ABDUL STTAR Versus SETTLEMENT AND REHABILITATION COMMISSIONER (LAND)

The present petition has been filed by Abdul Sattar son of Allahdia to impugn an order of the Settlement Commissioner (Lands) dated 3‑1‑1967, whereby transfer of agricultural land in favour of respondent Major Mohd. Bux, was upheld. In order to understand the controversy in the case it is necessary to state the relationship between the private parties in this petition. Mst Naimoo, originally a resident of Gurgaon District, East Punjab was married to one Mansoor Ahmed Khan in India. The latter died issueless in 1945. In 1946, Mst. Naimoo remarried Allahdia. Petitioner Abdul Sattar as well as respondents Abdul Sattar Khan and Aysha Begum are the children of Mst. Naimoo through Allahdia. On the other hand respondent Major Mohammad Bux is the sister's son of Manzoor Ahmed Khan, the first husband of Mst. Naimoo and by such relationship claims to be the only heir of his, in absence of any other sharer or residuary. Respondents Mohammad Sarwa‑ Khan and others (respondents Nos. 2 to 10 and 12) also claim to be the heir of Manzoor Ahmed Khan but their entitlement was rejected by the Settlement Commissioner (Lands) on the basis of the Shajra Nasab which was received from India.

2. On the death of Manzoor Ahmed Khan in 1945, the agricultural property standing in his name in Gurgaon was mutated in the name of Mst. Naimoo, After Partition such documents were received in the Central Record Office. Although such documents do not show Mst. Naimoo as a limited owner within the concept of customary law prevailing in Gurgaon, It is stated by Mr. Kanwar Mukhtar Ahmed, the learned Advocate for the petitioner that the property borne on the records in the name of Mst. Naimoo was non; other than the property of her previous husband Manzoor Ahmed Khan, whereof she was the limited owner or interest‑bearer in accordance with the customary law which prevailed in Gurgaon and governed the parties in the matter of inheritance.

3. After Partition, the parties came to Pakistan. Mst. Naimoo begot three children through her second husband Allahdia. These children are the petitioner Abdul Sattar, and respondents Abdul Sattar Khan and Aysha Begum. The latter two were impleaded in the amended petition which was filed after the death of Allahdia.

4. It is then the case of the petitioner that respondent Major Mohammad Bux obtained the Fard‑i‑Haqiat in the name of Mst. Naimoo from the petitioner on the pretext that he would get land allotted in lieu of claim of Mst. Naimoo in her favour ; but the respondent got the land in his own favour by persuading the Assistant Rehabilitation Mukhtiarkar to allot the land in his name for the reason of the respondent being the reversioner in regard to the estate of Manzoor Ahmed Khan. The petitioner and respondent Aysha then challenged such allotment in favour of respondent Major Mohammad Bux by filing an appeal before the Deputy Collector and Deputy Settlement Commissioner (Land), Shahdadpur, who by an order dated 27‑2‑1965 allowed the appeal by cancelling the order of allotment in favour of Major Mohammad Bux. The Deputy Settlement Commissioner was of the view that para. 46‑A in West Pakistan Rehabilitation Settlement Scheme would be attracted only if the widow was a limited owner but since the Fard‑I‑Haqiat disclosed that Mst. Naimoo was Ham Naqdar i.e. person entitled, she did not inherit a limited estate. It was further stated by the Deputy Settlement Commissioner that Punjab Muslim Law (Shariat) Application Act, 1948, had no retrospective operation.

Respondent Major Mohammad Bux filed an appeal before the Settlement 'Commissioner (Lands), which was accepted by an order dated 29‑12‑1965, to the extent that the order of Deputy Settlement Commissioner (Lands) was set aside and the case was remitted to the said officer for determination of the interest of Mst. Naimoo, as well as the status of respondent Major Mohammad Bux. The contentions raised before the learned Settlement Commissioner were in regard to the nature of interest of Mst. Naimoo in the property of Manzoor Ahmed ; the effect of her marriage on her interest in the property ; and the effect of Para. 46‑A of the West Pakistan Rehabilitation Settlement Scheme. On behalf of the petitioners it was averred before the Settlement Commissioner (Lands) that customary law was not in effect in Gurgaon. It was further averred that the Fard‑i‑Haqfat did not describe Mst. Naimoo as a limited owner.

