioned therein leads to the extinction of their interests in the property, but I am of the view that the terms of these provisions of law cannot be extended to cases not covered by them. Clauses (b) and (c) of section 20 apply to cases of females who succeed on the death of an original tenant, but it is clear that Mst. Nur Bibi did not succeed to the tenancy under clause (c) of section the she would have done if neither her brother Mehdi Khan nor .the widow of her father were present at the time of the death of Nur Dad. Section 20 applies to the case of succession when it opens at the death of the original allottee, who is a male, while the case of succession to a female original allottee is governed by clause (a) of section 21 of the Act. Mr. A. R. Niazi, learned counsel for the appellants urged that it will be anomalous to hold that though Mst. Nur Bibi's rights in the property would have been extinguished if she were an original allottee governed by clause (a) of section 21, she would not lose those rights, because she came into possession at a later stage in the tenancy but as the law does make a distinction between the rights of females according to the stage of the tenancy at which they come into possession of it. I do not think that the argument of the learned counsel for the appellants has any force. Had the intention of the Legislature been that a female was to retain possession of the tenancy governed by the Colonization of Government Lands (Punjab) Act, 1912 only as long as she remained unmarried, one would have expected the Legislature' to make that intention clear, and clauses (d) and (e) of section 20 under which even married females become entitled to the tenancy under certain circumstances would not have existed in the Act.

It was next contended by the learned counsel for the appellants though only half‑heartedly, that Mst. Nur Bibi plaintiff respondent should be deemed to have come into possession of the property under clause (c) of section 20, because the heirs mentioned in the different clauses of that section were to succeed those mentioned in the previous clause, but there is no force in this connection. It is clear that, when an "original tenant", as defined in section 3 of the Act, dies, the succession devolves on the person most entitled to it under section 20, but when the succession opens on the termination of the interest of the person, who came into possession under section 20, it is governed by clause (b) of section 21 of the Act. The view I take of sections 20 and 21 of the Colonization of Government Lands (Punjab) Act, 1912, has been taken by a Full Bench of this Court in the case reported as Lehna v. Pathana (I. L. R. (1939) 20 Lah. 3 5 F. B. at p. 397) and is the only view possible on a reading of section 20 and 21 of the Act.

It was next contended by the learned counsel for the appellants that even if the case was governed by,‑clauses (b) of section 21 of the Colonization of Government Lands (Punjab) Act, 1912, Mst. Nur Bibi succeeded on the death of Mehdi Khan as a sister of Mehdi Khan and not as a daughter of lour Dad, the original tenant of the land, and, therefore, she lost her right in the property as soon as she got married. It was urged by the learned counsel that the position of a sister was much‑ weaker than that of a daughter under the Colonization of Government Lands (Punjab) Act, 1912, just as under the customary law of the Province, and, therefore, her marriage led to the extinction of her interest in the tenancy left by her mother.

In the mutation entered at the time of the death of Mehdi Khan (Ex. D. 1) Mst. Nur Bibi was described as the sister of Medhi Khan, but there is no doubt that she succeeded to the property under clause (b) of section 21 of the Colonization of Government Lands (Punjab) Act, 1912, and the property, when the succession opened at the death of Mehdi Khan, was to be deemed to be agricultural land acquired by Nur Dad, the original tanant. Learned Counsel for the appellants admitted that the tenancy was to be deemed to be self‑acquired property of Nur Dad and in view of the clear terms of clause (b) of section 21, he could not reasonably have controverted this, but he urged that, though the property was to be deemed to be self‑acquired property of Nur Dad, succession was to be to Mehdi Khan and not to Nur Dad. The contention of the learned counsel for the appellants is opposed to the wording of clause (b) of section 21, though it is supported by a decision of Mr. Alan Mitchel, Financial Comissioner, Punjab, in a case reported as Mst. Alam Khatun and others v. Mehr Wali Muhammad and others (1941 Lahore Law Times 130), which decision was not, quoted by the learned counsel. The remarks of the learned Financial Commissioner about the meaning of clause (b) of section 21 apart from, being unwarranted by the plain words of the clause were in the nature of an obitor dictum, because after considering all the facts and circumstances of the case he arrived at the conclusion that the last male holder of the property was an original tenant under a grant different from the one under which the land had been granted to his predecessor and, therefore, the decision is not entitled to much weight. A Division Bench of this Court in Khuda Dad and others v. Mst. Rabia Bibi (A. I. R. 1929 Lah. 100) has taken the view that the‑person entitled to succeed under clause (b) of section 21 of the Colonization of Government Lands (Punjab) ‑ Act, 1912, is the person, who would be the heir of the original tenant if the tenancy were the self‑acquired property of the original tenant. I am in respectful agreement with this interpretation of clause (b) of section 21 as it appears unlikely that the Legislature intended the succession to be a succession to the person on the termination of whose interest the succession had opened, while the tenancy itself was to be treated as if it were the self‑acquired property of the original tenant. No doubt, the Legislature did not mention in clause (b) of section 21 that the succession was to be succession to the original tenant, but I am of the, opinion that the fact that the property was to be treated as the property of the original tenant is a sufficient indication of the intention of' the Legislature that the succession was to be treated as succession to the original tenant. I hold, therefore, that Mst. Nur Bibi succeeded to the property as a daughter of Nur Dad, the original tenant and not as the sister of Mehdi Khan.

It was in the end contended by the learned counsel for the appellants Mst. Nur Bibi succeeded to the tenancy as she was a daughter of Nur Dad, the original tenant, under clause (b) of section 21 of the Colonization of Government Lands (Punjab) Act, 1912, she lost her right in the property by her marriage. Apart from the fact that it suffers from the defect that it is not based on any plea of the defendants‑respondents, this argument must be repelled on the short ground that there is no proof on the record that under the custom governing the parties a daughter, who has succeeded to the self‑acquired property of her father, is deprived of it is soon as she contracts a marriage. The learned counsel for Mst. Nur Bibi respondent contended that the marriage of a daughter, who has come into possession under clause (b) of section 21 of the Colonization of Government Lands (Punjab) Act, 1912, does not lead to an extinction of her rights in the property and in support of his contention he relies on Ishar and others v. Mst. Kishno and another (A. I. R. 1930 Lah. 107). Under the customary law of the Province, a daughter generally succeeds as a full owner to the self‑acquired property of her father and the decision relied upon by the learned counsel for the plaintiff‑respondent lends great support to his contention. It is, however, not necessary in this case to decide the rights of a daughter succeeding under clause (b) of section 21 of the Colonization‑of Government Lands (Punjab) Act, 1912, because the defendant‑appellants contested the suit only on the ground that Mst. Nur Bibi respondent has succeeded as a sister of Mehdi Khan and not as a daughter of Nur Dad, the original tenant.

For the reasons given above, I am of the view that the appeal has no force and I would, therefore, dismiss it with costs.

‑I agree.

A. H. Appeal dismissed.

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