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Second Civil Appeal No. 52 of 1962, decided on 10th May 1963.

S. 59 [as amended by Punjab Tenancy (Amendment) Act (IV of 1951)]‑Section refers only to widow succeeding after amendment‑Widow succeeding to estate before amendment‑Not competent to alienate estate by way of sale.

P L D 1960 Lah. 427 ref.

S. 59‑Sale of occupancy rights by widow‑Can be challenged by reversioners on ground of sale being void.

A I R 1940 Lah. 364 ref.

M. Y. Cheema for Appellants.

Raja Muhammad Aslant Khan for Respondents.

This is a second appeal against the judgment and decree of the District Judge, Mirpur dated 31‑7‑1962 whereby the judgment and decree of the Sub‑Judge, Kotli dated 12‑7‑61 dismissing plaintiff‑appellant's suit for joint possession of the suit land was upheld.

According to the plaintiff‑appellants Mst. Muhammad Begum Respondent No. 12 had sold her occupancy rights in the suit land to Respondent No. 13 by a registered deed dated 28‑1‑1953 who in turn sold the same to the plaintiff‑appellants by virtue of the sale deed dated 5‑8‑55. Since according to the plaintiff appellants the respondents 1 to 6 the co‑sharers of respondent No. 12 were not parting with the possession in favour of the plaintiffs hence the suit for joint possession. The contesting defendants 1 to 6 contested the suit on several grounds including the one that Mst. Muhammad Begum respondent No. 12 having inherited occupancy rights as a limited owner was not compe tent to alienate the same in favour of respondent No. 13. As many as 4 issues were framed by the Sub‑Judge but we reproduce only issues Nos. 1 and 3 which are relevant at this stage:‑

Issue No. (1).‑Whether defendant No. 12 Mst. Muhammad Begum had a limited interest as an occupancy tenant of the suit land, if so what is its effect on the suit O. P. D.

Issue No. (3)‑Whether defendant No. 12 was not competent to sell the occupancy rights, if so, how and what is its effect on the present suit O. P. D.

The Sub‑Judge found both the issues in favour of the contesting defendants Nos. 1 to 6 and held that Mst. Muhammad Begum having inherited occupancy rights under section 59 of the Tenancy Act, was not competent to sell the same. This finding was upheld by the District Judge by order dated 31‑7‑62. The appellants have now come in second appeal to this Court against the judgment and decree of the District Judge, Mirpur. The learned counsel for the appellants argued that section 59 of the Tenancy Act had since been amended and the new amended section had removed the bar from a widow who inherits the occupancy rights under that section to alienate the same by way of sale, gift or mortgage etc. and therefore the respondent No. 12 was per fectly within her rights when she sold the occupancy rights to respondent No. 13. In support of this contention he quoted P L D 1960 Lahore 427 but on close perusal of this authority we find that this authority goes contrary to the interest of the plain the appellants. In this authority it has been clearly held that if a widow succeeded to the estate under unamended section 59, which said that she will occupy the lands till death or rem rriage and will not alienate it except as a lease for a year or less, than unless the amendment had the effect of improving her powers of alienation, such powers will have to be governed under section 59 (3). The amended section refers only to the widow' who succeeds after the amendment. In the present case the respondent No. 12 has acquired the occupancy rights under the unamended section 59 and therefore under clause 3 of that section she was not competent to alienate the occupancy rights as she; has done in the present case. Another point raised by the learned counsel for the appellants is that the sale‑deed being voidable at the option of the landlord the plea that the respondent No. 12 was not competent to alienate the occupancy rights could not be raised by defendants Nos. 1 to 6 in defence in the present suit as reversioners, and for this purpose they should have filed a separate suit for declaration. We do not accept this contention of the learned counsel for the appellants as well because in our view the sale of occupancy rights by respondent No. 12 is not merely voidable but void because under the unamended section 59 of the Tenancy Act, which is applicable to this case, she was not competent to affect such a sale. We are also of the view that reversioners can challenge such a sale which is void. We find support of our view in A I R 1940 Lah. 364. As there is no I force in this appeal the same is dismissed with costs.

K. B. A./A. H. Appeal dismissed.

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