On the case being remanded the Deputy Settlement Commissioner (Lands) called for a report in regard to the entries in the documents received from India, from the Central Record Office, and such report disclosed that custo mary law governed the matter of inheritance in the case and further that the property in India stood in the name of Manzoor Ahmed, but mutation was effected in favour of Mst. Naimoo in 1948. The learned Deputy Settlement Commissioner came to the conclusion that in accordance with customary law, Mst. Naimoo had only a limited interest in the property of Manzoor Ahmed and such interest was also divested by reason of her re‑marriage. The learned officer came to the conclusion that respondent Major Mohammad flux was the sole reversioner of Manzoor Ahmed. The case was thus decided against the petitioner and the co‑heirs of Mst. Naimoo.

The petitioner and other co‑heirs of Mss. Nairqoo then filed an appeal before the Settlement Commissioner (Lands) and respondents Nos. 3 to 10 and in the present petition also joined as appellants. This latter group set up a case that they were heirs of Manzoor Ahmed. Two points were raised for determination and the same were these :‑

"(a) Whether Mohammad Sarwar Khan and others are the legal reversioners of the late Manzur Ahmed Khan.

(b) Whether Abdul Sattar and Mst. Aisha Begum would inherit any portion of the property according to Shariat Law being the son and daughter of Mst. Naimoo as laid down in proviso to para. 46‑A of the Rehabilitation Settlement Scheme." ,

The learned Settlement Commissioner came to the conclusion that Mohammad Sarwar Khan and others (respondents 3 to 10 and 12 in this petition) were not heirs of Manzoor Ahmed. The Shajra Nasab of Manzoor Rasulpur. Tehsil Rewari, District Gurgaon, was relied upon by the Settlement Commissioner for arriving at such conclusion. In regard to respondent Major Mohammad Bux, the learned Settlement Commissioner came to the conclusion that as maternal uncle of Manzoor Ahmed he fell within the group of distant kindered, and in absence of sharers and residuaries he was entitled to inherit. In regard to the second issue the Settlement Commis sioner came to the conclusion that Mst. Naimoo stood divested of her rights owing to remarriage and Shariat Law having been enacted in 1948, viz. after the remarriage, did not save any interest in favour of Mst. Naimoo. On such view of the matter the Settlement Commissioner decided the case in favour of respondent Major Mohammad Bux. The present petition seeks to challenge this order of the Settlement Commissioner. I may state that the Deputy Settlement Commissioner (Lands) who had initially passed the order adverse to the petitioner and co‑heirs is not impleaded as a respondent, although a relief in form of a declaration that his order is illegal has been claimed. Counter‑affidavits have been filed but the same do not call for any lengthy reference.

5. I have heard Mr. Kunwar Mukhtar Ahmed for the petitioner and Mr. Khalid Ishaque, for respondent Major Mohammad Bux. Mr. S. A. Nusrat, appearing for respondents 2 to 10 and 12 has stated that as long as the impugned order was in the field, he could get no relief ; and for such reason has further stated that in case the impugned order was set aside, he would advise his clients to seek relief in an ordinary civil Court. The respondent Settlement Commissioner has not defended the petition. Respondents Abdul Sattar Khan and Aysha, who claim they are co‑heirs with petitioner Abdul Sattar have remained absent.

