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Second Appeal No. 504 of, 1956, decided on 11th July 1962.

read with Code of Civil Procedure (Amendment) Ordinance (XLIV of 1962), S. 59 (4)‑Second Appeals pending at time of coming into force of Ordinance‑Treated as revision petitions.

[as amended by Punjab Tenancy"' (Amendment) Act (IV of 1951)], S. 59‑Prospective and not retrospective in operation‑Widow inheriting limited right in occupancy tenancy before amendment of section‑Governed by subsection (3) of S. 59 as it stood before its amendment in' 1951 Such widow does not possess power to transfer occupancy tenancy for period exceeding one year.

M. Naqi Chowdhury for Appellant.

Sarfraz' Ahmad for Respondents Nos. 4 to 6.

M. H. Hafeez for other Respondents.

Date .of hearing : 25th June 1962.

This order will govern not only this appeal but Regular Second Appeal No. 505 of 1956 as well not only because the appellant in both these appeals is the same but also because the question of law that requires determination in the two appeals is precisely the same.

2. Each of the two appeals is directed against the decision of the Additional District Judge, Sialkot, which confirmed that of the trial Court. The point involved was whether a widow in possession of occupancy rights in a piece of land was entitled to dispose of those rights. Briefly the facts are that Mst. Jiwani widow of Wadhawa and Mst. Begum widow of Budha sold occupancy rights in the land in dispute to the landlords on the 12th of March 1953, who in their turn sold the land to Muhammad Shafi on the 26th of March 1953. Two suits were brought by Mehr Bhola and Muhammad Husain son of Nur Ahmad for a declaration that the transfers by the widows will not affect their reversionary rights in the property. During the pendency of the suits, Mst. Jiwani, one of the widows who had transferred the property, died and the suits were, therefore, changed to suits for possession in so far as the property sold by Mst. Jiwani was concerned. Both the suits were decreed by the learned trial Judge whose decision, as already mentioned, was upheld on appeal by the Additional District Judge, Sialkot, against whose judgments appeals were presented. These appeals were pending at the time of coming into force of the Pakistan Ordinance.(XLIV of 1962and, therefore, are to be treated as revision petitions under sub‑1A section (4) of section 59 of the above‑mentioned Ordinance.

3. At the time the transfers by the two widows in favour of the landlords were made on the 12th of March 1953, section 59 of the Punjab Tenancy Act, after its amendment by the Punjab Tenancy (Amendment) Act, 1951 Punjab Act (IV of 1951), which came into force on the 23rd of January 1951, stood as follows :‑

"(1) When a Muslim tenant having a right of occupancy in any land dies, the right shall devolve on his heirs in accord ance with the provisions of the Muslim Personal Law (Shariat):

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 the death of the last full owner had the Muslim Law (Shariat) been applicable at 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 successors existing at the time of the termination of the limited interest of the female as if the aforesaid such person had died at the termination of the limited interest of the female and had been governed by the Muslim Personal Law (Shariat):

Provided further that the share which the female limited owner would have inherited had the Muslim Personal Law (Shariat) been applicable at the time of the death of the last full owner shall devolve on her if she loses her limited interest in the property on account of her marriage or remarriage and on her heirs under the Muslim Personal Law (Shariat) if her limited interest terminates because of her death.

(2) When a non‑Muslim tenant having a right of occupancy dies, the right shall devolve‑

(a) on his male lineal descendants, if any, in the male line of descent ; 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) or (c) of this subsection, on his male collateral 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 subsection, that the common ancestor occupied the land.

Explanation.‑For the purpose of clause (d), land obtained in exchange by the deceased tenant or any of‑his predecessors‑in- interest in pursuance of the provisions 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.

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

(4) When the widow of a deceased tenant succeeds to a right of occupancy under subsection (2), she shall not transfer the right by sale, gift or mortgage or by sub‑lease for a term exceeding one year.

(5) If a deceased tenant has left no person on whom his right of occupancy may devolve under subsection (1) or subsection (2), as the case may be, the right shall be extinguished."

While before this amendment, the section reads as follows: ‑

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

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

(b) failing such descendants, on his widow, if any, until she dies or re‑marries or abandons the land or is under the pro visions of this Act ejected therefrom ; and

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

(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) or (c) of this subsection, on his male collateral 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 subsection, that the common ancestor occupied the land.

Explanation.‑For the purpose of clause (d) land obtained in exchange by the deceased tenant or any of his predecessors -n‑interest in pursuance of the provisions 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 subsection (1), the right shall, subject to the provisions of that subsection, devolve as if 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 sub‑lease 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 that subsection, the right shall be extinguished."

4. It was contended by learned counsel for Muhammad Shall, who is the appellant in both the appeals, that as sub section (3) of section 59 of the Punjab Tenancy Act, as it stood before the amending Act of 1951, contained a prohibition against a widow transferring the occupancy rights which had come to her, but the contents of that subsection did not find any place in the amended section introduced by the Punjab Tenancy (Amendment) Act, 1951, the result of the amending Act of 1951 was that the restrictions on the power of a widow to make an alienation of occupancy rights had been wiped off and, therefore, the alienations which were the subject of suits out of which the present proceed ings arise were perfectly valid, but as I will presently show this contention cannot be accepted.

5. It is true that section 59 of the Punjab Tenancy Act, as amended, does not contain a clause restricting the power of aliena tion of a Muslim widow in regard to occupancy rights as the original section did in regard to all widows, but I am clear in my mind that the rule which applies to alienations of land held under custom which is to the effect that the person who got lard under a particular system of law would continue to hold it subject to the restrictions contained in that system of law in spite of the fact that ‑the law had been changed in so far as powers to deal with the property after the new law had come into force were concerned, would be equally applicable to transfer of occupancy rights by widows. It need hardly be mentioned that it has been authoritatively laid down that the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, as amended from time to time, did not change customary rights in property into full ownership from the date of its enactment, and I am clear iii my mind that the same principle applies to cases which fell within section 59 of the Punjab Tenancy Act, as it stood before its amendment by the Act of 1951. Moreover; as worded, section 59 of the Punjab Tenancy Act'; as amended by means of Punjab Tenancy (Amendment) 'Act of 1951, clearly indicates that it is prospective and not retrospective in its application as would be clear from the first subsection of the amended section which deals with situations that would arise after the section came info force. This means that if a widow inherited occupancy rights after the passing of the Punjab Tenancy (Amendment) Act of 1951, she would not be governed by subsection (3) of section 59 'of the Punjab Tenancy Act as it stood before it was amended inA951, by means of the abovementioned Act, but from this it is not permissible to infer that by reason of the amendment of section 59 of the Punjab Tenancy Act in 1951, her limited right in an occupancy tenancy which had come to her before the amendment changed into rights of a full owner of the occupancy 'rights.

6. In view of what I have said above, I hold that the widows did not possess the power to transfer the occupancy tenancy for a period exceeding one year. The result therefore,' is that both the; appeals are dismissed but as the point of law which arose had not been authoritatively decided by this Court or the Supreme Court of Pakistan, and there could be ground for believing that the transfer were valid, I would leave the parties to bear their own costs in all the courts.

K. B. A.

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