NASAR H USSAIN Versus FAZAL-I-ILAHI

This second appeal arose out of a suit filed by Ahmad, deceased, now represented by his legal representatives and Mst. Fateh, appellant for declaration to the effect that the sale of the suit land by Mst. Karam Noor deceased defendant No.1, in favour of Masud Ahmad, respondent, was illegal and of no effect on their rights after the death of Mst. Karam Noor, deceased defendant No.1. This declaration was sought on the averments that Mehra was the last male owner holding the occupancy tenancy and on his death 40/45 years prior to the institution of suit, the occupancy tenancy devolved upon his widow, Mst. Karam Noor, defendant No.1. On account of payment of compensation, Mutation No.2811, dated 21‑1‑1956 was sanctioned regarding grant of proprietary rights respecting the land in question in favour of Mst. Karam Noor, widow. Another Mutation No.2812, dated 21‑1‑1956 was also sanctioned showing extinction of occupancy tenancy. The widow Mst. Karam Noor, then sold the land through registered sale‑deed EXh.D.l dated 7‑10‑1958 in favour of Masood Ahmad, respondent. The Muslim Law heirs filed the instant suit on 21‑1‑1959. The suit was resisted by Masood Ahmad, respondent /vendee by raising various preliminary objections and asserting that Mst. Karam Noor was the full owner of the land in question and as such could validly alienate the land in dispute. It was averred that the sale was for legal necessity and for consideration. The learned trial Court after framing necessary issues and recording the evidence produced by the parties, dismissed the suit vide judgment and decree, dated 11‑5‑1961 holding that the sale was for consideration and legal necessity. This decree was challenged by Ahmad and Mst. Fateh by filing an appeal. Some of the legal heirs were also impleaded as respondents alongwith Mst. Karam Noor and Masood Ahmad. This appeal was also dismissed by the learned Additional District Judge, Jhelum at Gujrat vide judgment and decree, dated 15‑12‑1965. The learned lower appellate Court confirmed the finding of the learned trial Court that the sale was for legal necessity and with consideration. This led to the filing of the present second appeal.

2. I have heard the learned counsel for the parties and have also gone through the record. The questions (i) whether a life‑estate holder under the unamended provisions of section 59 of the Punjab Tenancy Act, 1887 has, under the amendments (of 1951 and 19,52) acquired the full right of ownership in an occupancy holding to the exclusion of the other Muslim Law heirs of the last male owner; and (ii) whether the holder of a limited life estate under unamended section 59 of the Punjab Tenancy Act could alienate property taken by her in such a limited right without restriction, were finally decided by the Supreme Court in Rabnawaz v. Jahana P L D 1974 S C 210. it was held that it was not the intention of the Legislature to constitute a widow succeeding to her husband under the unamended section 59, an absolute owner of the entire holding under section 114 of the Act, so as to become a fresh stock of descent excluding the Muslim Law heirs of her husband. It was further observed that any such conclusion cannot otherwise be sustained on a proper interpretation of section 114. The life interests were terminated by law under the Muslim Personal Law (Shariat) Application Act, 1962 with effect from 21st November, 1963.

3. The net result of the above discussion is that Mst. Karam Noor did not acquire absolute ownership on acquisition of the proprietary rights in the holding under section 114 of the Act. Consequently, the sale made vide sale‑deed EXh.D.l, dated 7‑10‑1958 will hold good to the extent of Mst. Karam Noor's Muslim Law share in the estate of her deceased husband. Therefore, the impugned sale in favour of Masud Ahmad, respondent to the extent of 1/4th share of the widow would be valid and the impugned sale shall not affect the appellants' right of inheritance to the extent of remaining 3/4 th share as residuaries of Mehra deceased. The declaration in the aforesaid terms is hereby granted. The appeal thus stands partly accepted. The parties are, however, left to bear their own costs.

H.B.T./N‑93/L Appeal partly accepted.