6. The primary point in the case is as regards the nature of interest or right which Mst. Naimoo had in the agricultural property abandond by her in Gurgaon. In the petition it is stated that the agricultural land held by Manzoor Ahmed had "devolved upon" Mst. Naimoo and the record was mutated showing her as "Haq Namdar". On that aspect of the case, the learned Advocate for the petitioner has stated before me that barring the fact that Mst. Naimoo was the wife of Manzoor Ahmed, there was no extraneous or independent justification underlying mutation in favour of Mst. Naimoo. On such facts the conclusion is inescapable that the parties were governed by customary law, which provided that in absence of male children, the property would devolve on the widow, although she obtained only a limited interest or life‑interest, which would on her death pass to the heirs of her deceased husband, for under customary law a widow cannot form a fresh stock of descent. Similarly in case of remarriage of the widow, on the notion of her holding property as a representative of her husband, the widow gets divested of her rights in the property even to the extent of life‑interest. Such conceptions in customary law of inheritance is akin to the Hindu Law of Inheritance and Hamoodur Rehman, C. J. in the case of Additional Settlement Commissioner v. Mohammad Shafi (P L D 1971 S C 791) had examined the point and recorded his conclusions in the following words :-

"It appears to me that in order to ascertain the true nature of the capacity under which a widow holds the lands of the last male owner under custom and receives lands in Pakistan on migration one has first to get a clear picture of the concept of a female's estate under custom. Merely saying that she is the present owner of the estate having absolute power of enjoyment over it, that she is not account able to anyone as long as she is alive or her estate is not terminated and that no one else has any vested interest in it till then is not enough. One must first try to appreciate as to why this is so. It is now well settled that a female's estate under the Hindu Law (vide Rattigan's Digest of Customary Law, 13th Edition, page 787). If so then under Hindu Law the true concept of a widow's estate is that she notionally represents her husband, as if, her deceased husband is, for the purposes of the management and user of his properties, kept alive in her, and it is for the reason that it is said that during the time the widow is alive or does not remarry, the whole estate of her husband vests in her absolutely as if the husband is for all intents and purposes alive in her. `Estate Law' according to J. D. Mayne, `Knows nothing of estates for life, or in tail, or in fee. It measures estates not by duration but by use The restrictions upon the use of an estate inherited by a woman are similar in kind to those which limit the powers of a male holder, but different in degree. The distinctive feature of the estate is that at her death, it reverts to the heirs of the last male owner. She never becomes a fresh stock of descent'." Mr. Khalid Ishaque heavily relied on such observations and has urged before me that since Mst. Naimoo inherited only a limited or widow's estate, the same cannot devolve on her children through Allahdia, the second husband, but must revert to the heirs of Manzoor Ahmed. In so far as that point is concerned, the same although appearing conclusive, is not concluded because of para. 46‑A of the West Pakistan Rehabilitation Settlement Scheme, to which aspect of the case I will advert presently. I would only record that on facts it is established and concurrently held by the Additional Settlement Commissioner as well as the Deputy Settlement Commissioner that the land in lieu of which a claim was preferred belonged to Manzoor Ahmed, that Mst. Naimoo obtained mutation only in her capacity of the widow and that Mst. Naimoo did remarry with Allalidia. Such findings are not open to exception and are to a great measure admitted on behalf of the petitioner.

7. The next point of controversy before me is as to the benefit which extends to the petitioner and the co‑heirs of Mst. Naimoo on consideration of para. 46‑A of the Rehabilitation Settlement Scheme. Para, 46‑A contemplates radical and far‑reaching changes in the law of devolution of interest on claimants in case where such claimants and their heirs followed customary law in India. It reads as follows :‑

"46‑A. In respect of agricultural property held by a Muslim female as a limited owner under the Customary Law succession shall be deemed to 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 Shariat Law been applicable at 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 persons had died at the termination of the limited interest of the female and had been governed by the Shariat Law:

Provided that the share which the female limited owner would have inherited had the Shariat Law 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 if her limited interest terminates because of death (Reference section 3 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948).

The legal validity of the provision was considered by a Full Bench of the erstwhile High Court of West Pakistan at Lahore ; and on appeal by the Supreme Court, in the case of Basso v. Rehabilitation Commissioner (Lands) and another (P L D 1963 S C 347). A question had arisen as to validity of Para. 46‑A and even Para. 46 (which also deals with identical points) on the premises whether the retrospective effect contemplated by these provisions did not! materially alter the process of inheritance, be it even among Muslims following customary law and the Supreme Court held, agreeing with the Full Bench at Lahore, that the provisions related to resettlement of refugees rather than determination of inheritance and for such reason the provisions were valid and were followed.

Para. 46‑A of the Scheme clearly states that succession in respect of agricultural property held by a female as limited owner "should be deemed" to open on termination of her limited interest in favour of the legal heirs but the proviso further states that the female owner, who would otherwise lose her, limited interest in property by reason of remarriage, would still inherit in a manner as if Shariat Law were applicable. This would show that in regard, to devolution, regardless of the widow re‑marrying, she would get the same share as under Shariat Law, and such provision would have its full effect despite the remarriage taking place in India before Partition. In such regard Mr. Khalid Ishaque has urged before me that Mst. Naimoo having remarried in 1946, by operation of customary law, she stood divested of the rights to property even in that limited sense. This argument cannot be accepted by me because the provision embodied in para. 46‑A, although prospective in effect, relates to events and circumstances of the past and the proviso makes the position very clear. The intention of the framer of the scheme is indeed evident from the words in the proviso which makes no distinction in cases' where remarriage takes place, about mutation, even in Pakistan. In fact time does not appear to be material in the context in the face of the plain words of the proviso to para. 46‑A of the Scheme. The position is clarified by they Supreme Court in the case of Basso and it would be useful to reproduce the following passage from the said judgment :

"In our opinion, the learned Judges are right in distinguishing between those cases where rights were settled on the basis of records available in India prior to the Partition, and those in which on account of such an incident as death or re‑marriage, etc. there has been devolution of rights, and it falls to the Rehabilitation Authorities in Pakistan to decide upon whom the rights devolve. In the latter case, the duty of the Rehabilitation Authorities under the Scheme, which possesses legal force, is to deal with the cases as if the rights in the estate devolved under the law of Shariat, irrespective of any special law by which the parties were governed in India. That rule which is laid down in paragraph 46 should apply in the case of the estate of Sadhu, notwithstanding that he lost his life in India. For the purpose of determining the basis upon which his successors could be given relief under the Scheme in Pakistan, the shares of these successors in the rights which Sadhu possessed until his death must be determined according to Shariat Law." _

The position is indeed clear that Para. 46‑A seeks to apply Shariat Law even in circumstances when remarriage took place in India. On such view of the case the conclusion is inescapable that Mst. Naimoo despite remarriage was entitled to inherit from the estate of Manzoor Ahmed, in accordance with the Shariat Law, and such rights devolve on the petitioner, who is her son and any other heirs that she may have left.

7. The learned Advocate for the petitioner had urged before me that respondent Major Mohammad Bux had obtained the allotment in his favour by misrepresenting to Mst. Naimoo and the petitioner that the allotment would be contained in favour of Mst. Naimoo. This point was not developed but it seems clear on the record that the claim for compensation was never filed by Mst. Naimoo, who had in fact parted with the Fard‑i -Haqiat by giving the same to Mohammad Bux respondent. Mr. Khalid Ishaque has argued that such conduct in parting with the Fard‑i‑Haqiat was at least proof presumptive of the fact that Mst. Naimoo had considered respondent Major Mohammad Bux to be entitled to compensation on account of property abandoned in India. In regard to respondent Major Mohammad Bux, being the sole heir of Manzoor Ahmed (subject of course to rights of Mst. Naimoo) the point stands determined as a fact by the Additional Settlement Commissioner and no adverse inference need be .recorded, one way or the other. I must however state that the status of Major Mohammad Bux as an heir was not challenged before the Additional Settlement Commissioner.

8. The last point then is as to relief. The order of the Additional Settlement Commissioner in so far as it relates to the entitlement of Mst. Naimoo by virtue of para. 46‑A of the Rehabilitation Settlement Scheme would require consideration and determination in the light of observations in this judgment. I set aside the order of the Additional Settlement Commissioner and direct that he should take up the case again and determine the entitlement of Mst. Naimoo in accordance with Shariat Law as enjoined by Para. 46‑A of the Scheme. Such entitlement would of course devolve on her heirs. The petition is allowed to the extent indicated but there shall be no order as to costs.

K. B. A. Petition partly accepted Case remanded.